In re Gold King Mine

1

IN RE GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015

No. 1:18-md-02824-WJ

Nos. 17-cv-710-WJ-SCY, 18-cv-744-WJ-KK

United States District Court, D. New Mexico

September 8, 2022

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...