McKeon v. Aaran Transport, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 21-cv-03264-RM-KLM
KIM MCKEON,
Plaintiff,
v.
BANK OF AMERICA,
AARAN TRANSPORT, LLC,
NUR ABDI, and
DAVID BAILEY,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This personal injury action is before the Court on a Motion for Summary Judgment (ECF
No. 109) by Defendants Aaran Transport, LLC and Abdi (the “Aaran Defendants”), seeking
dismissal of the claims against them. Defendants Bank of America and Bailey (the “BOA
Defendants”) and Plaintiff have filed Responses to the Motion (ECF Nos. 118, 120), and
Plaintiff has filed Replies (ECF No. 130, 133). The Aaron Defendants have also filed a Motion
to Exclude (ECF No. 132), seeking to exclude certain testimony of Plaintiff’s retained expert,
and that Motion has been briefed as well (ECF Nos. 146, 150). Both Motions are denied for the
reasons below.
I. 	BACKGROUND
This case arises from a chain of vehicle crashes on a snowy day along a downgrade
section of Interstate 70 west of the Eisenhower Tunnel. (ECF No. 131, ¶ 3.) On March 3, 2019,
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Defendant Abdi was driving a semi-truck owned by Defendant Aaran Transport, LLC down the
highway in the left lane when he struck a Mazda CX-5. (Id. at ¶¶ 1, 2, 6.) After spinning out of
control, the Mazda struck a Nissan Pathfinder traveling in the center lane. (Id. at ¶¶ 7.) The
Pathfinder spun out of control and rolled. (Id. at ¶ 10.) The semi-truck, Mazda, Pathfinder and
two other vehicles all ended up along the ditch on the right side of the highway. (Id. at ¶¶ 19.)
The Pathfinder came to rest on its side. (Id. at ¶ 10.)
At the time of the initial accident, Plaintiff was a backseat passenger in a Nissan Rogue
being driven by her brother-in-law, John Kowba, in the center lane. (Id. at ¶ 13.) After
witnessing the semi-truck passing on the left and hitting the Mazda, Mr. Kowba pulled over on
the right, about even with the Pathfinder. (Id. at ¶¶ 15, 16, 18.) Plaintiff and her sister, Ms.
Kowba, exited the Rogue on the passenger side and began trying to determine if the occupants of
the Pathfinder were okay. (Id. at ¶¶ 22, 25.) One of the occupants had already exited the
vehicle, and Ms. Kowba helped another, a young girl, climb out the window. (Id. at ¶¶ 26, 27.)
A third occupant had blood on his head and face and was initially standing up in the Pathfinder
through one of the smashed windows, but he was able to exit without help. (Id. at ¶¶ 31, 38, 39.)
In the meantime, Defendant Bailey, an employee of Defendant Bank of America, was
approaching the scene in an Audi A4, driving in the center lane.1 (Id. at ¶¶ 47, 48.) As he
changed into the right lane to avoid a slow-moving semi-truck, he began sliding. (Id. at ¶ 49.)
The Audi slid off the road and struck Plaintiff as she was standing next to the Pathfinder, causing
her serious injury. (Id. at ¶¶ 50, 99, 105, 106.) Defendant Bailey was cited for careless driving
causing bodily harm. (Id. at ¶ 63.)
1 Plaintiff contends Defendant Bailey was acting in the scope of his employment at the time of the accident. (ECF
No. 1, ¶ 65.)
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Plaintiff filed her Complaint in December 2021. (ECF No. 1.) In addition to claims
against the BOA Defendants, she asserts claims against Defendant Abdi for negligence and
negligence per se and against Defendant Aaran Transport, LLC for vicarious liability, negligent
entrustment, negligent hiring and retention, and negligent training and supervision.
II. 	LEGAL STANDARDS
A. 	Summary Judgment
Summary judgment is appropriate only if there is no genuine dispute of material fact and
the moving party 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); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir.
2018). Applying this standard requires viewing the facts in the light most favorable to the
nonmoving party and resolving all factual disputes and reasonable inferences in its favor.
Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). However, “[t]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007).
“The substantive law of the case determines which facts are material.” United States v.
Simmons, 129 F.3d 1386, 1388 (10th Cir. 1997). A fact is “material” if it pertains to an element
of a claim or defense; 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. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (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 a
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jury or is so one-sided that one party must prevail as a matter of law. Id. at 251-52; Stone
v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).
B. 	Expert Testimony
“The proponent of expert testimony bears the burden of showing that its proffered
expert’s testimony is admissible.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.
2009). “A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. The Court has
the duty to act as a gatekeeper by ensuring that an expert’s testimony rests on a reliable
foundation and is relevant to the task at hand. Bill Barrett Corp. v. YMC Royalty Co., LP,
918 F.3d 760, 770 (10th Cir. 2019).
If the Court determines that an expert is sufficiently qualified to render an opinion, it
must then determine whether the expert’s opinion is reliable by assessing the underlying
reasoning and methodology. See Nacchio, 555 F.3d at 1241. In doing so, the Court considers
(1) whether the testimony is based on sufficient facts or data, (2) whether it is the product of
reliable principles and methods, and (3) whether the expert has reliably applied the principles
and methods to the facts of the case. See Fed. R. Evid. 702(b)-(d).
If the evidence is sufficiently reliable, the Court then evaluates whether the proposed
evidence or testimony is sufficiently relevant that it will assist the jury in understanding the
evidence or determining a fact at issue. See Norris v. Baxter Healthcare Corp., 397 F.3d 878,
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884 (10th Cir. 2005). The Court has discretion in how it performs its gatekeeper function.
See Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).
III. 	ANALYSIS
A. 	Summary Judgment Motion
Plaintiff’s claims against the Aaran Defendants are predicated on alleged negligent
driving by Defendant Abdi. In their Motion for Summary Judgment, they assert that undisputed
facts show they owed no duty of care to Plaintiff because she cannot satisfy the requirements of
the rescue doctrine under Colorado law. They also argue that the actions of Defendant Bailey
were an intervening or superseding cause of her injuries. On the current record, however, the
Court is not persuaded that these Defendants are entitled to summary judgment on either basis.
1. 	Rescue Doctrine
“The rescue doctrine . . . is one way the law acknowledges the human instinct to help
those in need, even at the risk of one’s own safety.” Garcia v. Colo. Cab Co. LLC, 467 P.3d
302, 303 (Colo. 2020). It “ensures that negligent actors who put others at risk may be held liable
when their negligence injures a third-party rescuer” who: (1) intended to aid or rescue a person
whom she, (2) reasonably believed was in imminent peril, and (3) acted in such a way that could
have reasonably succeeded or did succeed in preventing or alleviating such peril. Id. at 302-03.
Where the controlling facts are undisputed, whether a defendant owes a legal duty to a plaintiff is
a question of law for the Court. See id. at 304.
The Aaran Defendants concede there is evidence that “Plaintiff subjectively thought she
was engaging in a rescue” (ECF No. 109 at 10); therefore, the first prong of the rescue doctrine is
not at issue.
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With respect to the second prong, the Aaran Defendants argue that “[t]here is no evidence
in the record indicating any of the occupants of the Pathfinder were in imminent peril, seriously
injured, and needing any life-saving medical intervention.” (Id.) But it is not easy for the Court
to take this argument too seriously. Setting aside the other evidence in the record, the Court
finds that the Pathfinder—which had just rolled over and come to a stop on the side of the
highway—speaks for itself. The fact that Plaintiff admits she did not know that anyone was
injured when she arrived at the scene does not change the analysis. Though it is clearly possible
for a person to emerge unscathed from such an accident, that does not make it unreasonable for a
person in Plaintiff’s position to believe that someone might be in imminent peril. Cf. Garcia,
467 P.3d at 306 (“[A] car crash alone [is not] evidence that the crash’s victim is in imminent
peril when that victim is engaging in casual conversaion.”). Despite the absence of anyone
screaming, these were not circumstances presenting an “obviously benign situation[],” and
because “the presence or absence of danger is not always certain[,] a person may genuinely and
reasonably believe that a third party is in imminent peril even when that is not the case.” Id.
Accordingly, the Aaran Defendants have not shown that Plaintiff could not have reasonably
believed an occupant of the Pathfinder was in imminent peril.
With respect to the third prong, the Aaran Defendants argue that Plaintiff did nothing to
effectuate a rescue. However, the utility of Plaintiff’s conduct must be considered consistently
with the rescue doctrine’s purpose, which is to encourage the instinct to help, and in the context
that she was struck by the Audi within minutes of exiting the Rogue. See id. at 305-06.
Although the intent to rescue alone is insufficient establish utility, a plaintiff’s action has some
utility if it “stand[s] a chance at substantially helping the person(s) in peril.” Id. at 306. In other
words, “a plaintiff’s conduct must be reasonably calculated to prevent or alleviate the imminent
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peril.” Id. Under the circumstances, the Court has little trouble concluding that Plaintiff’s
actions were reasonably calculated to help. For one thing, there is no evidence Plaintiff was
aware there were no other occupants still inside the Pathfinder. For another, the fact that three
occupants emerged (with or without assistance) does not mean that they would not require
medical attention. For a third, even if the occupants escaped with only minor injuries, they were
still apparently stranded on the side of the highway in the snow and may not have had the means
to get themselves to safety. Given that the occupants of the Pathfinder faced different types of
peril—not all of it necessarily medical—the Aaran Defendants’ emphasis on Plaintiff’s lack of
medical training is misplaced. Moreover, the Court finds this case does not present
circumstances where the plaintiff was merely investigating the scene of an accident but lacked
the intent to aid or rescue. See id. at 306. Accordingly, the Court finds there is evidence to
support this prong of the rescue doctrine as well, and summary judgment is not warranted.
2. 	Intervening or Superseding Cause
To prevail on her claims against the Aaran Defendants, Plaintiff must show both that but
for Defendant Abdi’s negligence, she would not have been injured, and that her injury was a
reasonably foreseeable consequence of Defendant Abdi’s negligence. See Deines v. Atlas
Energy Servs., LLC, 484 P.3d 798, 801-02 (Colo. App. 2021). “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. . . . 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 foreseeable.” Id. at 802 (citation omitted).
“Causation in fact is typically a question for the jury, unless the undisputed facts would allow
reasonable minds to draw just one inference from them.” Rocky Mountain Planned Parenthood,
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Inc. v. Wagner, 467 P.3d 287, 292 (Colo. 2020); see also Deines, 484 P.3d at 803 (“[G]enerally,
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.”).
The Aaran Defendants contend that Defendant Bailey’s negligent driving was the
predominant and substantial cause of Plaintiff’s injuries and that his actions were independent of
the initial accident. However, even assuming the Aaran Defendants are correct, the Court is not
persuaded that a reasonable jury could not reach a different conclusion. Regardless of whether
Defendant Bailey was aware of the initial accident, a logical inference from the undisputed facts
is that the initial accident caused the traffic slow-down that necessitated Defendant Bailey’s
sudden lane change, which led to his losing control of the Audi. In that sense, this case is similar
to Deines, where an oil spill on the highway stopped traffic and a subsequent crash occurred.
484 P.3d at 801. The Deines court concluded that “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” was a jury question. Id. at 806; see id. at 850 (“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.”).
Nor is the Court persuaded that Plaintiff’s decision to approach the Pathfinder was
unforeseeable. The Deines court cited with approval Banjai v. Arruda, 799 P.2d 441, 443 (Colo.
App. 1990), for the proposition 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.” 484 P.3d at 804. Though Plaintiff
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was not a police officer and Banjai was, the Court does not find this to be a material distinction
for present purposes, and drawing such a distinction would undermine the policy aims behind the
rescue doctrine. Thus, the Court rejects the notion that Plaintiff’s decision to render aid to the
occupants of the Pathfinder was, as a matter of law, an intervening cause that precludes her
claims against the Aaran Defendants.
The Court also rejects the argument that, as a matter of law, the lapse of a few minutes
between the initial accident and Plaintiff being struck breaks the chain of causation here. While
temporal and spatial proximity are properly taken into consideration by a jury, see Deines, 484
P.3d at 803, the facts underlying those considerations do not necessarily lead to an inference in
the Aaran Defendants’ favor.
Therefore, the Court concludes the Aaran Defendants are not entitled to summary
judgment on the issue of whether Defendant Abdi’s negligence proximately caused Plaintiff’s
injury.
B. 	Motion to Exclude
In their Motion to Exclude, the Aaran Defendants assert that the Court should exclude—
both in its consideration of their Motion for Summary Judgment and at trial—certain opinion
testimony by Plaintiff’s retained expert, Guy Barbera, an accident reconstruction engineer.
Specifically, the Aaran Defendants seek to exclude Mr. Barbera’s opinion that Defendant Abdi
was a cause of Plaintiff’s injuries. In his report, Mr. Barbera describes why he believes
Defendant Abdi’s negligence caused the initial accident and states that Defendant Abdi
“contributed to the injuries [Plaintiff] sustained when she was struck by the Audi.” (ECF No.
132-2 at 8.)
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The Aaran Defendants are not seeking to exclude Mr. Barbera’s opinions that Defendant
Abdi’s negligence caused the initial accident or that Defendant Bailey’s unsafe driving caused
Plaintiff’s injuries. Moreover, the Court finds there can be no genuine dispute that the initial
accident also was a cause of Plaintiff’s injuries, at least in the sense that she would not have been
on the side of the highway and in the Audi’s path had it not occurred. Thus, it is not improper to
draw the inference that by causing the initial accident, Defendant Abdi contributed to the injuries
Plaintiff sustained when she was struck by the Audi. To the extent Mr. Barbera’s opinions
embrace this straightforward aspect of the case, the Court is not inclined to exclude them on the
grounds that they are not the proper subject of expert testimony or represent impermissible legal
conclusions.2 “Ultimately, the rejection of expert testimony is the exception rather than the
rule.” O’Sullivan v. GEICO Cas. Co., 233 F. Supp. 3d 917, 922 (D. Colo. 2017) (quotation
omitted). To the extent such testimony may be cumulative, the Court will consider appropriate
objections at trial.
The Aaran Defendants’ contention that allowing Mr. Barbera to present his opinions
would usurp the jury’s role also lacks merit. Mr. Barbera nowhere contends that Plaintiff’s
injuries were entirely caused by Defendant Abdi’s negligence. Rather, it is his opinion that
Defendant Bailey also acted negligently and caused Plaintiff’s injuries. The Aaran Defendants
have not identified anything in Mr. Barbera’s reports that would preclude a jury from making its
own assessment as to how to apportion liability under the circumstances presented.
2 From the Court’s perspective, the fact that Mr. Barbera does not define causation in his reports and does not
strengthen the Aaran Defendants’ position because the role of explaining what the law is to the jury is properly left
to the Court.
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IV. 	CONCLUSION
Accordingly, the Court DENIES both Motions (ECF Nos. 109, 132).
DATED this 22nd day of June, 2023.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
Senior United States District Judge
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