United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
I. INTRODUCTION AND BACKGROUND
THIS MATTER is before the Court on the Defendants’ Motion for Partial Summary Judgment or Summary Judgment (ECF No. 41), filed on July 15, 2015. The matter is fully briefed.
This action arises from an automobile collision that occurred in the early morning hours of September 29, 2012. Defendant Sellers (“Sellers”) was driving a tractor trailer eastbound on Interstate 76 near E-470 in Colorado when, ahead in the distance, he saw another eastbound motorist crash into the guardrail. Def.’s Motion, p. 2. As a result of the impact, the guardrail was peeled back from its position and was protruding into the right hand lane of the highway. Id. Sellers stopped his tractor trailer in the right hand lane of the highway in close proximity to the protruding guardrail. Id. Defendants assert that Sellers turned on his emergency flashers and called 911. Id. Defendants do not dispute that Sellers did not set out flares or reflective signs. Approximately two minutes into the 911 call, Seller’s tractor trailer was hit from behind by Plaintiff. Id. at 2-3. Plaintiff had been traveling eastbound on Interstate 76 at approximately 75 miles per hour, which she states was the posted speed limit for that zone. Pl.’s Response, p. 3. As a result of the collision, Plaintiff was ejected from the vehicle, was later airlifted from the scene to an area hospital, and was treated for severe injuries. Def.’s Motion, Ex. 4, Police Report. Plaintiff admitted in a deposition that her memory of the collision was lacking, and that she could not “a hundred percent, say what happened.” Def.’s Motion, Ex. 3, Salyards Deposition.
Plaintiff filed this action on July 14, 2014, asserting claims against Sellers for both negligence and negligence per se, negligent training/supervision and respondeat superior against both Defendants KBT Transportation (“KBT”) and FedEx Ground Package System (“FedEx”), and negligent selection of independent contractor against FedEx. The parties do not dispute that Sellers’ tractor trailer was owned by KBT. They also do not dispute that FedEx contracted with KBT to provide services to FedEx. However, Defendants dispute Plaintiff’s allegation that Sellers was an employee or contractor of KBT at the time of the incident, and that Sellers was hauling FedEx packages at that time. Compl., ¶ 7; Answer, ¶ 7.
Plaintiff contends that Sellers “operated the vehicle in his charge in a reckless, careless, and negligent manner, ” and “failed to take the proper steps to ensure that the traffic behind him could tell that a truck was stopped in the middle of the highway at night, ” arguing that “Sellers failed to turn on warning lights, flashing lights, or put out any sort of road flares, reflective signs or anything else to indicate that he was at a complete stop in the middle of the highway.” Compl., ¶¶ 6, 14. Plaintiff argues that Sellers “lacked the knowledge and skill ordinarily possessed by other skilled truck drivers in preventing, identifying, and avoiding injury to the motoring public” because both KBT and FedEx failed to train Sellers “in the proper performance of job responsibilities, the proper knowledge of trucking guidelines and procedures and the proper rules and regulations promulgated by state and federal laws.” Id. at ¶¶ 8-10.
Defendants argue that in cases of a rear-end collision, a rebuttable presumption of negligence is raised against the driver in the rear, and that Plaintiff has not provided enough evidence to rebut that presumption. Defendants argue that in light of this presumption, they are entitled to either summary judgment on all of Plaintiff’s claims, or partial summary judgment finding the Plaintiff partially negligent for the collision. Plaintiff argues that the presumption of negligence does not apply in this case, and that genuine issues of material fact remain which preclude summary judgment.
II. STANDARD OF REVIEW
Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the dispute under the applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). I must construe all inferences in favor of the party against whom the motion under consideration is made. Pirkheim v. First Unum Life Ins. Co., 229 F.3d 1008, 1010 (10th Cir. 2000). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
A. Defendants’ Motion for Summary Judgment
Defendants argue that Plaintiff is negligent as a matter of law. They rely on Colorado civil jury instruction CJI. Civ. 11:12, which states that “[w]hen a driver of a motor vehicle hits another vehicle in the rear, the law presumes that the driver was negligent.” This presumption is rebuttable, however, if the rear driver presents evidence that his negligence was not the cause of the collision. Bettner v. Boring, 764 P.2d 829, 833 (Colo. 1988). The rear-end collision jury instruction was derived from the holding in Iacino v. Brown, 217 P.2d 266 (Colo. 1950).
Defendants cite to both Bettner and Iacino in support of their argument. In Iacino, the plaintiff was sitting in his car, “properly parked” on the right side of the road on a residential street. The defendant, who admitted to travelling fifteen to twenty miles per hour, struck the plaintiff from behind, and later claimed that mechanical failure of the car was to blame for the accident, not his own negligence. Iacino, 217 P.2d at 266. The court stated that “[f]rom the admitted facts, which are that defendant was in control of an automobile which collided with the rear end of plaintiff’s automobile without any fault whatever on the part of plaintiff, there is a presumption of negligence sufficient to make a prima facie case.” Id. at 268. A jury returned a verdict for the plaintiff.
Thirty-eight years after Iacino, in Bettner, the rear-end collision jury instruction was implicated where a driver (Boring) was driving on Interstate 25 near Pueblo, Colorado, under icy and snow packed road conditions. Bettner, 764 P.2d at 830-31. A semi tractor-trailer had overturned on the road, blocking part of the highway, and emergency vehicles were already on the scene. Id. at 831. In attempting to avoid the tractor-trailer and other stopped vehicles, Boring grazed another vehicle. He pulled off of the highway and into a field to examine the damage to his own car. Id. It was estimated that Boring pulled off into the field approximately twelve to fifteen feet past the ten-foot wide shoulder. Id. He returned to his vehicle after inspecting his car and was about to start the car when he was hit from behind by Bettner’s vehicle. Id. An officer on the scene noted that the entire road was icy and there were other cars in the ditch and median areas that had slid off the road. Id. The matter proceeded to trial, and Boring tendered the rear-end collision instruction. Id. The trial court declined to give the instruction, noting that the instruction was not applicable “to a vehicle leaving the highway and striking a stationary object, in this case ...