United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT DENVER'S RENEWED MOTION TO DISMISS
WILLIAM J. MARTÍNEZ, District Judge.
Plaintiffs Clayborn Carriker and Doris Carriker (together "Plaintiffs") bring this action against Defendants City and County of Denver, Colorado ("Denver") and ISS Facility Services, Inc. ("ISS") (together "Defendants"), alleging that, as a result of Defendants' negligence, Mr. Carriker was injured when he slipped and fell on the premises of the Denver International Airport ("DIA"), and Mrs. Carriker suffered a consequential loss of consortium. (Second Am. Compl. ("SAC") (ECF No. 64) ¶¶ 21-41.) Before the Court are ISS's Motion for Summary Judgment ("ISS's Motion") (ECF No. 96) and Denver's Second Motion to Dismiss Plaintiffs' Second Amended Complaint, Or in the Alternative, for Summary Judgment and Request for Trinity Hearing ("Denver's Motion") (ECF No. 97) (together the "Motions"). For the reasons set forth below, both Motions are granted.
The following relevant facts are viewed in the light most favorable to the Plaintiff, and are undisputed except where noted.
Denver owns and operates DIA, and contracts with ISS for the provision of certain custodial services at DIA, including restroom janitorial services. ( See ECF Nos. 96-9 & 96-10.) The contract between Denver and ISS incorporates ISS's proposal of the cleaning duties that would be performed, which states that the floors of the restroom at issue here "should be spot mopped as needed" twelve times per shift during the morning and evening shifts. (ECF Nos. 96-9 § 2.01; 96-10.) As permitted by ISS's contract with Denver, ISS subcontracted portions of DIA's janitorial services to Whayne and Sons Enterprises, Inc. ("Whayne") with the same spot mopping requirements as are set forth in the original contract. ( See ECF Nos. 96-9 § 7.01; 96-11.) Pursuant to the subcontract, Whayne was responsible for performing all restroom cleaning in DIA Concourse A from 6:30 a.m. to 10:30 p.m. during the period from September 16, 2007 to September 15, 2012. (ECF No. 96-11 pp. 1, 10.)
On August 23, 2011, Plaintiffs Clayborn Carriker and Doris Carriker were traveling by air and changed planes at DIA en route to Iowa. (Deposition of Doris Carriker ("D. Carriker Dep.") (ECF No. 98-2) pp. 16-17.) At or around 2:21 p.m., while entering a restroom in Concourse A, Mr. Carriker slipped on an unknown slippery substance on the floor and fell. (Deposition of Clayborn Carriker ("C. Carriker Dep.") (ECF No. 98-1) p. 23.) Neither Mr. nor Mrs. Carriker saw any puddle of liquid or other substance on the floor, but both testified that they saw two individuals mopping parts of the restroom floor near Mr. Carriker while he lay on the ground awaiting assistance. (C. Carriker Dep. pp. 34-40; D. Carriker Dep. pp. 22-23, 29-32.) As a result of his fall, Mr. Carriker suffered a fractured hip and other injuries. (C. Carriker Dep. pp. 65-66.) Due to his injuries, Mrs. Carriker was deprived of her husband's companionship in various ways. (D. Carriker Dep. pp. 53-56.)
Jim Royston of Western Engineering and Research Corporation, who was hired by Plaintiffs' counsel as an expert in fall accidents, performed an investigation and various tests regarding the site of Mr. Carriker's accident. (ECF No. 99-6.) Mr. Royston testified that the Americans with Disabilities Act ("ADA") recommended a slip-resistance coefficient of 0.60 for a dry floor, but that a floor could be characterized as slip-resistant if its coefficient was greater than 0.5. ( See Royston Dep. pp. 36-39.) Mr. Royston testified that there was no building code requirement to perform slip testing of a wet floor. ( Id. p. 37.) According to Mr. Royston's slip tests, the floor of the restroom at DIA where Mr. Carriker's accident took place had an average slip-resistance coefficient of 0.56 when dry, and 0.11 when wet. (ECF No. 99-6 at 5.)
Plaintiffs filed their Complaint (ECF No. 1) on September 5, 2012, and an Amended Complaint (ECF No. 11) on October 5, 2012. Plaintiffs alleged that Defendants were liable under the Colorado Premises Liability Act ("CPLA"), Colo. Rev. Stat. §§ 13-21-115, et seq. (ECF No. 11 ¶¶ 24-29.) On May 30, 2013, the Court granted Denver's Motion to Dismiss, finding that Denver was immune from suit because Plaintiffs' claims did not fall into any exception to the Colorado Governmental Immunity Act ("CGIA"), Colo. Rev. Stat. §§ 24-10-101, et seq. (ECF No. 41.) On September 16, 2013, the Court granted Plaintiffs' Motion for Leave to Amend the Complaint, and accepted the SAC as filed. (ECF No. 69.) The SAC restated Plaintiffs' claims against Denver, alleging that Denver had negligently constructed the floor at DIA such that its inherent slipperiness was exacerbated by the unknown slippery substance on it. (ECF No. 64 ¶¶ 25, 27.) On July 22, 2014, the Court ruled on Denver's Renewed Motion to Dismiss, dismissing Plaintiffs' claims for failure to train, supervise, warn, and install a non-slip floor, insofar as those allegations constituted separate claims. (ECF No. 107.) The Court rejected Denver's argument that it was immune from suit because Plaintiffs had failed to give Denver proper notice of their claims under the CGIA. ( Id. at 4-7.)
Both ISS's and Denver's Motions were filed on April 14, 2014. (ECF Nos. 96 & 97.) Plaintiffs filed Responses to both Motions on May 6, 2014. (ECF Nos. 98 & 99.) ISS and Denver then filed Replies. (ECF No. 100 & 102.)
II. LEGAL STANDARDS
The Motions are filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56. Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. Immigration & Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." See id. at 909.
A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
Summary judgment under Rule 56 is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring ...