HomeMy WebLinkAbout2017CV30903 - ILSE WESTPHAL V. CITY OF FORT COLLINS, ET AL - 012 - DEFENDANTS JANSA ANSWER AND JURY DEMANDPage | 1 of 9
DISTRICT COURT, LARIMER COUNTY, STATE OF
COLORADO
Court address:
201 LaPorte Avenue | Suite 100
Fort Collins, Colorado 80521
∆ COURT USE ONLY ∆
PLAINTIFFS:
ILSE G. WESTPHAL
v.
DEFENDANTS:
ANTHONY JOHN JANSA; JANSA TRUCKING,
LLC, a Colorado Limited Liability Company; JANSA
TRUCKING, LLC, a North Dakota Limited Liability
Company; THE CITY OF FORT COLLINS, a
Colorado municipal corporation.
Case No. 2017CV30903
Division: 3C
James M. Meseck, Esq. | #33021
Brandon O. Hawkins, Esq. | #49069
White and Steele, P.C.
600 17th
Street | Suite 600N
Denver, Colorado 80202
Telephone: (303) 296-2828
Fax: (303) 296-3131
e-mail jmeseck@wsteele.com
bhawkins@wsteele.com
Attorneys for Defendant Anthony J. Jansa
DEFENDANTS ANTHONY JOHN JANSA, JANSA TRUCKING, LLC, A
COLORADO LIMITED LIABILITY COMPANY, AND JANSA TRUCKING, LLC, A
NORTH DAKOTA LIMITED LIABILITY COMPANY’S
ANSWER AND JURY DEMAND
Defendants Anthony John Jansa (“Mr. Jansa”), Jansa Trucking, LLC, a Colorado Limited
Liability Company, and Jansa Trucking, LLC a North Dakota Limited Liability Company (collectively
the “Jansa Trucking Defendants”), by and through their attorneys of record, White & Steele, P.C. and in
response to Plaintiff’s Complaint with Jury Demand (“Complaint”), state and allege as follows:
INTRODUCTION
1. With respect to the allegations contained in paragraph 1 of the Complaint, the Jansa Trucking
Defendants admit that this action arises out of a motor vehicle pedestrian accident. The Jansa Trucking
Defendants deny all remaining allegations including that they were negligent or are at fault.
DATE FILED: November 17, 2017 5:00 PM
FILING ID: C0D0CACA9542A
CASE NUMBER: 2017CV30903
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2. The Jansa Trucking Defendants have no objection to jurisdiction or venue as alleged in
paragraphs 2 and 3 in the Complaint.
3. With respect to the allegations contained in paragraph 4 of the Complaint, the Jansa Trucking
Defendants admit that on Tuesday, November 22, 2016, Plaintiff Ilse G. Westphal was waiting for the
City of Fort Collins TransFort bus at a bus stop along the north side of East Harmony Road, west of the
intersection of Zeigler Road and East Harmony Road, in Larimer County, Colorado, when Plaintiff
walked out into the roadway immediately behind the semi-tractor and trailer operated by Mr. Jansa as
the vehicle began to back up to position itself for work at a construction site. The Jansa Trucking
Defendants further admit that Ms. Westphal was injured as a result of her negligence, and assumed the
risk of walking into the roadway to stand behind a running vehicle as it was backing. The Jansa Trucking
Defendants deny all remaining allegations contained in paragraph 4 of the Complaint.
4. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 5 of the Complaint and, therefore, deny the same.
5. The Jansa Trucking Defendants admit the allegations contained in paragraphs 6, 7, 8, 9, 10, 11,
and 12 of the Complaint.
6. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 13 of the Complaint and, therefore, deny the same.
7. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 14, 15, 16, 17, and 18 of the Complaint and, therefore,
deny the same.
8. With respect to the allegations contained in paragraph 19 of the Complaint, the Jansa Trucking
Defendants admit that there were numerous traffic cones placed in and around Harmony Road closing
portions of the lanes to traffic.
9. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 20 of the Complaint and, therefore, deny the same.
10. The Jansa Trucking Defendants admit the allegations contained in paragraph 21 of the Complaint.
11. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 22, 23, and 24 of the Complaint and, therefore, deny
the same.
12. The Jansa Trucking Defendants admit the allegations contained in paragraph 25 of the Complaint.
13. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 26 of the Complaint and, therefore, deny the same.
14. With respect to the allegations contained in paragraph 27 of the Complaint, the Jansa Trucking
Defendants admit that when Mr. Jansa arrived on the scene, there were other vehicles in the immediate
area of the construction site. The Jansa Trucking Defendants are without sufficient information or
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knowledge to admit as to the remaining allegations contained in paragraph 27 of the Complaint and,
therefore, deny the same.
15. The Jansa Trucking Defendants admit the allegations contained in paragraph 28 of the Complaint.
16. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 29 and 30 of the Complaint and, therefore, deny the
same.
17. The Jansa Trucking Defendants admit the allegations contained in paragraph 31 of the Complaint.
18. With respect to the allegations contained in paragraph 32 of the Complaint, the Jansa Trucking
Defendants admit that Mr. Jansa stopped the semi-tractor and trailer without setting the brakes, and did
not park the vehicle but began to back up to the crane all within 10 to 20 seconds of arriving at the scene.
The Jansa Trucking Defendants deny the remaining allegations contained in paragraph 32 of the
Complaint.
19. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 33 of the Complaint and, therefore, deny the same.
20. With respect to the allegations contained in paragraph 34 of the Complaint, the Jansa Trucking
Defendants admit that the bus stop shelter has an advertising panel to the west side. The Defendants are
without sufficient information to admit as to the truth of the remaining allegations contained in paragraph
34 of the Complaint and, therefore, deny the same.
21. With respect to the allegations contained in paragraph 35 of the Complaint, the Jansa Trucking
Defendants admit that the Plaintiff walked into the street and stood in the roadway behind the tractor
trailer after the vehicle had begun backing up. The Jansa Trucking Defendants deny the remaining
allegations contained in paragraph 35 of the Complaint.
22. With respect to the allegations contained in paragraph 36 of the Complaint, the Jansa Trucking
Defendants admit that Ms. Westphal came into contact with the vehicle after she walked into the roadway
and stood behind the tractor trailer as it was backing; and, at no time did the tractor trailer leave the
roadway or go onto the shoulder, nor was it backed up directly towards the bus stop. The Jansa Trucking
Defendants deny the remaining allegations contained in paragraph 36 of the Complaint.
23. The Jansa Trucking Defendants admit the allegations contained in paragraph 37 of the Complaint.
24. With respect to the allegations contained in paragraph 38 of the Complaint, the Jansa Trucking
Defendants admit that there was no back up audible device on the tractor owned by Jansa Trucking, LLC
or on the trailer owned by Sterling Crane. The Jansa Trucking Defendants deny all remaining allegations
contained in paragraph 38 of the Complaint.
25. With respect to the allegations contained in paragraph 39 of the Complaint, the Jansa Trucking
Defendants admit that Mr. Jansa felt an object as the semi-tractor and trailer were backing up and
immediately stopped before pulling forward. The Jansa Trucking Defendants are without sufficient
information or knowledge to admit or deny the remaining allegations contained in paragraph 39 of the
Complaint and, therefore, deny the same.
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26. With respect to the allegations contained in paragraph 40 of the Complaint, the Jansa Trucking
Defendants admit that the Plaintiff was physically injured and transported by ambulance to a medical
facility. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the remaining allegations contained in paragraph 40 of the Complaint and, therefore, deny the same.
27. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 41 and 42 of the Complaint and, therefore, deny the
same.
28. With respect to the allegations contained in paragraph 43 of the Complaint, the Jansa Trucking
Defendants deny that they were the direct or proximate result of the Plaintiff’s alleged hospitalization.
The Jansa Trucking Defendants are without sufficient information or knowledge to admit or deny the
remaining allegations contained in paragraph 43 of the Complaint and, therefore deny the same.
29. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 44, 45, 46, 47, 48, and 49 and, therefore, deny the
same.
FIRST CAUSE OF ACTION
Negligence – Res Ipsa Loquitur
30. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 49
as if set forth fully herein.
31. The Jansa Trucking Defendants deny the allegations contained in paragraph 51 of the Complaint.
32. With respect to the allegations contained in paragraph 52 of the Complaint, the Jansa Trucking
Defendants admit that the vehicle involved was a 2007 Peterbilt diesel 3-axle tractor with an attached
Fontaine drop-deck trailer, which was being operated by Mr. Jansa at the time of the accident. The Jansa
Trucking Defendants deny all remaining allegations contained in paragraph 52 of the Complaint.
33. The Jansa Trucking Defendants deny the allegations contained in paragraphs 53, 54, 55, and 56
of the Complaint.
SECOND CAUSE OF ACTION
Negligence Per Se
34. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 56
of the Complaint as if set forth fully herein.
35. Paragraph 58 of the Complaint appears to be a statement of what the Plaintiff believes the law to
be and, as such, no response is required. To the extent a response is necessary, the Jansa Trucking
Defendants admit that the duties owed by a motorist are established by Colorado’s statutes, regulations,
actual driving conditions, and other pertinent factors.
36. The Jansa Trucking Defendants deny the allegations contained in paragraph 59 of the Complaint.
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37. With respect to the allegations contained in paragraph 60 of the Complaint, the Jansa Trucking
Defendants admit that the duties owed by a motorist to the public are set forth in Colorado’s statutes,
regulations, actual driving conditions, and other pertinent factors. The Jansa Trucking Defendants deny
all remaining allegations contained in paragraph 60 of the Complaint.
38. The Jansa Trucking Defendants deny the allegations contained in paragraphs 61, 62, 63, and 64
of the Complaint.
THIRD CAUSE OF ACTION
Negligence Per Se
39. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 64
of the Complaint as if set forth fully herein.
40. The allegations contained in paragraph 66 of the Complaint appear to be a statement of what the
Plaintiff believes the law to be and, as such, no response is required. To the extent a response is necessary,
the Jansa Trucking Defendants admit that the duties owed by a motorist to the public are set forth in
Colorado’s statutes, regulations, actual driving conditions, and other pertinent factors.
41. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 67 of the Complaint and, therefore, deny the same.
42. The Jansa Trucking Defendants deny the allegations contained in paragraph 68 of the Complaint.
43. With respect to the allegations contained in paragraph 69 of the Complaint, the Jansa Trucking
Defendants admit that the duties owed by a motorist to the public are set forth in Colorado’s statutes,
regulations, actual driving conditions, and other pertinent factors. The Jansa Trucking Defendants are
without sufficient information or knowledge to admit or deny the truth of the remaining allegations
contained in paragraph 69 of the Complaint and, therefore, deny the same.
44. The Jansa Trucking Defendants deny the allegations contained in paragraphs 70, 71, 72, and 73
of the Complaint.
FOURTH CAUSE OF ACTION
Negligence
45. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 73
of the Complaint as if set forth fully herein.
46. With respect to the allegations contained in paragraph 75 of the Complaint, the Jansa Trucking
Defendants admit that Mr. Jansa could not see directly behind the trailer where the Plaintiff stood in the
roadway. The Jansa Trucking Defendants deny all remaining allegations contained in paragraph 75 of
the Complaint.
47. The Jansa Trucking Defendants deny the allegations contained in paragraph 76 of the Complaint.
48. With respect to the allegations contained in paragraph 77 of the Complaint, the Jansa Trucking
Defendants admit that a motorist’s duties to the public are set forth in Colorado statutes, regulations,
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case law, actual driving conditions, and other pertinent circumstances. The Jansa Trucking Defendants
are without sufficient information or knowledge to admit as to the truth of the remaining allegations
contained in paragraph 77 of the Complaint and, therefore, deny the same.
49. The Jansa Trucking Defendants deny the allegations contained in paragraphs 78, 79, 80, 81, and
82 of the Complaint.
FIFTH CAUSE OF ACTION
Negligence
50. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 82
of the Complaint as if set forth fully herein.
51. With respect to the allegations contained in paragraph 84 of the Complaint, the Jansa Trucking
Defendants admit that Mr. Jansa could not see directly behind the trailer where the Plaintiff was standing
in the roadway. The Jansa Trucking Defendants deny the remaining allegations contained in paragraph
84 of the Complaint.
52. The Jansa Trucking Defendants deny the allegations contained in paragraph 85 of the Complaint.
53. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraph 86 of the Complaint and, therefore, deny the same.
54. The Jansa Trucking Defendants deny the allegations contained in paragraphs 87, 88, 89, 90, and
91 of the Complaint.
SIXTH CLAIM FOR RELIEF
Respondeat Superior
55. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 91
of the Complaint as if set forth fully herein.
56. The Jansa Trucking Defendants admit the allegations contained in paragraph 93 and 94 of the
Complaint.
57. The Jansa Trucking Defendants are without sufficient information or knowledge to admit as to
the truth of the allegations contained in paragraphs 95, 96, and 97 of the Complaint and, therefore, deny
the same.
58. The Jansa Trucking Defendants deny the allegations contained in paragraph 98 of the Complaint.
SEVENTH CLAIM FOR RELIEF
Negligence – City of Fort Collins
59. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 98
of the Complaint as if set forth fully herein.
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60. The allegations contained in paragraphs 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110,
111, 112, 113, 114, 115, 116, and 117 of the Complaint are not directed at the Jansa Trucking Defendants
and, therefore, no response is required. To the extent a response is necessary, the Jansa Trucking
Defendants are without sufficient information or knowledge to admit or deny the truth of the allegations
contained in paragraphs 100 through 117 and, therefore, deny the same.
EIGHTH CLAIM FOR RELIEF
Negligence – City of Fort Collins
61. The Jansa Trucking Defendants incorporate their previous responses to paragraphs 1 through 117
of the Complaint as if set forth fully herein.
62. The allegations contained in paragraphs 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129,
130, 131, 132, 133, 134, 135, 136, 137, and 138 of the Complaint are not directed at the Jansa Trucking
Defendants and, therefore, no response is required. To the extent a response is necessary, the Jansa
Trucking Defendants are without sufficient information or knowledge to admit or deny the truth of the
allegations contained in paragraphs 1119 through 138 and, therefore, deny the same.
All allegations not specifically admitted to herein are hereby denied.
DEFENSES
1. Plaintiff’s Complaint fails to state a claim or cause of action on which relief may be granted.
2. Any claim or award is barred or reduced due to a failure to mitigate damages.
3. Plaintiff’s damages, if any, are barred or proportionately reduced by any negligence, negligence
per se, fault, or liability attributable to the Plaintiff, including but not limited to the following:
a. That Plaintiff violated C.R.S. § 42-4-803(1) (2017), which requires that: “Every
pedestrian crossing a roadway at any point other than a marked crosswalk at an
intersection shall yield the right-of-way to all vehicles upon the roadway.” See Dennis v.
Johnson, 317 P.2d 890 (Colo. 1957).
b. That Plaintiff violated Section 802 (3) of the City of Fort Collins Traffic Code (Ord. 120,
2015 § 3), which requires that: “No pedestrian shall suddenly leave a curb or other place
of safety and walk or run into the path of a moving vehicle that is so close as to constitute
an immediate hazard.”
c. That Plaintiff violated Section 802 (4) of the City of Fort Collins Traffic Code (Ord. 120,
2015 § 3), which requires that: “No pedestrian shall cross a roadway at any place other
than by a route at right angles to the curb or by the shortest route to the opposite curb
except in a crosswalk or except where such angle crossing is authorized.”
d. That Plaintiff violated Section 803 (4) of the City of Fort Collins Traffic Code (Ord. 016,
2003 § 1), which requires that: “Every pedestrian crossing a roadway at any point other
than within a marked crosswalk or within an unmarked crosswalk at an intersection shall
yield the right-of-way to all vehicles upon the roadway.”
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e. That according to CJI-Civ. 11:9 (CLE ed. 2017), Defendant Anthony Jansa had a “right
to believe that others will obey applicable laws and regulations, unless there are
reasonable grounds to believe otherwise,” and the foregoing provisions are but some of
the applicable laws and regulations that may have applied under the circumstances.
f. That according to CJI-Civ. 11:3 (CLE ed. 2017), Plaintiff was under a duty as a pedestrian
to “exercise reasonable care considering the existing conditions,” and that Plaintiff’s
failure to do so constituted a violation of the foregoing provisions that are but some of
the applicable laws and regulations that may have applied under the circumstances.
4. Plaintiff’s damages, if any, were not proximately caused by the actions or inactions of the Jansa
Trucking Defendants.
5. Plaintiff’s alleged injuries and damages, if any, result from injuries incurred before or after the
accident complained of, and recovery, therefore, shall be precluded or diminished as required by law.
6. Plaintiff’s damages, if any, are the sole or proximate result of the negligence of some third-person
or party for whom the Jansa Trucking Defendants were not responsible, and over whom the Jansa
Trucking Defendants had no control, nor right of control.
7. Plaintiff’s claims are barred, limited, or proportionately reduced pursuant to C.R.S. § 13-21-
102.5, 111, 111.5, 111.6 and 111.7.
8. Plaintiff assumed the risk of their injuries and damages.
9. The danger of which Plaintiff complains was open and obvious.
10. Plaintiff had knowledge of the alleged dangerous condition prior to encountering it.
11. Plaintiff chose to occupy or enter the area in which she encountered the alleged dangerous
condition.
12. Plaintiff voluntarily encountered the alleged dangerous condition.
13. Plaintiff’s alleged damages were proximately caused by the unforeseeable, independent,
intervening and/or superseding event(s) beyond the control of the Jansa Trucking Defendants, and
unrelated to any act or omission of the Jansa Trucking Defendants.
14. The Jansa Trucking Defendants conducted themselves in a commercially reasonable manner in
compliance with all laws.
15. The Jansa Trucking Defendants reserve the right to amend this Answer to include additional
affirmative defenses, or voluntarily withdraw affirmative defenses, as discovery so reveals.
16. The Jansa Trucking Defendants incorporates any applicable defense as identified in the pleadings
of any other Defendants.
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WHEREFORE, Defendants Anthony J. Jansa; Jansa Trucking, LLC, a Colorado Limited
Liability Company; and Jansa Trucking, LLC, a North Dakota Limited Liability Company, respectfully
request that the Court enter judgement in their favor, award their costs, expert fees, attorney’s fees, and
such other and further relief as the Court may deem just and proper. The Jansa Trucking Defendants
demand that the matters herein be tried to a jury of six persons.
DEFENDANTS DEMAND A TRIAL BY JURY.
Respectfully submitted this 17th
day of November, 2017.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 17 November 2017, a true and correct copy
of the foregoing ENTRY OF APPEARANCE was filed and served via Colorado Courts E-
Filing correctly addressed to the following:
HERMS & HERRERA, LLC
David M. Herrera
3600 S. College Avenue | Suite 204
Fort Collins, CO 80525
Attorneys for Plaintiff Westphal
Peter C. Middleton | Hall & Evans LLC
1001 17th St. | Suite 300
Denver, CO 80202
Attorney for Defendant City of Fort Collins
Original signature on file at the offices of
White and Steele, P.C. per C.R.C.P. Rule
§121 1-26(7)
s/ Savvi Neufer
For White and Steele, P.C.
WHITE AND STEELE, P.C.
Original signature on file at the offices of White and
Steele, P.C. per C.R.C.P. Rule 121 § 1-26(7)
s/ James M. Meseck
James M. Meseck
Brandon O. Hawkins
Attorneys for Defendants Anthony J. Jansa