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HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 028 - Pl's Response To Motion To Dismiss1 District Court, Larimer, Colorado 201 LaPorte Avenue, Ste 100 Fort Collins, CO 80521 Phone: (970) 498-6100 ↑ Court Use Only ↑ Christian Higgins Plaintiff, vs. City of Fort Collins, C&L Water Solutions, Inc., Sunbelt Rentals, Inc., Kodiak Field Services, LLC, and BCH Services, LLC Defendants. Karl W. Hager #52710 VanMeveren Law Group, P.C. 123 N College Avenue, Suite 112 Fort Collins, CO 80524 Telephone (970) 495-9741 Fax (970) 495-6854 Email: khager@vanmeverenlaw.com Case No.: 2023CV30276 Division: 4C PLAINTIFF’S RESPONSE TO DEFENDANT CITY’S MOTION TO DISMISS Plaintiff, Christian Higgins, (“HIGGINS”) by and through undersigned counsel, VanMeveren Law Group, P.C., Karl W. Hager appearing, hereby responds to Defendant City of Fort Collins’ (the “CITY”) motion to dismiss as follows: INTRODUCTION The Defendants (the CITY and its subcontractors), while remediating a sewage leak, without any posted cautions or warnings, stretched a five- inch fortified hose from a fire hydrant across the 1700 block of Welch Street near Edora Park in the City of Fort Collins. (Complaint ¶ 14). HIGGINS, riding her bicycle after dark, using lights and wearing a helmet, hit the hose and was catapulted from her bike and seriously injured. (Complaint ¶ 19.) The CITY moves to dismiss 2 the complaint under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et. seq. (the “C.G.I.A.”). Because HIGGINS was severely injured as the result of a reasonably foreseeable dangerous condition that the CITY created, through the negligence of its subcontractors, the CITY has waived immunity under the C.G.I.A. The reason that the CITY did not have actual knowledge of the dangerous condition (or even the INCIDENT) at the time was because its subcontractors, in derogation of their duties, failed to keep the premises safe and failed to advise the CITY. The CITY required the subcontractor to have a representative on site to make sure the premises were safe for persons who used the road. The subcontractors were negligent and under the facts at hand that negligence is imputed to the CITY. Because it was reasonably foreseeable that a cyclist such as Plaintiff would not see the hose, hit it, and get seriously injured, and because the CITY should have been informed of the dangerous condition created by its subcontractors, or the contractor should have remedied the dangerous condition, the CITY waived sovereign immunity under applicable law. The sewage remediation and use of the fire hydrant and hose, which caused HIGGINS’ injuries, also constitutes the operation or maintenance of a public water facility or a public sanitation facility, thereby waiving immunity under the C.G.I.A. under an alternate provision. As such, this Court has subject matter jurisdiction over the CITY, and the Court should properly deny the CITY’s motion to dismiss under C.R.C.P. 12(b)(1), C.R.S. 24-10-106(1)(d)(I) and C.R.S. § 24-10-106(1)(f). STANDARD OF REVIEW A Motion to Dismiss on the basis of sovereign immunity is the same as a Motion to Dismiss for Lack of Subject Matter Jurisdiction and is decided pursuant to Colo. R. Civ. P. 12(b)(1). When presented with such a Motion, the Court must make factual findings to determine whether the Court has jurisdiction to hear the case. Trinity Broad. Corp. v. City of Westminster, 848 P.2d 916, 3 924 (Colo. 1993). The burden of proof is on the plaintiff to prove the government has waived its immunity. However, this burden “is relatively lenient, as the plaintiff is afforded the reasonable inferences from [his or her] undisputed evidence.” City and County of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). If the court determines that the plaintiff’s factual allegations regarding the waiver of immunity are true, then it should award the plaintiff the reasonable inferences from his or her evidence. Id. A public entity, such as the City of Fort Collins, has sovereign immunity from tort liability by virtue of the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10-101, et seq. The immunity conferred by the CGIA is in derogation of the common law. The court is to strictly construe the immunity provisions of the Act and the waiver provisions are to be broadly construed. Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. App. 2000). As a “logical corollary” of that narrow construction, courts will “broadly construe the CGIA provisions that waive immunity in the interest of compensating victims of governmental negligence.” Id. Pursuant to C.R.S. § 24-10-106(1)(d)(l) the GIA is subject to waiver: “Sovereign immunity is waived by a public entity in an action for injuries resulting from: A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, . . . within the corporate limits of any municipality . . .” Pursuant to C.R.S. § 24-10-103 (1.3): "Dangerous condition" means either a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity or public employee in constructing or maintaining such facility. For the purposes of 4 this subsection (1.3), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered.” Pursuant to C.R.S. § 24-10-106(1)(f) the GIA is subject to waiver: “Sovereign immunity is waived by a public entity in an action for injuries resulting from: The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.” The courts in Colorado firmly adopt constructive notice as it relates to waivers of immunity under the C.G.I.A.. See Walton v. State, 968 P.2d 636, at 645 (Colo. 1998). A public entity may proximately cause a condition not only by affirmatively creating it, but also by its omission in failing to reasonably discover and correct the unsafe condition. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000). A dangerous condition should have been known to exist if the Plaintiff establishes that “the condition had existed for such a period and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered.” C.R.S. § 24-10- 103(1.3). The question of a municipality’s knowledge of a dangerous condition is a question of fact that precludes dismissal on immunity grounds. Luenberger v. City of Golden, 990 P.2d 1145, 1148 (Colo. App. 1999). ARGUMENT I. THE COURT SHOULD DENY THE MOTION TO DISMISS AS MOOT. The CITY argues that Plaintiff failed to “expressly” aver in her Complaint that the CITY waived immunity and failed “to refer to the C.G.I.A. whatsoever”. (Motion to Dismiss, p. 4). Simultaneously with responding to the motion to dismiss, Plaintiff moves for leave to amend her 5 complaint. Leave should be freely granted and is appropriate. (Motion for Leave, ¶¶ 1-8.) The proposed amended complaint expressly avers waiver under the C.G.I.A. (First Amended Complaint, Exhibit A, Motion for Leave.) If the Court properly grants leave to file the amended complaint, the CITY’s motion will be moot. II. THE COURT SHOULD DENY THE MOTION TO DISMISS BECAUSE THE CITY WAIVED IMMUNITY UNDER C.R.S. § 10-24- 106(1)(d)(I). Without the amended complaint, the allegations in the original complaint still allege and demonstrate that the CITY waived sovereign immunity under the C.G.I.A. (Complaint: ¶ 7 the CITY owned, controlled, and maintained the roadway, ¶ 8 the roadway is within the City, ¶ 12 the CITY carried out the remedial work, ¶ 14 the CITY placed the hose, ¶ 23 the hose was a physical condition creating an unreasonable risk to the health and safety of the public, ¶ 24 the CITY knew or should have known of the unreasonable risk, ¶¶ 37, 38, and 93 the hose was a dangerous condition, ¶ 38 the CITY knew or should have known of the dangerous condition.) As such, the motion to dismiss should be denied. C.R.S. 24-10-106 entitled Immunity and Partial Waiver states: (1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from: (d)(I) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved … of any public highway, road, street, or sidewalk within the corporate limits of any municipality … which was designed and intended for public travel or parking thereon…. Whether governmental immunity applies to bar a suit is a question of jurisdiction for the trial court. Springer v. City and County of Denver, 13 P.3d 794, 798 (Colo. 2000). “The burden of proof is on the plaintiff to prove that the government waived its immunity, but this burden is relatively 6 lenient, as the plaintiff is afforded the reasonable inferences from her undisputed evidence.” Tidwell ex rel. Tidwell v. City and Cty. of Denver, 83 P.3d 75, 85-86 (Colo. 2003). “Assessing whether the plaintiff has met this burden requires examining the totality of the circumstances presented by the undisputed evidence as to whether that particular condition presented an unreasonable risk.” Maphis v. City of Boulder, 504 P.3d 287, 292 (Colo. 2022) citing City & Cty. Of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). Grants of immunity by the C.G.I.A. must be strictly construed. Bertrand v. Board of City Comm’rs, 872 P.2d 223, 227 (Colo. 1994). Because the C.G.I.A. is in derogation of common law, the waiver of immunity is viewed broadly. Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000). See Walton v. State, 968 P.2d 636, 643 (Colo. 1998); City & County of Denver v. Gallegos, 916 P.2d 509, 515 (Colo. 1996). “[B]ecause tort concepts are naturally subjective, the district court should not resolve the issue of whether the government has committed negligence, the court should only satisfy itself that it has the ability to hear the case.” City & Cty. Of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). “At this stage in the proceeding,” this Court should view the case “in the light most favorable to the [P]laintiff.” Swieckowski by Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1387 (Colo. 1997). C.R.S. 24-10-103(1.3) defines dangerous condition as a condition that constitutes an unreasonable risk which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act . . . of the public entity . . . in constructing or maintaining such facility. Citing Beach v. Beach, 74 P.3d 1, 4 (Colo. 2003), the Colorado Supreme Court in Tidwell stated that “we cannot construe [the C.G.I.A.] in a way that would grant the City immunity absent a clear expression of legislative intent. Tidwell, 83 P.3d at 81. The Tidwell Court relied upon its prior analysis in Springer to construe the provisions of the C.G.I.A.: “As with all matters of statutory 7 construction, in construing the [C.G.I.A.], including its waivers, we must give effect to the legislature's intent.” Id., citing Springer, 13 P.3d at 799. “To accomplish that task, ‘we look to the language of the statute, giving words their plain and ordinary meaning.’" Id. “And, ‘if the plain language of the statute demonstrates a clear legislative intent, we look no further in conducting our analysis.’" Id. The Tidwell Court reasoned “[a] strained or forced construction of a statutory term is to be avoided, and we must look to the context of a statutory term." Quoting Fogg v. Macaluso, 892 P.2d 271, 273 (Colo. 1995). Analyzing the C.G.I.A. the courts look at the statute "as a whole, giving consistent, harmonious, and sensible effect to all of its parts." See City & Cty. of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). In St. Vrain Valley Sch. Dist. RE-1J v Loveland, 395 P.3d 751, 755 (Colo. 2017) the Colorado Supreme Court said: This court has segregated the CGIA's definition of "dangerous condition" into a four-factor test. The waiver applies if the injuries occurred as a result of: (1) the physical condition of the public facility or the use thereof; (2) which constitutes an unreasonable risk to the health or safety of the public; (3) which is known to exist or should have been known to exist in the exercise of reasonable care; and (4) which condition is "proximately caused by the negligent act or omission of the public entity in constructing or maintaining the facility." Citing Springer, 13 P.3d at799 (Colo. 2000). By its motion to dismiss the CITY challenges elements (2), (3), and (4). A. THE HOSE WAS A DANGEROUS CONDITION BECAUSE IT CONSTITUTED AN UNREASONABLE RISK TO THE HEALTH AND SAFETY OF THE PUBLIC. The CITY -- relying on Maphis v. City of Boulder, 504 P.3d 287 (Colo. 2022) and Dennis, 418 P.3d at 489 -- argues that the five inch hose stretched across the 1700 block of Welch Street 8 after dark did not constitute an unreasonable risk to the health and safety of the public. (Motion to Dismiss, pp. 4-5.) Maphis and Dennis, however, are inapposite. In Maphis the Colorado Supreme Court affirmed the appellate court’s reversal of the district court’s decision to dismiss the complaint against Boulder. Maphis, 504 P.3d at 293-94. The court decided that “based on a totality of the circumstances presented by the undisputed facts” (id., at 293), the crack in the sidewalk did not “present a risk that ‘exceeded the bounds of reason.’” Id., at 289, quoting Dennis 418 P.3d at 497. The central undisputed fact that the Maphis Court relied upon in determining that the risk associated with the crack in the sidewalk was not an unreasonable risk (i.e., it did not exceed the bounds of reason) was that these types of cracks in sidewalks are “commonplace throughout Colorado due to the harsh climate and other environmental factors.” Id., at 293. The court reasoned that in light of some of the purposes of the C.G.I.A. – of protecting governments from unlimited liability that could disrupt or make prohibitively expensive the provision of essential services and protecting taxpayers against excessive financial burdens (id., at 291) – the risk was not unreasonable (id., at 293). The court considered that Boulder had a program to address the cracks (id., at 289-90), had discovered the crack causing the injury (id., at 290), but that budget limitations necessitated the need for several years to address the cracks (id., at 290). The court, noting that “we cannot ignore the realities Colorado’s local governments face in trying to maintain roads and sidewalks”, decided that it is unwilling to impose an impossibly high standard whereby state and local governments must keep sidewalks like new at all times. Id., at 293, citing Dennis, 418 P.3d at 496. This would significantly increase rather than reduce potential burdens on taxpayers. Id. None of these circumstances exist in this case. The hose stretched across the street is not commonplace. Defendants, through their acts and omissions, created the dangerous condition by 9 stretching the hose across a dimly lit street at night with no notice, no safeguards, or remediation whatsoever. The sewer remediation undertaken by the CITY was not part of a program where the CITY is prioritizing certain remediation as more important than others. Rather, the remediation work here was a response to an isolated distinct problem, a sewage leak. There are no assertions of budget limitations. There are no assertions of any increase in potential burdens on taxpa yers. The Maphis Court determined that monetary considerations made the foreseeable risk, reasonable under the C.G.I.A. None of these factors exist to make the risk here “reasonable.” Here, the cost to the CITY to remediate the dangerous condition would have been nonexistent to negligible. In this case, the contractor and subcontractors created the dangerous condition that gave rise to HIGGINS injury; the chance of injury, damage, or loss was unreasonable; and it exceeded the bounds of reason. As such, the CITY’s reliance on Maphis is misplaced. Three justices in Maphis dissented: Justices Márquez, Gabriel, and Samour. Id., at 294. In the dissenting opinion, the justices criticized the majority for ignoring “one of the basic but overlooked purposes of the C.G.I.A.” Id., citing Daniel v. City of Colo. Springs, 327 P.3d 891, 895, (quoting State v. Moldovan, 842 P.2d 220, 222 (Colo. 1992)). The justices wrote: “True, the CGIA is aimed, in part, at preventing unlimited liability of the government, but its waivers of sovereign immunity are intended to allow individuals to seek redress for injuries caused by the government…. [T]oday's ruling overlooks that purpose.” In this case, in light of the other “purposes” which are not directly implicated here, this Court should employ the basic but often overlooked purpose and allow HIGGINS to seek redress for her injuries caused by the foreseeable and clearly dangerous risk created by the pressurized hose stretched across a dimly lit street at night with no warnings or precautions. 10 The CITY’s reliance on Dennis is likewise misplaced. In Dennis, the Colorado Supreme Court reversed the appellate court decision reversing the district court’s decision dismissing the case against Denver under the C.G.I.A. Dennis 418 P.3d at 498. The court stated that the evidence showed that the cracks and ruts in the road did not hinder or impede the movement of traffic, that a third-party driver impeded (cut off) plaintiff (a motorcyclist with a passenger), and that there was no proof that the road itself caused the accident. Id. The court found that there was no evidence that the road surface “prevented the motorcycle driver from performing as expected.” Id. The court also considered the estimated cost to keep roads in Colorado in the condition necessary to correct the condition at issue (i.e., one billion dollars for roads per year and $360 million per year for bridges). Id., at 496. Based upon these circumstances and the size of the pothole, the court decided that “there is a foreseeable risk that the road could cause injury, but that risk is reasonable” under the C.G.I.A. Id., at 497. The court said that the appellate court must be reversed because it “would require state and local governments to keep roads like new at all times or face potential liability in a tort lawsuit because the road constitutes an unreasonable risk to the health and safety of the public.” Id., at 496. The Court decided that it was foreseeable that the road condition could cause injury, “but that risk is inherent in driving on a road that has deteriorated from its original condition through use.” Id. at 497. Similar to the comparison of Maphis to this case, none of the material factors leading the Dennis Court to decide that the risk was reasonable exist in the instant case. In this case, the hose hindered and impeded the movement of Plaintiff’s bike, there was no third-party impeding the Plaintiff, and the hose itself caused the accident. Here, unlike Dennis, the hose on the road surface prevented the cyclist from “performing as expected.” Also, unlike Dennis, the risk posed by the hose stretched across the road is not an inherent risk in cycling. It is an unreasonable unique risk. 11 And in this case, there are no billion dollar yearly budgeting concerns. Under the circumstances of this case, the hose caused an unreasonable risk of harm under the C.G.I.A. This case is more akin to Springer, where the court found there was no immunity under the C.G.I.A. when the subcontractor was negligent in maintaining or constructing a building owned by the governmental entity, claiming immunity from premises liability. Springer, 13 P.3d at 799 (reversing the Colorado Court of Appeals, finding waiver of immunity) Emphasis added. The court reasoned that in premises liability claims, “employers of independent contractors had certain nondelegable duties, arising out of [a relationship] with the public, for which they are liable.” Citing the Restatement (Second) of Torts section 422 (1965). Springer, 13 P.3d at 804. Finally, as pointed out by the CITY in its’ motion to dismiss (p. 6), the C.G.I.A. does not waive immunity for claims asserting a failure to warn, failure to close the road, or failure to suggest alternate routes. Medina v. State, 35 P.3d 442, 449 (Colo. 2001). However, as pointed out by the dissent in Maphis, “the failure to call attention to the hazard [], particularly given how difficult it was to perceive, is relevant to determining whether it was unreasonably dangerous.” Maphis, 504 P.3d at 295. In this case, even with a headlight, the hose stretched across the street at night is difficult to perceive. HIGGINS alleges that “[l]eaving the hose stretched across the roadway on Welch Steet with no warnings, additional lighting, traffic control devices or other indicators created a chance of injury, damage and/or loss which exceeded the bounds of reason” and “physically impeded with the flow of traffic.” (Complaint ¶¶ 25, 11.) This material circumstance further establishes the unreasonableness of the risk in this case. B. THE CITY KNEW OR SHOULD HAVE KNOWN ABOUT THE DANGEROUS CONDITION. The CITY argues that it did not know “that its subcontractor Defendant Sunbelt placed the hose across the roadway at night, and that there is no substantial reason why it should have known 12 about it.” (Motion, p. 7.) However, the CITY’s duty to keep its street safe is nondelegable. Citing Prosser and Keeton on Torts, 511-12 (5th ed. 1984), the Springer Court said that “[t]he core principle behind all nondelegable duties is ‘that the responsibility is so important to the community that the employer should not be entitled to transfer it to another.’” Id., at 803. The court then applied the nondelegable duty doctrine to the “CIGA’s immunity for dangerous conditions” and allowed the Plaintiff to “pursue” her claims against the City and County of Denver. Id., at 804. It is axiomatic that “the obligation of the landowner in possession of property to maintain the premises in a safe condition for invitees may not be delegated to an independent contractor." Kidwell v. K-Mart Corp., 942 P.2d 1280, 1282 (Colo. App. 1996).); Reid v. Berkowitz, 315 P.3d 185, 191-92, (Colo. App. 2013); Jules v. Embassy Props., Inc., 905 P.2d 13, 15 (Colo. App. 1995). Here, according to the email attached to the CITY’s motion to dismiss, its subcontractor Defendant Sunbelt did not report the dangerous condition to the CITY’s traffic control department. The Contractor and subcontractors negligently failed to remedy or remediate the dangerous condition, as was required in the agreement with the CITY; subcontractor also negligently failed to remedy or remediate the dangerous condition and because the Contractor should have known, the CITY here is held to the same standard as the Contractor. Therefore, the CITY should have known about the dangerous condition created by its subcontractor. The CITY’s attempt to delegate its nondelegable duties to independent contractors is impermissible and cannot shield it from the waiver provision under the CIGA. C. THE DANGEROUS CONDITION WAS PROXIMATELY CAUSED BY THE NEGLIGENT ACT OF THE CITY IN MAINTAINING THE ROADWAY. Next, the CITY argues that because its subcontractors “placed the hose in the location where HIGGINS struck it”, HIGGINS cannot establish that the harm she suffered was a reasonably foreseeable consequence of the CITY’s negligence. However, as discussed in the preceding 13 section, the subcontractors negligence is imputed to the CITY because the CITY’s duty in nondelegable. The CITY is vicariously liable for injury caused by the negligence of its subcontractors for dangerous conditions created by the subcontractors. The court in Kidwell held that a landowner may not delegate its duty to maintain its premises in a safe condition for invitees to an independent contractor. See, e.g., Kidwell 942 P.2d at 1282 (plaintiff was entitled to an instruction on remand that any negligence on the part of the contractor must be imputed to the landowner). Thus, the CITY’s arguments fail and immunity is waived under C.R.S. § 24-10- 106(1)(d)(I). III. THE COURT SHOULD DENY THE MOTION TO DISMISS BECAUSE THE CITY ALSO WAIVED IMMUNITY UNDER C.R.S. § 10-24-106(1)(f). Plaintiff’s First Amended Complaint also alleges and shows waiver of immunity by the CITY under C.R.S. § 24-10-106(1)(f), providing additional basis and reasoning for a denial of the CITY’s motion. C.R.S. § 24-10-106(1)(f) states: “Sovereign immunity is waived by a public entity in an action for injuries resulting from: The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.” A public “sanitation facility” includes the City’s sewer main, including any structures and related apparatus used in the collection or disposition of sewage of a liquid in nature in the definition of public sanitation facility. C.R.S. § 24-10-103(5.5). A public “water facility” means structures and related apparatus used in the collection, treatment, or distribution of water for domestic and other legal uses that is operated and maintained by a public entity. C.R.S. § 24-10-103(5.5). 14 “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. C.R.S. § 24-10-103(3)(a). This broad definition 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 preserving a facility from decline or failure.” C.R.S. § 24-10-103(2.5). The CITY’s immunity is waived if Plaintiff can show that she had injuries “resulting from” the specified conduct. C.R.S. § 24-10-106(1)(f). The phrase “resulting from” does not require a showing that the injuries were “caused by” the conduct, but there must at least be a “minimal causal connection” between the injuries and specified conduct. Tidwell, 83 P.3d at 86. Further, an independent contractor’s conduct is attributable to a public entity for purposes of waiving immunity. Lopez v. City of Grand Junction, 488 P.3d 364 (Colo. App. 2018). In Lopez, 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. The plaintiffs alleged that the City hired a subcontractor who ruptured the line, resulting in the explosion and injuries. The plaintiffs also alleged that the subcontractors’ negligence be imputed to the City. The City of Grand Junction asserted governmental immunity under the CGIA. In a matter of first impression, the court held that, even though the maintenance of the traffic light was performed by an independent contractor, C.R.S. § 24-10-106(1)(f) could be applied to waive the immunity of the City. The court further held that the plaintiffs’ injuries “resulted from” the conduct of striking (and breaching) the natural gas line. Lopez at 370. 15 The present case with Plaintiff HIGGINS represents an analogous situation. In the present case as alleged, the use of a CITY-owned fire hydrant in performing a sewage remediation project resulted in HIGGINS’ injuries when she came in contact with the hose that was being used for remediation and stretched across the roadway. The facts alleged and presently known to Plaintiff show that the hydrant and hose were being used to remediate a sewage spill, which falls within the definition of C.R.S. § 10-24-103(2.5). These actions by the CITY (or the actions of subcontractors imputed to the CITY) also constitute operation of a public water facility as the fire hydrant and hose were operated and maintained by the CITY and are “related apparatus” used in the distribution of water. In Scott v. City of Greeley, 931 P.2d 525 (Colo. App. 1996), the court held that, in making a sewer connection, the City was exercising powers, duties, and functions vested in it by law. The situation in the present case is analogous regarding the use of the fire hydrant and hose that resulted in HIGGINS’ injuries. Further, the use of the hydrant and hose in the present case is more than “obliquely related” to the purposes, operations, and duties of the CITY’s public water and sanitation facilities. See generally Johnston v. N. Table Mountain Water & Sanitation Dist., Civil Action No. 12-cv-01790-REB-CBS (Colo. App. 2013). Thus, the subcontractors’ actions are imputed to the CITY and the CITY has also waived immunity under C.R.S. § 24-10-106(1)(f). 16 CONCLUSION For the foregoing reasons, this Court should deny the CITY’s motion to dismiss, accept Plaintiff’s First Amended Complaint and require responsive pleadings from Defendants within the appropriate time frame as this court allows. Dated this 29th day of June 2023. VANMEVEREN LAW GROUP, P.C. _s/ Karl W. Hager____________ Karl W. Hager - #52710 123 North College Avenue, Ste 112 Fort Collins, CO 80524 Telephone: (970) 495-9741 Facsimile: (970) 495-6854 17 CERTIFICATE OF ELECTRONIC FILING AND SERVICE I hereby certify that on June 29, 2023 the foregoing Plaintiff’s Response to Defendant CITY’s Motion to Dismiss was filed with the Court and served on all counsel of record via ICCES according to the Colorado Rules of Civil Procedure. /s/ Amy Selcke Amy Selcke Legal Assistant, VanMeveren Law Group, P.C.