United States District Court, D. Colorado
T. BABCOCK, JUDGE.
me is Defendants' Partial Motion to Dismiss, ECF No. 16,
and Plaintiffs' Motion for Certification of Questions of
Law to the Colorado Supreme Court, ECF No. 21. Defendants
moved to dismiss Plaintiffs' claims relating to the loss
of consortium to both Plaintiffs, negligence resulting in
bodily injury for Amy Ratcliff, and negligent infliction of
emotional distress of a bystander for Amy Ratcliff.
Plaintiffs responded and additionally moved to certify
certain questions to the Colorado Supreme Court. After
consideration of the parties' arguments, for the reasons
set forth below: (1) I grant the Motion to Dismiss in part;
(2) I deny the Motion to Dismiss in part; and (3) I deny
Plaintiffs' Motion for Certification of Questions of Law
to the Colorado Supreme Court.
September 2017, Plaintiffs and Mrs. Ratcliff's daughters
visited Colorado from Wyoming and went to one of
Defendants' restaurants. Second Am. Compl., ECF No. 14 at
¶¶ 9 & 16. Mr. Ratcliff ordered a milkshake and
when he took a drink through a straw, he ingested shards of
broken glass. Id. at ¶¶ 22-26. He began
bleeding from the mouth and went to the hospital.
Id. at ¶¶ 30, 31, 36. Mr. Ratcliff had
subsequent complications, including difficulty swallowing,
aspiration, and fainting. Id. at ¶¶ 39,
41, 43. After returning to Wyoming, he had ongoing neck pain
and a doctor discovered that pieces of glass remained in his
throat. Id. at ¶¶ 51 & 57. He reported
increased anxiety and night terrors and sought therapy after
the event. Id. at ¶¶ 60, 61, 65, 71.
after the event, Mrs. Ratcliff began to have migraines,
blackouts, and vertigo. Id. at ¶ 84, 95. She
fainted from the migraines, was unable to drive, and Mr.
Ratcliff alleged he was unable to look for an office job
because he was helping care for her. Id. at
¶¶ 90, 93, 95.
asserted nine claims for relief, including: (1) negligence on
behalf of Mr. Ratcliff; (2) negligence per se on behalf of
Mr. Ratcliff; (3) strict products liability on behalf of Mr.
Ratcliff; (4) breach of warranty through the Colorado Uniform
Commercial Code on behalf of Mr. Ratcliff; (5) negligent
infliction of emotional distress of Mr. Ratcliff; (6) loss of
consortium on behalf of Mrs. Ratcliff; (7) negligence
resulting in bodily injury for Mrs. Ratcliff; (8) negligent
infliction of emotional distress of bystander for Mrs.
Ratcliff; and (9) loss of consortium on behalf of Mr.
Ratcliff. Id. at ¶¶ 96-149. I note that
Mrs. Ratcliff went by the surname McHenry when this case was
filed, but she has since married Mr. Ratcliff and I granted
her Motion to Amend the Caption. ECF No. 29.
Federal Rule of Civil Procedure 12(b)(6)
avoid dismissal under Rule 12(b)(6), “a complaint must
contain enough allegations of fact, taken as true, ‘to
state a claim to relief that is plausible on its
face.'” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (quoting Be
l Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is plausible on its face
“when the plaintiff pleads factual content that enables
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
may not dismiss a complaint merely because it appears
unlikely or improbable that a plaintiff can prove the facts
alleged or ultimately prevail on the merits.
Twombly, 550 U.S. at 556. Instead, a court must ask
whether the facts alleged raise a reasonable expectation that
discovery will reveal evidence of the necessary elements.
statements and legal conclusions are not accepted as true;
mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of
action” will not suffice. Khalik, 671 F.3d at
1190-91 (quoting Twombly, 550 U.S. at 555). As such,
when examining a complaint under Rule 12(b)(6), I disregard
conclusory statements and look only to whether the remaining,
factual allegations plausibly suggest the defendant is
liable. Id. at 1191.
Certification of Questions to the Colorado Supreme
Colorado Appellate Rule 21.1, a federal court may request
that the Colorado Supreme Court answer a certified question
if it is determinative of the pending cause and there is no
controlling precedent in the supreme court:
The supreme court may answer questions of law certified to it
by . . . a United States District Court . . . when requested
by the certifying court, if there is involved in any
proceeding before it questions of law of this state which may
be determinative of the cause then pending in the certifying
court and as to which it appears to the certifying ...