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Abraham v. Great Western Energy11/24/2004
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[ ] Based on an overview of these authorities, we are compelled to conclude that the district court erred in its resolution of the spoliation issue, as well as its conclusion that the lack of evidence doomed both the Abrahams' case and GWE's and Big Horn's defenses. The district court abused its discretion in granting the motion for summary judgment based on the theory of spoliation, given the facts and circumstances available to it. Upon full development of this matter at trial, it may be that a sanction less than summary judgment or dismissal of the complaint is appropriate, or even no sanction at all.
Granting the Motions for Summary Judgment
[ ] We have carefully reviewed the record on appeal. The evidence presented by the Abrahams structured one or more genuine issues of material fact that must be resolved by the fact finder. See, e.g., Van Hoose v. Blueflame Gas, Inc., 642 P.2d 36 (Colo.App. 1982) (buyer of inherently dangerous product, propane, need not prove it was in a defective condition when it left hands of seller); Tune v. Synergy Gas Corporation, 883 S.W.2d 10, 14 (Mo.banc 1994) (failure to warn cases have two separate requirements of causation: (1) product for which there was no warning must cause injury complained of; (2) plaintiff must show that warning would have altered his behavior. Where plaintiff testified he did know what propane smelled like, but did not know that odorant might not be effective under some circumstances, plaintiff made out prima facie case); Crook v. Farmland Industries, Inc., 54 F.Supp. 2d 947, 959-60 (D.Neb. 1999) (where plaintiffs were intimately familiar with properties of propane, e.g., that it was heavier than air and could lose its odorant, failure to warn not proximate cause of injury, summary judgment appropriate); and see generally Parkinson v. California Company, 233 F. 432 (10th Cir. 1956); Wade R. Habeeb, Annotation, Duty and Liability in Connection with Odorization of Natural Gas, 70 A.L.R.3d 1060 (1976 and Supp.2002). For this reason the order granting summary judgment must be reversed.
CONCLUSION
[ ] The district court abused its discretion in setting the hearing on the motions for summary judgment before the discovery deadline had expired and in denying the Abrahams' motion to continue that hearing to a time that was within the contemplation of the applicable rules of civil procedure. The district court erred in the manner in which it applied the doctrine of spoliation of evidence and, thus, the order granting the motions for summary judgment must be reversed. In addition, there are genuine issues of material fact at large in this case that render it inappropriate for resolution by summary judgment.
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