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Wiltberger v. Lee-Ward Partners, LLC

United States District Court, D. Colorado

July 19, 2017

RYAN WILTBERGER, Plaintiff,
v.
LEE-WARD PARTNERS, LLC, a Colorado corporation d/b/a The Thirsty Parrot Bar & Grill, a/k/a The Thirsty Parrot, Defendant.

          OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger Judge

         THIS MATTER comes before the Court on the Defendant Lee-Ward Partners, LLC, d/b/a The Thirsty Parrot Bar & Grill's (Thirsty Parrot) Motion for Summary Judgment (# 44), the Plaintiff Ryan Wiltberger's Response (# 47), and the Thirsty Parrot's Reply (# 50).

         I. Jurisdiction

         Mr. Wiltberger is a California resident. Lee-Ward Partners, LLC is a Colorado limited liability company with two members: Justin Myers, a Colorado resident, and Ralph Gillmore, also a Colorado resident. The amount in controversy exceeds $75, 000. The Court exercises jurisdiction pursuant to 29 U.S.C. § 1332.

         II. Factual Background

         The following is a summary of the facts viewed in the light most favorable to the non-movant, Mr. Wiltberger. More factual details are provided as needed in the Court's discussion.

         On February 13, 2015, Mr. Wiltberger went to the Thirsty Parrot, a nightclub located in Colorado Springs. He purchased a beer on the second floor, and later, he went back to the same bar area to purchase a second. After the bartender handed him his second drink, he turned and took “two steps” before he was assaulted. He was “punched, ” then “hit again, and in between all that . . . stabbed in the eye” with a glass. A bartender, Nana Debordes, identified the assailant, later identified as Moses Alvarado, who had picked up a “bucket glass” from a stack on the bar and used it to strike Mr. Wiltberger in the face. A second bartender, Jordan Gambucci, confirmed this account.

         Witnesses testified that there were signs of a conflict arising before Mr. Wiltberger's assault. Ms. Gambucci observed that Mr. Alvarado was “extremely animated and agitated as he was throwing his hands in the air and moving as though he was trying to get at somebody.” Mr. Debordes also told police officers that before the assault Mr. Alvarado was “being aggressive and confrontational.” While medical and law enforcement personnel were assisting Mr. Witlberger before he was transported to the hospital, he identified Mr. Alvarado as his attacker. Mr. Wiltberger also identified a second participant in the assault, Eduardo Higuero. Mr. Wiltberger described both men as intoxicated, and he subsequently indicated that the EMTs and the police agreed that the men were drunk. One of the responding police officers, Officer Markwell, composed a written statement about the night, in which he described Mr. Higuero as “showing several clear signs of intoxication, ” including watery eyes, slurred speech, swaying, and a strong odor of alcohol. As for whether Mr. Alvarado was intoxicated, Mr. Bigelow testified that he believed Mr. Alvarado had previously been “cut off” because he had “reached his limit.” However, other witnesses did not believe Mr. Alvarado was intoxicated.

         The hit to Mr. Wiltberger's eye with a glass object caused two cuts to his eye, and permanently diminished his sight. He asserts two claims for relief: violation of the Colorado Dram Shop Act, C.R.S. § 12-47-801, and violation of the Colorado Premises Liability Act, C.R.S. § 13-21-115 (the CPLA). The Thirsty Parrot moves for summary judgment in its favor on both claims.

         III. Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Thus, the primary question presented to the Court in considering a Motion for Summary Judgment or a Motion for Partial Summary Judgment is: is a trial required?

         A trial is required if there are material factual disputes to resolve. As a result, entry of summary judgment is authorized only “when 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); Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A fact is material if, under the substantive law, it is an essential element of the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the conflicting evidence would enable a rational trier of fact to resolve the dispute for either party. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013).

         The consideration of a summary judgment motion requires the Court to focus on the asserted claims and defenses, their legal elements, and which party has the burden of proof. Substantive law specifies the elements that must be proven for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). As to the evidence offered during summary judgment, the Court views it the light most favorable to the non-moving party, thereby favoring the right to trial. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         Motions for summary judgment generally arise in one of two contexts - when the movant has the burden of proof and when the non-movant has the burden of proof. Each context is handled differently. When the movant has the burden of proof, the movant must come forward with sufficient, competent evidence to establish each element of its claim or defense. See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the absence of contrary evidence, this showing would entitle the movant to judgment as a matter of law. However, if the responding party presents contrary evidence to establish a genuine dispute as to any material fact, a trial is required and ...


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