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Bryant v. State, Department of Transportation

United States District Court, D. Colorado

January 3, 2018



          Nina Y. Wang United States Magistrate Judge

         This civil action is before the court on Defendant State of Colorado, Department of Transportation's Motion for Summary Judgment. [#66, filed May 25, 2017]. Also before the court is Defendants John William Reams, Earl Byron Reams II, and The H. Neil Reams Family LLLP's Motion for Summary Judgment. [#69, filed May 31, 2017]. The Motions are before the undersigned pursuant to 28 U.S.C. § 636(c) and the Order Referring Case dated August 19, 2016, [#39]. The court has carefully considered the Motions and associated briefing, the entire case file, and the applicable law. For the reasons stated below, Defendant State of Colorado, Department of Transportation's Motion for Summary Judgment is DENIED, and the Reams Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.


         On December 21, 2015, Plaintiff Tamara Bryant (“Plaintiff” or “Ms. Bryant”) was a passenger in a vehicle travelling westbound on Colorado State Highway 145 in or around the Nucla/Naturita community. At approximately 7:00 p.m., the vehicle in which Plaintiff was riding struck a cow that another motorist had previously hit and immobilized. [#28 at ¶¶ 13-17]. The cow was owned by John William Reams, Earl Brown Reams, II, and/or the H. Neil Reams Family LLLP (collectively, the “Reams Defendants”). [Id. at ¶ 15]. The collision caused the vehicle to flip onto its passenger side and skid along the pavement at a high velocity, during which Plaintiff's right arm “was pulled out of the passenger window and ground down to a stump as a result of road friction.” [Id. at ¶¶ 18-19]. Plaintiff sustained multiple injuries in addition to losing her right arm, and seeks damages including but not limited to present and future hospital and medical expenses, past and future lost wages, and loss of enjoyment of life. [Id. at ¶ 20].

         Plaintiff initiated this personal injury action on June 24, 2016 by filing a Complaint that asserted four common law claims against Defendants the State of Colorado, Department of Transportation (“CDOT”), John William Reams (“John Reams”), Earl Brown Reams, II (“Earl Reams”), and the H. Neil Reams Family LLLP (the “Partnership”). [#1]. On August 1, 2016, Plaintiff filed an Amended Complaint asserting claims for premises liability pursuant to Colo. Rev. Stat. § 13-21-115 and for negligence as to CDOT, [#28 at 1-6], and for negligence and civil conspiracy as to the Reams Defendants.[1] [Id. at 6-8]. On October 7 and October 10, 2016, CDOT and the Reams Defendants respectively designated as a non-party at fault Kirk Powell, the driver of the vehicle in which Plaintiff was riding at the time of the accident. [#43; #44]. On February 27, 2017, the court granted the motion to amend, see [#55]. On March 3, 2017, Plaintiff submitted the Second Amended Complaint, the operative complaint, [#56], and CDOT and the Reams Defendants filed Answers on March 16, 2017, [#57], and March 17, 2017, [#58], respectively.

         The Parties thereafter sought, and the court granted, extensions of certain deadlines to allow the Parties to complete their pretrial preparations. See [#59 through #63]. On May 25, 2017, CDOT filed its pending Motion for Summary Judgment, arguing that there is no evidence to support finding that the subject cow wandered through a CDOT fence, and there is no evidence that CDOT was provided with actual notice of a defect in a CDOT fence line through which the subject cow ultimately escaped. [#66]. The Reams Defendants, following the request and grant of a second short extension, filed their Motion for Summary Judgment on May 31, 2017 [#69]. Plaintiff subsequently moved for an extension of time to respond to CDOT's Motion for Summary Judgment, [#71], and then filed a motion to stay the briefing with regard to that Motion, pursuant to Fed.R.Civ.P. 56(d), asking the court for leave to take a second deposition of Defendant Earl Reams.[2] [#73]. On June 21, 2017, Plaintiff filed her Response in opposition to the Reams Defendants' Motion for Summary Judgment. [#75]. The following day, the court held a Status Conference on Plaintiff's request to stay the briefing of the CDOT Motion for Summary Judgment, which request the Reams Defendants opposed to the extent Plaintiff would engage in a second deposition of Earl Reams. See [#76]. The court vacated the Final Pretrial Conference set for July 12, 2017 and stayed the deadline for Plaintiff's response to CDOT's Motion for Summary Judgment, pending the court's ruling on the motion to stay. [Id.] On July 5, 2017, the Reams Defendants filed a Reply in support of their Motion for Summary Judgment. [#77]. The Reams Defendants filed a response to Plaintiff's motion to stay the briefing of the CDOT Motion for Summary Judgment on July 11, 2017, [#78], and Plaintiff filed a reply on July 18, 2017, [#79]. The following day, the court granted Plaintiff's motion to stay in part and denied it in part and reopened discovery solely to allow Plaintiff to take a limited deposition of Earl Reams, in his individual capacity. See [#80]. Plaintiff subsequently filed a Response to the CDOT Motion for Summary Judgment on August 18, 2017, [#81], and CDOT filed a Reply on August 31, 2017 [#82]. The motions are now ripe for disposition, and the court held a Final Pretrial Conference on December 14, 2017.


         Defendants are entitled to summary judgment only if they show “that there is no genuine dispute as to any material fact, and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         Defendants are the moving parties and thus they bear the burden of showing that no genuine issue of material fact exists. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). More specifically, because Defendants do not have the burden of proof at trial, their Motions for Summary Judgment must point to an absence of sufficient evidence to establish the claims that Plaintiff is obligated to prove. If Plaintiff comes forward with sufficient competent evidence to establish a prima facie claim, a trial is required. Heineman v. American Home Products Corporation, 67 F.Supp.3d 1189, 1192 (D. Colo. 2014) (citing Celotex Corp., 477 U.S. at 322-23). In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).


         The court derives the following facts from those to which Plaintiff and CDOT stipulate and from the deposition transcripts submitted by the Parties in support of their briefs. The Reams Defendants did not include a statement of undisputed material facts in their Motion, nor do they contest the statement of facts that Plaintiff presents in her Response. Accordingly, the court considers the following facts as undisputed for the purpose of reviewing both Motions for Summary Judgment.

         The Accident

         On December 21, 2015, at approximately 7:00 p.m., a jeep driving southbound on Colorado Highway 145 south of Naturita, Colorado, struck a cow approximately 191 feet east of the junction of Highway 141 and Highway 145 in Montrose County, Colorado. [#66 at 3, ¶ 1]. The Partnership owned the cow. [Id. at ¶ 3]. Trooper Mark Hanson of the Colorado State Patrol investigated the accident. [Id. at ¶ 2]. The force of the collision disabled the jeep and threw the cow into the northbound lane of traffic of Highway 145, where it was struck by a Toyota pickup truck driven by Mr. Powell and in which Plaintiff was a passenger. [Id. at ¶¶ 4, 5]. Plaintiff's right arm was amputated as a result of the injuries she sustained during the collision. [Id. at 4, ¶ 6].

         Johnathon White resides at 30737 Highway 145, Redvale, Colorado. [#66 at 4, ¶¶ 7, 8]. The collision between the jeep and the cow occurred on Highway 145 approximately 100 yards south of Mr. White's residence. [Id. at ¶ 9]. When Mr. White heard the sound of the collision, he immediately left his residence for the scene of the accident. [Id. at ¶ 10]. Mr. White was thus present when Mr. Powell's Toyota pickup truck collided with the immobilized cow in the northbound lane of Highway 145. [Id. at ¶ 11].

         Parcel 079

         For years, the Partnership has grazed cattle on a property identified as Parcel No. 4269-214-00-079 (“Parcel 079”), which is located in the vicinity of the Highway 141 and Highway 145 junction. [#66 at 5, ¶ 12]. The property is identified as Parcel 079, but is also known as the Naturita Creek or Naturita Creek Ranch parcel. [Id. at ¶¶ 12, 13]. Parcel 079 comprises 480 acres and the Partnership's cattle graze on the entire parcel. [Id. at ¶ 14]. In December 2015, approximately 40 cows belonging to the Partnership grazed on Parcel 079. [Id. at ¶ 15]. The Partnership intended for the cow involved in the accident to be grazing on Parcel 079. [Id. at ¶ 16].

         Parcel 079 is fenced, with the exception of a stretch of the northeast perimeter.[3] See [#66-6]. Earl Reams testified as the Partnership's corporate designee that this stretch is not a natural boundary, “[b]ecause the cows climb right through it.” [#75-2 at 86:13-21]. He further testified that “probably the State does not want to fence it. It's rough. It's rough country, but it's…not good…for a natural boundary.” [Id. at 86:23-87:1]. He testified that the Partnership has considered erecting a fence along that stretch of perimeter, but has never commissioned a fence because construction is too expensive. [Id. at 87:2-10]. Earl Reams also testified that, with respect to this stretch of the perimeter, “the easy place to fence would be inside the State right-of-way, ” but that, “per law…that's CDOT's deal, and you can't just go in and do what you want on CDOT property.” [Id. at 90:16-91:14]. Cows wander through these gaps in the fencing to exit Parcel 079 and enter the highway in the vicinity of Highway 141 and Highway 145. [#66 at ¶ 17].

         Earl Reams testified that to his recollection, a CDOT fence runs alongside the northern stretch of the 079 Parcel and parallel to Highway 141. [#81 at 3, ¶ 2]. Steven Kelso, testifying on behalf of CDOT as its Rule 30(b)(6) designee, confirmed that CDOT maintains a fence along the north side of the 079 Parcel, described by Plaintiff's counsel as “kind of towards the western end of the 079 Parcel, ” and described by Mr. Kelso as running from the Naturita Creek Bridge, Mile Marker 59, north. [#66-7 at 26:19-27:6]. Mr. Kelso testified that “CDOT does not maintain any fencing on Highway 141 from the junction north or on the west side of the highway going south.” [#66 at 6, ¶ 20]. CDOT maintains fencing on Highway 141 from the Naturita Creek Bridge, which is at mile marker 59 north along Highway 141, through the town of Naturita. [Id. at ¶ 21]. Thus, there are portions of the fence line that surrounds Parcel 079 the maintenance for which CDOT bears responsibility. Earl Reams testified that he has seen tracks where cows have left the 079 Parcel, and identified those points of egress as the northeast corner where no fence exists (“from the junction 145/141 west on 141), the northwest corner where CDOT maintains the boundary, and “the far end of the Naturita Creek property…the 078.” [#66-1 at 150:22-151:6].

         Two to three times per year, cattle owned by the Partnership enter the property owned by Mr. White and his grandfather. [#66 at 6, ¶ 22]. The wandering cattle travel from Partnership property located south of the junction of Highway 141 and Highway 145. [Id. at ¶ 23]. On at least one occasion between December 19-21, 2015, before the accident, cattle owned by the Partnership entered the highway in and around the junction of Highway 141 and Highway 145. On that occasion, the Partnership herded the cattle off the highway and onto Parcel 079, which is west of the junction at Highway 141 and Highway 145. [Id. at ¶ 24]. During his deposition, Mr. White testified to his opinion that the cow involved in the accident was a member of the group of cows that entered his property between December 19th and 21st of 2015. [Id. at ¶ 26]. During his deposition, Earl Reams could think of no reason to doubt Mr. White's testimony that the cow involved in the accident strayed from Parcel 079. [Id. at ¶ 27].

         Many years prior to the accident, on March 22, 2005, Earl Reams sent CDOT a letter, in which he memorialized a meeting at which he notified CDOT of the need for certain fence repairs. [Id. at ¶¶ 3, 4]. On June 6, 2005, Earl Reams sent CDOT a second letter, which referenced concerns raised in the March 2005 letter, specifically the need for fence repairs along Colorado State Highway 141 from Naturita to the junction of Colorado State Highways 141 and 145. [#81-1 at 11:10-21]. The June 2005 letter represented that “[s]ome repairs have been made but still more repair is necessary.” [Id. at 11:22-24]. On September 9, 2005, Earl Reams sent CDOT a third letter, in which he noted that CDOT had not responded to his June 2005 letter and that the fencing along Parcel 079 remained an outstanding issue. [Id. at 4, ¶¶ 9, 10]. On October 3, 2005, Earl Reams sent CDOT a fourth letter, in which he summarized his previous correspondence to CDOT and noted, again, that CDOT had not repaired the fence line as requested. [Id. at ¶¶ 11, 12]. Earl Reams opined in this letter that CDOT's failure to address the concerns raised in his prior correspondence constituted “serious safety issues” that “could potentially cost human life.” [Id. at ¶ 13].[4] During his deposition, Earl Reams testified that he did not recall whether CDOT ever made the repairs requested in the 2005 correspondence. [Id. at ¶ 14].

         Earl Reams also testified that he asked CDOT in 2015 to repair stretches of fence alongside Parcel 079. [Id. at 5, ¶ 15]. When asked whether CDOT made the requested repairs, Earl Reams testified that he “didn't think they did a good job.” [Id. at ¶ 16]. With reference to Colorado State Highway 141, he elaborated that Parcel 079 runs from Mile Marker 59.5 in Naturita to the junction of Highways 141 and 145 (just past Mile Marker 57), and that the CDOT fencing near Mile Marker 583 was in “a pretty bad state of repair.”

         Testimony of Non Parties

         The following facts are identified by CDOT as undisputed, they are supported in the record, and Plaintiff does not contest the designation, and thus the court considers them undisputed. See Fed. R. Civ. P. 56(e)(2). Trace Campbell is a rancher who uses a seasonal lease, from January through April, to graze cattle on a parcel of land, referred to here as the Naturita Canyon parcel, located in the vicinity of the Highway 141 and Highway 145 junction. [#66 at 7, ¶¶ 28, 29, 30]. CDOT maintains fencing east of the Highway 141 and Highway 145 junction, on the south side of Highway 145. [Id. at 8, ¶ 31; #66-10]. This fence line contains a gate (“Gate 1”). [Id. at ¶ 32; #66-10]. In November 2015, Mr. Campbell checked the fence line in the Naturita Canyon parcel in advance of moving his cattle onto the land, and found “[n]othing that needed to be addressed right away.” [Id. at ¶¶ 33, 34; #66-8 at 48:13-17]. Mr. Campbell testified that “[Gate 1] was shut, so cattle could not come back and forth, but there was a broken gate stay.” [#66-8 at 49:14-19]. Mr. Campbell did not report the broken gate stay to CDOT. [Id. at 49:20-21].

         Josh Sinks is a brand inspector for the state of Colorado who lives in the area of the Highway 141 and Highway 145 junction. [#66 at 9, ¶ 39]. Three or four years before Plaintiff's accident, Mr. Sinks spoke to a CDOT employee working east of mile marker 114 and east of where Plaintiff's accident occurred. The employee commented that some of the fence posts where he was working were rotted and could not take a staple. [Id. at ¶ 40]. On December 22, 2015, the day after the accident, Mr. Sinks observed that Gate 1 was open and had a broken post. [Id. at ¶ 41; #66-11]. Mr. Sinks opined during his deposition that the subject cow accessed the highway through Gate 1; however, when he observed the gate on December 22, 2015, he saw no evidence that cows had passed through it. [Id. at ¶¶ 43, 45; #66-12 at 39:8-11, 41:17-43:7, 118:11-23, 123:14-25].

         In sum, the following material facts are undisputed: the cow belonged to the Reams; the cow wandered from Parcel 079; both CDOT and the Partnership bear responsibility for specific stretches of fencing that surround Parcel 079; there exists a section of the perimeter of Parcel 079 for which no fencing exists; ...

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