Mueller v. Alma Lasers, Inc.

          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, ...