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Lopez v. City of Grand Junction

Court of Appeals of Colorado, First Division

July 12, 2018

Roberto Lopez, Jordan Pierson, and Kolby Gimmeson, Plaintiffs-Appellants,
v.
City of Grand Junction, Colorado, Defendant-Appellee.

          Mesa County District Court No. 13CV30147 Honorable Brian J. Flynn, Judge

          Killian Davis, P.C., J. Keith Killian, Damon Davis, Joseph Azbell, Grand Junction, Colorado, for Plaintiffs-Appellants

          Baldwin Morgan & Rider, P.C., Sophia H. Tsai, Kelly L. Kafer, Denver, Colorado, for Defendant-Appellee

          OPINION

          LICHTENSTEIN JUDGE

          ¶ 1 Underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Leaking gas from the ruptured line migrated to a house, resulting in an explosion and injuries. As a matter of first impression, we must determine whether section 24-10-106(1)(f), C.R.S. 2017, can be applied to waive the immunity of the City of Grand Junction (City), even though the maintenance of the traffic light was performed by an independent contractor. We conclude that it can.

         ¶ 2 Roberto Lopez, Jordan Pierson, and Kolby Gimmeson (plaintiffs) brought negligence claims against the City for their resultant personal injuries and property damage. Plaintiffs' complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines.[1]

         ¶ 3 As pertinent here, the complaint alleges that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light and that during this maintenance project Apeiron ruptured a gas line, and the leaking gas resulted in the house explosion. The complaint alleges that Apeiron's conduct should be imputed to the City.

         ¶ 4 The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA).

         ¶ 5 In response, plaintiffs argued that the City had waived its immunity pursuant to section 24-10-106(1)(f). This CGIA provision waives immunity for injuries resulting from the operation and maintenance of any public "sanitation [or] electrical facility." After the district court held a Trinity hearing on the motion, it granted the City's motion to dismiss.

         ¶ 6 Applying the analytical framework of Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000), we conclude that the waiver of immunity under section 24-10-106(1)(f) applies even if the operation or maintenance was performed by a public entity's independent contractor.

         ¶ 7 Given this conclusion, and based on the facts found by the district court, we further conclude that the plaintiffs met their burden to establish a waiver of immunity as to the negligence claims against the City for Apeiron's maintenance work on the traffic light. Accordingly, we reverse the district court's C.R.C.P. 12(b)(1) dismissal of these claims for lack of jurisdiction and remand for further proceedings.

         ¶ 8 However, we affirm the district court's dismissal of plaintiffs' negligence claim against the City as to its operation and maintenance of its sewer line, as plaintiffs' evidence did not support an immunity waiver under section 24-10-106(1)(f).

         ¶ 9 Because we are reversing the dismissal of two of the negligence claims in the complaint, we deny the City's request for attorney fees.

         I. Additional Factual Background

         ¶ 10 Following the Trinity hearing, the district court adopted the City's nine-page proposed order of dismissal, which includes the following factual findings.

         ¶ 11 The City planned to install new electrical lines through an underground conduit to fix a malfunctioning traffic light. The City did not have the personnel or equipment to bore under the road to place the conduit, so it hired Apeiron to do this underground drilling work.

         ¶ 12 Before selecting the location to bore the hole, and pursuant to an agreement between the City and Apeiron, Apeiron contacted the various utility owners to mark their utility lines. One of the utility owners, Xcel Energy, hired Safe Site to mark its gas lines. Safe Site marked two gas lines.

         ¶ 13 Once the utility lines were marked, Apeiron dug potholes to visualize the located utility lines and then began the directional drilling work. As it was drilling the pilot bore across the road, Apeiron's crew foreman felt the drill strike something. He checked with a City employee, and they both determined that they were not aware of any additional utility lines in the area. Apeiron resumed its work. After drilling the pilot bore, Apeiron pulled a larger drill head back that also pulled the new conduit back through the hole. During this process, the drill struck a natural gas line that ran below the two lines located by Safe Site. After this breach, gas leaked into the surrounding ground and also into a sewer main located approximately fifteen to twenty feet away.

         ¶ 14 There was disputed evidence as to the exact path that the gas travelled to the house, although it was not disputed that gas entered the house through its basement, where there was a nonfunctional toilet and unused shower. One or both of these had a dry P-trap that allowed the gas into the basement. The gas ignited and caused an explosion.

         ¶ 15 The court found that the sewer main was made of a commonly used porous vitrified clay pipe, not intended to keep gases or vegetation in or out. At the time of the incident, the pipe was intact and in good condition, and the sewer main "was functioning at or near the same efficiency as it had when it was installed."

         II. The CGIA

         ¶ 16 The CGIA establishes governmental immunity from suit for public entities and their employees in tort cases, but it also waives immunity in certain circumstances. See § 24-10-106; Springer, 13 P.3d at 798, 801 n.5; see also Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 13.

         ¶ 17 This statutory scheme serves the purpose of protecting the public against unlimited liability and excessive fiscal burdens, while allowing the common law of negligence to operate against governmental entities except to the extent the statute has barred suit against them. Walton v. State, 968 P.2d 636, 643 (Colo. 1998); see Springer, 13 P.3d at 803; see also § 24-10-102, C.R.S. 2017.

         ¶ 18 Because governmental immunity from suit derogates the common law of negligence, courts must strictly construe the CGIA provisions that grant immunity. Springer, 13 P.3d at 798; Walton, 968 P.2d at 642. For the same reason, courts must broadly construe the statute's provisions that waive immunity in the interest of compensating victims injured by the negligence of government agents. Springer, 13 P.3d at 798; Walton, 968 P.2d at 643.

         ¶ 19 As pertinent here, a public entity's immunity from negligence claims will be waived for injuries "resulting from . . . [t]he operation and maintenance of any public . . . sanitation [or] electrical facility." § 24-10-106(1)(f).[2]

         ¶ 20 "Resulting from" is construed broadly to require only a "minimal causal connection" between the injuries and the specified conduct. Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75, 86 (Colo. 2003). Because the required showing is minimal, and because discovery before a Trinity hearing is limited, the district court should afford a plaintiff the favorable inferences of his allegations and need not reach so far as to determine whether the injuries were "caused by" the specified conduct. Id.

         ¶ 21 "Operation" means "the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public" power or sanitation facility. § 24-10-103(3)(a), C.R.S. 2017.

         ¶ 22 This broad definition of "operation" includes the concept of maintenance. City of Colorado Springs v. Powell, 48 P.3d 561, 565 (Colo. 2002). "Maintenance" is defined as "the act or omission of a public entity or public employee in keeping a facility in the same general state of repair or efficiency as initially constructed or in ...


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