MEMORANDUM OPINION AND ORDER GRANTING IN PART WESTON
SOLUTIONS, INC.'S MOTION FOR JUDGMENT ON THE PLEADINGS TO
DISMISS CLAIMS OF NEGLIGENCE PER SE
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE.
Weston
Solutions, Inc. "moves for judgment on the pleadings to
dismiss all claims of negligence per se stated against
it." Weston Solutions, Inc.'s Motion for Judgment on
the Pleadings to Dismiss Claims of Negligence Per Se at 3
Doc. 1480, filed March 7, 2022. Weston states "the
regulations that Plaintiffs rely upon to support their
negligence per se claims involve (1) the Occupational Safety
and Health Act ("OSHA"), (2) the Federal Mine
Safety and Health Act ("MSHA"), (3) the Colorado
Water Quality Control Act, (4) the New Mexico Hazardous Waste
Act, (5) the Clean Water Act, and (6) the National
Contingency Plan." Motion at 3.
Judgment
on the Pleadings
"After
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c).
“A motion for judgment on the pleadings under Rule
12(c) is treated as a motion to dismiss under Rule
12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000);
accord Jacobsen v. Deseret Book Co., 287 F.3d 936
941 n.2 (10th Cir. 2002). ....
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Emps.' Ret. Sys. of R.I. v. Williams Cos., Inc.
889 F.3d 1153, 1161 (10th Cir. 2018) (quoting Iqbal,
556 U.S. at 678, 129 S.Ct. 1937). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Free Speech v. Fed. Election Comm'n, 720 F.3d
788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937). In making this assessment, we
“accept as true ‘all well-pleaded factual
allegations in a complaint and view these allegations in the
light most favorable to the plaintiff.' ”
Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th
Cir. 2013) (quoting Kerber v. Qwest Grp. Life Ins.
Plan, 647 F.3d 950, 959 (10th Cir. 2011)).
Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir.
2019).
Negligence
per se
A
recent opinion from the Colorado Court of Appeals discusses
negligence per se under Colorado law:
“[N]egligence per se provides that certain legislative
enactments such as statutes and ordinances can prescribe the
standard of conduct of a reasonable person such that a
violation of the legislative enactment constitutes
negligence.” Lombard v. Colo. Outdoor Educ. Ctr.,
Inc., 187 P.3d 565, 573 (Colo. 2008). It occurs
“when the defendant violates a statute adopted for the
public's safety and the violation proximately causes the
plaintiff's injury.” Scott v. Matlack,
Inc., 39 P.3d 1160, 1166 (Colo. 2002). “To
recover, the plaintiff must also demonstrate that the statute
was intended to protect against the type of injury she
suffered and that she is a member of the group of persons the
statute was intended to protect.” Id. ....
To determine whether these state and federal regulations
listed in [Jury] Instruction 32 may form the basis for a
claim of negligence per se, we must consider whether they
were (1) “enacted for the public's safety,”
(2) “intended to protect the class of persons of which
the plaintiff is a member,” and (3) “enacted to
prevent the type of harm suffered by the plaintiff.”
Gerrity Oil & Gas Corp. v. Magness, 946 P.2d
913, 930 (Colo. 1997).
....
[The regulations] comprehensively outline various conditions
of ASC [Ambulatory Surgical Center] licensure, ranging from,
among other things, administration to recordkeeping to
sanitation. Ensuring patient safety is an important benefit
of the rules, but it is not their raison d'etre.
See Lawson v. Stow, 2014 COA 26, ¶ 44, 327 P.3d
340 (holding that Colorado's false reporting statute
could not form the basis of a negligence per se claim
because, while it “relates to public safety to some
extent,” its “primary purpose ... is to
conserve finite law enforcement resources”) (emphasis
added); see also Burgess v. Religious Tech. Ctr.,
Inc., 600 Fed.Appx. 657, 666 (11th Cir. 2015) (rejecting
negligence per se claim based on rehabilitation
facility's “failure to comply with state licensing
regulations” because the “regulations were
‘intended for licensing and inspection purposes and not
for the creation of a standard of conduct to protect
individuals' ”) (citation omitted).
Rather, CDPHE [Colorado Department of Public Health and
Environment] adopted the regulations pursuant to its
authority to “annually license and to establish and
enforce standards for the operation of ... ambulatory surgery
centers,” § 25-1.5-103(1)(a)(I)(A). While the
rules state that an ASC's “governing body shall
provide facilities, personnel, and services necessary for the
welfare and safety of patients,” Dep't of Pub.
Health & Env't Ch. 20, Reg. 4.1, 6 Code Colo. Regs.
1011-1, those requirements represent a condition of licensure
rather than the agency's core regulatory focus. The
regulations therefore cannot serve as the basis for a
negligence per se claim. ....
[Other] regulations clearly explain what they are intended to
accomplish - the establishment of requirements for an ASC to
receive Medicare reimbursement from the federal government.
As is true for the rules promulgated by CDPHE, scattered
references to factors that may bear on patient safety - like
requiring facilities to maintain a “safe
environment,” 42 C.F.R. § 416.41 (2019), and to
operate on patients “in a safe manner,” 42 C.F.R.
§ 416.42 (2019) - do not change the fundamental
character and purpose of the regulations as a whole. We
therefore conclude that the federal regulations in
Instruction 32 could not serve as the basis for a negligence
per se claim against SCLT.
Smith v. Surgery Center at Lone Tree, LLC, 484 P.3d
745, 755-57 (Colo.App. 2020); see also Dunlap v. Colorado
Springs Cablevision, Inc., 799 P.2d 416, 417-18
(Colo.App. 1990) ("If the exclusive purpose of a
legislative enactment is to secure rights or privileges to
the public at large, not citizens in their individual
capacity, no basis exists for a claim of negligence per
se") (citing Restatement (Second) of Torts §
288 (1965)) (rev'd on other grounds, 829 P.2d 1286 (Colo.
1992)); Colo. Jury Instr. - Civ. 9:14, Use Note 4 (The
Colorado Jury Instruction for negligence per se- violation of
statute or ordinance "does not apply when the ordinance
or statute is construed as only imposing an obligation for
the benefit of the public at large, rather than for
individuals, as members of the public"); Colo. R. Civ.
P. 51.1 ("In instructing the jury in a civil case, the
court shall use such instructions as are contained in
Colorado Jury Instruction (CJI) as are applicable to the
evidence and the prevailing law").
To form
a basis for a negligence per se claim, a statute or
regulation must also indicate an intent to create civil
liability:
Not every statute or ordinance will be held to establish a
duty and a standard of care under the negligence per se
doctrine. For example, we declined to hold that a statute
requiring the industrial commission to inspect workplaces
created a legally cognizable duty to employees. Quintano
v. Industrial Comm'n, 178 Colo. 131, 495 P.2d 1137
(1972). Although we acknowledged that the statute
specifically designated employees and guests as the intended
beneficiaries, we decided that it implicated an area in which
we would not create a damages remedy unless the
legislature's expression of its intent to create civil
liability was “loud and clear, i.e., by
authorizing the remedy.” Quintano, 178 Colo.
at 135-136, 495 P.2d at 1139.
Bittle v. Brunetti, 750 P.2d 49, 57-59 (Colo. 1988)
(en banc) ("Because the ordinance in question
did not expressly provide for imposition of civil liability
on violators, it did not create a duty to pedestrians and we
will not use it as the basis for negligence per se");
accord Foster v. Redd, 128 P.3d 316, 318-319
(Colo.App. 2005) ("Moreover, '[i]t is a well-settled
general rule that a landowner will not be liable to a
pedestrian injured by a defect in a public sidewalk abutting
the landowner's premises ... unless a statute or
ordinance placed the obligation to maintain the sidewalk upon
the landowner and expressly made the landowner liable for
injuries occasioned by the failure to perform that
duty'" ... "Thus, as recognized in Bittle
v. Brunetti, supra, 750 P.2d at 59, 'imposing
liability would do violence to people's reasonable
expectations'”).
The
Navajo Nation and the State of New Mexico
Weston
states: "The Navajo Nation and State of New Mexico
("Sovereign Plaintiffs") do not explicitly make a
claim for negligence per se, but their pleadings strongly
implicate the theory ... to the extent that Sovereign
Plaintiffs contend a violation of OSHA regulations
conclusively establish a claim for negligence, these are
claims sounding in negligence per se and must be dismissed
for the same reasons set forth below." Motion at 4 n.1;
see also Weston's Reply at 14, Doc. 1567, filed
April 18, 2022 (Weston requests dismissal of, "to the
extent they have been asserted, the negligence per se claims
of the State of New Mexico and the Navajo Nation").
The
Navajo Nation and the State of New Mexico state: "Both
New Mexico and the Navajo Nation pled causes of action for
negligence and gross negligence-not negligence per se ... and
therefore are not subject to Weston's Motion."
Navajo Nation and New...
