United States District Court, D. Colorado
PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.
This matter is before the Court on defendants Deere & Company and John Deere Limited’s Motion for Summary Judgment [Docket No. 108]. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
This case arises out of an accident that occurred on August 17, 2011 while plaintiff Miriam White was operating her Deere Model 4600 compact utility tractor (the “tractor”) and Model 460 loader. Ms. White purchased her tractor from Elwood Power Equipment in July 2002. Docket No. 108 at 2, Statement of Undisputed Material Fact (“SUMF”) 1. At the time of the accident, Ms. White owned, but chose not to use, a bale spear attachment, albeit not a Deere bale spear attachment, that could be attached to the tractor and used to move hay bales, and to preclude hay bales from falling backwards onto the operator by piercing the bales. Id. at 3, SUMF 4.
Ms. White received an operator’s manual with her tractor, which she read cover to cover. Id., SUMF 5. The manual contains the following warning about falling hay bales:
Id., SUMF 6; Id. at 4, SUMF 7. The manual provides the following additional warnings about handling bales:
Id., SUMF 8. The manual repeats its warning for users not to exceed a bale weight of 317 kg (700 lb) when instructing users on “Transporting Round or Large Square Bales Safely.” Id., SUMF 9. The manual also provides direction on the proper use of the pallet fork attachment: “The forklift is used to handle materials on skids or pallets.” Id. at 5, SUMF 10.
On August 17, 2011, Ms. White was using the tractor and pallet fork attachment to lift a 4 ft. x 4 ft. x 8 ft. hay bale that weighed approximately 1, 500 pounds on top of two other similarly sized bales. Id., SUMF 12,  13. Prior to August 17, 2011, Ms. White had never attempted to stack bales of this size three bales high with the tractor. Id. at SUMF 14. While stacking the hay bale, it fell, causing plaintiff significant facial injuries. Id. at 6, SUMF 16.
Ms. White testified that, as she lifted the hay bale, she made adjustments to assure that the pallet fork tines on which the unsecured hay bale rested were level to the ground and the backstop against which the bale rested was perpendicular to the ground: “I had raised and leveled, raised and leveled, raised and leveled. There was nothing out of the normal.” Id., SUMF 17, 18. Ms. White recalls that the bale rotated backwards, came down over the backstop, and then down the loader arms. Docket No. 123-10 at 1, ¶ 1. Ms. White denies over-rotating the pallet fork tines and backstop rearward such that the bale could slide or roll over the backstop and fall onto her. Id., SUMF 19.
Other than plaintiff, there were no witnesses to the accident when it occurred and there are no photographs or other physical evidence showing the positions of the pallet fork tines and backstop at the time of the accident. Id., SUMF 22. The only post- accident witness able to testify about the position of the pallet fork tines and backstop, Tim Dinkel, recalled the tines being about 45 degrees from horizontal and the backstop 45 degrees from vertical. Id., SUMF 23.
On June 30, 2015, defendants moved for summary judgment on all claims. Docket No. 108. Defendants make four arguments in support of their motion: (1) Ms. White’s claims are barred pursuant to Colo. Rev. Stat. § 13-21-402.5 because she misused her tractor by carrying a hay bale weighing more than double the tractor’s maximum weight for hay bales, and that Ms. White did not use the proper hay bale spear attachment; (2) Ms. White’s claims are barred by the consumer choice doctrine because she used the wrong attachment and wrong-sized tractor for her work; (3) Ms. White’s testimony about the circumstances of the accident preclude the alleged defect causation findings necessary to establish her claims; and (4) plaintiff’s breach of warranty claims are also barred by ...