HomeMy WebLinkAbout2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 030 - PLAINTIFF'S MOTION TO STRIKE DESIGNATED PARTYDISTRICT 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:s 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
Case Number: 2021CV030613
Courtroom/Division: 5A
PLAINTIFF’S MOTION TO STRIKE DESIGNATION OF NON-PARTY AT FAULT
Plaintiff, through his attorneys, moves for an Order striking Defendant’s Designation of
Non-Party at Fault, and as grounds, states as follows:
CERTIFICATE OF CONFERRAL PURSUANT TO C.R.C.P. 121, SECTION 1-
12(8)
Undersigned conferred with Opposing Counsels prior to filing this motion with the Court.
Defendant opposes the requested relief.
1. This case arises out of a bus-automobile crash that occurred on October 19, 2019, in the
left southbound through lane of South College Avenue near West Oak Street in Ft. Collins,
Colorado. Plaintiff Joshua Holowczenko was a passenger in the rear of a Ft. Collins municipal
bus driven by Defendant Lisa Butler when it crashed into the rear of a passenger vehicle driven by
DATE FILED: December 3, 2021 2:53 PM
FILING ID: E18CF2C1CFD2F
CASE NUMBER: 2021CV30613
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Defendant Lori Martin while the bus was completing a lane change to its left. (See, Exhibit 1, Ft.
Collins Traffic Accident Report).
The driver of the passenger vehicle struck by the bus, Defendant Martin, admitted in her
witness statement to the police that she had for unknown reasons decided to slam on her brakes
when she observed a vehicle ahead of her backing out from a center diagonal parking spot ahead
of her on her left, rather than slowing down and otherwise driving reasonably in order to safely
navigate around it. (Exhibit 1, Police Witness Statement of Defendant Lori S. Martin).
Furthermore, in a city disclosed audio of the event, the bus driver, Defendant Butler,
contemporaneous with the crash blurts out that these brakes do not work. Ultimately, Martin’s
insurer paid for the property damage to all vehicles.
The crash caused injuries to Plaintiff Holowczenko, including increasing and exacerbating
symptomology of a fractured lumbar spine, lumbar strain/sprain, low back pain, radicular
symptoms from low back injury, cervical strain with radicular symptoms, and other injuries and
harms.
2. On November 19, 2021, counsel for Defendants Lisa N. Butler and City of Fort Collins
filed a “Notice of Non-Party at Fault Pursuant to C.R.S.§ 13-21-111.5,” and designated the
phantom driver of the motor vehicle that was purportedly backing out in front of Defendant Martin,
an unnamed and unknown party. Defendant’s Designation is in substance found in paragraph 11
of the Designation, which reads:
“1. The 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.
Plaintiff’s injuries, if any, are the result of the negligent acts and omissions of
said non-party at fault.”
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3. The basis of Defendant’s above designation of the phantom driver is premised upon
speculation, conjecture and unsupported, “bald allegations” of counsel that the unknown driver of
this other vehicle must have “pulled out”, and “without warning” and “directly in front of
Defendant Martin”, or otherwise engaged in wrongdoing or “caused” Defendant Martin to slam
on her brakes, which have no factual or evidentiary support and are mere unsupported assertions.
There is no evidence of any negligence on the part of the vehicle which was beginning to
back out from the diagonal parking area. Even if such vehicle existed there is no evidence that the
phantom vehicle was negligent. This type of leaping and conjecture by counsel to establish
evidence or an issue of fact is improper. It has long been the law in Colorado that a party cannot
establish a “fact” or meet an evidentiary burden via argument of counsel. See, People In the
Interest of J.M.A., et al., 803 P.2d 187, 193 (Colo. 1990); Western Innovations, Inc. v. Sonitrol
Corp., 187 P.3d 1155, 1161 (Colo.App. 2008) “Conclusory statements in a brief are not
evidence…”, Id, at 161; Estate of Breeden v. Gelfond, 87 P.3d 167, 171 (Colo.App. 2003, cert
denied 2004).
4. The only evidence of how the subject collision occurred in this matter is that the
Defendant bus driver, Lisa Butler, made an improper lane change into the lane where Defendant
Martin had engaged in slowing down for a car backing out, which happens all the time in this area,
and crashed her bus into the rear of Ms. Martin’s car because she failed to operate her bus safely
and perhaps in her own words, she had bad brakes. This was agreed upon by the investigating
police officers and the City’s insurance company. “But for” the negligent failure of Defendant
Butler to properly drive her bus and Defendant Martin negligently and unnecessarily slamming on
her brakes, this crash would never have occurred.
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5. Even if Defendant’s designation could show as fact rather than conjecture, that a vehicle
backed out from the diagonal center parking area in front of Defendant Martin causing her to slow
down, even then, no crash, or potential cause of a crash, can be established to have been caused by
that set of facts. Again, “but for’ the negligent failure of Defendant Butler to properly drive her
bus and Defendant Martin negligently and unnecessarily slamming on her brakes, the collision
would not possibly have happened even according to the designation made by Defendant herein.
6. Defendant’s Designation has no causal evidentiary support, but mere argument and
conjecture by counsel. Contrary to counsel’s arguments, there is no evidence whatever to show
either (1) that the backing vehicle caused Defendant Martin to slam on her brakes, or (2) caused
Defendant Butler to fail to see Defendant Martin’s vehicle slowing when she changed lanes and
crashed her bus into Ms. Martin.
According to the police report and investigation, the collision occurred in a manner which
establishes the vehicle that was backing to leave the center diagonal parking area in front of
Defendant Martin could not have caused the subject collision complained of. In relevant part, the
police investigation established that Ms. Martin was southbound in the left through lane of S.
College Avenue just before West Oak Street. The bus driven by Defendant Butler was in the right
through lane. Defendant Martin had begun to slow down for a vehicle leaving the center diagonal
parking area and about the same time, Defendant Butler changed lanes from the right lane into the
left lane behind Defendant Martin and hit her. (Exhibit 1). The backing vehicle had nothing to do
with Defendant Butler changing lanes, or her failing to see Defendant Martin slowing when she
decided to change lanes and run into her.
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7. First, a person or entity designated under the nonparty-at-fault statute “must, in order for
his or her fault or negligent to be measured under the statute, owe or have owed a duty recognized
by the law to the injured plaintiff.” Miller v. Byrne, 916 P.2d 566, 578 (Colo.App. 1995).
8. Next, a designation must sufficiently indicate a basis for the non-party’s fault. C.R.S. §
13–21–111.5(3)(a). In making a designation of a non-party at fault, a defendant does not have to
prove negligence, but does have to connect alleged facts with the established elements of
negligence. Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001). The elements
of negligence are: (1) the existence of a legal duty; (2) the breach of that duty; (3) and injury to
plaintiff (4) caused by the defendant’s breach. Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002).
See also, Observatory Corp. v. Daly, 780 P.2d 462, 465 (Colo. 1989).
9. The burden of proving the negligence of a non-party rests upon the party who asserts it.
Gordon v. Clotsworthy, 257 P.2d 410 (Colo. 1953). Such a burden cannot be sustained by evidence
productive of merely surmise, speculation, or conjecture, but it must be supported by substantial
evidence. Ramirez v. Mixsooke, 907 P.2d 617, 619 (Colo. App. 1994).
10. Where a defendant designates a non-party at fault and presents no evidence of liability,
the court should not submit that claim to the jury and should grant a motion to strike the
designation. Barton v. Adams Rental, Inc., 938 P.2d 532, 536 (Colo. 1997). Again, argument of
counsel is not evidence. People In the Interest of J.M.A., et al., Western Innovations, Inc. v.
Sonitrol Corp., supra.
11. The existence and scope of a legal duty are questions of law for the court. University
of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987); Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46
(Colo. 1987). In making a determination as to whether a duty is owed in a particular case, “the
court must exercise a prudential judgment based on a weighing of many factors, including the
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foreseeability of harm from the failure of the defendant to take protective action, the social utility
of the defendant’s conduct, the magnitude of the burden of guarding against the harm, the practical
consequences of placing such a burden on the defendant, and other relevant factors as disclosed
by the particular circumstances of the case.” Observatory Corp. v. Daley, 780 P.2d 462, 466 (Colo.
1989).
12. A nonparty designation will be struck unless evidence demonstrating a prima facie case
of nonparty liability is set forth. Stone v. Satriana, 41 P.3d 705 (Colo. 2002); Anstine v. Alexander,
128 P.3d 249 (Colo. App. 2005), rev'd on other grounds, 152 P.3d 497 (Colo. 2007).
13. C.R.S. § 13-21-111.5(3)(b) requires that a notice of a non-party designation must set
forth “the best identification of such non-party which is possible under the circumstances, together
with a brief statement of the basis for believing such non-party to be at fault.” (Emphasis added).
Unnamed persons or entities cannot be designated as non-parties.
14. Where a Defendant wishes to designate an unknown person as a non-party at fault, the
unknown person must be described with sufficient particularity to allege a basis for believing that
the unknown party was at fault. Pedge v. Holdings, Inc., 75 P.3d 1126, 1128 (Colo. App. 2002).
15. Courts strictly construe §13-21-111.5’s requirements, particularly its third requirement,
to avoid allegations of liability against a nonparty from whom a plaintiff cannot recover. Redden,
38 P.3d at 80. To satisfy this prong, a defendant must assert more than “bald allegations” against
a potential nonparty. Id. at 81. For example, when a negligence claim is asserted against a potential
nonparty, a defendant must “allege the basis for believing the non-party legally liable to the extent
the non-party’s acts or omissions would satisfy all the elements of a negligence claim.” Id. Thus,
a designation that “alleges only causation is insufficient as a matter of law, and in such
circumstances ... a trial court’s order to strike is proper.” Id. Put another way, a nonparty
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designation must state facts and law sufficient to establish a prima facie case of negligence. Id. at
83 (holding proper nonparty designation must establish all elements of negligence; merely
alleging causal relationship insufficient).
16. Defendant’s attempted designation rests upon “bald allegations” without proper
evidence of liability that could be attached to the designated non-party driver. The allegation the
unknown driver’s conduct caused the bus to crash into Defendant Martin’s vehicle is clearly
unsupported, given the clear fact the only evidence concerning the cause for the crash was the
negligent failure of Defendant Butler to properly drive her bus and Defendant Martin negligently
and unnecessarily slamming on her brakes. Redden, 38 P.3d at 80, 81.
SUMMARY AND CONCLUSION
Even if there was a phantom vehicle that was backing out of a center diagonal parking spot
in front of Defendant Martin leading her to slow down for it, there is no causation of Plaintiff’s
crash that can be shown by this conduct. Without the bus changing lanes right into Ms. Martin’s
vehicle which has slowed down, which was a dangerous condition completely and totally under
the exclusive control of Defendants Butler and Martin, the crash, even by Defendant’s standards,
could not have happened.
The undisputed facts still remain that, “but for” the negligent failure of Defendant Butler
to properly drive her bus and Defendant Martin negligently and unnecessarily slamming on her
brakes, the collision would not possibly have happened even according to the designation made
by Defendant herein.
The Defendants Butler and Martin’s duties they owed to Plaintiff to drive safely is
exclusive of any other driver, based upon the facts of this case. There is not a single piece of
evidence which explains how this phantom vehicle could have caused Defendant Butler to fail to
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see Defendant Martin’s vehicle, that it was slowing, and made Ms. Butler run into Ms. Martin. For
the foregoing reasons, Plaintiff requests that this Court strike Defendants’ designation of non-party
at fault.
WHEREFORE, Plaintiff respectfully requests that the Court issue an Order striking
Defendant’s Designation of Non-Party at Fault, together with and other, additional relief this Court
may deem appropriate.
Respectfully submitted this 3rd day of December, 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
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of December 2021, a true and correct copy of this
PLAINTIFF’S MOTION TO STRIKE DESIGNATION OF NON-PARTY AT FAULT with the
Exhibit was served via ICCES to:
Andrew W. Callahan, Esq.
Julie Yates, Esq.
Wick & Trautwein, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Cordia Perez, Esq.
Stuart S. Jorgensen & Associates
11080 Circle Point Suite 400
Westminster, CO 80020
John R. Duval, Esq.
Adam Stephens, Esq.
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
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Jeremy Rosenthal, Esq.
Law Firm of Jeremy Rosenthal
4100 E Mississippi Avenue, Floor 19
Denver, Colorado 80246
/s/ Dani Erin___________