United States District Court, D. Colorado
FRANKLYN A. JENKINS, Plaintiff,
IMMEDIA, INC., a Minnesota corporation, Defendant. Judge Christine M. Arguello
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
Christine M. Arguello, United States District Judge.
the Court are two motions: Plaintiff Franklyn Jenkin's
Motion for Summary Judgment (Doc. # 306) and Defendant
Immedia, Inc.'s Motion for Summary Judgment (Doc. # 319).
Having thoroughly reviewed the briefing, pertinent exhibits,
and applicable law, the Court denies both motions.
Court recited the factual and procedural background of this
dispute in its October 27, 2017 Order Granting
Plaintiff's Motion for Reconsideration (Doc. # 268),
which is incorporated herein. Accordingly, this Order will
reiterate only what is necessary to address the competing
Motions for Summary Judgment.
asserts five claims against Defendant: (1) negligence; (2)
failure to warn; (3) negligence per se; (4)
negligent misrepresentation; and (5) vicarious liability.
(Doc. # 134 at 20-27.) On October 1, 2018, Plaintiff filed
his Motion for Summary Judgment “As to
Liability.” (Doc. # 306.) Plaintiff argues that he is
entitled to a legal ruling by the Court that Defendant had
and undertook to assume a duty of care and that such a ruling
“resolve[s] the issue of [Defendant's] tort
liability.” (Id. at 1.) It appears to the
Court that Plaintiff only seeks summary judgment on his
negligence claim; he only identifies the elements of that
claim and does not refer to his other claims against
Defendant. See (id. at 6.) Defendant
responded in opposition to Plaintiff's summary judgment
motion on November 15, 2018, contending that “Plaintiff
bore the duty to ensure that the load on his trailer was
sufficiently secured.” (Doc. # 320 at 1.) Plaintiff
replied on November 29, 2016. (Doc. # 326.)
filed its Motion for Summary Judgment on November 15, 2018.
(Doc. # 319.) Defendant seeks summary on all the claims,
which “all require a duty, ” and it disputes
“the existence of a duty” and causation.
(Id. at 2-3.) Plaintiff filed his Response on
November 29, 2018, first asking the Court to strike
Defendant's Motion for Summary Judgment as an improper
second summary judgment motion and then arguing that
Minnesota law gave rise to Defendant's duties. See
generally (id.) Defendant replied in support of
its Motion for Summary Judgment on December 13, 2018.
MOTION FOR SUMMARY JUDGMENT
judgment is warranted when the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Turnkey Sols.
Corp. v. Hewlett Packard Enter. Co., No.
15-cv-01541-CMA-CBS, 2017 WL 3425140, at *2 (D. Colo. Aug. 9,
2017). A fact is “material” if it is essential to
the proper disposition of the claim under the relevant
substantive law. Id. A -dispute is
“genuine” if the evidence is such that it might
lead a reasonable jury to return a verdict for the nonmoving
party. Id. When reviewing motions for summary
judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id. However,
conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent
summary judgment evidence. Id.
review of the parties' filings and the evidence
referenced therein, the Court determines that genuine issues
of material fact preclude the Court from entering summary
judgment in favor of either party on the existence of a duty.
In short, whether Defendant owed a duty of care to Plaintiff
depends on the role Defendant performed in the loading and
unloading of the cargo. See Spence v. ESAB Group,
Inc., 623 F.3d 212, 219 (3rd Cir. 2010). The parties
vociferously dispute Defendant's involvement in the
loading and unloading of the cargo. For example, Plaintiff
argues in his Motion for Summary Judgment that
Defendant's “affirmative undertakings, ” such
as signing the Bill of Lading, “not packaging the
tables or removing the wheels, ” and “allowing
unloading in violation of its own procedures, ” imposed
on Defendant a duty to act with reasonable care. (Doc. # 306
at 8-9.) In response to that argument, Defendant contends
that there is no evidence the Bill of Lading played into
Plaintiffs decision-making at the time the cargo was loaded
onto his trailer, that it (Defendant) was not involved with
packaging the tables or developing a plan to package the
tables, and that its internal policies and procedures cited
by Plaintiff did not apply to the circumstances at hand.
(Doc. # 320 at 16-18.) Accordingly, neither party is entitled
to summary judgment on the existence of a duty.
foregoing reasons, the Court ORDERS as follows:
1. Plaintiffs Motion for Summary Judgment (Doc. # 306) is