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HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 018 - C&L Answer28499956.1:11772-0041 DISTRICT COURT COUNTY OF LARIMER, COLORADO 201 LaPorte Ave., Ste. 100 Fort Collins, Colorado 80521 (970) 498-6100 Plaintiff: CHRISTIAN HIGGINS, v. Defendants: CITY OF FT. COLLINS; C&L WATER SOLUTIONS, INC.; SUNBELT RENTALS, INC.; KODIAK FIELD SERVICES, LLC; and BCH SERVICES, LLC Attorneys for Defendant C&L Water Solutions, Inc. Jason H. Klein, Reg. No. 53303 Tamara C. Jordan, Reg. No. 52061 Susan E. Malcolm, Reg. No. 52612 Wood, Smith, Henning & Berman LLP 1805 Shea Center Drive, Suite 200 Highlands Ranch, Colorado 80129 Phone: 720-479-2500 Fax: 303-471-1855 E-mail: jklein@wshblaw.com tjordan@wshblaw.com smalcolm@wshblaw.com ▲ COURT USE ONLY ▲ Case No. 2023CV30276 Division: DEFENDANT C&L WATER SOLUTIONS, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT AND JURY DEMAND Defendant, C&L Water Solutions, Inc. (“C&L”), by counsel, files its Answer and Affirmative Defenses to Plaintiff's Complaint and Jury Demand, paragraph by paragraph, and states as follows: I. PARTIES 1.Without knowledge and therefore, denied. 2.Without knowledge and therefore, denied. DATE FILED: May 23, 2023 5:02 PM FILING ID: D58A251FF3325 CASE NUMBER: 2023CV30276 28499956.1:11772-0041 2 3.Admitted. 4.Without knowledge and therefore, denied. 5.Without knowledge and therefore, denied. 6.Without knowledge and therefore, denied. II. JURISDICTION AND VENUE 4.Without knowledge and therefore, denied.1 5.Without knowledge and therefore, denied. 6.Without knowledge and therefore, denied. III. GENERAL ALLEGATIONS 7.Without knowledge and therefore, denied. 8.Without knowledge and therefore, denied. 9.Without knowledge and therefore, denied. 10.Without knowledge and therefore, denied. 11.Without knowledge and therefore, denied. 12.Without knowledge and therefore, denied. 13.Without knowledge and therefore, denied. 14.Denied. 15.Denied. 16.Denied. 17.Without knowledge and therefore, denied. 18.Without knowledge and therefore, denied. 1 Plaintiff’s Complaint incorrectly numbers the paragraphs and repeats paragraphs 4, 5, and 6. C&L responds accordingly. 28499956.1:11772-0041 3 19.Without knowledge and therefore, denied. 20.Denied. 21.Denied. 22.Denied. 23.Denied. 24.Denied. 25.Denied. 26.Denied. 27.Denied. 28.Denied. 29.Denied. 30.Denied, including all subparts. IV. FIRST CLAIM FOR RELIEF (Premises Liability – as against the CITY) 31.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 32.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 33.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 34.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 35.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 36.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 28499956.1:11772-0041 4 37.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 38.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 39.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 40.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 41.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 42.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. V. SECOND CLAIM FOR RELIEF (Premises Liability – as against the C&L) 43.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 44.Denied. 45.Denied. 46.Denied. 47.Denied. 48.Denied. 49.Denied. 50.Denied. 51.Denied. 52.Denied. 53.Denied, including all subparts. 28499956.1:11772-0041 5 VI. THIRD CLAIM FOR RELIEF (Premises Liability – as against SUNBELT) 54.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 55.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 56.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 57.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 58.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 59.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 60.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 61.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 62.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 63.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 64.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. VII. FOURTH CLAIM FOR RELIEF (Premises Liability – as against KODIAK) 65.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 28499956.1:11772-0041 6 66.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 67.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 68.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 69.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 70.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 71.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 72.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 73.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 74.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 75.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. VIII. FIFTH CLAIM FOR RELIEF (Premises Liability – as against BCH) 76.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 77.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 78.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 79.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 28499956.1:11772-0041 7 80.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 81.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 82.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 83.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 84.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 85.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. 86.The allegations in this paragraph are not directed to C&L. To the extent the allegations are deemed to be directed to C&L, C&L denies same. IX. SIXTH CLAIM FOR RELIEF (Negligence – as against all Defendants) 87.C&L hereby incorporates its responses to the above paragraphs of the Complaint as if fully restated herein. 88.Denied. 89.Denied. 90.Denied. 91.Denied. 92.Denied. 93.Denied. 94.Denied, including all subparts. WHEREFORE CLAUSE - PRAYER FOR RELIEF C&L denies all allegations contained in the Complaint's "Wherefore" or “Prayer for Relief” clause. 28499956.1:11772-0041 8 GENERAL DENIAL C&L denies all allegations contained in Plaintiff's Complaint not expressly admitted herein. AFFIRMATIVE DEFENSES 1. Plaintiff’s claims are barred by a failure to state a claim upon which relief can be granted. 2. Plaintiff’s claims are barred by the doctrine of comparative negligence pursuant to C.R.S. § 13-21-111. 3. Plaintiff's alleged damages, if any, and C&L's liability, if any, must be determined in accordance with sections 13-21-102.5 (limitations on damages for non-economic loss or injury), 13-21-111 (comparative negligence as a measure of damages), 13-21-111.5 (pro-rata liability of defendants), 13-21-111.6 (collateral sources), and 13-21-111.7 (assumption of risk) of the Colorado Revised Statutes. 4. Plaintiff’s claims are barred by her failure to mitigate her alleged damages. 5. Plaintiff’s claims are barred or should be reduced by the doctrine of set-off. 6. The alleged condition of the Hose being placed across the subject road in the Complaint, to the extent it was even there, was an open and obvious condition and Plaintiff could have and should have avoided it. RESERVATION OF DEFENSES C&L reserves the right to assert and amend defenses as discovery and investigation in this matter is accomplished, including by amending the Answer to add, delete, and/or modify affirmative defenses. C&L does not waive any applicable defenses. JURY DEMAND C&L demands a jury trial on all issues so triable. Respectfully submitted this 23rd day May, 2023. 28499956.1:11772-0041 9 WOOD, SMITH, HENNING & BERMAN LLP /s/ Tamara C. Jordan Jason H. Klein Tamara C. Jordan Susan E. Malcolm CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of May, 2023, a true and correct copy of the foregoing ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT AND JURY DEMAND was e-filed and/or e-served via Colorado Courts E-Filing System on the following parties: Karl Hager VanMeveren Law Group, PC 123 N. College Ave., #112 Fort Collins, CO 80524 Attorneys for Plaintiff Arthur J. Kutzer SGR, LLC 3900 E. Mexico Ave., #700 Denver, CO 80210 Attorneys for Defendant BCH Services, LLC /s/Sharon Nordentoft Sharon Nordentoft