HomeMy WebLinkAbout2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 013 - ANSWER AND JURY DEMAND - LISA BUTLER AND THE CITY OF FORT COLLINSDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
(970) 494-3500
COURT USE ONLY
Plaintiff: JOSHUA HOLOWCZENKO
v.
Defendants: LISA N. BUTLER, an individual, CITY OF
FORT COLLINS, a municipal corporation, and LORI S.
MARTIN, an individual
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone & Fax Number: (970) 482-4011
Case No.: 2021CV30613
Division: 5A
ANSWER TO PLAINTIFF’S COMPLAINT AND JURY DEMAND
COMES NOW, Defendants, Lisa N. Butler and City of Fort Collins, by and through their
attorneys, Andrew W. Callahan of Wick & Trautwein, LLC and for their joint answer Plaintiff’s
Complaint state as follows:
FIRST CLAIM FOR RELIEF
(Negligence of Defendant Lisa N. Butler)
1. With regard to paragraph 1 of the Complaint, Defendants admit a collision occurred
between a municipal bus operated by the City of Fort Collins (hereinafter the “City”) and an
automobile driven by Defendant Lori Martin on October 19, 2019. Defendants deny Plaintiff
suffered any personal injuries arising out of this collision.
2. Defendants admit the allegations in paragraphs 2, 3, 4, 5, 6 and 7 of the Complaint.
DATE FILED: September 17, 2021 8:42 AM
FILING ID: DE9E5A78EC032
CASE NUMBER: 2021CV30613
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3. In response to paragraph 8, Defendants admit that Ms. Butler was operating a Fort
Collins municipal bus in the course and scope of employment with the City of Fort Collins.
Defendants further admit the bus was traveling southbound on College Avenue transitioning from
the right lane to the through left lane while approaching West Oak Street. Defendants deny the
remaining allegations of paragraph 8 and specifically deny that Defendant Butler was in any way
negligent in the operation of the bus at all times relevant herein.
4. In response to paragraph 9, Defendants admit venue and jurisdiction are proper in
Larimer County, Colorado.
5. Defendants deny the allegations contained in paragraphs 10 and 11 of the
Complaint.
SECOND CLAIM FOR RELIEF
(GIA liability, Respondeat Superior as to Defendant City of Fort Collins)
6. In response to paragraphs 12, Defendants incorporate their responses to the above
allegations as if set forth herein.
7. Defendants admit the allegations in paragraph 13 of the Complaint.
8. Defendants admit that Defendant Butler was an employee of the City of Fort Collins
and acting within the course and scope of her employment at the time of the incident complained
of. Defendants specifically deny that Defendant Butler was negligent in any way or at fault for
the collision at issue in this case.
9. In response to paragraph 15, Defendants admit that they were served with a
statutory Notice of Claim within the time limits set forth b y C.R.S. §24-10-109. Defendants deny
the remaining allegations in this paragraph.
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10. In response to paragraph 16, Defendants admit that Plaintiff has filed a statutory
Notice of Claim within the time limits set forth in C.R.S. §24-10-109, but deny the remainder of
the allegations contained in this paragraph.
11. In response to paragraph 17, Defendants admit that C.R.S. §24-10-106(1)(a) waives
sovereign immunity for the operation of a motor vehicle, including the bus at issue in this case,
but to the extent that this collision was the result of some cause other than the negligence of
Defendant Butler, deny that Governmental Immunity has been waived.
12. In response to paragraph 18, Defendants admit that the City of Fort Collins is liable
under the theory of respondeat superior for any proven negligence of Defendant Butler, but denies
that Defendant Butler was negligent in this case and denies that Plaintiff suffered any injuries as a
result of this accident.
THIRD CLAIM FOR RELIEF
(Negligence of Defendant Lori Martin)
13. Defendants incorporate their responses to the above allegations as if set forth
herein.
14. In response to paragraph 20 of the Complaint, Defendants admit that Defendant
Martin was operating a 2017 Nissan SUV southbound on College Avenue in the left through lane
as it approached West Oak Street, and admits that it was traveling in front of the bu s operated by
Defendant Butler. Defendants admit that Defendant Martin suddenly slammed on her brakes when
a vehicle began to reverse out of the center parking lane on south College Avenue without warning
in front of Defendant Martin. Defendants lack sufficient information to make a determination as
to whether or not Defendant Martin’s actions in operating her vehicle were negligent at the time
of the accident, and therefore deny the remaining allegations in this paragraph.
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15. Defendants deny the allegations in paragraph 21.
16. In response to paragraph 22 of the Complaint, Defendants deny that the accident at
issue in this case caused Plaintiff to suffer any bodily injuries.
AFFIRMATIVE DEFENSES
1. Plaintiff has received or will receive funds from a collateral source as defined by
C.R.S. §13-21-111.6 for Plaintiff may not receive double recovery.
2. Plaintiff’s claims for damages are limited by C.R.S. §13-21-102.5.
3. Plaintiff’s claims are governed and limited by the Colorado Governmental
Immunity Act, C.R.S. §24-10-101, et seq.
4. Plaintiff has failed to mitigate his damages.
5. Plaintiff’s injuries, if any, are the result of the negligent acts and omissions off a
non-party at fault, namely an unknown motorist who pulled out of the center parking lane on
southbound College Avenue without warning directly in front of Defendant Martin, causing
Defendant Martin to slam on her brakes to avoid a collision.
6. Defendants reserve the right to add or delete affirmative defenses in the future as
appropriate.
WHEREFORE, Defendants respectfully pray the Court enter judgment in favor of
Defendants and against Plaintiff and award Defendants their reasonable attorney’s fees, expert
witness fess, costs and further relief as the Court shall deem just and proper.
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JURY DEMAND
Defendants hereby demand a trial to a jury of six on all issues herein. The statutory jury
fee is remitted herewith.
Respectfully submitted this 17th day of September, 2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Attorneys for Defendant Butler and
City of Fort Collins
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing ANSWER TO
PLAINTIFF’S COMPLAINT AND JURY DEMAND was filed with the Court via Colorado
Courts E-filing System (CCES) this 17th day of September, 2021 and served on the following:
Michael P. Fossenier
Law Office of Michael Fossenier, LLC
4100 E. Mississippi Ave., 19th Floor
Denver, CO 80246
Jeremy Rosenthal
Law Firm of Jeremy Rosenthal
4100 E. Mississippi Ave., 19th Floor
Denver, CO 80246
Cordia M. Perez
Stuart S. Jorgensen & Associates
11080 Circle Point, Suite 400
Westminster, CO 80020
/s/ Jody L. Minch ___