This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

February 21, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

LEONID DMITRUK, Administrator of

the Estate of Alexander Bugaychuk,

deceased; YELENA BUGAYCHUK,

an individual; NATALIA MELNIK, an

individual; IRINA MOROZOV,

Personally and as Administrator of the

Estate of Yevgeniy Morozov, deceased

and as Guardian for Sara Morozov a

minor and Eleanna Morozov a minor,

Plaintiffs-Appellants,

v. No. 06-1188

GEORGE AND SONS’ REPAIR

SHOP, INC., D.B.A. “GEORGE’S

TOWING;” and GEORGE ROSLER,

Defendants-Appellees.

(D.C. No. 03-cv-2355-RPM)

(D. Colo.)

 

ORDER AND JUDGMENT

*

 

Before O’BRIEN, BALDOCK, and HOLMES, Circuit Judges.

 

Plaintiffs brought this negligence action after their relatives, Yevgeny

Morozov and Alexander Bugaychuk, were killed when their vehicle crashed into the

back of a semi-truck parked on an exit ramp along Interstate 70 in Colorado. The
2

district court granted Defendants’ motion for summary judgment on Plaintiffs’

claims. Plaintiffs now appeal that judgment. We exercise jurisdiction pursuant to

28 U.S.C. § 1291. After studying the briefs and the record, and hearing oral

argument, we affirm the district court’s judgment because Plaintiffs failed to present

sufficient evidence of proximate cause.

I.

On the morning of November 26, 2001, an Angel Express semi-truck Jorge

Lage was driving became stuck in the snow on the eastbound side of Interstate 70 in

eastern Colorado. Colorado Highway Patrol called Defendant George and Sons

Repair Shop, seeking a tow-truck to pull the Angel Express semi-truck back onto the

road. Defendant George Rosler responded, hooked up his tow-truck to the semitruck, and pulled it back onto the pavement. Rosler then unhooked the tow-truck and

asked Lage to follow him to the next exit to settle the bill. The two trucks traveled

eastbound on Interstate 70 approximately one mile, and then exited out of the two

main lanes of travel on Interstate 70, merging into a third exit lane. The exit lane,

which led only to pasture land, was snow packed. The two trucks came to a stop, the

tow-truck in the front and the Angel Express directly behind the tow-truck, as far

right in the exit lane as possible without going into the ditch. Both trucks had their

hazard lights flashing, but neither driver placed warning triangles out on the highway

beside or behind their vehicles. 

Rosler stayed in his tow-truck while Lage telephoned his company to arrange
3

for payment. A few minutes after the trucks came to a stop, a Budget-Rent-A-Van

(a small moving van), driven by Yevgeny Morozov slammed into the back of the

semi-truck. Police determined Morozov did not brake or otherwise attempt to avoid

the Angel Express truck. Also, police estimates indicate Morozov was traveling at

least 43 m.p.h., a high rate of speed for the road conditions. Morozov died instantly.

His passenger, Alexander Bugaychuk, died several hours later.

Plaintiffs, Morozov and Bugychuk’s family members and estate administrators,

first filed suit for wrongful death and personal injuries against Angel Express and

Jorge Lage in Washington state court. While that action was pending, Plaintiffs filed

suit against Rosler and George and Sons in the United States District Court in

Colorado. Plaintiffs claimed Rosler was negligent in failing to place triangular

warning devices behind the stopped trucks. Plaintiffs eventually added Lage and

Angel Express as Defendants in the Colorado action. Plaintiffs subsequently settled

the Washington state suit with Lage and Angel Express and dismissed them as

defendants in the Colorado action, leaving only the claims against Rosler and George

and Sons. Meanwhile, Bugaychuk’s heirs and the administrator of his estate

(Plaintiffs Yelena Bugaychuk, Natalia Melnik and Leonid Dmitruk) recovered from

Budget Van Rental’s insurance company under the theory that Morozov was

responsible for the accident. In so doing, these Plaintiffs signed a “Release,”

releasing Morozov’s estate, Budget, the insurance company, “and all other persons,

firms, corporations, associations and partnerships” from any future claims.
4

Defendants filed a motion for summary judgment arguing they were not

responsible for the accident, or, in the alternative, Plaintiffs’ Washington state

lawsuit acted as a bar to their Colorado lawsuit inasmuch as Colo. Rev. Stat. § 13-

21-203(1) permits only one wrongful death action of any one decedent. Defendants

also argued Plaintiffs Yelena Bugaychuk, Natalia Melnik, and Leonid Dmitruk

released their claims against Defendants when they signed the “Release” after

settling with Budget Van Rental’s insurance company. Plaintiffs filed a crossmotion for partial summary judgment. Plaintiffs argued Defendants failure to

comply with Colo. Rev. Stat. § 42-4-230 and a similar federal regulation, which

require placement of warning triangles behind vehicles parked along highways,

constituted negligence per se. The district court agreed with Defendants in all

respects, granted their motion for summary judgment and denied Plaintiffs’ motion

for partial summary judgment. 

II.

We review the district court’s summary judgment order de novo, “using the

same standards applied by the district court.” Stover v. Martinez, 382 F.3d 1064,

1070 (10th Cir. 2004). Essentially, the inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986). This is a diversity case and the parties agree Colorado
 The parties disagree about whether Washington or Colorado law applies 1

as to the rules of recovery, including whether Colorado’s wrongful death statute

prohibits multiple wrongful death actions and whether punitive damages are

available to Plaintiffs. We need not reach these issues in light of our conclusion

that Plaintiffs failed to present sufficient evidence of proximate cause.

5

negligence law governs the liability aspect of Plaintiffs’ claims.1

A.

To succeed in a negligence action in Colorado, a plaintiff must show the

existence of a duty on the part of the defendant; a breach of that duty; a causal

connection between defendant’s breach and plaintiff’s injury; and injury to the

plaintiff. Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495, 497 (Colo. Ct. App.

1999). Plaintiffs allege Rosler’s failure to place warning triangles behind his vehicle

as required by Colorado law and federal highway regulations, establishes negligence.

In particular, Plaintiffs charge Defendants with violating the following Colorado

statute:

[W]henever a motor vehicle . . . is stopped upon the traveled portion of

a highway or the shoulder of a highway for any cause other than

necessary traffic stops, the driver shall, as soon as possible, but in any

event within ten minutes, place the bidirectional emergency reflective

triangles in the following manner:

a) One at the traffic side of the stopped vehicle, within ten feet of the

front or rear of the vehicle;

b) One at a distance of approximately one hundred feet from the

stopped vehicle in the center of the traffic lane or shoulder occupied by

the vehicle and in the direction of the traffic approaching in that lane;
 In addition to this ruling, the district court decided Colo. Rev. Stat. § 13- 2

21-203 barred Plaintiffs from bringing a second wrongful death action in

Colorado as they already brought a similar action in Washington. Additionally,

the district court broadly read the “Release,” signed by Bugaychuk’s heirs when

they settled with Budget Van Rental’s insurance company, to bar all subsequent

claims for recovery for Bugaychuk’s death. Like the issues surrounding the

parties’ disagreement over the rules of recovery, see supra n.1, we need not reach

these issues because we agree with the district court’s proximate cause analysis.

6

and

c) One at a distance of approximately one hundred feet from the stopped

vehicle in the opposite direction from those placed in accordance with

paragraphs (a) and (b) of this subsection (3) in the center of the traffic

lane or shoulder occupied by the vehicle[.]

Colo. Rev. Stat. § 42-4-230(3). Plaintiffs also allege Defendants violated a similar

federal regulation requiring commercial motor vehicles engaged in interstate

commerce to place warning devices up to 500 feet from a stopped vehicle. See 49

C.F.R § 392.22. 

In granting Defendants’ motion for summary judgment, the district court

determined nothing in the record suggested absence of the warning triangles behind

the trucks caused the collision. Defendants argued below, and now on appeal, that 2

they complied with Colo. Rev. Stat. § 42-4-230 because the accident occurred less

than ten minutes after Rosler and the Angel Express truck came to a stop.

Defendants also argue they were under no obligation to comply with the federal

regulation because George and Sons is not engaged in interstate commerce. As

demonstrated below, we need not determine whether Defendants violated Colo. Rev.
7

Stat. § 42-4-230 or whether Defendants were obliged to comply with the federal

regulation.

B.

Under Colorado law, violation of a statute, ordinance, or regulation adopted

for the public’s safety may be negligence per se. In Hageman v. TSI, Inc., 786 P.2d

452, 453-454 (Colo. App. 1989), the Colorado Court of Appeals stated:

Violation of a statute or ordinance adopted for the public’s safety may

be negligence per se and establish the violator’s civil liability for all

damages proximately caused thereby. Before the doctrine can apply,

the injured party must show that he or she is a member of the class that

the statute or ordinance was intended to protect, that the injuries

suffered were of the kind the statute was enacted to prevent, and that

the statute or ordinance prescribes or proscribes specific conduct. If

these criteria are met, the legislation establishes the standard of conduct

of a reasonable person, subject in some cases to the violator’s

affirmative defense that compliance was impossible or would have

created a greater risk of danger or injury. 

Even if the violation of a statute supports a negligence per se claim, the plaintiff

must still show the defendant’s negligence was the cause of the plaintiff’s injuries.

Lombard v. Colo. Outdoor Educ. Ctr., Inc., -- P.3d --, 2007 WL 177686, at *4 (Colo.

App. January 25, 2007) (noting that plaintiffs alleging negligence per se must show

that defendant’s statutory violation proximately caused the injuries at issue). Here,

even assuming Defendants violated Colo. Rev. Stat. § 42-4-230 and 49 C.F.R §

392.22, and such violations constituted negligence per se, Plaintiffs failed to present

evidence that such violations were the proximate cause of the accident. 

Plaintiffs do not cite to instances in the record indicating they raised a
8

question of fact as to the proximate cause of the accident; instead, they insist

proximate cause is an issue for the jury to decide, not a question of law for the judge

to decide at summary judgment. As a general rule, Plaintiffs are correct and the

question of proximate cause in a negligence case is one of fact for the jury.

Bannister v. Noble, 812 F.2d 1265, 1267 (10th Cir. 1987). But, the proximate cause

of an injury becomes a question of law “where the evidence together with all

inferences which may be properly deduced therefrom is insufficient to show a causal

connection between the alleged wrong and the injury. Id. (quoting Gates v. United

States, 707 F.2d 1141, 1145 (10th Cir. 1983)); see also Jones v. Jefferson County

School Dist., 392 P.2d 165, 167 (Colo. 1964) (when the facts are undisputed and

reasonable minds can draw but one inference from them, then the question of

proximate cause is one of law to be decided by the court). In other words, to survive

summary judgment, the party bearing the burden of proof at trial on a dispositive

issue must go beyond the pleadings and designate specific facts so as to make a

showing sufficient to establish the existence, as a triable issue, of an element

essential to that party’s case. See McKnight v. Kimberly Clark Corp., 149 F.3d

1125, 1128 (10th Cir. 1998).

We agree with the district court that Plaintiffs failed to show the absence of

the warning triangles proximately caused the collision. The undisputed facts reveal

that November 26, 2001 was a clear day, and both trucks had their emergency hazard

lights flashing. Trooper Jason Bandy, the state police officer who responded to the
9

accident, testified that minutes before the accident he drove past the trucks sitting

on the exit ramp and he could easily see them. The trucks were pulled off into the

exit lane or the exit ramp and not in the main two lanes of eastbound travel on the

interstate. Despite clear visibility, the display of hazard lights and the placement of

the trucks off the traveled portion of the highway, Morozov inexplicably slammed

into the rear of the semi-truck without slowing down and without swerving to avoid

it. 

Based on these undisputed facts, we agree with the district court that nothing

suggests placement of the triangles would have prevented the collision. In other

words, absolutely nothing in the record suggests Rosler’s failure to put out the

warning triangles was the proximate cause of the accident. Because Plaintiffs failed

to present any evidence that Defendants caused the accident, an essential element of

their claim, the district court correctly granted summary judgment in this case. 

AFFIRMED.

Entered for the Court,

Bobby R. Baldock

United States Circuit Judge