HomeMy WebLinkAbout2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 032 - DEFENDANT'S RESPONSE BRIEF IN OPPOSITION TO PLAINITFF'S MOTION TO STRIKEDISTRICT 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
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
John R. Duval, #10185 – jduval@fcgov.com
Adam Stephens, #55637 – adstephens@fcgov.com
Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80524
(970) 221-6520
Case No.: 2021CV30613
Division: 5A
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO
STRIKE DEFENDANTS’ NON-PARTY DESIGNATION OF AN UNKNOWN
MOTORIST
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 Response Brief in
Opposition to Plaintiff’s Motion to Strike Defendants’ Non-Party Designation of an Unknown
Driver, states as follows:
DATE FILED: December 28, 2021 1:21 PM
FILING ID: 3C899D1F7AB47
CASE NUMBER: 2021CV30613
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Introduction
This claim arises out of a bus-automobile crash that occurred on October 19, 2019 in Fort
Collins, Colorado. Defendant Butler was traveling southbound on College Avenue as it
approached West Oak Street in a City of Fort Collins municipal bus, when she began transitioning
from the right-hand southbound lane to the left-hand southbound lane in preparation for her left-
hand turn on Olive Street. During the lane change, an unknown motorist in the center parking area
suddenly began to back out into the left-hand southbound lane and oncoming traffic directly in
front of Defendant Martin. Martin slammed on her brakes without warning, thereby causing the
front-end bicycle rack of the City bus to strike Defendant Martin’s vehicle. Plaintiff was a
passenger on the City bus and claims that the impact of the bus contacting Defendant Martin’s
vehicle caused him to suffer traumatic low back injuries.
The City bus recorded video footage showing the inside and outside of the bus from five
distinct points of view. The bus’s video footage of the accident has been attached as Exhibit A
and was previously disclosed. Specifically, Camera 1 provides footage of the area directly in front
of the bus and Camera 5 provides footage of Plaintiff sitting in the rear of the bus at the time of
the accident. In the Camera 1 video footage, Defendant Martin can be seen making a sudden stop
in her lane to avoid being hit by the unknown motorist backing out of a center parking spot. The
reverse lights of the unknown motorist are visible in the video. After the accident, the video shows
the unknown motorist pulling forward and driving away. Neither party has any further information
on the identity of the unknown driver.
At the scene of the accident, Defendant Martin stated to the police that she observed the
unknown motorist. (See Traffic Accident Report, attached hereto as Exhibit B). In her witness
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statement, Defendant Martin stated: “I was traveling in the left lane going South on College
Avenue when a parked car in [the] center spot backed out. I didn’t want to get hit or hit them, so
I had to slam on my brakes.”
Plaintiff also provided a written statement at the time of the accident. Under Comments,
Plaintiff stated succinctly: “Not Bus Driver Fault.” (See Comment Card, attached as Exhibit C).
On November 19, 2021, Defendants Butler and City of Fort Collins timely submitted their
Notice of Non-Party at Fault, pursuant to C.R.S. § 13-21-111.5. Defendants named the unknown
motorist as a nonparty who is at fault and/or contributed to Plaintiff’s alleged loses. Plaintiff now
seeks to strike the unknown motorist as a nonparty designee based on C.R.S. § 13-21-111.5(3)(b).
Plaintiff’s motion should be denied.
Requirements for Designating Non-Party At Fault
Pursuant to C.R.S. § 13-21-111.5(3)(b), a defendant may designate as a nonparty at fault
any individual who is “wholly or partially at fault” for the negligence claimed by a Plaintiff, and
the jury may consider those nonparties when apportioning liability. Antolovich v. Brown Group
Retail, Inc., 183 P.3d 582, 591 (Colo. Ct. App. 2007). The nonparty designation statute embodies
the legislature’s intent to ensure that parties found liable will not be burdened with more than their
fair share of the damages. Id. Under C.R.S. § 13-21-111.5(3)(b), a party wishing to designate a
non-party must file a notice, “designating such nonparty and setting forth such nonparty’s name
and last known address, or the best identification of such nonparty which is possible under the
circumstances, together with a brief statement of the basis for believing such nonparty to be at
fault.”
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Defendants’ designation of nonparty at fault meets the C.R.S. § 13-21-111.5(3)(b) standard
as defined in Colorado’s comparative fault jurisprudence. Defendants Butler and City of Fort
Collins provided timely notice under C.R.S. § 13-21-111.5, designating the unknown motorist as
a nonparty in its Notice of Non-Party at Fault, attached hereto as Exhibit D. Because the unknown
motorist did not stop at the time of the collision, Defendants do not have a name or address for the
individual. However, Defendants described the individual and their actions with sufficient
particularity that Plaintiff is aware of the non-party designated.
Where the name and address of an at-fault nonparty is not known, a notice is valid if it
supplies sufficient information to allow the plaintiff to identify the individual and to state a
“sufficient basis for believing the nonparty or nonparties to be wholly or partially at fault.” Pedge
v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo. App. 2002). In Pedge, the defendant designated
as a nonparty at fault an unknown assailant who struck the plaintiff. Id. The trial court struck the
designation as being “so vague and over-broad as to be a non-designation.” Id. at 1127. The Court
of Appeals reversed the trial court’s decision, holding that the designation was sufficient under
C.R.S. §13-21-111.5(3)(b). “The identity of [the plaintiff’s] assailant or assailants is unknown,
but it is undisputed that someone assaulted [the plaintiff].” Id. “Hence, the nonparty designation
issue was properly raised here by defendants.” Id. Similarly, here neither party has information
on the specific identity of the driver. However, as evidenced by the bus’s video footage of the
accident, and referenced in Defendant Martin’s statement to the police, the unknown motorist’s
presence at and connection to the accident is unquestionable.
In Redden v. SCI, the Colorado Supreme Court held that to satisfy the requirements of
C.R.S. § 13-21-111.5(3)(b), “a party must allege the basis for believing the non-party legally liable
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to the extent the non-party’s acts or omissions would satisfy all the elements of a negligence
claim.” Redden, 38 P.3d at 81. A defendant does not have to prove negligence, but does have to
connect alleged facts with the established elements of negligence. Id.
In Plaintiff’s Motion, Plaintiff alleges that there is no evidence of any negligence on the
part of the vehicle which was beginning to back out from the diagonal parking area, and , even if
such vehicle existed, there is no evidence that the phantom vehicle was negligent. Plaintiff’s
argument is factually and legally incorrect.
First, the existence of a legal duty is relatively straightforward. “All drivers are under a
duty to drive with reasonable care under the circumstances.” Hesse v. McClintic, 176 P.3d 759,
762 (Colo. 2008). This duty attaches to every driver on the road and is equally applicable in
considering claims for negligence and comparative negligence. Id. Further, an unknown motorist,
in reversing their vehicle, has a duty to exercise reasonable care. McBride v. Woods, 124 Colo.
384, 238 P.2d 183. Moreover, “the driver of a vehicle shall not back the same unless such
movement can be made with safety and without interfering with other traffic…any person who
violates any provision of this section commits a class A traffic infraction.” C.R.S. § 42-4-1211.
In its brief statement, Defendants state that the designated nonparty was an unknown
motorist who reversed into oncoming traffic. As such, the reversing unknown motorist owed a
duty to drive with reasonable care and breached that duty when they backed out from the diagonal
center parking area in front of Defendant Martin. As a direct result of this movement, the unknown
motorist interfered with the otherwise steady flow of traffic when its reversal caused Defendant
Martin to make an abrupt stop to avoid a collision. But for the negligent failure of the unknown
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motorist to exercise reasonable care in ensuring its reversal was made with safety and without
interfering with other traffic, the collision would not have happened.
Plaintiff argues that there is no evidence of any negligence on the part of the unknown
motorist. Plaintiff ignores the witness statement made at the scene of the accident in regards to
the unknown motorist and the existence of the bus’s video footage. The bus’s video footage of the
accident is, by itself, prima facie evidence. As such, it is for a jury to decide whether or not fault
lies with the unknown motorist. Defendants met the statutory requirements of C.R.S. § 13-21-
111.5(3)(b) in their designation, and it should not be stricken.
Defendants believe that they have fully complied with the requirements for designating a
non-party at fault. However, out of an abundance of caution, attached as Exhibit E is an Amended
Notice of Non-Party At Fault, which lays out in further detail the allegations against the unknown
motorist. To the extent that the Court finds more detail is necessary, Defendant s request leave to
file the attached pleading.
WHEREFORE, Defendants respectfully request this Court to deny Plaintiff’s Motion to
Strike Designation of Non-Party at Fault and allow the jury to consider the negligence or fault of
nonparty unknown motorist, or in the alternative, allow Defendants to file an Amended
Designation of Non-Party at Fault, in form attached as Exhibit E.
Respectfully submitted this 28th day of December2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Julie M. Yates, ##36393
Attorneys for Defendants
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And
John R. Duval, #10185
Adam Stephens, #55637
Fort Collins City Attorney’s Office
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO
STRIKE DEFENDANTS’ NON-PARTY DESIGNATION OF AN UNKNOWN
MOTORIST DEMAND was filed with the Court via Colorado Courts E-filing System (CCES) this
28th day of December, 2021 and served on the following:
Michael P. Fossenier
Law Office of Michael Fossenier, LLC
4100 E. Mississippi Ave., 19th Floor
Denver, CO 80246
Cordia M. Perez
Stuart S. Jorgensen & Associates
11080 Circle Point, Suite 400
Westminster, CO 80020
Jeremy Rosenthal
Law Firm of Jeremy Rosenthal
4100 E. Mississippi Ave., 19th Floor
Denver, CO 80246
/s/ Jody L. Minch ___