United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This matter is before me on Defendants' Motion for Summary Judgment [Doc. # 46] on all of Plaintiff Chantae Turan's remaining claims. A tire on a tractor-trailer driven by Defendant Robert Edgar, an employee of Defendant Doug Andrus Distributing, LLC, blew out, leaving debris in the road. Ms. Turan's son, Tyler Turan, swerved his car to avoid the debris and crashed. He died and Ms. Turan, a passenger, was injured. Ms. Turan alleges that her injuries and her son's death were caused by Defendants' negligent operation of an unsafe vehicle. In their motion, Defendants contend there is no evidence from which a reasonable jury could conclude that Defendants were negligent in this manner. I have jurisdiction under 28 U.S.C. § 1332. I have reviewed the parties' briefing on the motion and I am otherwise fully advised in the premises. Oral argument would not materially assist me in determining the motion. As explained below, I agree with Defendants and GRANT their motion.
The following facts are undisputed. The accident occurred during the afternoon of October 16, 2012, in Laramie County, Colorado. Compl. ¶ 7 [Doc. # 1]. Mr. Edgar was driving a tractor-trailer ("truck") for his employer, Doug Andrus Distributing, LLC (the "company"), and was heading southbound on Interstate 25. Id. ¶¶ 8, 18-19. He heard a loud bang indicating one of his tires had blown out and immediately pulled to the side of the road. Edgar Aff. ¶ 11 [Doc. # 46-1]. The Turans were in a Volvo station wagon and were also traveling southbound on I-25. Compl. ¶ 19 [Doc. # 1]. Mr. Turan, who was driving, came upon debris from the tire blowout and swerved to avoid it. Id. He lost control and his car went off the side of the road, rolled, and collided with a fence. Id. Mr. Turan was ejected from the car and pinned underneath. Id. He was pronounced dead at the scene. Id. Ms. Turan was seriously injured. Id. ¶ 24.
Mr. Edgar's day had begun in Montpelier, Idaho. Edgar Aff. ¶ 3 [Doc. # 46-1]. At 6:58 a.m., he conducted a pre-trip inspection of his truck, which entails "thump[ing] all of [the] tires" with a baton and then "visually inspect[ing] the tire and mak[ing] sure there's no, you know, cracks, tears, or, you know, uneven worn tread or anything like that." Edgar Dep. at 17-18 [Doc. # 46-4]; Edgar Aff. ¶ 6 [Doc. # 46-1]. He found no abnormalities in any of the tires and wrote that the condition of his vehicle was "satisfactory" on a "Driver's Vehicle Inspection Report" that the company provides. Edgar Aff. ¶ 7 [Doc. # 46-1]; Driver's Vehicle Inspection Report [Doc. # 46-3]; Edgar Dep. at 18-19 [Doc. # 46-4]. The pre-trip inspection completed, Mr. Edgar started on his way.
At 11:45 a.m., Mr. Edgar stopped in Rawlins, Wyoming, to refuel and eat lunch. Edgar Aff. ¶¶ 9, 10 [Doc. # 46-1]; Edgar Dep. at 20-21 [Doc. # 46-4]. Before continuing on his route, he did another inspection in which he again found the condition of the tires satisfactory. Id. Mr. Edgar testified that he conducts a "walk-around" inspection of the vehicle "every time [he] stop[s]." Edgar Dep. at 21 [Doc. # 46-4]. After inspecting the truck, Mr. Edgar continued on his way. Edgar Aff. ¶ 10 [Doc. # 46-1]. Several hours later, the accident happened.
Mr. Edgar avers that he had "no reason to believe the tire might blow" at any time before the accident. Edgar Aff. ¶¶ 10, 12 [Doc. # 46-1]. At his deposition, Mr. Edgar testified that, if he had identified a safety issue during an inspection, company procedure would have required him to call the company to arrange for roadside repairs or locate "the closest place for me to safely go to get my truck fixed before I proceed." Edgar Dep. at 18-19 [Doc. # 46-4]. At her deposition, Ms. Turan testified that she was unaware of any information Mr. Edgar knew "that would have alerted him to the tire potentially blowing out" before the accident. Turan Dep. at 185 [Doc. # 46-5]. Ms. Turan's accident reconstruction expert likewise testified that tires can fail through no fault of the driver and that he has no opinions regarding how or why the tire failed. Stolz Dep. at 27-28 [Doc. # 46-6].
Ms. Turan's response does not dispute these facts. As explained below, the main theory of negligence alleged in the complaint is that Mr. Edgar "carelessly and negligently operated an unsafe vehicle." Compl. ¶ 18 [Doc. # 1]. Ms. Turan's response, however, addresses a theory not mentioned in the complaint: that Defendants were negligent in failing to clear the road of debris from the tire blowout. She cites evidence that she contends supports this theory, including Mr. Edgar's deposition testimony. See Pl.'s Resp. to Defs.' Mot. For Summ. J. [Doc. # 56]. After filing her response, Ms. Turan moved for leave to amend her complaint to assert this theory. The Court denied her motion. See Order [Doc. # 77] (accepting recommendation of Magistrate Judge [Doc. # 73]).
II. Standard of Review
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant has the initial responsibility of identifying for the Court "particular parts of materials in the record"-including, for example, depositions, documents, declarations, and interrogatory answers-that it believes show the absence of genuine issues of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). Once the movant has done so, the non-movant may not rest on the allegations contained in his complaint, but must "respond with specific facts showing the existence of a genuine factual issue to be tried." Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980) (internal citation omitted); Fed.R.Civ.P. 56 (c) & (e). If a reasonable jury could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The operative inquiry is whether, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Id. at 252; Mares, 971 F.2d at 494.
A court may not grant a motion for summary judgment merely because the non-movant fails to respond with any relevant facts. Rather, the court must "first examin[e] the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and the moving party is entitled to judgment as a matter of law." Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002); Caler v. Brown, No. 13-CV-02093-PAB-DW, 2014 WL 4783387, at *2 (D. Colo. Sept. 25, 2014). Once the court is satisfied that the moving party has met its burden of production, summary judgment may enter. Reed, 312 F.3d at 1195; Fed.R.Civ.P. 56(e)(3).
A. Ms. Turan's Claims
In her operative complaint, Ms. Turan asserts claims for negligence, negligence per se, and wrongful death by negligence against Mr. Edgar. She asserts a respondeat superior claim against the company for Mr. Edgar's negligence. And she asserts claims for the company's own negligence: negligent failure to establish and enforce reasonable safety rules, policies, and measures; negligent entrustment; and negligent hiring, training, and supervision. It appears the parties may have reached an agreement to dismiss the latter two claims, but no dismissal papers have been filed. See Scheduling Order at 3 [Doc. # 19] (Defendants noting such agreement in their "Statement ...