United States District Court, D. Colorado
Matthew Giblin, Plaintiff: Robert L. Allman, LEAD ATTORNEY,
Allman & Mitzner, LLC, Denver, CO; James L. Abrams, James L.
Abrams, Attorney at Law, Denver, CO.
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,
Brooke Jackson, United States District Judge.
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.
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.
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.
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
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.
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.
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.
Standard of Review.
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