Velasquez v. Dillon Companies, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02227-KAS
MARIBEL VELASQUEZ,
Plaintiff,
v.
DILLON COMPANIES, LLC, doing business as King Soopers, Inc.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion for Summary Judgment
[#37] (the “Motion”). Plaintiff filed a Response [#47], and Defendant filed a Reply [#52].
The Court has reviewed the parties’ briefing, the entire case file, and the applicable law.
The Court exercises jurisdiction pursuant to 28 U.S.C. § 1332. For the foregoing reasons,
the Motion [#37] is GRANTED.
I. 	Background
According 	to 	the 	undisputed 	summary 	judgment 	evidence, 	Plaintiff 	Maribel
Velasquez entered Defendant’s property—a King Soopers store located in Greeley,
Colorado—to purchase groceries. Fact Table [#52-3] ¶¶ 1, 5. She pushed her cart into
the store’s dairy section, parked it to the side, and began walking through the section to
retrieve several items. Id. ¶¶ 9-11. A store associate was simultaneously working in the
dairy section to restock merchandise. Id. ¶ 10. The merchandise was stored on a stocking
cart (also known as a “U-Boat”). Id. ¶¶ 4, 10.
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The parties provide two helpful images of the stocking cart. The first, a photograph,
shows the cart’s appearance at the time of the incident (although not its precise location).
Id. ¶ 24. The second, a handwritten diagram, shows the cart’s positioning within the dairy
section while the associate was unloading it. Id. ¶ 23.
Defendant’s Exhibit D, Photograph [#37-4] at 4
Defendant’s Exhibit D, Diagram [#37-4] at 3
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As the diagram depicts, the dairy section was located in a corner of the grocery
store, where two walls of refrigerators converge at a 90° angle, rather than a traditional
parallel grocery “aisle.” The stocking cart was parked in the center of the walkway,
vertically with the flow of foot traffic, such that shoppers could maneuver around it on
either side to access the refrigerators and the dairy case.
While doing her shopping, Plaintiff walked past the stocking cart once. Fact Table
[#52-3] ¶ 12; Def.’s Ex. E, Surveillance Video [#38]. She then retraced her steps to access
the refrigerator directly in front of the stocking cart. Def.’s Ex. E, Surveillance Video [#38].
Upon grabbing her item and turning around, Plaintiff walked into the stocking cart, tripped,
and fell over it. Id.; Fact Table [#52-3] ¶ 18. She sustained a serious elbow injury. Am.
Compl. [#46] ¶¶ 29-31.
Plaintiff sued Defendant, originally bringing a Colorado Premises Liability Act
(CPLA) claim, Colo. Rev. Stat. § 13-21-115, and a negligence claim. Compl. [#5] at 6-7.
The parties later stipulated to the dismissal of the negligence claim. Stipulated Motion
[#39]; Am. Compl. [#46]. Defendant now moves for summary judgment on the CPLA
claim, asserting that the stocking cart was not a dangerous condition, and therefore,
Defendant could not have had actual or constructive knowledge of such danger. Motion
[#37].
II. 	Legal Standards
A. 	Fed. R. Civ. P. 56
The purpose of a motion for summary judgment is to assess whether trial is
necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Federal
Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant
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shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” In determining whether summary judgment is appropriate,
a court resolves factual disputes and draws reasonable inferences in favor of the
nonmovant. Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1168 (10th Cir.
2023). However, the “mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S.
372, 380 (2007) (internal quotation marks and citation omitted). A factual dispute is
genuine if the evidence could enable a reasonable jury to find for the nonmoving party,
and a fact is material if it might affect the outcome of the case under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the movant
carries the initial burden of making a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for each essential element of his
claim such that a reasonable jury could find in his favor. Anderson, 477 U.S. at 248, 256.
When the movant does not bear the ultimate burden of persuasion at trial, the “movant
may make its prima facie demonstration [of the absence of a genuine issue of material
fact] simply by pointing out to the court a lack of evidence for the nonmovant on an
essential element of the nonmovant's claim.” Adler, 144 F.3d at 671.
B. 	Colorado Premises Liability Act
The CPLA provides that “[i]n any civil action brought against a landowner by a
person who alleges injury occurring while on the real property of another and by reason
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of the condition of such property, or activities conducted or circumstances existing on
such property, the landowner is liable only as provided in subsection (4) of this section.”
COLO. REV . S TAT. § 13-21-115(3). “Section 13-21-115(4) outlines the respective duties
that a landowner owes to trespassers, invitees, and licensees and provides that a breach
of those duties may result in liability for damages caused.” Martinez v. Cast, LLC, 569
P.3d 865, 871 (Colo. App. 2025) (internal quotation marks and citation omitted). 	“A
landowner owes the greatest duty of care to an invitee, a lesser duty to a licensee, and
the least duty to a trespasser.” Id.
An “invitee” is “a person who enters or remains on the land of another to transact
business in which the parties are mutually interested or who enters or remains on such
land in response to the landowner’s express or implied representation that the public is
requested, expected, or intended to enter or remain.” COLO. REV . S TAT. § 13-21-115(7)(a).
The parties agree that, as a King Soopers customer, Plaintiff was Defendant’s invitee.
Fact Table [#52-3] ¶ 2. As relevant here, “an invitee may recover for damages caused by
the landowner’s unreasonable failure to exercise reasonable care to protect against
dangers the landowner actually knew about or should have known about.” 	COLO. REV .
S TAT. § 13-21-115(4)(c)(I).
III. 	Analysis
In its Motion [#37], Defendant asserts that the stocking cart was not a “danger”
within the meaning of the CPLA. Motion [#37] at 3, 5-10. It was accordingly not a “danger”
of which Defendant knew or should have known, as contemplated by the CPLA. Id.
Defendant reasons that the stocking cart was not inherently dangerous because it was
large, visible, stationary, commonplace within the store, and parked in an open area
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allowing multiple paths of travel on either side. Id. Defendant further points out that
Plaintiff had walked past the cart without incident before tripping on it, demonstrating that
it was not a dangerous condition. Id. Plaintiff responds that the stocking cart was a
dangerous condition and that Defendant did not take reasonable steps to protect its
customers from the danger. Response [#47] at 5-6.
Defendant has carried its initial burden of showing an absence of a genuine dispute
of material fact as to whether the stocking cart was a “danger” of which Defendant had
actual 	or 	constructive 	knowledge. 	See 	Adler, 	144 	F.3d 	at 	670-71. 	For 	example,
Defendant’s Rule 30(b)(6) representative testified that there were no similar incidents
related to stocking carts in the three years preceding Plaintiff’s injury. Fact Table [#52-3]
¶ 22; Def.’s Ex. F, Parker Dep. [#37-6] at 83:17-84:3. Further, the representative testified
that employees are trained to place stocking carts so that they allow clear paths of travel.
Def.’s Ex. F, Parker Dep. [#37-6] at 51:18-52:14. The representative, the employee who
was stocking during the incident, and the manager on duty during the incident testified
that this stocking cart was placed in a manner consistent with that training. Fact Table
[#52-3] ¶ 26; Def.’s Ex. F, Parker Dep. [#37-6] at 80:19-82:11; Def.’s Ex. C, Lozano Dep.
[#37-3] at 50:24-51:23.
Therefore, the burden shifts to Plaintiff to put forth sufficient evidence that
Defendant knew or should have known that the stocking cart was dangerous such that a
reasonable juror could find in Plaintiff’s favor. Anderson, 477 U.S. at 248, 256. In
assessing this question, the Court focuses on whether this cart, as placed, was a danger
of which Defendant knew or should have known, not whether stocking carts are “per se”
dangerous items. See Welsh v. Torres, No. 16CA1239, 2017 WL 11932361, at *3 (Colo.
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App. Nov. 30, 2017) (unpublished opinion) (“It is not the knowledge of the condition . . .
that gives rise to liability; it is the danger of which the owner actually knew or should have
known.”) (quoting McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007));
see also Castillo v. Chief Alternative, LLC, 140 P.3d 234, 238 (Colo. App. 2006)
(disagreeing that a large item was inherently dangerous where no witnesses testified as
such, and instead identifying the manner in which the item was hung as the pertinent
condition). Further, the Court will not rely on Defendant’s arguments concerning the open
and obvious nature of the stocking cart, nor the cases Defendant cites from other
jurisdictions invoking that defense, because, as Plaintiff correctly notes, it has been
abrogated by the CPLA. Vigil v. Franklin, 103 P.3d 322, 331-32 (Colo. 2004).
To support her position that the stocking cart’s placement was a danger of which
Defendant knew or should have known, Plaintiff cites an expert report, the deposition
testimony of the employee unloading the cart, and the deposition testimony of the on-duty
manager. Response [#47] at 2-3, 7-8. First, Plaintiff points the Court to an expert report
authored by John R. Peterson, a current undergraduate student at Columbia Southern
University and former retail manager specializing in asset protection, safety, security, and
loss prevention. Pl.’s Ex. 1, Peterson Report [#47-1] at 6. Assuming without deciding that
Mr. Peterson’s opinions would be admissible under Rule 702,1 he opines that “[t]here are
litigation cases involving trip-and-fall incidents in which U-boats and other equipment are
at the center of the issue, causing the falls.” Id. at 12. Mr. Peterson notes, “as a Safety
Professional, I do not quibble over whether a case was won or lost. The data point is that
a costly litigation occurred.” Id. He cites three opinions from cases in New York and one
1 The Court is aware of Defendant’s Motion to Strike John Peterson [#36] in which it argues that
Mr. Peterson’s proffered opinions are inadmissible under Federal Rules of Evidence 403 and 702.
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from Wisconsin, all issued in 2010, involving trip-and-fall incidents at other retail stores,
and baldly concludes without further support, that they are evidence that “the entire
industry is aware of the problem associated with leaving U-Boat carts, either empty or
partially empty, in the pathway of a person who is otherwise preoccupied, distracted, or
misperceiving.” Id. at 12-13, 24. He also cites two cases involving “Kroger” in which
customers apparently tripped over stocking carts. Id. at 13. The Court located one of
those cases in its research, and in that case, the defendant prevailed on summary
judgment and again on appeal. Colvin v. Kroger Co., No. CA2005-07-026, 2006 WL
589381, at *3 (Ohio Ct. App. Mar. 13, 2006). Neither Mr. Peterson in his Report nor
Plaintiff in her Response [#47] elaborate how these cases impute constructive knowledge
to Defendant that this stocking cart, as placed, was a danger.
Mr. Peterson further baldly asserts in his report that placing stocking carts in a
walkway has been “described in published standards as a dangerous condition.” Pl.’s Ex.
1, Peterson Report [#47-1] at 24. Mr. Peterson appended six pages worth of “industry
standards” to his report. Upon close review, the Court cannot locate a single standard
that advises retailers on the best practices for placement of stocking carts during business
hours. See id. at 29-36. Indeed, Mr. Peterson admits that stocking cart placement is “not
mentioned in any textbook that [his firm] knows of without precaution” but that “anything
that someone can trip over within the Services Industry is generally directed through
policies and procedures to be removed from a sales floor.” Id. at 9. Thus, the report does
not pass muster in creating a genuine dispute of material fact as to Defendant’s actual or
constructive knowledge. See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001)
(expert reports containing only general conclusions are insufficient to overcome summary
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judgment); Welsh, 2017 WL 11932361, at *3 (finding that a layperson’s affidavit stating
that someone could “easily trip” over a planter in front of the landowner’s building was
insufficient to create a genuine dispute of material fact as to the landowner’s knowledge
that the planter was a danger).
Second, Plaintiff argues that “Defendant’s employee testified that he was trained
to keep the U-Boat out of the pathway of customers because it could be a hazard to them.”
Response [#47]. To support that statement, Plaintiff directs the Court to page 8 of its
Response to Defendant’s Fact Table [#47-5]. None of the statements of fact on page 8
support her assertion that the stocking cart’s placement—in the middle of a dairy section
walkway rather than up against a dairy case—deviated from the training that Defendant
provides its employees. See Defendant’s Fact Table [#47-5] at 8. To the extent that
Plaintiff asserts facts concerning the store’s training on leaving stocking carts unattended
or placing stocking carts in traditional, parallel aisles, Plaintiff does not explain how those
facts are relevant here, where the cart was neither left unattended nor placed in the middle
of a narrow aisle. See Fact Table [#52-3] ¶¶ 27-29, 32, 40. Further, several statements
of fact on page 8 refer back to deposition testimony that the Court is currently unable to
confirm, because Plaintiff failed to attach the cited exhibits to her Response [#47].2
On this record, the Court concludes that no reasonable jury could find that the
stocking cart’s placement was a dangerous condition of which Defendant had actual or
constructive knowledge. Delorimier v. Home Depot U.S.A., Inc., No. 17-cv-00380-RM-
KMT, 2018 WL 9458205, at *2 (D. Colo. Apr. 19, 2018) (citing Gregory v. Creekstone
Farms Premium Beef, LLC, 728 F. App’x 824, 826 (10th Cir. 2018) for the proposition that
2 The Court ordered Plaintiff to provide the subject exhibits no later than April 6, 2026 at 12 p.m.
Minute Order [#60]. As of the issuance of this Order, Plaintiff has not done so.
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“a court may decide whether a danger was known or obvious when reasonable minds
could not differ as to the conclusion”); see also Brooks v. Wal-Mart Stores, Inc., 854 F.
App’x 422, 426 (3d Cir. 2021) (concluding that, under New Jersey law, which imposes a
similar duty of care upon landowners to their invitees, “no rational jury could determine
that the aisle, shopping carts, or shoe bench at Walmart constituted dangerous conditions
that presented an unreasonable risk of harm”); Maza v. CVS Pharmacy, Inc., No. 23 C
14520, 2025 WL 2467502, at *1-2 (N.D. Ill. Aug. 27, 2025) (holding that, under a similar
landowner liability framework, “the presence of the stocking cart in the store’s aisle did
not pose an unreasonable risk of harm to persons on the premises,” especially where
there was “2.5 feet of room available to walk around it”).
But even assuming that there is a genuine dispute as to Defendant’s knowledge
of the danger, Plaintiff has failed to show that a genuine dispute of material fact exists on
the question of whether Defendant deviated from the standard of care it owed to Plaintiff.
Plaintiff asserts that, in order to exercise reasonable care, Defendant should have parked
the stocking cart directly against shelving or placed signs around it. Fact Table [#52-3]
¶¶ 34, 38. However, the Court is not convinced that either of those solutions would better
prevent tripping injuries in grocery stores, and indeed, they may create a whole new host
of safety issues. Maza, 2025 WL 2467502, at *3 (observing that placing a warning around
the cart would not be effective means to prevent the injury in question because “warnings
are effective if they disclose a condition that is latent, thus providing people with
information they otherwise may not have”); see Fact Table [#52-3] ¶ 31; Def.’s Ex. F,
Parker Dep. [#37-6] at 82:13-83:3 (noting that parking a stocking cart directly against an
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aisle presents a safety concern because customers might try to move the cart themselves
to retrieve the merchandise behind it).
Therefore, Plaintiff has failed to show a genuine dispute of material fact as to
Defendant’s actual or constructive knowledge of a danger in its store danger and as to
any departure from the exercise of reasonable care.
IV. 	Conclusion
For the reasons set forth above, it is ORDERED as follows:
• 	Defendant’s Motion for Summary Judgment [#37] is GRANTED.
• 	The Clerk of Court is directed to enter summary judgment in this case in
favor of Defendant Dillon Companies, LLC, and against Plaintiff Maribel
Velasquez.
• 	The Final Pretrial/Trial Prep Conference set for April 13, 2026, and the Jury
Trial set to commence on June 1, 2026, are VACATED.
• 	Defendant’s Motion to Strike John Peterson [#36], Defendant’s Motion in
Limine [#53], Plaintiff’s Combined Motion in Limine [#54], and Plaintiff’s
Unopposed Motion to Withdraw Document No. 59 [#64] are DENIED as
moot.
Dated: April 7, 2026 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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