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Riconti v. Dillon Companies, LLC

United States District Court, D. Colorado

December 17, 2019




         This matter comes before the court on Plaintiffs Patrick Riconti (“Mr. Riconti”) and Melissa Riconti's (“Ms. Riconti” and collectively, “Plaintiffs”) Motion for Partial Summary Judgment (or “Motion”), filed August 16, 2019. [#32]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated December 5, 2018. [#16]. Having reviewed the Motion and associated briefing, the applicable case law, and the entire record, I DENY the Motion for Partial Summary Judgment for the reasons stated herein.


         This civil action arises out of injuries sustained by Mr. Riconti during a magazine rack delivery to a City Market owned by Defendant Dillon Companies, LLC (“Defendant” or “Dillon Companies”). Plaintiffs filed this action in Summit County District Court on October 11, 2018, after Mr. Riconti sustained injuries at a City Market in Dillon, Colorado on October 20, 2016. [#3 at ¶¶ 2, 6]. Plaintiffs assert two claims for relief: (1) premises liability pursuant to Colo. Rev. Stat. § 13-21-115 by Mr. Riconti and against Defendant, and (2) loss of consortium by Ms. Riconti and against Defendant. [#3].

         Dillon Companies removed the action to the United States District Court for the District of Colorado on November 9, 2018, on the basis of diversity. [#1]. The Parties consented to the jurisdiction of a Magistrate Judge, see [#15], and the Honorable Marcia S. Krieger subsequently referred this case to the undersigned to fully preside over for all purposes, [#16].

         Plaintiffs filed the instant Motion for Partial Summary Judgment on August 16, 2019, arguing for summary judgment of liability on their Colorado Premises Liability Act, C.R.S. § 13-21-115 (“the Act”), claim against Dillon Companies. See [#32]. Dillon Companies has since responded in opposition to the Motion for Partial Summary Judgment[1] and Plaintiffs replied. See [#36; #38]. Because the Motion is now ripe, I consider the Parties' arguments below.


         I. Summary Judgment Pursuant to Fed.R.Civ.P. 56

         Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). In other words, a fact is “material” if it pertains to an element of a claim or defense and a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. See Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587 (1987) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And the court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).


         I. Undisputed Material Facts

         This court draws the following material facts from the record. On October 20, 2016, Plaintiffs were making a freight delivery[2] at the loading dock of the City Market located at 300 Dillon Ridge Road, Dillon, Colorado 80435 (the “Premises”). [#19 at ¶ 4]. Defendant Dillon Companies is a “landowner”, as defined by Colo. Rev. Stat. § 13-21-115(1), of the Premises. [#32 at ¶ 1; #36 at ¶ 1]. When Plaintiffs arrived at the Premises, Ms. Riconti entered the loading dock area to exchange paperwork and discuss Plaintiffs' delivery with City Market employees, while Mr. Riconti initially waited in the truck. [#36 at ¶ 4; #38 at ¶¶ 23-26]. Mr. Riconti subsequently exited the truck and entered the Premises's loading dock area through a door that opened for him. [#36 at ¶ 4; #38 at ¶ 25].

         When Mr. Riconti entered the loading dock area of the Premises, he stood at a podium inside the loading dock with his back to the loading dock door.[3] [#32 at ¶ 5 (citing #32-3 at 52:18-53:1; 56:12-24)].[4] The “dock plate”, located within the loading dock, raises or lowers to level out the loading dock while a truck is unloaded and is operated by pulling one of two chains on the dock plate; when the dock plate chain is pulled, the dock plate moves. [Id. at ¶ 6, 8; #36 at ¶¶ 6, 8]. As Mr. Riconti stood in the loading dock area of the premises with his back to the loading dock door, Ousmane Sow (“Mr. Sow”), a City Market employee, pulled the dock plate chain to begin unloading Plaintiffs' truck. [#32 at ¶ 7; #36 at ¶ 7]. Another City Market employee, Abdoul Diallo (“Mr. Diallo”), did not operate the dock plate but was-in some capacity-present with Mr. Sow at the time of the incident. [#36 at ¶ 27; #38 at 12].

         At that time, part of a “U-Boat” cart was resting on the dock plate. [#32 at ¶ 10; #36 at ¶ 10]. As Mr. Sow pulled the dock plate chain, the dock plate began to move, causing the U-Boat cart to roll into Mr. Riconti's backside as he faced away from the dock. [#32 at ¶ 10; #36 at ¶ 10]. The Parties agree that Mr. Riconti was injured as a result of U-Boat ...

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