v. Atlas Energy , 2021 COA 24 ( 2021 )

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