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Lawton v. Hotspur Sports Co., Inc.

United States District Court, D. Colorado

June 21, 2017

STEPHEN LAWTON, Plaintiff,
v.
HOTSPUR SPORTS COMPANY, INC., Defendants.

          OPINION AND ORDER

          RAYMOND P. MOORE United States District Judge.

         On March 8, 2016, plaintiff Stephen Lawton (“plaintiff”) filed a Complaint against defendants Hotspur Sports Company, Inc. (“Hotspur”), Charter Sports, Inc., Charter Sports Blue Sky, and Charter Sports (collectively, “defendants”), [1] alleging state law claims of negligence, strict liability, and breach of warranty, arising out of injuries sustained after a skiing accident on March 9, 2014. (ECF No. 1.) On February 10, 2017, plaintiff filed a motion to amend the complaint (“the motion to amend”) (ECF No. 27), which, after a report and recommendation (ECF No. 45), the Court granted in part and denied in part (ECF No. 58), allowing plaintiff to amend his complaint to add a further state law claim of gross negligence.

         Pending before the Court is Hotspur's motion for summary judgment (“the motion for summary judgment”) (ECF No. 32) and statement of undisputed material facts (ECF No. 33-12). Plaintiff has filed a response in opposition to the motion for summary judgment (ECF No. 37), and a response in opposition to Hotspur's statement of undisputed material facts (ECF No. 37-1). Hotspur filed a reply (ECF No. 40) and a reply statement of undisputed material facts (ECF No. 39). In addition, after instruction in the report and recommendation with respect to the motion to amend, Hotspur filed a supplement to its motion for summary judgment to address plaintiff's gross negligence claim (“the supplement”) (ECF No. 49), as well as a supplement to its statement of undisputed material facts (ECF No. 50). Plaintiff has filed a response to Hotspur's supplement (ECF No. 54), [2] as well as a response statement of supplemental undisputed material facts (ECF No. 55).

         I. Legal Standard for Summary Judgment

         Summary judgment is appropriate “when 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(a). Initially, the movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id. However, a mere “scintilla of evidence” is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant “must proffer facts such that a reasonable jury could find in her favor.” Id.

         II. Discussion[3]

         The Court addresses the arguments and claims at issue in the motion for summary judgment, and then the arguments and claim at issue in the supplement. In the motion for summary judgment, Hotspur raises four grounds for why summary judgment should be entered in its favor. First, Colo. Rev. Stat. § 13-21-402 bars all of plaintiff's claims because they are product liability claims and Hotspur was not a manufacturer of the skis rented to plaintiff. (ECF No. 32 at 7-9.) Second, plaintiff fails to state a prima facie claim for strict products liability because this case does not involve a defective product. (Id. at 9-10.) Third, the undisputed evidence contradicts plaintiff's negligence claim because the bindings on his skis released as they were designed to do. (Id. at 2-4.) Fourth, plaintiff's negligence and breach of warranty claims are barred by an exculpatory clause in an agreement plaintiff executed before renting his skis. (Id. at 5-7.)

         A. Product Liability (Issues 1 and 2)

         If this case is anything it is not a product liability action. A simple perusal of the Complaint and the evidence presented for summary judgment demonstrates this. Notably, both parties agree that the piece of equipment at issue in this case-the bindings on plaintiff's skis-were not defective and functioned appropriately. (See ECF No. 40 at 14; ECF No. 37 at 6.) Why plaintiff alleged claims in his Complaint that defendants acted negligently in adjusting the settings of the bindings and the bindings were defective and/or not fit for purpose, the Court does not know. Perhaps plaintiff wanted to keep his options open. But, now that the evidence is in, it clearly shows at least one thing-the bindings were not defective or unfit for their purpose. (See ECF No. 37-1 at ¶ 42.) Oddly, perhaps due to the somewhat conflicting nature of plaintiff's claims, both parties in their summary judgment papers end up arguing against themselves. In other words, both parties argue that the bindings were, at the same time, both not defective (ECF No. 40 at 14; ECF No. 37 at 6) and defective (ECF No. 32 at 9; ECF No. 37 at 16). This is perhaps best illustrated by the arguments in the motion for summary judgment, in that Hotspur argues, on the one hand, that all three of plaintiff's claims state product liability claims, and, on the other hand, this case does not involve a defective product. (See ECF No. 32 at 9-10.) In summarizing Hotspur's arguments, plaintiff himself shows the conflicting nature of his claims: “In arguing that Plaintiff[] does not state a strict liability claim, [Hotspur] itself argues that Plaintiff's claims, including the strict liability claim, are really just simple negligence claims.” (See ECF No. 37 at 17.)

         To set this case straight, the Court agrees that plaintiff's claims (at least in the original Complaint) “are really just simple negligence claims.”[4] It is for this simple reason that plaintiff's argument that Hotspur is a “manufacturer” for purposes of the Colorado Product Liability Act is wrong too. Plaintiff argues that a “manufacturer” is anyone who sells a product with actual knowledge of a defect in the product, and Hotspur had actual knowledge that mis-adjusted bindings could cause a premature release. (ECF No. 37 at 16.) Plaintiff, though, makes no effort to explain why this kind of knowledge represents knowledge of a defect in the ski bindings. And the Court cannot understand how it would. Apparently, neither can plaintiff, given that, earlier in the response, plaintiff asserts that his release from the bindings “on the day of the accident [was] not due to a design flaw in the bindings but, rather, to their improper adjustment, such as incorrect DIN settings or incorrect forward pressure settings.” (See id. at 6.) Simply put, setting a product improperly, just like using a product improperly, does not render that product defective. As a result, Hotspur was not aware of a defect in the ski bindings, and thus, Hotspur was not a “manufacturer” for purposes of the Colorado Product Liability Act.

         The result of all of these conflicting arguments and claims is that the Court GRANTS the motion for summary judgment with respect to plaintiff's breach of warranty and strict product liability claims because Hotspur is not a “manufacturer” under the Colorado Product Liability Act, and thus, cannot be held liable on a product-liability theory. See Colo. Rev. Stat. § 13-21-402(1).[5]However, the Court rejects Hotspur's argument that plaintiff's simple negligence claim should be dismissed on a similar basis because that claim clearly does not sound in product liability, and thus, the Colorado Product Liability Act does not apply to it.

         B. Simple Negligence

         1. The Evidence

         Hotspur argues that undisputed evidence shows that the bindings on the skis plaintiff rented were appropriately set, and thus, it did not act negligently in setting the bindings. (ECF No. 32 at 2-4.) Plaintiff responds that there is “significant disagreement” about whether his release from the ski bindings was proper, including over the settings on the bindings at the time plaintiff rented the pertinent skis. (ECF No. 37 at 4-6.) The Court agrees with plaintiff.

         From Hotspur's perspective there are only a few pertinent pieces of evidence to this question. None of them, though, are as clear cut as Hotspur believes. Hotspur first cites the “rental form” used for the rental of the skis. (ECF No. 32 at 3.) Hotspur asserts that it selected a visual indicator setting of “8” for the skis. (Id.) For present purposes, this is inaccurate for two reasons. First, the rental form contains entries for four different settings: the left and right toe, and the left and right heel. (ECF No. 32-5 at 2.) Although the settings for the left and right toe appear to be “8s”, the settings for the left and right heel appear, at least for summary judgment purposes, to be “5s”, which would undermine Hotspur's argument that the heel settings were appropriately set.[6] Second, the rental form, as originally filled out, pertained to skis with the identifying number of 13 KAR 167-20. (See id.) The evidence shows that the 13 KAR 167-20 skis were returned on March 8, 2014, and plaintiff was issued a different pair of skis with the identifying number 12 KR 174-8. (ECF No. 39 at ¶¶ 19-20.) There is no indication from the rental form itself, though, that the 12 KR 174-8 skis had the same settings as the 13 KAR 167-20 skis.

         Hotspur next cites the deposition testimony of Paul Wride, one of Hotspur's employees, that, when the 12 KR 174-8 skis were returned following the accident, Wride performed a visual inspection of the same and the bindings were all set at “8”. (ECF No. 32 at 3.) Wride's testimony is perhaps one of the more persuasive pieces of evidence in Hotspur's favor, as it is contemporaneous with the return of the skis after plaintiff's accident. That being said, it does not mean that plaintiff cannot offer opposing evidence of the settings on the bindings. Through the testimony of Seth Bayer, which the Court has now allowed, plaintiff has done so.[7] Notably, Bayer has opined that the probable cause for plaintiff's release from the bindings was that either the visual indicator setting or the forward pressure setting were inappropriately set. (ECF No. 30-1 at 7.)[8] If it was the visual indicator setting, although this would contradict Wride's testimony, a jury would not be compelled to accept Wride's account if it believed Bayer's testimony, especially given that Wride's account was never memorialized in writing at the time.

         If it was the forward pressure setting, this would not contradict Wride's testimony about the visual indicator setting. Instead, it would contradict another piece of evidence upon which Hotspur relies-the deposition testimony of its employee David Tunison, who evaluated the 12 KR 174-8 skis the day after plaintiff's accident, and ticked a “Yes” box on the evaluation form that the forward pressure was correct. (See ECF No. 37-10 at 8.) Again, though, a jury would not be required to accept that the forward pressure setting on the skis was correct if it believed Bayer, and even more so given that Tunison's inspection occurred a day after the accident. (See id.)

         Hotspur also cites testimony from plaintiff's brother-in-law, Peter Markes, and Bayer for the proposition that the bindings released because plaintiff fell or pitched forward. (ECF No. 32 at 4.) However, assuming plaintiff fell forward, that does not mean this motion caused plaintiff's release. Instead, plaintiff's release could have caused him to fall forward. In that regard, the Court does not construe Bayer's testimony as stating otherwise. Although Bayer used the words “before he was ejected from his skis, ” that appears related to Bayer's explanation of the direction plaintiff traveled after his release, rather than Bayer's use of the term “pitched forward.” (See ECF No. 32-2 at 30:9-11.) Moreover, with regard to Markes' testimony, although he stated that he ...


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