Martinez v. Power

24CA1176 Martinez v Power 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1176
Adams County District Court No. 22CV31153
Honorable Sarah E. Stout, Judge

Rick Clyde Martinez,

Plaintiff-Appellant,

v.

Power Home Remodeling Group, LLC,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE GOMEZ
Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Ramos Law, Clarence Gamble, Northglenn, Colorado, for Plaintiff-Appellant

Hall & Evans, LLC, Brian Molzahn, Mark S. Ratner, Ethan E. Zweig, Denver,
Colorado, for Defendant-Appellee
¶1 Plaintiff, Rick Clyde Martinez, appeals the district court’s entry

of summary judgment in favor of defendant, Power Home

Remodeling Group, LLC (the company). We affirm.

I. Background

¶2 Under the terms of a “Custom Remodeling and Improvement

Agreement,” the company agreed to install windows and a sliding

glass door at Martinez’s residence.

¶3 According to Martinez, during the installation process, one of

the company’s employees walked into Martinez’s backyard shed and

removed a tarp and a roll of tar paper (also referred to as ice melt).

The employee then climbed onto Martinez’s roof and, when asked,

said he was going to cover a hole with the tarp. As this was going

on, the other employees laughed.

¶4 Soon thereafter, the ice melt fell off the roof and struck

Martinez in the head, injuring him. According to Martinez, the

company wasn’t doing any work on his roof, and the employee “had

no business on [his] roof.”

¶5 Martinez filed a complaint against the company, asserting a

single claim for negligence. The claim was based on Martinez’s

allegations that “[the company] and its agents owed a duty of care

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in the performance of their work at [his] residence” and that they

“breached that duty of care by carelessly throwing [the] ice melt in

the air which landed on [his] head.” Martinez didn’t expressly

assert a claim for vicarious liability against the company, nor did he

assert any claims against the individual employee.

¶6 After the close of discovery, the company sought summary

judgment, arguing that (1) there was no evidence supporting the

allegation that it owed a duty to Martinez, or that it breached any

such duty; (2) Martinez hadn’t alleged a claim for vicarious liability;

and (3) even if he had alleged such a claim, there was no evidence

that the employee was acting within the scope of his employment

with the company at the time of the injury.

¶7 The district court entered an order granting the motion. In

reviewing the complaint, the court determined that Martinez’s

negligence claim encompassed both vicarious liability (or

respondeat superior) and direct negligence theories. The court

determined that Martinez’s vicarious liability theory failed because

he hadn’t presented any evidence to establish that the company’s

employee was acting within the scope of his employment when the

injury occurred. The court also determined that the economic loss

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rule barred Martinez’s direct negligence theory because he hadn’t

established that the company owed him a legal duty independent of

its contractual obligations. The court accordingly entered summary

judgment in favor of the company.

II. Standard of Review

¶8 We review a district court’s grant of summary judgment

de novo. Univ. of Denver v. Doe, 2024 CO 27, ¶ 7. Applying the

same standard as the district court, “we must ‘determine whether a

genuine issue of material fact existed and whether the district court

correctly applied the law.’” Poudre Sch. Dist. R-1 v. Stanczyk, 2021

CO 57, ¶ 12 (quoting City of Fort Collins v. Colo. Oil & Gas Ass’n,

2016 CO 28, ¶ 9).

¶9 At summary judgment, “[t]he moving party bears the initial

burden of showing no genuine issue of material fact exists.” Westin

Operator, LLC v. Groh, 2015 CO 25, ¶ 20. If this burden is met, “the

burden then shifts to the nonmoving party to establish a triable

issue of fact.” Id. The nonmoving party may not rest on the

allegations made in the pleadings but, instead, must provide facts

“by affidavit or otherwise” to show there is a triable issue. Han Ye

Lee v. Colo. Times, Inc., 222 P.3d 957, 960 (Colo. App. 2009).

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III. Discussion

¶ 10 Martinez’s sole argument in his opening brief is that the

district court erred in determining that the economic loss rule

barred his direct negligence theory. However, we needn’t decide

whether the court erroneously applied the economic loss rule

because we conclude that, regardless, Martinez hasn’t established a

genuine issue of material fact on his negligence claim based on

either vicarious liability or direct negligence. See Brown v. Long

Romero, 2021 CO 67, ¶¶ 24-29 (recognizing that a plaintiff’s claims

against an employer arising from the negligent acts of its employee

may be based on either vicarious liability or direct negligence).

Therefore, the district court’s entry of summary judgment was

proper. See Million v. Grasse, 2024 COA 22, ¶ 29 (“[W]e may affirm

a trial court’s judgment on any basis supported by the record.”).

A. Vicarious Liability

¶ 11 In his opening brief, Martinez doesn’t challenge the district

court’s ruling rejecting his theory of vicarious liability. To the

extent that Martinez attempts to raise such a challenge in his reply

brief, we decline to consider it, as it is both untimely and

undeveloped. See Gomez v. Walker, 2023 COA 79, ¶ 9 n.3 (“[W]e do

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not consider arguments raised for the first time in a reply brief.”);

Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34,

¶ 41 n.12 (“We don’t consider undeveloped and unsupported

arguments.”), aff’d on other grounds, 2021 CO 56.

¶ 12 Accordingly, Martinez hasn’t established a genuine issue of

material fact on his negligence claim based on a theory of vicarious

liability.

B. Direct Negligence

¶ 13 Martinez also hasn’t established a genuine issue of material

fact on his negligence claim based on a theory of direct negligence.

¶ 14 To hold an employer directly liable for its employee’s negligent

conduct outside the scope of their employment, a plaintiff may

pursue a claim for negligent hiring, training, or supervision. Westin

Operator, ¶ 23; Keller v. Koca, 111 P.3d 445, 448 (Colo. 2005).

Such a claim is “based on the principle that a person or business

conducting an activity through employees is subject to liability for

harm that results from negligent conduct in employing those

persons.” Westin Operator, ¶ 23. To prevail, a plaintiff must prove

the four basic elements of negligence: (1) the employer owed the

plaintiff a legal duty of care; (2) the employer breached that duty;

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(3) the plaintiff suffered an injury; and (4) the employer’s breach

caused that injury. See id.

¶ 15 As to the first element, the plaintiff must establish that the

employer owed them a legal duty. Id. at ¶¶ 23-24; see also Keller,

111 P.3d at 447 (“A negligence claim fails where the law does not

impose a duty on the defendant to act for the plaintiff’s benefit.”).

Whether the employer owes such a duty to the plaintiff is a question

of law to be determined by the court. See Keller, 111 P.3d at 448.

¶ 16 An employer has a legal duty to third parties, predicated on

the acts of its employee, only if it knows or should know that the

employee is creating an unreasonable risk of harm to those third

parties. Id. at 448-50; Destefano v. Grabrian, 763 P.2d 275, 287-88

(Colo. 1988); see also Settle v. Basinger, 2013 COA 18, ¶ 26 (“The

duty . . . arises when the . . . employer ‘has reason to know’ that

the . . . employee ‘is likely to harm others’ because of ‘[their]

qualities’ and ‘the work or instrumentalities entrusted to [them].’”

(quoting Destefano, 763 P.2d at 287)).

¶ 17 Over the course of this case, Martinez has not alleged, argued,

or presented evidence that the company knew or should’ve known

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that the subject employee posed a foreseeable risk of harm to third

parties like Martinez.

¶ 18 First, Martinez didn’t allege any such facts in his complaint.

Instead, he only generally alleged that “[the company] and its agents

owed a duty of care in the performance of their work at [his]

residence.” See Woodall v. Godfrey, 2024 COA 42, ¶ 7 (although a

complaint only needs “to provide a short and plain statement” of a

claim for relief, that statement must still contain sufficient detail to

provide the defendant with notice of the claim); C.R.C.P. 8(a)(2).

¶ 19 Next, in his response to the company’s summary judgment

motion, Martinez neither argued nor presented evidence that the

company owed him a duty on the basis that it knew or should’ve

known its employee was likely to cause harm. Instead, Martinez’s

only argument in support of his direct claim against the company,

citing Collard v. Vista Paving Corp., 2012 COA 208, ¶ 52, was that

contractors like the company “owe a duty of care to third parties

who could foreseeably be injured by negligent construction,

installation, repair, or performance on service contracts.” But the

division in Collard didn’t consider any issues regarding negligent

hiring, retention, or supervision or otherwise relating to employees

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that a contractor knew or should’ve known were likely to cause

harm; instead, it addressed a contractor’s general duty to leave a

worksite in a safe condition for later users. See id. at ¶ 27. And

Martinez’s only evidence offered in opposition to summary judgment

related to the incident itself — not to anything indicating that the

company knew or should’ve known that the employee was creating

an unreasonable risk of harm. Indeed, the district court noted in

its summary judgment order that Martinez was not asserting any

claims based on negligent hiring, training, or supervision.

¶ 20 In his opening brief on appeal, Martinez again only vaguely

defines the duty he alleges the company owed to him, describing it

as a “duty of care not to injure the party it entered into a contract

with while performing its scope of work.” But he doesn’t specifically

argue that the company was responsible for its employee’s allegedly

negligent conduct and doesn’t point to any evidence suggesting that

the company knew or should’ve known that the employee was likely

to cause harm.

¶ 21 Only in his reply brief does Martinez address the issue,

contending that he “can establish a direct negligence claim by

proving [the company] had a duty to prevent an unreasonable risk

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of harm to third persons to whom [it] knew or should have known

that the employee would cause harm.” But because Martinez sets

forth this argument for the first time in his appellate reply brief, we

cannot consider it. See Gomez, ¶ 9 n.3; Scott R. Larson, P.C. v.

Grinnan, 2017 COA 85, ¶ 70 (“Civil cases too numerous to cite say

that ‘issues not raised in or decided by a lower court will not be

addressed for the first time on appeal.’” (quoting Robinson v. Colo.

State Lottery Div., 179 P.3d 998, 1008-09 (Colo. 2008))).

¶ 22 Martinez failed throughout the litigation to allege, argue, or

establish that the company knew or should’ve known its employee

was likely to cause harm to a third party like him. He therefore

failed to create a triable issue on direct liability for the employee’s

allegedly negligent conduct.

IV. Disposition

¶ 23 The judgment is affirmed.

JUDGE FREYRE and JUDGE MEIRINK concur.

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