United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Defendant's
Renewed Partial Motion to Dismiss (ECF No. 87) (the
“Motion”), Plaintiff's Response to
Defendant's Renewed Partial Motion to
Dismiss (ECF No. 92), and Defendant's
Reply in Support of its Renewed Partial Motion to
Dismiss (ECF No. 97). Plaintiff seeks to recover damages
for alleged personal injuries (burns to the chest) sustained
after receiving treatment from a cosmetic laser imported and
sold by Defendant. Employees of Defendant provided the laser
treatment at issue. Defendant's Motion seeks dismissal of
Plaintiff's fourth, sixth, seventh, eighth, and ninth
causes of action. (ECF No. 87 at 2.) For the reasons stated
below, the Court GRANTS Defendant's Motion.
I.
BACKGROUND
The
factual background is derived from the allegations in
Plaintiff's Complaint, which are taken as true for
purposes of the Motion. Defendant imports and sells cosmetic
lasers. (ECF No. 48, Compl. at ¶¶ 5-6, Ex. A.) At
issue in this case, is the Harmony XL Pro Laser, which the
Court simply refers to as “the laser.”
(Id. at ¶ 5.) Defendant employs sales
representatives to provide demonstrations of the lasers to
entice potential purchasers. (Id. at ¶ 43.) On
August 13, 2015, two of Defendant's sales
representatives, Brian Duryea and Doug Smith, conducted such
a sales demonstration at the Beau Visage Skin Care and Spa
(“Beau Visage”) in Greenwood Village, Colorado.
(Id. at ¶ 43.) The demonstration was arranged
for the purpose of Defendant selling one of the lasers to
Beau Visage. (Id. at ¶¶ 160, 165.) But in
order to perform the demonstration, Defendant needed a model
on which to perform the cosmetic laser procedure.
(Id. at ¶ 51.)
Plaintiff
volunteered to be the model for demonstrating the
Defendant's laser to Beau Visage. (Id. at
¶¶ 51-54.) Plaintiff served as the model for the
sales demonstration of the laser on August 13, 2015.
(Id. at ¶ 54.) Defendant's sales
representative, Brian Duryea, operated and performed the
laser treatment on Plaintiff's chest. (Id. at
¶¶ 78-79.) At some point, Mr. Duryea stated that
using the laser was “so easy even a monkey could do
it.” (Id. at ¶ 65.) But there are a
number of things that Plaintiff alleges Mr. Duryea failed to
do: failed to provide a consent form, conduct a skin test,
take a detailed medical history, discuss contraindications,
apply a refrigerated cooling gel to the treatment site, offer
a medical grade cream for post-laser treatment, or take
before and after pictures of Plaintiff. (Id. at
¶¶ 68-81.) As a result of the August 13, 2015 laser
treatment, Plaintiff sustained second-degree burns and
permanent scarring to her chest, which she became aware of on
August 19, 2015. (Id. at ¶¶ 82-93.)
Plaintiff
first filed a complaint in Colorado state court on July 1,
2016, which Defendant removed to this Court on July 22, 2016.
(See ECF No. 1.) Plaintiff filed an Amended
Complaint (which the Court simply refers to as “the
Complaint”) on August 4, 2017. (ECF No. 48.) In
response, Defendant filed the instant Motion seeking
dismissal of Plaintiff's fourth, sixth, seventh, eighth,
and ninth claims. (ECF No. 87.)
II.
LEGAL STANDARD
The
purpose of a motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure is to test “the sufficiency of
the allegations within the four corners of the complaint
after taking those allegations as true.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(internal quotation marks and citation omitted).
To
survive a Rule 12(b)(6) motion, “[t]he complaint must
plead sufficient facts … to provide ‘plausible
grounds that discovery will reveal evidence to support the
plaintiff's allegations.” Shero v. City of
Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Plausibility in this context “must refer
to the scope of the allegations in a complaint: if they are
so general that they encompass a wide swath of conduct, much
of it innocent, then the plaintiffs have not nudged their
claims across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th
Cir. 2008) (internal quotation marks and citation omitted).
The “allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a
claim for relief.” Id. This requirement of
plausibility “serves not only to weed out claims that
do not have a reasonable prospect of success, [but also to]
provide fair notice to defendants of the actual grounds of
the claim against them.” Id. at 1248;
accord Twombly, 550 U.S. at 582.
“A
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
III.
ANALYSIS
A.
Negligent Entrustment-Beau Visage (Claim 4)
Defendant's
Motion contends that Plaintiff's negligent entrustment
claim should be dismissed because it “fails to allege
any negligence on the part of Beau Visage or its employees
that caused Plaintiff's injuries.” (ECF No. 87 at
3.) In other words, because the agent was not negligent, the
principal cannot be negligent. Plaintiff responds that it has
stated a claim for negligent entrustment “based on
Defendant Alma's decision to negligently entrust their
laser to Beau Visage, when it knew or should have known that
Beau Visage was likely to use the laser or conduct themselves
in such a manner so as to create an unreasonable risk of harm
to Plaintiff.” (ECF No. 92 at 3.) Plaintiff relies on
the following allegations to support its “Negligent
Entrustment-Beau Visage” claim:
133. Defendant Alma's negligent entrustment of the
Harmony Laser System to Beau Visage, its officers and/or
employees, caused Plaintiff to suffer painful injuries,
disfigurement, permanent impairment, ...