HomeMy WebLinkAbout2021CV30429 - JAMES M. BELL-AVERA V. KARL L. ROHR and THE CITY OF FORT COLLINS - 011 - DEFENDANTS' JOINT ANSWER TO COMPLAINTDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
(970) 494-3500
COURT USE ONLY
Plaintiff: JAMES M. BELL-AVERA
v.
Defendant: KARL L. ROHR and THE CITY OF FORT
COLLINS
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
Julie M. Yates, #36393 – jyates@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone & Fax Number: (970) 482-4011
Case No.: 2021CV30429
Division: 3C
DEFENDANTS’ JOINT ANSWER TO COMPLAINT
COMES NOW, Defendants, by and through counsel, Wick & Trautwein, LLC, and file
their Answer to the Complaint as follows:
1. Plaintiff, James M. Bell-Avera is an individual and resident of the State of Colorado,
County of Larimer, City of Fort Collins.
Defendants are unaware of Plaintiff’s residence and therefore deny the allegation.
2. Defendant, Karl V. Rohr is an individual and resident of the State of Colorado, County of
Larimer, City of Wellington.
Defendants admit the allegation.
3. The City of Fort Collins is a city located in Larimer County in the State of Colorado.
Defendants admit the allegation.
4. Venue is proper in this action pursuant to C.R.C.P. 98 (c)(5).
Defendants admit the allegation.
5. On or about March 24, 2020, at approximately 4:13 p.m., Plaintiff’s was a passenger in
a bus owned and operated by the City of Fort Collins.
DATE FILED: September 24, 2021 3:43 PM
FILING ID: D7AC18C98F99F
CASE NUMBER: 2021CV30429
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Defendants admit the allegation.
6. The bus was traveling northbound on the Max Guideway in the City of Fort Collins.
Defendants admit the allegation.
7. The bus was being operated by Defendant Karl Rohr.
Defendants admit the allegation.
8. Defendant Karl Rohr was operating within the course and scope of his employment with
the City of Fort Collins at the time of the crash.
Defendants admit the allegation
9. The crash took place at the 2200 Max Guideway in Larimer County, Colorado.
Defendants admit the allegation.
10. Karl Rohr drove the bus off the road and over a curb and crashing through a fence.
Defendants deny the allegation that Karl Rohr “drove” the bus off the road, which would
suggest he had control of the bus. Defendants admit that the bus, due to a mechanical issue,
left the roadway.
11. The fence penetrated the cab of the bus injuring Defendant Rohr.
Defendants have insufficient information to either admit or deny the allegation and
therefore deny the allegation.
12. The bus then continued off the road and collided with a tree.
Defendants admit the allegation.
13. Defendant was operating a bus owned by the City of Fort Collins at the time of the collision.
Defendants admit the allegation.
14. Defendant was operating in the course and scope of employment with the City of Fort
Collins at the time of the crash.
Defendants admit the allegation.
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15. The crash was caused by the negligence, carelessness, and recklessness of Defendant Rohr
in the operation of his motor vehicle.
Defendants deny the allegation.
16. There was an alleged failure of the steering wheel/column that initially lead to Defendant
Rohr losing control.
Defendants deny to the extent that Plaintiff uses the word “alleged” but affirmatively state
that it was a mechanical failure which led to the accident.
17. Prior to the crash, the bus had been maintained by employees of the City of Fort Collins.
Defendants admit the allegation.
18. A City of Fort Collins employee failed to properly maintain the steering column of the bus.
Defendants deny the allegation.
19. The failure to maintain caused Defendant Rohr to lose control of the bus.
Defendants deny the allegation.
20. Defendant Rohr failed to take proper evasive action which also led to the collision.
Defendants deny the allegation.
21. No third party caused, or contributed to the cause, of the collision and Plaintiff’s injuries,
damages, and losses.
Defendants deny the allegation.
22. Plaintiff has not failed to mitigate his damages.
Defendants do not have sufficient information to admit or deny the allegation and therefore
deny the same.
23. Plaintiff has not been injured in an unrelated matter subsequent to the collision in question.
Defendants do not have sufficient information to admit or deny the allegation and therefore
deny the same.
24. Under CRS § 24-10-106(1)(a), governmental immunity has been waived by the City of Fort
Collins in this case because the negligent operation and maintenance of a motor vehicle
was the cause of this collision.
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Defendants deny the allegation on two bases: (1) the driver, Karl L. Rohr did not act in a
negligent or tortious manner, which is required in order for Plaintiff to sustain a claim
against a governmental entity, under C.R.S. §24-10-106(1)(a), and (2) the Governmental
Immunity and Waiver Act does not apply to maintenance of a motor vehicle, only operation
thereof.
25. Plaintiff properly notified the City of Fort Collins of his claim under CRS § 24-10-109 by
sending notice to the City of Fort Collins attorney within 182 days after discovery of the
injury.
Defendants admit the allegation.
26. The notice was timely and otherwise fully complied with § 24-10-109.
Defendants admit the allegation.
FIRST CLAIM FOR RELIEF
(Negligence against Defendant Rohr)
27. Plaintiff incorporates all prior allegations as though fully set forth herein.
Defendants deny the allegations unless specifically admitted herein.
28. Defendant Rohr failed to operate the bus safely causing the bus to crash.
Defendants deny the allegations.
29. Defendant Rohr’s tortious conduct was in violation of the duty he owned to Plaintiff and
the Public at large to drive carefully and prudently.
Defendants deny the allegations.
30. Defendant Rohr’s tortious conduct was sufficient to cause, and did cause, Plaintiff severe,
permanent, and disabling injuries.
Defendants deny the allegations.
31. As a direct, proximate, and foreseeable result of the negligence of Defendant Rohr,
Plaintiff suffered physical injuries and past and future damages, including physical pain
and suffering, inconvenience, loss of enjoyment of life, mental anguish, medical, hospital,
and doctor bills, loss of earnings and earning capacity, permanency and/or impairment in
amounts to be determined at the time of trial.
Defendants deny the allegations.
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SECOND CLAIM FOR RELIEF
(Respondeat Superior against Defendant City of Fort Collins)
32. Plaintiff incorporates all prior allegations as though fully set forth herein.
Defendants deny the allegations unless specifically admitted herein.
33. Defendant Rohr was in the course and scope of his employment relationship with the City
of Fort Collins when the crash happened.
Defendants admit the allegation.
34. Under the doctrine of Respondeat Superior, Defendant the City of Fort Collins is
responsible for the negligence of Defendant Rohr.
Defendants deny the allegation. Defendants affirmatively state that the bus driver, Mr.
Rohr, did not act in a tortious or negligent manner.
35. As a direct, proximate, and foreseeable result of the negligence of Defendant Rohr, and
vicariously the City of Fort Collins, Plaintiff suffered physical injuries and past and future
damages, including physical pain and suffering, inconvenience, loss of enjoyment of life,
mental anguish, medical, hospital, and doctor bills, loss of earnings and earning capacity,
permanency and/or impairment in amounts to be determined at the time of trial.
Defendants deny the allegation
THIRD CLAIM FOR RELIEF
(Negligent Maintenance against Defendant City of Fort Collins)
36. Plaintiff incorporates all prior allegations as though fully set forth herein.
Defendants deny the allegations unless specifically admitted herein.
37. The City of Fort Collins has a duty to Plaintiff and the public at large to properly maintain
city buses in order to operate them safely.
Defendants admit the allegation.
38. The City of Fort Collins violated their duty when they failed to properly maintain the
steering of the bus which in part caused the collision.
Defendants deny the allegations.
39. As a result, the City of Fort Collins failed to maintain and operate the bus safely.
Defendant denies the allegation.
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40. As a direct, proximate, and foreseeable result of the negligence of the City of Fort Collins,
Plaintiff suffered physical injuries and past and future damages, including physical pain
and suffering, inconvenience, loss of enjoyment of life, mental anguish, medical, hospital,
and doctor bills, loss of earnings and earning capacity, permanency and/or impairment in
amounts to be determined at the time of trial.
Defendant denies the allegations.
AFFIRMATIVE DEFENSES
1. Plaintiff’s Complaint fails to state a claim upon which relieve can be granted, in whole or
in part.
2. Defendants reserve the right to raise the affirmative defense of Plaintiff’s failure to
mitigate, minimize, or avoid damages and Defendants reserve the right to raise the
affirmative defense that Plaintiff’s injuries, if any, are the result of preexisting conditions
or subsequent injuries.
3. Plaintiff’s recovery herein, if any, should be reduced pro tanto by the amount in which
Plaintiff has been or will be wholly or partially indemnified or compensated by any other
person or entity pursuant to C.R.S. §13-21-111.6.
4. The waiver of the Governmental Immunities Act does not apply – bus driver Karl Rohr
did not act in a negligent or tortious manner when the bus lost control due to mechanical
issues, the mechanical issues were not a result of any negligence, and the waiver of
Governmental Immunities Act does not apply the maintenance of a motor vehicle but
only to its operation. C.R.S. §20-10-106 (1)(a)
5. To the extent Plaintiff seeks recovery for any non-economic damages, any such recovery
is limited by the provisions set forth in C.R.S. §13-21-102.5.
6. Any liability or fault assessed against Defendants must be reduced pursuant to the pro
rata liability provisions of C.R.S. §13-21-111.5.
7. To the extent that Plaintiff’s injuries and/or damages, if any, were proximately caused by
the sole or comparative negligence of Plaintiff, such negligence bars or reduces all of
Plaintiff’s claims and damages under C.R.S. §13-21-111.
8. Plaintiff’s claimed injuries or damages, if any, were proximately caused by the
comparative negligence of a nonparty or nonparties to this action.
9. Defendants reserve the right, and affirmatively requests leave of Court to add, delete, or
amend his/its affirmative defenses in this case as investigation and discovery is
completed.
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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.
Respectfully submitted this 24th day of September, 2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Julie M. Yates, #36393
Attorneys for Defendants
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANTS’
JOINT ANSWER TO COMPLAINT was filed with the Court via Colorado Courts E-filing System
(CCES) this 24th day of September, 2021 and served on the following:
Theodore Ridder
Franklin D. Azar & Associates, P.C.
14426 East Evans Avenue
Aurora, CO 80014
/s/ Jody L. Minch ___