HomeMy WebLinkAbout2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 001 - PLAINTIFF'S COMPLAINT AND JURY DEMANDDISTRICT COURT, LARIMER COUNTY,
STATE OF COLORADO
Larimer County Justice Center
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
(970) 494-3500
▲Court Use Only▲ Plaintiff: JOSHUA HOLOWCZENKO
v.
Defendant: LISA N. BUTLER, an individual, CITY
OF FORT COLLINS, a municipal corporation, and
LORI S. MARTIN, an individual.
Attorneys for Plaintiff:
LAW OFFICE OF MICHAEL FOSSENIER, LLC
Michael P. Fossenier, Esq., #17804
4100 E. Mississippi Avenue, 19th Floor
Denver, CO 80246
720-495-7029 Phone
+1-720-223-3440
Email: mike@fozlaw.com
Jeremy Rosenthal #34538
Law Firm of Jeremy Rosenthal
4100 E Mississippi Avenue, Floor 19
Denver, Colorado 80246
Phone: (303) 825-2223
Fax: (303) 825-2224
E-mail: Jeremy@LFOJR.com
Case Number: 2021CV
Courtroom/Division:
PLAINTIFF’S COMPLAINT
COMES NOW, the Plaintiff, Joshua Holowczenko, by and through his attorneys, Michael
P. Fossenier, Esq., of the Law Office of Michael Fossenier, LLC, and Jeremy Rosenthal, Esq., of
the Law Firm of Jeremy Rosenthal, and alleges, avers and states as follows:
DATE FILED: August 23, 2021 9:21 AM
FILING ID: FABC0078B8806
CASE NUMBER: 2021CV30613
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FIRST CLAIM FOR RELIEF
(Negligence of Defendant Lisa N. Butler)
1. This is a tort action to recover compensatory damages for, or as a consequence or result of,
certain personal injuries suffered, experienced, or sustained by Plaintiff arising out of, or
in connection or association with, a certain bus-automobile accident which occurred in the
City of Fort Collins, Larimer County, Colorado on October 19, 2019.
2. At all times relevant, Plaintiff has resided in, and continues to reside in Larimer County,
Colorado.
3. Upon information and belief and at all times relevant, Defendant Lisa N. Butler
(“Defendant Butler”) is and was a resident of 403 Monico Gardens Drive, Evans, Colorado,
80620.
4. Upon information and belief, and at all times relevant, Defendant City of Fort Collins,
Colorado, (“Defendant Ft. Collins”) was a municipal corporation of the State of Colorado.
5. Upon information and belief, and at all times relevant, Defendant Lori S. Martin
(“Defendant Martin”) is and was a resident of 3402 S. Eagle Street, Unit #103, in Aurora,
Colorado, 80014.
6. This is a bus versus automobile accident that occurred on October 19, 2019, at or
approaching the intersection of S. College Avenue and West Oak Street, Fort Collins,
Colorado, Larimer County.
7. At all times relevant, Plaintiff Joshua Holowczenko was a passenger on the municipal bus
owned and operated by Defendant Ft. Collins and driven by Defendant Butler.
8. Defendant Butler was operating a Ft. Collins municipal bus while in the course and scope
of her employment with the City of Fort Collins. She was driving the bus southbound on
College Avenue in the left through-lane as it approached West Oak Street, when as she was
attempting to change lanes to her left, she negligently operated the bus by failing to keep a
proper lookout for vehicles ahead of her and carelessly failing to yield to conditions on the
roadway in front of her which she should have seen in the exercise of reasonable care,
resulting in her driving her bus into the rear passenger side of a motor vehicle operated by
Defendant Martin, which had stopped for traffic in front of her.
9. Venue and Jurisdiction are proper in Larimer County, Colorado.
10. Defendant Butler’s conduct, acts and omissions in the operation of her municipal bus were
negligent, with such negligence being a cause of the collision between her bus and a vehicle
operated by Defendant Martin.
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11. The collision of Defendant Butler’s bus into that of Defendant Martin’s vehicle as further
described herein above caused Plaintiff to suffer serious bodily injuries, harms and losses,
which include, but are not limited to a fracture in his lumbar spine, lumbar strain/sprain,
low back pain, radicular symptoms from low back injury, cervical strain with radicular
symptoms, hip pain, garden variety emotional distresses, physical impairment, pain,
suffering and other injuries and damages, some of which are believed permanent, all in
amounts to be proven at trial.
SECOND CLAIM FOR RELIEF
(GIA liability, Respondeat Superior as to Defendant City of Fort Collins)
12. Plaintiff re-alleges and incorporates herein by reference, the allegations set forth in the
above paragraphs 1 through 11.
13. At all times relevant, the subject bus involved in the collision complained of was, owned,
operated and maintained by Defendant City of Fort Collins.
14. At all times relevant, Defendant Butler was an employee of Defendant Ft. Collins and
acting within the course and scope of her employment with Defendant Ft. Collins, such
that all her acts and omissions, including her negligence as set forth herein resulting in and
being a cause of the aforementioned collision were and are imputed upon Defendant City
of Ft. Collins, for which acts and omissions liability is imputed upon Defendant Ft. Collins.
15. Plaintiff has properly complied with all elements of the Colorado Governmental Immunity
Act, by providing Defendant City of Fort Collins with his statutory Notice of Claim,
properly served upon Defendant Ft. Collins in accordance with C.R.S. 24-10-109, as
amended.
16. Plaintiff has properly complied with all his lawful duties to make a claim for injuries herein,
and as alleged herein above, against Defendant Ft. Collins.
17. Governmental Immunity is and has been waived by Defendant Ft. Collins, such that
Plaintiff’s claims may lawfully be heard in this matter.
18. As a result of the negligent acts and omissions of Defendant Butler, Defendant Ft. Collins
is liable to Plaintiff for all such acts and omissions including those of negligence which
caused Plaintiff to suffer serious bodily injuries, harms and losses, which include, but are
not limited to a fracture in his lumbar spine, lumbar strain/sprain, low back pain, radicular
symptoms from low back injury, cervical strain with radicular symptoms, hip pain, garden
variety emotional distresses, physical impairment, pain, suffering and other injuries and
damages, some of which are believed permanent, all in amounts to be proven at trial.
THIRD CLAIM FOR RELIEF
(Negligence of Defendant Lori Martin)
19. Plaintiff re-alleges and incorporates herein by reference, the allegations set forth in the
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above paragraphs 1 through 18.
20. At all times relevant herein, Defendant Martin was operating a 2017 Nissan SUV
southbound on College Avenue in the left through-lane as it approached West Oak Street
ahead of the bus operated by Defendant Butler, when she suddenly slammed on her brakes
to avoid running into a vehicle ahead of her, resulting in the bus operated by Defendant
Butler running into her vehicle. Defendant Martin’s act and omissions herein were
negligent in that she failed to keep a proper lookout for vehicles ahead of her and by
carelessly failing to yield to conditions on the roadway in front of her which she should
have seen in the exercise of reasonable care, which would have allowed her to make a slow,
controlled response to a vehicle’s actions in front of her. However, Defendant failed to do
so, but instead, slammed on her brakes causing a sudden and unexpected danger on the
roadway, including to that of Defendant Butler, resulting in Defendant Butler driving her
bus into the rear passenger side of a motor vehicle operated by Defendant Martin.
21. Defendant Martin’s conduct, act and omissions herein were negligent with such negligence
being a cause of the collision between her vehicle and the bus operated by Defendant
Butler.
22. The collision of Defendant Butler’s bus into that of Defendant Martin’s vehicle as further
described herein above caused Plaintiff to suffer serious bodily injuries, harms and losses,
which include, but are not limited to a fracture in his lumbar spine, lumbar strain/sprain,
low back pain, radicular symptoms from low back injury, cervical strain with radicular
symptoms, hip pain, garden variety emotional distresses, physical impairment, pain,
suffering and other injuries and damages, some of which are believed permanent, all in
amounts to be proven at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them as
provided by law, in amounts sufficient to compensate Plaintiff for his injuries, damages, losses,
costs, expert witness fees, attorney’s fees, and for such other and further relief as the Court deems
just, proper, equitable, or appropriate pursuant to, or consistent with the lawful or duly complying
terms, provisions, and conditions of that auto insurance policy, in light of the foregoing law.
Respectfully submitted this 23rd day of August, 2021.
LAW OFFICE OF MICHAEL P. FOSSENIER, LLC
Duly signed original on file
//ss// Michael P. Fossenier
Michael P. Fossenier, Esq., #17804
Attorney for Plaintiff
Address of Plaintiff
216 Versailles Street
Lochbuie, CO 80603