Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 06 cv 00053 EWN MJW
MICHAEL DANIELSON,
Plaintiff,
v.
WAL MART STORES, INC.,
Defendant.
RECOMMENDATION ON PLAINTIFF’S MOTION TO STRIKE THE AFFIRMATIVE DEFENSES OF DEFENDANT WAL MART STORES, INC. (DOCKET NO. 19)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on the Plaintiff’s Motion to Strike the Affirmative Defenses of Defendant Wal Mart Stores, Inc. (docket no. 19). The court has reviewed the motion and the response thereto (docket no. 32). In addition, the court has taken judicial notice of the court’s file and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.
FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff requests that this court strike the affirmative defenses of comparative negligence, Act of God, and assumption of the risk. Plaintiff argues that pursuant to Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), Defendant’s “common law” defenses alleged in response to Plaintiff’s premise liability claim are unavailable to the *2 Defendant. In Defendant’s response, Defendant has confessed part of this motion by withdrawing its “Act of God” affirmative defense. As to the affirmative defenses of comparative negligence and assumption of the risk, Defendant argues that such defenses are not barred by Vigil, supra.
Here, the court finds that the basis of jurisdiction is diversity. “[A] federal court sitting in diversity must apply state substantive law and federal procedural law.” Sofford v. Schindler Elevator Corp., 954 F. Supp. 1459, 1460 (D. Colo. 1997). Moreover, the defense of comparative negligence is not a common law defense based upon the duty of the tortfeasor. See § 13 21 111, C.R.S. Rather, it is a statutory defense created by the General Assembly that is applicable where there is evidence substantiating that both the Plaintiff and Defendant are at fault. Gordon v. Benson, 925 P.2d 775, 777 78 (Colo. 1996). Assumption of the risk is likewise codified by the General Assembly. See § 13 21 111.7, C.R.S. Furthermore, comparative negligence and assumption of the risk have no relation to the duties owed by a landowner, but rather are related solely to the conduct of the Plaintiff. Based upon the forgoing reasons, and further based upon the detailed and correct legal analysis by Magistrate Judge Patricia A. Coan in the case of Cole v. USA, 2005 WL 1606596 (D. Colo. July 8, 2005), this motion should be denied as to the affirmative defenses of comparative negligence and assumption of the risk and granted as to the affirmative defense of Act of God.
RECOMMENDATION WHEREFORE, based upon these findings of fact and conclusions of law, this *3 court RECOMMENDS :
1. That Plaintiff’s Motion to Strike the Affirmative Defenses of Defendant Wal Mart Stores, Inc. (docket no. 19) be GRANTED IN PART AND DENIED IN PART. It is RECOMMENDED that the motion be GRANTED as to the Act of God defense and that the Defendant’s Act of God defense be stricken. It is FURTHER RECOMMENDED that the remainder of the motion be DENIED.
2. That each party pay their own attorney fees and costs. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have ten (10) days after service of this recommendation to serve and file written, specific objections to the above recommendation with the District Judge assigned to the case. The District Judge need not consider frivolous, conclusive, or general objections. A party’s failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Fed. R. Civ. P. 72(b), Thomas v. Arn, 474 U.S. 140, 148 53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10 th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412 13 (10th Cir. 1996).
Done this 29 th day of March 2006.
BY THE COURT s/ Michael J. Watanabe Michael J. Watanabe U.S. Magistrate Judge