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Cattaneo v. Aquakleen

Cattaneo v. Aquakleen

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Published by Michael_Lee_Roberts

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Categories:Types, Legal forms
Published by: Michael_Lee_Roberts on Oct 24, 2012
Copyright:Attribution Non-commercial


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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOHonorable R. Brooke JacksonCivil Action No. 10-cv-02852-RBJ-MJWNICK and ROXANNE CATTANEO, as individualsand as parents of ELIJAH CATTANEOPlaintiffs.v.AQUAKLEEN PRODUCTS, INC.,Defendant.
This is a personal injury action removed by the defendant from the Adams CountyDistrict Court. It is set for a 10-day jury trial commencing October 15, 2012. A number of motions are ripe for decision and are addressed in this order.
Plaintiffs Nick and Roxanne Cattaneo sue on behalf of themselves and their child Elijah.In their Complaint [docket #1-3] plaintiffs allege that in June 2006 they purchased a waterrefinement system for their home from AquaKleen Products, Inc. However, it is undisputed thatAquaKleen
’s installer, who was not a licensed plu
mber, installed the system improperly, creating
a “cross
connection” between
the AquaKleen system and a sewer pipe in the home. Plaintiffsclaim that, as a result, sewage contaminated their water supply, which in turn caused them tosustain illnesses and damages.In what might be regarded as a classic case of overkill, plaintiffs asserted 11 claimsstating different theories of liability. Over time the claims have been trimmed down a little. At
the present time plaintiff continues to press seven claims on behalf of Mr. Cattaneo and the childand one claim on behalf of Mrs. Cattaneo. The claims are (1) negligence, (2) negligence per se,(3) respondeat superior, (4) negligence under apparent authority, (5) deceptive trade practices,(6) negligent hiring, training and supervision, (7) outrageous conduct (the latter being the onlyremaining claim of Mrs. Cattaneo).Not to be outdone, after denying most of the factual allegations, AquaKleen asserted 31separate defenses. [#8]. In addition AquaKleen named the South Adams County Water &Sanitation District; one of 
the District’s employees, Charlene Seedle; and other “unknown
governmental entities or individuals as
 parties at fault.” [#27].
Motion for Summary Judgment [docket #60]: GRANTED IN PARTAND DENIED IN PART.
Defendant’s motion for summary asks the Court to dismiss all claims or “such claims as
the court sees fit for dismi
The part
ies’ briefing on this motion is
extensive. One mustremember, however, that summary judgment is a limited remedy. It requires courts to deny theparties a trial only if it is shown that there are no genuine issues of material fact in dispute that arational jury could decide in favor of the non-moving party. Fed. R. Civ. P. 56(c). Furthermore,
the Court must “view the evidence and draw reasonable inferences therefrom in the light mostfavorable to the nonmoving party.”
Simms v. Okla. ex
rel. Dep’t of Mental Health & Substance
 Abuse Servs.,
165 F.3d 1321, 1326 (10
Cir. 1999).
’s overriding argument, applicable to all claims, is that
plaintiffs have noadmissible evidence that the cross-connection caused injuries or damages to the plaintiffs. Thatargument largely turns on whether the
testimony of the plaintiffs’ toxicology expert, Dr. Steven
Pike, is admissible. For the reasons discussed in connection with motion #74 below, I hold thatthe testimony is admissible. Therefore, the motion for summary judgment cannot be grantedbased on lack of evidence of causation.Negligence (claims one, three, four and six)Plaintiffs allege that AquaKleen was both directly negligent, by improperly training andsupervising the individuals who sold and installed the system, and liable for the negligence of theinstallers on theories of respondeat superior and agency. AquaKleen counters that the installers
were “independent contractors”
whom AquaKleen had no duty to train or supervise, and forwhose negligence AquaKleen has no responsibility.Generally speaking, one is not liable for the negligence of an independent contractor.
 Huddleston by Huddleston v. Union Rural Electric Association,
841 P.2d 282, 287 (Colo. 1992).A tr
uly “independent” contractor, as the name
suggests, operates free of the control and
supervision of an “employer.” However, merely labeling someone an “independent contractor”
does not make it so.
Faith Realty & Development Co. v. Industrial Commission,
460 P.2d 228,229 (Colo. 1969). As defendant acknowledges, a key factor is whether the person hiring the
individual has the right of control over the person’s work. Motion [#60
-2] at 10 (citing
 Moses v. Diocese of Colorado,
863 P.2d 310, 324 (Colo. 1993)).

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