v. Atlas Energy

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 25, 2021

2021COA24

No. 19CA2021, Deines v. Atlas Energy — Torts — Personal
Injury — Negligence — Proximate Cause

In this negligence action, a division of the court of appeals

considers when proximate cause can be determined as a matter of

law in the context of a secondary highway accident.

The plaintiff in this case sued defendants for allegedly causing

an oil spill on a highway, necessitating a road closure. Fifteen

minutes after the closure, while cars were being diverted to a

nearby exit, plaintiff’s car was struck from behind by a third party.

Applying a four-part test used by some other state and federal

courts, the district court granted summary judgment to defendants,

concluding, as a matter of law, that defendants’ conduct was not

the proximate cause of plaintiff’s injuries, because the car accident
was an unforeseeable intervening cause. The court relied primarily

on the fact that other drivers had managed to avoid accidents.

The division clarifies that proximate cause and foreseeability,

including in the context of a subsequent accident, must be analyzed

based on the totality of the circumstances of each case, and not by

application of any mechanistic test. Further, proximate cause is

not determined from hindsight but rather from the defendant’s

perspective at the time of the alleged negligent conduct. Because a

rational jury could have concluded that the accident resulting in

plaintiff’s injuries was foreseeable, the division reverses the grant of

summary judgment and remands for further proceedings.
COLORADO COURT OF APPEALS 2021COA24

Court of Appeals No. 19CA2021
Weld County District Court No. 18CV59
Honorable Todd Taylor, Judge

Grantland Deines,

Plaintiff-Appellant,

v.

Atlas Energy Services, LLC; Anadarko Petroleum Corporation; Consolidated
Divisions, Inc., d/b/a CDI Environmental Contractor; and Mario Fernandez-
Tapia,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE HARRIS
Fox and Grove, JJ., concur

Announced February 25, 2021

Ramos Law, Brian Hugen, Wheat Ridge, Colorado, for Plaintiff-Appellant

Darling Milligan PC, Jason B. Wesoky, D.J. Marcus, Denver, Colorado, for
Defendant-Appellee Atlas Energy Services, LLC

Holland & Hart LLP, Stephen G. Masciocchi, Jessica M. Schmidt, Denver,
Colorado, for Defendant-Appellee Anadarko Petroleum Corporation

Montgomery Amatuzio Chase Bell Jones LLP, Max K. Jones, Jr., Denver,
Colorado; The Morrow Law Firm, LLC, William Tobias Morrow, Eastlake,
Colorado, for Defendants-Appellees Consolidated Divisions, Inc. and Mario
Fernandez-Tapia
¶1 In this personal injury action, we review the district court’s

grant of summary judgment in favor of defendants, Atlas Energy

Services, LLC; Anadarko Petroleum Corporation; Consolidated

Divisions, Inc. (CDI), and Mario Fernandez-Tapia. The district court

determined that defendants’ alleged negligence in causing 1,000

gallons of hazardous liquid to spill onto a highway was not, as a

matter of law, the proximate cause of the injuries sustained by

plaintiff, Grantland Deines, who was rear-ended approximately forty

minutes later, as he came to a stop in a line of traffic being diverted

off the highway to a nearby exit.

¶2 On appeal, Deines says that the district court erred in

resolving the case on summary judgment, because the issue of

proximate cause should have gone to the jury. We agree.

Accordingly, we reverse the judgment and remand for further

proceedings.

1
I. Background1

¶3 On a December night in 2017, Mario Fernandez-Tapia, driving

a truck owned by Atlas or CDI, was traveling eastbound on

Interstate 76 near the town of Hudson. At about 6:20 p.m., town

officials received a report of a hazardous material spill on the

highway. By 6:40 p.m., officials had closed both lanes of I-76 and

were diverting traffic to an exit located about three-tenths of a mile

from the spill.

¶4 Cars began to back up on the highway. Fifteen minutes after

the highway closure, Deines approached the scene. He noticed an

oncoming car flash its lights and an emergency vehicle drive by, so

he turned off his cruise control and started to slow down. Moments

later, as he “crested” a “slight incline,” he saw a line of twenty to

thirty stopped cars in front of him and “applied his brakes.” Ten

seconds later, Omar Campa-Borrego crashed into the back of

Deines’s pickup truck, causing Deines to suffer catastrophic

injuries.

1 In reviewing the order granting summary judgment, we recount
the facts in the light most favorable to Deines, as the nonmoving
party. See P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 4 n.1.

2
¶5 Deines sued defendants, alleging that their negligence, which

resulted in the oil spill, was a cause of his injuries. Defendants

moved for summary judgment on the ground that Campa-Borrego’s

negligence was an unforeseeable intervening cause that broke the

chain of causation arising from the original negligent conduct.

¶6 The district court agreed, concluding that

[t]he undisputed facts here support only one
conclusion: the oil spill was not the proximate
cause of Deines’s injuries. As a matter of law,
it was not reasonably foreseeable that Campa-
Borrego would fail to pay attention and fail to
notice that Deines had stopped in front of him
more than a half-hour after the oil spill and
nearly a third of a mile away. Campa-
Borrego’s negligence is too attenuated from the
oil spill for the oil spill to be considered a
proximate cause of the accident that injured
Deines.

¶7 Deines appeals, contending that whether Campa-Borrego’s

negligence constituted an independent intervening cause is a fact

question for the jury.

II. Summary Judgment Order

A. Standard of Review

¶8 We review an order granting summary judgment de novo.

Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 15.

3
Summary judgment is only proper when the pleadings, affidavits,

depositions, and admissions show that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as

a matter of law. Civ. Serv. Comm’n v. Pinder, 812 P.2d 645, 649

(Colo. 1991).

¶9 In considering whether summary judgment is appropriate, a

court grants the nonmoving party the benefit of all favorable

inferences that may reasonably be drawn from the undisputed facts

and resolves all doubts against the moving party. Agilent Techs.,

¶ 15.

¶ 10 Summary judgment is a drastic remedy, and it should only be

granted when it is clear that the applicable legal standards have

been met. Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 21. Issues

of negligence and proximate cause are matters generally to be

resolved by the jury, and only in the “clearest of cases where the

facts are undisputed and reasonable minds can draw but one

inference from them” should such issues be determined as a matter

of law. Starks v. Smith, 475 P.2d 707, 707 (Colo. App. 1970) (not

published pursuant to C.A.R. 35(f)).

4
B. Analysis

¶ 11 A finding of negligence does not impose liability on a defendant

unless the negligence proximately caused the plaintiff’s injury. See

Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 37.

While some confusion persists in the terminology used to explain

principles of causation, see Rocky Mountain Planned Parenthood,

Inc. v. Wagner, 2020 CO 51, ¶ 27, for purposes of our decision, we

need not look beyond some well-established rules.

¶ 12 To prove causation, the plaintiff must show, first, that, but for

the alleged negligence, the harm would not have occurred. Reigel v.

SavaSeniorCare L.L.C., 292 P.3d 977, 985 (Colo. App. 2011). The

requirement of but-for causation is satisfied “if the negligent

conduct in a ‘natural and continued sequence, unbroken by any

efficient, intervening cause, produce[s] the result complained of,

and without which that result would not have occurred.’” Smith v.

State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987)

(citation omitted); see also Groh v. Westin Operator, LLC, 2013 COA

39, ¶ 50 (Causation may be found where the negligent actor “sets in

motion a course of events” that leads to the plaintiff’s injury.), aff’d,

2015 CO 25.

5
¶ 13 Still, tort law does not impose liability on an actor for all harm

factually caused by the actor’s tortious conduct. Raleigh v.

Performance Plumbing & Heating, 130 P.3d 1011, 1022 (Colo. 2006).

Thus, in addition to establishing but-for causation, the plaintiff

must also demonstrate proximate cause. Because “foreseeability is

the touchstone of proximate cause,” Westin Operator, 2015 CO 25,

¶ 33 n.5, to establish a negligence claim, the plaintiff must prove

that the harm incurred was a “reasonably foreseeable” consequence

of the defendant’s negligence, Vanderbeek v. Vernon Corp., 50 P.3d

866, 872 (Colo. 2002). Proximate cause may be established even

where the actor did not and could not foresee the precise way the

injury would come about. Webb v. Dessert Seed Co., 718 P.2d

1057, 1062-63 (Colo. 1986).

¶ 14 An intervening cause that breaks the chain of causation from

the original negligent act becomes the proximate cause of the

plaintiff’s injury, relieving the wrongdoer of liability. Albo v.

Shamrock Oil & Gas Corp., 160 Colo. 144, 146, 415 P.2d 536, 537

(1966). But an intervening act of a third party — even an

intentionally tortious or criminal act — does not immunize the

defendant from liability if the intervening act is itself reasonably

6
foreseeable. Ekberg v. Greene, 196 Colo. 494, 496, 588 P.2d 375,

376 (1978); see also Albo, 160 Colo. at 146-47, 415 P.2d at 537

(“[T]he mere fact that other forces have intervened between the

defendant’s negligence and the plaintiff’s injury does not absolve

the defendant where the injury was the natural and probable

consequence of the original wrong and might reasonably have been

foreseen.”) (citation omitted). To absolve the defendant of

responsibility, the intervening cause must be fully independent of,

and not have been set in motion by, the original negligence. See

Cooke v. Nationwide Mut. Fire Ins. Co., 14 So. 3d 1192, 1195 (Fla.

Dist. Ct. App. 2009).

¶ 15 The question in this appeal is narrow: Could any rational juror

find that the intervening cause — the traffic accident that injured

Deines — was reasonably foreseeable based on defendants’

negligent act of causing an oil spill on the highway?

¶ 16 In assessing whether an intervening cause is unforeseeable,

such that it breaks the connection between the original negligence

and the plaintiff’s injuries, Colorado courts look at the specific facts

and circumstances of the case. See Hayes v. Williams, 17 Colo.

465, 473, 30 P. 352, 355 (1892) (noting that proximate cause is

7
determined by the “associated facts and circumstances” of the

case). We reject defendants’ suggestion, which the district court

appears to have accepted, that our own case law provides

insufficient guidance for resolving the parties’ dispute. The factors

defendants point to — temporal and spatial proximity of the injury

to the original negligent conduct, the unlikelihood of the occurrence

of the intervening act, and the intervening act’s attenuation from

the situation created by the wrongdoer — are, as we explain in a

moment, already part of our courts’ analyses, explicitly or implicitly.

¶ 17 To be sure, our case law makes clear that sometimes, albeit

infrequently, proximate cause is a matter of law for the court,

because the intervening act is so independent and so extraordinary

that the plaintiff’s injuries are clearly the result of the intervening

act and not fairly attributable to the defendant’s original negligence.

¶ 18 In Smith, for example, the agent for the state’s unemployment

insurance fund negligently rejected the decedent’s vocational

rehabilitation plan, causing him to lose a job opportunity. 749 P.2d

at 463. Nearly a month later, the decedent crashed his motorcycle

while he was driving under the influence of alcohol. The decedent’s

wife sued the agent and the insurance fund, asserting that, but for

8
the agent’s negligence, on the night of the accident, the decedent

“would have been home in bed instead of out on the roadway

because he would have been going to work the next day.” Id. A

division of this court affirmed the district court’s grant of summary

judgment for the defendants, concluding that “decedent’s death was

occasioned by an independent, intervening cause — the motorcycle

accident — which could not have reasonably been foreseen to occur

as a result of the wrongful delay in approving his vocational

rehabilitation plan.” Id. at 464. Explicit or implicit in the court’s

conclusion was a consideration of the fact that the decedent’s

injuries occurred long after the negligent conduct, the accident was

entirely disconnected from the circumstances created by the agent’s

negligence, and the harm was independently attributable to

unforeseeable circumstances like the decedent’s intoxication and

physical condition that prevented him from safely operating the

motorcycle. Id.

¶ 19 Similarly, in Walcott v. Total Petroleum, Inc., 964 P.2d 609, 611

(Colo. App. 1998), the division concluded that summary judgment

was proper where the plaintiff sued a gas station after a man with

whom she had argued dispensed a small amount of gas into a paper

9
cup at the station, then returned to the scene of the earlier

argument, threw the gasoline on the plaintiff, and set her on fire.

The division determined that the assailant’s conduct was an

independent intervening act because “the risk that a purchaser

would intentionally throw gasoline on a victim and set the victim on

fire was not reasonably foreseeable.” Id. at 612.

¶ 20 But generally, it is the jurors’ job to consider all the facts and

circumstances, and to use their common sense to make the call

regarding the foreseeability of an intervening act. We may take that

job away from the jury only when we are firmly convinced that every

rational juror would have to find that the intervening act was fully

independent and unforeseeable — essentially, that the plaintiff’s

injury was “merely an improbable freak,” as it relates to the original

negligence. Cooke, 14 So. 3d at 1194.

¶ 21 In assessing whether proximate cause is a matter of fact or

law in a particular case, our appellate courts have never imposed

bright-line rules. So, for example, while temporal or spatial

proximity is a consideration, a division of this court held in Groh,

¶¶ 8, 53, that proximate cause was a jury question even though the

car accident involving plaintiff occurred an hour after, and fifteen

10
miles away from the site of, the defendant’s act of negligently

evicting the plaintiff from a hotel, and even though the driver was

distracted and intoxicated at the time of the accident, see id. at

¶ 51; id. at ¶ 111 (Furman, J., concurring in part and dissenting in

part).

¶ 22 And while the nature of the intervening act — ordinary versus

extraordinary — is a consideration, our supreme court recognized

in Ekberg that foreseeability was properly determined by the jury

even where the intervening act constituted intentional criminal

conduct. 196 Colo. at 496-97, 588 P.2d at 376. The plaintiffs in

that case were injured in a fire while they were using the public

restroom at a gas station. At some point before the plaintiffs

entered, vandals had cut some tubing on a heater negligently

installed by the gas station’s owner, causing natural gas to escape

into the restroom. Because the only light in the room was broken,

the plaintiffs lit a match, which ignited the gas and created a flash

fire. Id. at 496, 588 P.2d at 376. The court of appeals reversed the

jury verdict in favor of the plaintiffs, concluding that, as a matter of

law, the owner’s negligence was not the proximate cause of the

plaintiffs’ injuries. But the supreme court disagreed, reasoning that

11
given prior acts of vandalism and the public’s use of the restroom,

there was “sufficient evidence upon which the jury could have

concluded that the vandalism of the restroom” was reasonably

foreseeable. Id.

¶ 23 While attenuation of the injuries from the original negligence

is another consideration, a division of this court concluded in

Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo. App. 1984),

that foreseeability was a fact question, even though the defendant’s

negligence and the plaintiff’s injuries were separated by numerous

and seemingly random acts. The defendant in Newton, the

supervisor at a construction site, left trash smoldering at a

relatively safe area of the site. Id. at 836-37. After the workmen

left, two boys who lived nearby went to the construction site, and

one boy picked up a piece of paper. The paper burned his fingers,

causing him to throw the paper into the air. The wind blew the

paper onto the adjacent property, where some weeds and a shed

caught fire. Id. at 837. When the fire department arrived, the

plaintiff, a neighbor of the property owner, offered to assist the fire

fighters. After thirty minutes of hosing down the property owner’s

house, the plaintiff suffered a heart attack and died. Id. The

12
defendant argued that the boys’ conduct in spreading the fire was

an intervening cause, but the division concluded that the jury could

have found all of the intervening acts foreseeable and within the

scope of the original risk. Id.

¶ 24 Thus, our proximate cause analysis is governed not by

“mechanistic rules of law” but by an evaluation of “what is

reasonable in each factual setting.” Ekberg, 196 Colo. at 497, 588

P.2d at 377.

¶ 25 Our evaluation in this case is substantially informed by our

court’s prior decision involving a similar factual setting. In Banyai

v. Arruda, 799 P.2d 441 (Colo. App. 1990), two motorists were

involved in an accident during a blizzard. The plaintiff, a police

officer, responded to the scene. Id. at 442. After some time on the

side of the road interacting with the motorists, the plaintiff returned

to her vehicle and was rear-ended by two other drivers. She sued

the motorists involved in the initial accident, alleging that their

negligence was a cause of her injuries. Id.

¶ 26 The district court granted summary judgment for the

defendants, concluding that the second, colliding driver’s negligence

was, as a matter of law, an unforeseeable intervening act and

13
therefore the proximate cause of the plaintiff’s injuries. Id. A

division of this court reversed on the basis that the foreseeability of

the second driver’s negligent act was a fact question for the jury.

Id. at 443.

¶ 27 Defendants in this case minimize Banyai’s holding, contending

that it turned on the plaintiff’s status as a police officer and the

defendants’ knowledge of the deteriorating road conditions. We

disagree. The division’s point was that a reasonable jury,

considering all the circumstances, including the weather

conditions, could have found that the defendants’ negligence was a

cause of the plaintiff’s injuries because each of the intervening acts

— the plaintiff’s decision to stop and a subsequent accident — were

reasonably foreseeable.

¶ 28 Viewing the relevant case law on a spectrum, with Smith and

Walcott on one end — where the issue of foreseeability is so clear

cut as to be nondebatable — and Banyai, Groh, Ekberg, and Newton

closer to the other end — where reasonable people could differ on

the issue of foreseeability — we conclude that this case falls much

closer to Banyai than to Smith.

14
¶ 29 In reaching a different conclusion, the district court explained

that “proximate cause can be determined as a matter of law when

the undisputed facts show a plaintiff was injured in a traffic jam (1)

at a different location and (2) later time (3) by a force other than

what caused the traffic jam in the first place.” The court found that

the time and distance between the spill and the accident rendered

Deines’s injuries so attenuated from defendants’ negligent conduct

that proximate cause could not be established as a matter of law.

Moreover, and more importantly, Campa-Borrego’s negligence was

so out of the ordinary that it was unforeseeable as a matter of law

and became the proximate cause of Deines’s injuries.

¶ 30 The accident occurred forty minutes after the oil spill and

fifteen minutes after the highway was closed and officials began

diverting traffic to the exit. The location of the spill was about

three-tenths of a mile away from the scene of the collision. In our

view, neither the timing nor the distance is dispositive as a matter

of law. See Groh, ¶¶ 8, 53 (proximate cause a fact issue where

plaintiff’s injuries sustained an hour after and fifteen miles away

from the location of defendant’s negligent conduct); see also

Newton, 698 P.2d at 837 (proximate cause a fact issue where

15
plaintiff’s death occurred more than thirty minutes after

defendant’s negligent conduct).

¶ 31 Some of the cases on which the district court relied involved

more substantial lapses of time. See Baumann v. Zhukov, 802 F.3d

950, 952-53 (8th Cir. 2015) (fifty-five minutes between the

defendant’s negligent act and the plaintiff’s injuries); Blood v. VH-1

Music First, 668 F.3d 543, 545 (7th Cir. 2012) (four hours between

the defendant’s negligent act and the plaintiff’s injuries); Howard v.

Bennett, 2017 S.D. 17, ¶¶ 2, 4 (hour and forty minutes between the

defendant’s negligent act and the plaintiff’s injuries).

¶ 32 And courts in other jurisdictions have come out the other way,

concluding that even when the defendant’s negligent conduct is

separated by substantial time and distance from the accident that

caused the plaintiff’s injuries, proximate cause is a fact question for

the jury. See Cooke, 14 So. 3d at 1193 (foreseeability was fact

question where accident occurred an hour after and a mile and a

half away from the defendant’s negligent act); Smith v. Com.

Transp., Inc., 470 S.E.2d 446, 449 (Ga. Ct. App. 1996)

(foreseeability was fact question where accident occurred five or six

hours after and two miles away from the defendant’s negligent act);

16
Lasley v. Combined Transp., Inc., 227 P.3d 1200, 1204 (Or. Ct. App.

2010) (foreseeability was fact question where accident occurred

ninety minutes after and four miles away from the defendant’s

negligent act of spilling glass on highway).

¶ 33 The competing case law simply confirms for us that, in most

instances, reasonable people could differ on the question of whether

an intervening act is foreseeable. Hence, our strong preference for

allowing the jury to decide the question.

¶ 34 The district court’s primary focus, though, was on Campa-

Borrego’s poor driving. Because “numerous other vehicles had

managed to stop without problem,” and no other accidents had

occurred as a result of the spill, the district court concluded that

Campa-Borrego’s failure to stop was extraordinary and therefore

unforeseeable as a matter of law. In our view, the evidence, viewed

in the light most favorable to Deines, does not support the court’s

conclusion.

¶ 35 First, the only driver known to have “managed to stop without

problem” was Shale McAfee, the driver of the car directly in front of

Deines when the collision occurred. According to the district court,

McAfee testified that “he was traveling on the highway at 75 mph,

17
saw a string of taillights ahead, and was able to ‘coast down’ to a

stop over 15 seconds without [braking] hard.” True, but McAfee

also said, more specifically, that as he headed down the highway

toward the exit, he drove around “a blind curve” and only then saw

the string of taillights, which he described as an unexpected and

“sudden stop of traffic.” He did not see any emergency vehicles or

personnel until after he had stopped in the line of cars.

¶ 36 Deines did not specifically say that he managed to stop

without problem. He recounted that as he drove down the highway,

he noticed an oncoming car flash its lights and an emergency

vehicle drive by, so he deactivated the cruise control and began to

slow down. As he “crested” an “incline,” he saw a line of stopped

cars in front of him. He “applied [his] brakes,” and ten seconds

later, possibly before he even stopped behind McAfee’s car, Campa-

Borrego plowed into him from behind.

¶ 37 There is nothing in the record to indicate, one way or the

other, whether the other twenty or thirty drivers managed to stop

without any problem.

¶ 38 Second, the accident involving Deines and Campa-Borrego was

not, in fact, the only accident that night. Defendants concede that

18
one other accident occurred around the same time, while, according

to Deines, the evidence suggests that as many as five accidents may

have occurred.

¶ 39 The town’s deputy marshal testified that due to the road

closure, the area near the oil spill was “very dangerous.” He

described “a lot of traffic,” with cars spread across the lanes.

¶ 40 True, Campa-Borrego was cited for careless driving, and both

the Colorado State Patrol accident report and Deines’s complaint

allege that Campa-Borrego was inattentive or distracted. But that

is hardly the kind of extraordinary conduct necessary to constitute

an unforeseeable intervening cause.

A driver who negligently creates a highway
obstruction “must reasonably foresee the
probability of some injury from his negligent
acts, not only from careful drivers of other
vehicles but also from negligent ones, so long
as the act of the other driver is not so
‘extraordinary’ as to be not reasonably
foreseeable.”

Baumann, 802 F.3d at 956 (citations omitted); see also Smith, 470

S.E.2d at 448 (To say that another driver’s negligent conduct is an

unforeseen intervening cause of the plaintiff’s injuries is “illogical,”

19
as every negligent intervening act “will not be reasonable or

normal,” but not all intervening negligent acts “cut off liability.”).

¶ 41 The question is not, as the district court suggested, whether,

in light of the facts and circumstances after the spill, including the

conduct of other drivers, Campa-Borrego should have been able to

stop before he hit Deines. The question for proximate cause

purposes is whether defendants should have reasonably foreseen

that if they caused an oil spill on a highway at night, an accident

relatively close in time and place to the spill might result. See

Restatement (Second) of Torts § 435 cmt. d (Am. L. Inst. 1965) (For

foreseeability purposes, “[w]hat the actor does or should expect

depends upon the circumstances which he knows or should know

and his forecast in the light of these circumstances as to what is

likely to happen.”); Mellen v. Lane, 659 S.E.2d 236, 246 (S.C. Ct.

App. 2008) (Foreseeability, as a component of proximate cause, “is

not determined from hindsight, but rather from the defendant’s

perspective at the time of the alleged [action].”) (citation omitted).

20
We conclude that the district court erred in answering that question

as a matter of law.2

¶ 42 Finally, we turn to Anadarko’s separate argument that

summary judgment was properly granted in its favor, even if the

court erred by entering judgment in favor of Atlas and CDI.

¶ 43 The oil that spilled on the highway was loaded into the truck

at a wellsite operated by Anadarko. In his complaint, Deines

alleged that Anadarko’s failure to implement various measures to

ensure the safe loading and sealing of the truck resulted in the oil

spill.

¶ 44 On appeal, Anadarko says it is entitled to summary judgment

on the ground that Deines failed to present evidence that

Anadarko’s implementation of the measures would have prevented

2 In a short footnote at the end of their answer brief, Atlas and CDI
argue that we may affirm on the alternative ground that Deines
“produced zero evidence” that either Atlas or CDI “actually owned
the truck that spilled the hydrocarbons.” We deem this argument
insufficiently developed, and we therefore decline to address it. See
People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003); see also
Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir.
1999) (arguments raised only in a footnote or in a perfunctory
manner are waived), aff’d sub nom. Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363 (2000).

21
the spill. Anadarko, though, accepted Deines’s allegations as true

for purposes of summary judgment, then argued that, as a matter

of law, Campa-Borrego’s negligent driving was an unforeseeable

intervening cause absolving it of liability. Thus, Deines had no

obligation, at the summary judgment stage, to produce evidence in

support of his allegations.

¶ 45 We likewise reject Anadarko’s conclusory assertion that its

alleged negligence occurred at the wellsite and was therefore “too

far removed and insubstantial” to be the proximate cause of

Deines’s injuries. Anadarko does not explain further, yet the

assertion is not self-explanatory.

¶ 46 According to Deines, due to Anadarko’s negligence, the oil was

not properly loaded into and secured inside the truck and so,

almost immediately after leaving the wellsite, oil began to leak on to

the road, culminating (we think, though Anadarko does not say,

just a short time later and a short distance away) in the release of

1,000 gallons of oil onto I-76.

¶ 47 Thus, we discern no basis for treating defendants differently

for purposes of determining whether the rear-end collision

constitutes an unforeseeable intervening cause as a matter of law.

22
III. Conclusion

¶ 48 The judgment is reversed, and the case is remanded to the

district court with directions to reinstate the claims.

JUDGE FOX and JUDGE GROVE concur.

23