United States District Court, D. Colorado
C. VANCE HENDRICKSON, D.M.D., Plaintiff,
THOMAS DOYLE, Defendant
Vance Hendrickson, D.M.D., Plaintiff: James E. Gigax, LEAD
ATTORNEY, Bloom Murr Accomazzo & Siler, PC, Denver, CO.
Thomas Doyle, Defendant: Billy-George Hertzke, LEAD ATTORNEY,
Jessica Rae Schultz, Senter Goldfarb & Rice, LLC, Denver, CO.
DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY
J. Martínez, United States District Judge.
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.
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).
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).
STATE OF THE RECORD
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.
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,
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.
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
following facts are undisputed unless otherwise noted.
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.)
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.
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
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.)
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.
Duty and Breach
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."
Rebuttable Presumption of Negligence Under the Ski Safety
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). 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