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Hendrickson v. Doyle

United States District Court, D. Colorado

December 11, 2015


          For C. Vance Hendrickson, D.M.D., Plaintiff: James E. Gigax, LEAD ATTORNEY, Bloom Murr Accomazzo & Siler, PC, Denver, CO.

         For Thomas Doyle, Defendant: Billy-George Hertzke, LEAD ATTORNEY, Jessica Rae Schultz, Senter Goldfarb & Rice, LLC, Denver, CO.

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         William J. Martínez, United States District Judge.

         In this action, Plaintiff C. Vance Hendrickson (" Hendrickson" ) sues Defendant Thomas Doyle (" Doyle" ) for damages Hendrickson allegedly incurred as a result of Doyle's collision with Hendrickson while skiing. (ECF No. 1.) Currently before the court is Hendrickson's Motion for Partial Summary Judgment (" Motion" ). (ECF No. 35.) For the reasons explained below, the Motion is denied.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 " 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is " genuine" if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences there from in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).


         Hendrickson's counsel, James Gigax, filed the Motion at 10:11 p.m. on June 30, 2015 (the dispositive motion deadline, see ECF No. 21 at 6), followed that night by four additional filings attaching exhibits, followed by three more filings the next afternoon attaching more exhibits. ( See CM/ECF display receipts for ECF Nos. 35-42.) The haphazard way in which Mr. Gigax went about filing the Motion and exhibits carries over into the exhibits themselves, which have little discernible organization. It is difficult, for example, to find certain exhibits because they are cited descriptively ( e.g., by the name of the deponent) rather than through a numerical or alphabetical designation.

         Furthermore, Hendrickson's exhibits include numerous unauthenticated photographs, video stills, screenshots, and Internet materials. ( See, e.g., ECF Nos. 36-1 through 36-12, 40-2 through 40-5.) Doyle's Response properly called out the lack of authentication. ( See ECF No. 44 at 15-17.) Mr. Gigax attempted to rectify this deficiency through the Reply, attaching various affidavits from those who allegedly possess the proper authenticating knowledge. ( See, e.g., ECF Nos. 47-1, 47-2, 47-3, 47-9.)[1]

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          Mr. Gigax evidently put little thought into preparing a proper summary judgment motion. Although the Court could forgive an isolated oversight corrected through a Reply brief ( e.g., explicable failure to submit the proper authentication for one or two exhibits), the record demonstrates that Mr. Gigax did not even try to get it right the first time. Such carelessness is unacceptable, and, as a consequence, the Court will not consider the authentication affidavits submitted with the Reply.

         This should not be construed as a ruling that these exhibits are not admissible at trial. The Court makes no ruling in that respect one way or the other. Nonetheless, Mr. Gigax must be aware of the difficulties he may face if he persists in offering some of these exhibits, particularly those he generated himself. For example, rather than hire a professional videographer for certain depositions, Mr. Gigax brought his own video camera and has submitted excerpts and stills from those videos. The Court will not now address whether such videos are admissible in addition to the official deposition transcript because a potentially larger problem looms. Specifically, someone will need to authenticate those videos, and that someone might have to be Mr. Gigax himself, thus making him a witness in his client's case. ( See ECF No. 47-9 (Mr. Gigax's untimely affidavit attempting to authenticate the deposition videos).) Mr. Gigax must keep this in mind going forward.

         III. FACTS

         The following facts are undisputed unless otherwise noted.

         Hendrickson is a dentist by profession, and lives and works in Tennessee. (ECF No. 1 ¶¶  1, 37.) He is in his mid-60s. (ECF No. 35 at 2, ¶ 8.) Doyle is a Colorado native in his early 20s. ( Id. at 1, ¶ 1.) He grew up in Aspen and learned to ski there. ( Id. ¶ 2.) He is now " a highly experienced and technically skilled skier." ( Id. at 2, ¶ 6.) Both Hendrickson and Doyle were skiing at the Aspen Snowmass ski area on January 10, 2014. ( Id. ¶¶  7-8.)

         One of the runs both men chose to ski that day was the Green Cabin ski trail. ( Id. at 2-3, ¶¶  11-12.) About halfway down the lower portion of the Green Cabin trail, a service road known as Thornton Road cuts laterally across the slope. ( Id. at 3, ¶ 14; ECF No. 44 at 3, ¶ 14; id. at 11, ¶ 3.) The slope flattens out somewhat at that point and then immediately resumes a typical downward pitch. ( Id. ) Thus, with sufficient speed, someone skiing the Green Cabin trail from above Thornton Road could use the road as a launching point for a jump. That is what Doyle intended to do on this day.[2]

         As Doyle approached Thornton Road, he noticed a class of ski students going " over the roll" ( i.e., the road's downhill edge), so he maneuvered to the left of them. (ECF No. 35 at 4, ¶¶  19, 23.) At this point, the parties' stories diverge, but Hendrickson is willing to admit Doyle's version of events for purposes of summary judgment. ( See ECF No. 47 at 3-4.) According to Doyle, therefore, he approached Thornton Road " at a normal speed and . . . in complete control of his movements." (ECF No. 44 at 12, ¶ 7.) " [B]ecause no one had skied over the roller in the seconds before [Doyle's approach], [he] believed that the area on the other side [of the] roller would be free

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of skiers." ( Id. ¶ 8.) Thus, as he went over the roller, he launched into a " 360 maneuver" which he characterized as a simple jump that took him no more than three feet off the ground for about one second, traveling about ten feet in the air. ( Id. at 12-13, ¶¶  9-10, 14-16.) Doyle " had performed the maneuver hundreds of times since he first learned to ski as a child," and " had previously performed the same maneuver in [the same] location without incident." ( Id. at 12, ¶¶  11, 13.) Unfortunately, " Doyle had not even completed a full rotation [ i.e., he was still in the air] when he first noticed Mr. Hendrickson." ( Id. at 13, ¶ 17.) " As Mr. Doyle's skis touched the ground, he collided with Mr. Hendrickson." ( Id. ¶ 20.)

         IV. ANALYSIS

         Hendrickson has sued Doyle for negligence. (ECF No. 1 ¶¶  23-33.) Hendrickson now moves for partial summary judgment in his favor as to Doyle's " negligence and liability," and as to Doyle's affirmative defenses of comparative negligence and assumption of the risk. (ECF No. 35 at 1.) The Court will discuss each topic in turn.

         A. Duty and Breach

         Hendrickson says he is moving for partial summary judgment as to " negligence and liability." ( Id. ) This would seem to encompass everything but the actual measure of damages. However, Doyle's Response challenges whether Hendrickson's claimed injuries in fact resulted from the collision with Doyle. (ECF No. 44 at 19-20.) Hendrickson's Reply is silent about this argument. ( See generally ECF No. 47.) Thus, it appears that Hendrickson is moving for summary judgment solely on the duty and breach elements of a negligence claim. See Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992) (" The elements of a claim of negligence consist of the following: a duty owed by the defendant to the plaintiff, a breach of that duty, injury to the plaintiff, and a proximate cause relationship between the breach and the injury." ).

         1. Rebuttable Presumption of Negligence Under the Ski Safety Act

         Colorado's Ski Safety Act (" Act" ) establishes the " statutory duties of a skier, the breach of which constitutes negligence." Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671, 680 (Colo. 1985).[3] In this case, the Act assigns to Doyle, as the uphill skier, the " primary duty" to avoid a collision:

Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing ...

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