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Giblin v. Sliemers

United States District Court, D. Colorado

November 24, 2015


          For Matthew Giblin, Plaintiff: Robert L. Allman, LEAD ATTORNEY, Allman & Mitzner, LLC, Denver, CO; James L. Abrams, James L. Abrams, Attorney at Law, Denver, CO.

         For John Sliemers, Patricia Sliemers, Defendants: Paul Matthew Grant, LEAD ATTORNEY, Goodreid Grant & Kuhn, LLC, Denver, CO; Thomas Edward Goodreid, Thomas E. Goodreid, Attorney at Law, Denver, CO.


         R. Brooke Jackson, United States District Judge.

         This matter is before the Court on defendants' motion for summary judgment [ECF No. 40]. For the reasons described below, the motion is granted, and judgment will enter in favor of the defendants.


         The following facts are undisputed except where otherwise noted. John Sliemers and Patricia Sliemers, husband and wife, own six rental cabins in Golden, Colorado. ECF No. 40 at ¶ ¶ 2-3. Mr. and Mrs. Sliemers have rented them out for over 30 years. Id. at ¶ 3; ECF No. 3 at ¶ 2. In late-August 2012, Matthew Giblin rented one of the cabins. ECF No. 43 at ¶ 1. He shared the cabin with his friend John Mahon. ECF No. 40 at ¶ 4.

         On June 22, 2009, Mr. Sliemers installed a new water heater in the cabin's basement. ECF No. 40 at ¶ ¶ 7, 9. A black iron pipe connected the propane tank to the building. Id. Mr. Sliemers did not obtain a permit from Jefferson County (in which Golden is found) before installing the water heater. ECF No. 43 at ¶ 3. When an individual obtains a plumbing permit, the Jefferson County Plumbing Inspector examines the work. Id. at ¶ 11; ECF No. 43-2 at 8. No one inspected Mr. Sliemers' installation of the new water heater. ECF No. 43 at ¶ 3. Although he claims to have installed over 20 water heaters in his cabins, Mr. Sliemers is not a licensed plumber, nor is he an " authorized installer of a propane gas water heater." ECF No. 40 at ¶ 8; ECF No. 43 at ¶ 3. Mr. Sliemers alleges that he checked the propane piping system for leaks at the time of installation and did not find any. ECF No. 43 at 6.

         At the beginning of the rental term in August 2012, Mr. and Mrs. Sliemers instructed Mr. Giblin and Mr. Mahon to contact them if there was a problem with the cabin. ECF No. 40 at ¶ 5. Shortly after they moved in, the pilot light on the kitchen stove went out. Id. at ¶ 12. Mrs. Sliemers responded to the tenants' request by visiting the cabin to relight the pilot light. Id. Mr. Giblin alleges that Mrs. Sliemers showed him how to relight the stove's pilot light should it go out again. ECF No. 43 at 7.

         On September 12 or 13, 2012, Mr. Giblin did not have any hot water for his shower. ECF No. 40 at ¶ 13. He did not inform the Sliemerses because he believed it was an issue he could fix. Id. at ¶ 18. On September 13, Mr. Giblin went to the basement, read the instructions on the water heater, and initiated " the process of relighting the pilot light by turning the gas knob to the 'off' position and turning the temperature control knob to the 'pilot' position." Id. at ¶ 13. As a safety measure, state law requires propane to contain an odorant so that it can be detected by smell. Id. at ¶ 14. While he was in the basement, Mr. Giblin did not notice any odor of propane. Id.

         Mr. and Mrs. Sliemers allege that the instructions posted on the water heater said to wait ten minutes after turning off the gas before trying to relight the pilot light. Id. at ¶ 19. However, Mr. Giblin took no further action that day. ECF No. 43 at 8. The following morning, he returned to the basement and again did not smell any propane. ECF No. 40 at ¶ 20. He adjusted the gas knob from " off" to " pilot." Id. When Mr. Giblin pushed the igniter, an explosion and fire occurred. Id. at ¶ 21. Mr. Giblin suffered second- and third-degree burns. ECF No. 43 at ¶ 7.

         Three days after the explosion, Mr. Sliemers started repairing the cabin. ECF No. 40 at ¶ 28. He removed the water heater and the pipes and fittings from the basement. Id. He disposed of the materials at Sims Metal Management in Denver on September 21, 2012. Id. The Sliemerses state that the Jefferson County Sheriff Office did not recommend that they retain the water heater and pipes. Id. at ¶ 26. They further explain that the fire department had employed building jacks to stabilize the cabin after the explosion. Id. at ¶ 27. The department requested that the Sliemerses return the jacks, which prompted them to " start repairing the [cabin] within a couple of days following the explosion." Id. Finally, the Sliemerses attest that financial realities drove them to repair the cabin as soon as possible, as it was an important source of rental income. Id.


         I. Standard of Review.

         The Court may grant summary judgment if " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must " designate specific facts showing that there is a genuine issue for trial." Id. at 324. A fact is material " if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A material fact is genuine if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court will ...

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