Roberto Lopez, Jordan Pierson, and Kolby Gimmeson, Plaintiffs-Appellants,
City of Grand Junction, Colorado, Defendant-Appellee.
County District Court No. 13CV30147 Honorable Brian J. Flynn,
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
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.
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
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
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.
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
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
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."
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." §
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.
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 ...