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Home My WebLink About2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 035 - PLAINTIFF'S REPLY IN SUPPORT OF MOTION STRIKE DESIGNATED NONPARTYDISTRICT 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: 2021CV030613 Courtroom/Division: 5A PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSES TO PLAINTIFF’S MOTION TO STRIKE DESIGNATION OF NON-PARTY AT FAULT Plaintiff, through his attorneys, hereby Replies to Defendants’ Responses to Plaintiff’s Motion to Strike Designation of Non-Party at Fault and states as follows: 1. 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. -2- 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). 2. Defendant’s attempted designation does not meet the above requirements, but rather rests upon “bald allegations” without proper evidence of liability that could be attached to the designated non-party and unknown alleged driver. The allegation the unknown driver’s conduct caused the bus to crash into Defendant Martin’s vehicle is clear speculation. The only factual evidence concerning the cause for the crash was the negligent failure of Defendant Butler to properly drive her bus and Defendant Martin unnecessarily slamming on her brakes. Redden, 38 P.3d at 80, 81. A nonparty 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). Redden, 38 P.3d at 80, 81. 3. The basis of Defendant’s 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 basis and are unsupported speculations. 4. The Response by Defendant and their speculative arguments trying to establish a requisite evidentiary element or fact, is wholly improper. This is especially so where Plaintiff would have no remedy against the phantom driver. It is the law in Colorado that a party cannot establish a “fact,” or meet an evidentiary burden, via argument of counsel. See, People In the -3- 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). 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 Defendants herein. The bus driver in the disclosed video states contemporaneous with the crash that her brakes do not work. 6. A driver must maintain a proper lookout to see what that driver could and should have seen in the exercise of reasonable care. CJI.Civ. 11:1. Although a driver may have the right of way, the driver must exercise reasonable care considering the existing conditions. CJI.Civ. 11:2. For a driver to look in such a manner as to fail to see what must have been plainly visible is to look without a reasonable degree of care and is of no more effect than not to have looked at all. CJI.Civ. 9:13. Changing lanes when it is unsafe to do so is unlawful. C.R.S. 42-4-1007. These are the applicable laws to the conduct of Defendants Martin and Butler. 7. 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 -4- 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. 8. Defendant’s Designation has no causal 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 ran her bus into Ms. Martin. 9. 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. 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 2, page 9, Accident Description). 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. 10. 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). -5- 11. 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 clear ly 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 The Defendants Butler and Martin’s duties 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 see Defendant Martin’s vehicle, that it was slowing, and made Ms. Butler run into Ms. Martin. Ms. Butler’s oral admission that the bus brakes are defective further supports the inappropriate nature of the City’s nonparty designation. 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 January 2022, 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 January, 2022, a true and correct copy of this PLAINTIFF MOTION TO STRIKE DESIGNATION OF NON-PARTY AT FAULT was served via ICCES to: -6- Andrew W. Callahan, Esq. John R. Duval, Esq. Julie Yates, Esq. Adam Stephens, Esq. Wick & Trautwein, LLC FT. COLLINS CITY ATTORNEY’S OFFICE 323 South College Avenue, Suite 3 P.O.Box 580 Fort Collins, CO 80522 Ft. Collins, CO 80522 Cordia Perez, Esq. Jeremy Rosenthal, Esq. Stuart S. Jorgensen & Associates Law Firm of Jeremy Rosenthal 11080 Circle Point Suite 400 4100 E. Mississippi Avenue, Floor 19 Westminster, CO 80020 Denver, Colorado 80246 /s/ Dani Erin _______________