United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT'S MOTION TO STRIKE OPINION
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
Nancy Young (“Young”) brings this case against
Defendant Walmart, Inc. (“Walmart”), for injuries
sustained in a Walmart parking lot in Cortez, Colorado (the
“Store”). Young brings a statutory premises
liability claim against Walmart under the Colorado Premises
Liability Act (“CPLA”), Colo. Rev. Stat. §
matter is before the Court on Walmart's Motion for
Summary Judgment (the “Motion”) and Walmart's
“Partially Unopposed Motion to Strike or Limit the
Opinions of Plaintiff's Treating Expert, Brinceton
Phipps, M.D.” (“702 Motion”). (ECF Nos. 43
& 63.) For the reasons discussed below, the Court grants
the Motion and denies the 702 Motion as moot.
following summary is drawn from the parties' statements
of material facts. The vast majority of the facts are
2016, the Store set up an outdoor garden center in its
parking lot, as it had for each of the past five years. (ECF
No. 43 at 3, ¶¶ 4-6; ECF No. 58 at 6-7,
¶¶ 4-6.) The garden center was cordoned off from
the rest of the parking lot with a rope and “caution
cones.” (ECF No. 43 ¶ 8; ECF No. 58 ¶ 8.)
Between 2011 and June 7, 2016, there were no issues or
injuries reported concerning the safety of the garden center
and its rope perimeter. (ECF No. 43 ¶ 7.) Young contends
that Walmart inaccurately states that the garden center was
used “without issue, ” claiming that there may be
issues or injuries that were not reported, and that the only
way to definitively know would be to watch surveillance tapes
for the time period. (ECF No. 58 ¶ 7.) Young does not,
however, suggest that she has undertaken such a review or
that there are, indeed, unreported issues or injuries.
(Id.) It suffices to say that there is no evidence
before the Court of any such reported issues or injuries.
7, 2016, Young and nonparty-at-fault Angelita Randall-Salazar
both went to the Store and parked in the parking lot.
Randall-Salazar drove her Chevy pickup truck with a ball
trailer hitch attached to the rear of her vehicle. (ECF No.
43 at 3, ¶ 10; ECF No. 58 at 7-8, ¶ 10; ECF No. 61
at 3, ¶ 10.) She backed into a parking space adjacent to
the garden center, checked to make sure that her bumper was
not hitting anything in the garden center, and entered the
Store. (ECF No. 43 ¶¶ 11-12; ECF No. 58 at 8,
¶¶ 11-12; ECF No. 61 ¶¶ 11-12.) At some
point, the garden center rope barrier got hooked on
Randall-Salazar's trailer hitch. (ECF No. 43 ¶ 13;
ECF No. 58 ¶ 13.)
Randall-Salazar returned to her truck, she did not walk
behind the truck. There is no evidence to suggest that
Randall-Salazar noticed that the rope had looped around her
trailer hitch or that there were any circumstances that would
have made her think that the rope had attached to the
vehicle. (ECF No. 61 at 3, ¶ 15.) Randall-Salazar drove
off, not realizing that she pulled behind her the rope
barrier of the garden center. As she did so, the rope was
pulled across the parking lot and became taut, eventually
“forming a V-wedge that closed in a scissor-like action
upon the lower legs of [Young].” (ECF No. 43 at 4,
¶¶ 16-19.) Randall-Salazar heard people screaming,
looked in her rearview mirror, and saw Young lying on the
ground. (Id. at ¶ 20.) She stopped her vehicle
and went over to Young. (Id.)
result of being taken out at the knees by the rope attached
to Randall-Salazar's truck, Young contends that her
pre-existing pigmented villonodular synovitis in her left
knee was exacerbated, and that she suffered other injuries.
(ECF No. 12-2 ¶ 10.)
judgment is warranted under Federal Rule of Civil Procedure
56 “if 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.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). Whether there is a genuine dispute as to
a material fact depends upon whether the evidence presents a
sufficient disagreement to require submission to the
factfinder or, conversely, is so one-sided that one party
must prevail as a matter of law. Anderson, 477 U.S.
at 251-52; Stone v. Autoliv ASP, Inc., 210 F.3d 1132
(10th Cir. 2000). A fact is “material” if, under
the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). In addition, the Court
must resolve factual ambiguities against the moving party,
thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
as here, “the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden on a
motion for summary judgment by identifying a lack of evidence
for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate
Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001)
(internal quotation marks omitted). If the movant meets this
burden, the burden shifts to the nonmovant “to go
beyond the pleadings and set forth specific facts that would
be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”
Adler, 144 F.3d at 671 (internal quotation marks
omitted). A party must support an assertion that a fact is
genuinely disputed by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).
and self-serving statements are insufficient to survive
summary judgment.” Ford v. West, 222 F.3d 767,
777 (10th Cir. 2000). Likewise, “general denials, or
mere argument of an opposing party's case cannot be
utilized to avoid summary judgment, ” Pasternak v.
Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir.
1986), and “[v]ague, conclusory statements do not
suffice to create a genuine issue of material fact, ”
Ford, 222. F.3d at 777. Rather, “[t]o survive
summary judgment, a nonmoving party must set forth specific
facts showing that there is a genuine issue for trial as to