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HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 033 - City's Answer To Amended ComplaintDISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Ave., Ste. 100 Fort Collins, CO 80521 (970) 494-3500  COURT USE ONLY  Plaintiff: CHRISTIAN HIGGINS v. Defendants: CITY OF FORT COLLINS, C&L WATER SOLUTIONS, INC., SUNBELT RENTALS, INC., KODIAK FIELD SERVICES, LLC, and BCH SERVICES, LLC Andrew W. Callahan, #52421 – acallahan@wicklaw.com Cassie L. Williams, #58279 – cwilliams@wicklaw.com WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 Case No.: 2023CV30276 Division: 4C DEFENDANT CITY OF FORT COLLINS’ ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND JURY DEMAND COMES NOW, Defendant City of Fort Collins (“City”), by and through its attorneys, Wick & Trautwein, LLC, and for its Answer to Plaintiff’s First Amended Complaint and Jury Demand denies, states and alleges as follows: I. PARTIES 1. The City has insufficient information to either admit or deny the allegations contained in paragraph 1 of Plaintiff’s First Amended Complaint and therefore denies the allegation. 2. The City admits to the allegations contained in paragraph 2 of the Plaintiff’s First Amended Complaint. 3. The City has insufficient information to either admit or deny the allegations contained in paragraphs 3 through 6 of the Plaintiff’s First Amended Complaint and therefore denies the allegations. DATE FILED: July 13, 2023 2:55 PM FILING ID: 5737C8D544CA9 CASE NUMBER: 2023CV30276 2 II. JURISDICTION AND VENUE 4. The City denies that jurisdiction is appropriate in this Court as alleged in paragraph 7 of the Plaintiff’s First Amended Complaint. 5. The City admits to the allegations contained in paragraphs 8 and 9 of the Plaintiff’s First Amended Complaint. 6. The City denies the allegations contained in paragraphs 10 through 23 of the Plaintiff’s First Amended Complaint. 7. The City has insufficient information to either admit or deny the allegations contained in paragraph 24 of the Plaintiff’s First Amended Complaint and therefore denies the allegations. 8. The City denies the allegations contained in paragraphs 25 and 26 of the Plaintiff’s First Amended Complaint. 9. To the extent that paragraphs 27 and 28 are legal conclusions, the City admits that Plaintiff has accurately quoted C.R.S. 24-10-103. 10. To the extent that paragraph 29 of the Plaintiff’s First Amended Complaint pertains to the City, the City denies the allegation. To the extent that the allegation pertains to the actions of the other Defendants, the City lacks knowledge of the truthfulness and accuracy of the allegations contained in paragraph 29 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 11. The City denies the allegations contained in paragraph 30 of the Plaintiff’s First Amended Complaint. III. GENERAL ALLEGATIONS 12. In response to paragraph 31, the City admits that this is a City owned and maintained road. The City denies that it was in control of the alleged dangerous condition or generally in control of the ongoing repair project on Welch Street at the time of the incident. 13. The City admits to the allegations contained in paragraphs 32 and 33 of the Plaintiff’s First Amended Complaint. 14. The City denies the allegations contained in paragraph 34 of the Plaintiff’s First Amended Complaint, to the extent that said allegations imply that the City entered into a contract with C&L specifically for the purpose of the rehabilitation project. To the extent that the City has contracted with C&L for services generally, the City admits to the allegations contained in paragraph 34. 3 15. The City admits to the allegations contained in paragraph 35 of the Plaintiff’s First Amended Complaint. 16. To the extent that paragraphs 36 and 37 of the Plaintiff’s First Amended Complaint pertain to actions taken by the City, the City denies the allegation s. To the extent that the allegations pertain to the actions of the other Defendants, the City has insufficient information to either admit or deny the allegations contained in paragraph 36 and 37 of the Plaintiff’s First Amended Complaint and therefore denies the allegations. 17. The City has insufficient information to either admit or deny the allegations contained in paragraph 38 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 18. The City denies the allegations contained in paragraph 39 of the Plaintiff’s First Amended Complaint. 19. To the extent that paragraph 40 of the Plaintiff’s First Amended Complaint pertains to actions taken by or information known to the City, the City has insufficient information to either admit or deny the allegations contained in paragraph 40 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 20. The City admits to the allegations contained in paragraph 41 of the Plaintiff’s First Amended Complaint, but only to the extent that the listed requirements are not considered exhaustive. 21. The City denies the allegations contained in paragraph 42 of the Plaintiff’s First Amended Complaint. 22. To the extent that paragraph 43 of the Plaintiff’s First Amended Complaint pertains to actions taken by the City, the City admits to the allegation. To the extent that the allegation pertains to the actions of the other Defendants, the City has insufficient information to either admit or deny the allegations contained in paragraph 43 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 23. The City lacks knowledge of the truthfulness and accuracy of the allegations contained in paragraph 44 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 24. To the extent that paragraph 45 of the Plaintiff’s First Amended Complaint pertains to actions taken by the City, the City admits that it did not place signs or traffic control devices at the identified location, as it did not have any notice of a reason to place such devices. To the extent that the allegation pertains to the actions of the other Defendants, the City has insufficient information to either admit or deny the allegations contained in paragraph 45 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 4 25. The City denies the allegations contained in paragraph 46 of Plaintiff’s First Amended Complaint. 26. The City lacks knowledge of the truthfulness and accuracy of the allegations contained in paragraphs 47 through 50 of the Plaintiff’s First Amended Complaint and therefore denies the allegations. 27. The City denies the allegations contained in paragraph 51 of the Plaintiff’s First Amended Complaint, to the extent that the allegations imply that the City or its employees regularly accessed the area at issue on or around the date of the alleged incident. To the extent that the allegation pertains to the actions of the other Defendants, the City has insufficient information to either admit or deny the allegations contained in paragraph 51 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 28. To the extent that paragraph 52 of the Plaintiff’s First Amended Complaint implies a duty by the City to post warning signs or other indicators under the circumstances, the City denies the allegation. To the extent that the allegation pertains to the actions of the other Defendants, the City has insufficient information to either admit or deny the allegations contained in paragraph 51 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 29. The City denies the allegations contained in paragraphs 53 through 56 of the Plaintiff’s First Amended Complaint. 30. To the extent that paragraph 57 of the Plaintiff’s First Amended Complaint pertains to the City, the City denies the allegation. The City lacks knowledge as to the acts or omissions of the other Defendants, and therefore denies the allegation. 31. The City has insufficient information to either admit or deny the allegations contained in paragraphs 58 through 60 of the Plaintiff’s First Amended Complaint and therefore denies the allegations. IV. FIRST CLAIM FOR RELIEF (Premises Liability – as against the CITY) 32. The City incorporates by reference its responses to paragraphs 1-60 as if fully set forth herein. 33. The City admits the allegations contained in paragraph 62 of the Plaintiff’s First Amended Complaint. 34. The City denies the allegations contained in paragraph 63 through 65 of the Plaintiff’s First Amended Complaint. 35. The City lacks personal knowledge of the truthfulness and accuracy of the allegations contained in paragraph 66 of the Plaintiff’s First Amended Complaint and therefore denies the allegation. 5 36. The City denies the allegations contained in paragraph 67 through 72 of the Plaintiff’s First Amended Complaint. V. SECOND CLAIM FOR RELIEF (Premises Liability – as against C&L) 37. The City incorporates by reference its responses to paragraphs 1-72 as if fully set forth herein. 38. The allegations contained in paragraphs 73 through 83 of the Plaintiff’s First Amended Complaint are directed at another Defendant, not at the City, and therefore require no response from the City. To the extent that the allegations contained in paragraphs 73 through 83 may be construed to apply to the City, the City denies the allegations. VI. THIRD CLAIM FOR RELIEF (Premises Liability – as against SUNBELT) 39. The City incorporates by reference its responses to paragraphs 1-83 as if fully set forth herein. 40. The allegations contained in paragraphs 85 through 94 of the Plaintiff’s First Amended Complaint are directed at another Defendant, not at the City, and therefore require no response from the City. To the extent that the allegations contained in paragraphs 85 through 94 may be construed to apply to the City, the City denies the allegations. VII. FOURTH CLAIM FOR RELIEF (Premises Liability – as against KODIAK) 41. Defendant City incorporates by reference its responses to paragraphs 1-94 as if fully set forth herein. 42. The allegations contained in paragraphs 96 through 105 of the Plaintiff’s First Amended Complaint are directed at another Defendant, not at the City, and therefore require no response from the City. To the extent that the allegations contained in paragraphs 96 through 105 may be construed to apply to the City, the City denies the allegations. VIII. FIFTH CLAIM FOR RELIEF (Premises Liability – as against BCH) 43. Defendant City incorporates by reference its responses to paragraphs 1 -105 as if fully set forth herein. 44. The allegations contained in paragraphs 107 through 116 of the Plaintiff’s First Amended Complaint are directed at another Defendant, not at the City, and therefore require no 6 response from the City. To the extent that the allegations contained in paragraphs 108 through 116 may be construed to apply to the City, the City denies the allegations. IX. SIXTH CLAIM FOR RELIEF (Negligence – as against all Defendants) 45. Defendant City incorporates by reference its responses to paragraphs 1 -116 as if fully set forth herein. 46. To the extent that paragraphs 118 through 124 of the Plaintiff’s First Amended Complaint pertain to the City, the City denies the allegations. The City lacks knowledge as to the acts or omissions of the other Defendants, and therefore denies the same. X. WHEREFORE CLAUSE – PRAYER FOR RELIEF The City denies all allegations contained in the “Prayer for Relief” claus e contained in Plaintiff’s First Amended Complaint. XI. GENERAL DENIAL The City denies all allegations not expressly admitted. XII. AFFIRMATIVE DEFENSES 1. Plaintiff’s claims against the City are governed , barred and/or limited by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq. The City did not waive immunity pursuant to C.R.S. §§ 24-10-106(1)(d)(I) or 24-10-106(1)(f). Also, the Plaintiff’s damages are limited by C.R.S. § 24-10-114. 2. Plaintiff’s damages, if any, are the sole result of the wrongful actions of third parties or parties to this action other than the City. The City properly delegated the task of sewer remediation to its subcontractors, subject to strict safety requirements. Under the circumstances alleged by Plaintiff, the subcontractors acted entirely outside of the safety requirements imposed upon them, and the City had no actual knowledge or reason to know of the circumstances alleged in Plaintiff’s First Amended Complaint. 3. Plaintiff’s damages, if any, may be the result of and caused by the actions of third parties or other parties to this case over whom the City had no control, nor right of control. The City did not exercise control over the actions of the other Defendants, as independent contractors. 4. Under the circumstances alleged by Plaintiff, the City was not a “landowner” of the real property at issue as that term is contemplated by C.R.S. § 13-21-115(7)(b). 5. Plaintiff’s claims for damages are limited by C.R.S. § 13-21-102.5. 7 6. Plaintiff’s claims may be subject to C.R.S. § 13-21-111.6, concerning payment from a collateral source for which she may not receive double recovery. 7. Plaintiff may have failed to mitigate her damages, if any. 8. Plaintiff’s claims against the City are groundless and frivolous, entitling the City to an award of attorney fees and costs. 9. The City reserves the right to add or delete affirmative defenses in the future as appropriate. WHEREFORE, Defendant prays that judgment be entered in favor of Defendant City of Fort Collins and against the Plaintiff, and that the Court further assess court costs, expert witness fees, and any such further relief as the Court deems just and proper against the Plaintiff and in favor of Defendant. JURY DEMAND Defendant hereby demands a trial to a jury of six on all issues herein. The statutory jury fee is remitted herewith. Respectfully submitted this 13th day of July, 2023. WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Cassie L. Williams, #58279 Attorneys for Defendant City of Fort Collins CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT CITY OF FORT COLLINS’ ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND JURY DEMAND was filed with the Court via Colorado Courts E-filing System (CCES) this 13th day of July, 2023 and served on all counsel of record. /s/ Jody L. Minch