United States District Court, D. Colorado
OPINION AND ORDER ON MOTION TO DISMISS
S. Krieger Chief United States District Judge
MATTER comes before the Court on the Defendant's
Motion to Dismiss (# 11), the
Plaintiff's response (# 17), and the
Defendants' reply (# 21). For the
reasons that follow, the Motion is denied.
Court has jurisdiction to hear this case under 28 U.S.C.
Hoveround Corporation manufactures powered wheelchairs,
called powerchairs. Alaric Greene, the Plaintiff in this
matter, purchased the MPV5 Powerchair from Hoveround in 2010.
On June 29, 2015, Mr. Greene's powerchair suddenly lost
power causing him to lose control, fall out of the chair and
then the chair fell on top of him. On August 20, an agent for
Hoveround inspected Mr. Greene's powerchair and told Mr.
Greene that the joust box and connections between the power
supply and servos needed repair.
Complaint (# 4) alleges the following causes
of action: (1) strict product liability (defective design and
manufacturing), (2) negligence, and (3) breach of implied
warranty. Hoveround has moved to dismiss all three claims
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court must accept all
well-pleaded allegations in the complaint as true and view
those allegations in the light most favorable to the
nonmoving party. Stidham v. Peace Officer Standards &
Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting
Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit
its consideration to the four corners of the complaint, any
exhibits attached thereto, and any external documents that
are incorporated by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, a
court may consider documents referred to in the complaint if
the documents are central to the plaintiff's claim and
the parties do not dispute the documents' authenticity.
Alvarado v. KOB-TV LLC, 493 F.3d 1210, 1215 (10th
dismissal is sought on statute of limitations grounds, the
movant has the burden of demonstrating that, on the face of
the complaint, the claim is untimely; if the defendant
carries that burden, the plaintiff then has the burden of
coming forward with facts justifying tolling the statute of
limitations. Aldrich v. McCulloch Props. Inc., 627
F.2d 1036, 1041 n.4 (10th Cir. 1980).
argues that all of Mr. Greene's claims are barred by the
applicable statute of limitations. All three claims are
subject to a two-year statute of limitations. See
C.R.S. § 13-80-106 (strict product liability and breach
of implied warranty); C.R.S. § 13-80-102 (negligence).
Colorado law, a cause of action for personal injury accrues
for purposes of calculation “on the date both the
injury and its cause are known or should have been
known by the exercise of reasonable diligence.” C.R.S.
§ 13-80-108(1) (emphasis added). A cause of action for
breach of warranty accrues “on the date the breach is
discovered or should have been discovered by the exercise of
reasonable diligence.” C.R.S. § 13-80-108(6).
Greene filed his Complaint in state court on August 18, 2017.
The action was subsequently removed to this Court on November
10, 2017. Hoveround contends that Mr. Greene filed his action
more than two years after he was injured on June 29, 2015.
Mr. Greene responds that although the event occurred on June
29, 2015, the clock for filing of his action did not begin to
run until he learned of the cause of the powerchair's
loss of power on August 20, 2015. He argues that although he
knew that his injury was caused by the chair's loss of
power when the incident occurred in June, he did not know why
the chair lost power until August 20 when the Hoveround agent