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HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 030 - First Amended Complaint1 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 FIRST AMENDED COMPLAINT AND JURY DEMAND COMES NOW, Plaintiff, Christian Higgins, by and through undersigned counsel, VanMeveren Law Group, P.C., Karl W. Hager appearing, and states as her First Amended Complaint against Defendants as follows: I. PARTIES 1. At all times pertinent hereto, Plaintiff Christian Higgins (“HIGGINS”) was and is a private individual and resident of Larimer County, with a mailing address of 1440 Edora Road, Fort Collins, Colorado 80525. 2. At all times pertinent hereto, Defendant City of Fort Collins (“the CITY”), was and is a home rule municipality of the State of Colorado, situated in Larimer County, with an official mailing address of P.O. Box 580, Fort Collins, Colorado 80522. The principal physical address of the CITY is 300 LaPorte Avenue, Building B, Fort Collins, Colorado 80521. DATE FILED: July 5, 2023 9:26 AM FILING ID: 86B48DDF5837B CASE NUMBER: 2023CV30276 2 3. At all times pertinent hereto, Defendant C&L Water Solutions, Inc. (“C&L”) was and is a corporation licensed to do business in Colorado with a principal office address of 112249 Mead Way, Littleton, Colorado 80125. The registered agent for C&L is Chrystalla Larson, with a mailing address of P.O. Box 631100, Littleton, Colorado 80163. 4. At all times pertinent hereto, Defendant Sunbelt Rentals, Inc. (“SUNBELT”) was and is a foreign corporation with a principal office address of 1799 Innovation Point, Fort Mill, South Carolina 29715. SUNBELT is licensed to do business in Colorado and the registered agent is C T Corporation System with a mailing address of 7700 E Arapahoe Road, Suite 220, Centennial, Colorado 80112. 5. At all times pertinent hereto, Defendant Kodiak Field Services, LLC (“KODIAK”) was and is a limited liability company with a principal office address of 1153 M1/4 Road, Loma, Colorado 81524. KODIAK is licensed to do business in Colorado and the registered agent is Colorado Registered Agent LLC with a mailing address of 1942 Broadway Street, Suite 314C, Boulder, Colorado 80302. 6. At all times pertinent hereto, Defendant BCH Services, LLC (“BCH”) was and is a limited liability company with a principal office address of 454 Eclipse Drive, Colorado Springs, Colorado 80905. BCH is licensed to do business in Colorado and the registered agent is Brandon Henry with a mailing address of 454 Eclipse Drive, Colorado Springs, Colorado 80905. II. JURISDICTION AND VENUE 7. Jurisdiction is appropriate in this Court pursuant to C.R.S. § 13-1-124. 8. Venue is appropriate in this Court pursuant to Colorado Rules of Civil Procedure 98(c). 9. HIGGINS complied with the jurisdictional notice requirement to the CITY under C.R.S. §24-10-109. 10. This Court has jurisdiction over the CITY because the CITY has waived immunity pursuant to C.R.S. § 24-10-106(1)(d)(I), as set forth below. 11. This Court further has jurisdiction over the CITY because the CITY has waived immunity pursuant to C.R.S. § 24-10-106(1)(f), as set forth below. 12. The injuries suffered by HIGGINS are the direct result of a dangerous condition created by the CITY that physically impeded the flow of traffic. 13. The CITY’s duty to HIGGINS to keep the roads safe is non-delegable. 3 14. The CITY, through its subcontractors, stretched a five-inch fortified, pressurized hose (the “HOSE”) from a fire hydrant across Welch Street at night in a dimly light area thereby creating a dangerous condition. 15. The HOSE stretched across Welch Street impeded the flow of traffic of both cars and bicycles. 16. The HOSE stretched across Welch Street at night was a road condition that created a chance of injury, damage, or loss which exceeded the bounds of reason. 17. The HOSE stretched across Welch Street constituted an unreasonable risk to the health and safety of the public. 18. Plaintiff’s injuries are the result of a physical condition of a public facility. 19. The dangerous condition should have, and would have, been known by the CITY if the Defendants had exercised reasonable care. 20. The dangerous condition was proximately caused by the acts or omissions of the CITY through its independent contractors maintaining the roadway on Welch Street during sewage remediation. 21. It was reasonably foreseeable that: (a) cyclists such as HIGGINS would use the roadway at Welch Street at night, (b) it would be difficult for a cyclist to see the hose at night and (c) that serious injury, such as the injuries suffered by HIGGINS, could result from the dangerous condition. 22. The knowledge of the dangerous condition of the CITY’s subcontractor is imputed to the CITY. 23. The acts and omissions of the CITY’s subcontractors (the other Defendants) are imputed to the CITY. 24. Defendant Sunbelt created the dangerous condition. Because Sunbelt created the dangerous condition, it knew about it. However, Sunbelt, in derogation of its duties, failed to advise the other Defendants or traffic control about the dangerous condition it created. 25. The CITY knew or should have known of the dangerous condition due to its relationship with the Defendants and the contractual obligations in place at the time of the INCIDENT. 26. The HOSE was connected to a fire hydrant under the CITY’s control, operation and maintenance and was being used as part of a sewage remediation project which results in the operation and maintenance of a public water facility and sanitation facility as contemplated by C.R.S. § 10-24-106(1)(f). 4 27. “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.” 28. “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.” 29. The use of the hydrant and HOSE by Defendants was undertaken to keep a facility in the same general state of repair or efficiency as initially constructed and/or to preserve a facility from decline or failure. 30. Plaintiff’s injuries are also a result of the CITY’s operation and maintenance of a public water facility and/or a public sanitation facility. III. GENERAL ALLEGATIONS 31. At all times material to the allegations of this Complaint, the CITY owned, controlled and/or maintained Welch Street, the shared-use roadway located in Fort Collins, Larimer County, Colorado. 32. Welch Street is located within the municipal limits of the CITY. 33. Prior to October 8, 2021 the CITY was engaged in a Utilities project (“Utilities Project”) which included rehabilitating a sewer line that runs underneath Spring Creek Trail, near Welch Street. 34. As part of said Utilities Project, the CITY contracted with C&L to perform sewer bypass services around the ongoing construction site. 35. On or before October 8, 2021, the CITY and C&L began carrying out remediation work connected to the sewage spill. 36. On or before October 8, 2021, The CITY and C&L subcontracted with SUNBELT, KODIAK and BCH (collectively, all “Defendants”) to assist in the aforementioned sewage remediation work. 37. Prior to October 8, 2021, in performing the sewage spill remediation, Defendants connected, or caused to be connected, a large, pressurized hose with an approximate 5-inch diameter to a fire hydrant in the 1700 block of Welch Street near Edora Park (the “HOSE”). The HOSE was laid completely across Welch Street. 5 38. On October 8, 2021 at approximately 9:00 p.m., the HOSE remained stretched completely across Welch Street in the roadway. 39. Upon information and belief, prior to October 8, 2021, during operation of the Utilities Project a bypass hose was dislodged from a nearby manhole and began spilling sewage into Spring Creek pond in or near Edora Park, adjacent to Welch Street. 40. On October 8, 2021 at approximately 9:00 p.m., Welch Street remained open and accessible to motorists, cyclists and pedestrians. There were no warning signs, additional lighting or other traffic-control devices used to alert motorists, cyclists or pedestrians of the HOSE’s presence in the roadway. No alternate routes were suggested or made available. 41. Defendant C&L was required (a) to install traffic devices and relocate them as necessary, (b) continuously review and maintain all traffic control measures to assure that adequate provisions have been made for the safety of the public and workers, (c) supervise, inspect and direct the work performed on behalf of CITY, (d) to keep on the work site a “competent resident superintendent who will be C&L’s representative and shall have authority to act on behalf of C&L, (d) to protect the safety over persons or property, protecting them from damage, injury or loss, (e) to erect and maintain all necessary safeguards for safety and protection of the public, and (f) to designate a qualified and experienced safety representative at the site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. 42. All of C&L’s and the other Defendants’ duties were the primary responsibility of the CITY and nondelegable. 43. The Defendants did not have a representative on site at the time the HOSE was left across the street at night. 44. No Defendant underwent remedial measures to advise the public of the risks due to the HOSE stretched across the street at night. 45. Defendants did not place signs or traffic control devices to alert the public of the dangerous condition. 46. The dangerous condition was unreasonable because subcontractor Defendant Sunbelt improperly failed to report the dangerous condition to traffic control or the other Defendants prior to the INCIDENT. 47. On October 8, 2021, HIGGINS was riding her bicycle (equipped with a helmet, taillight and headlight) northbound in the 1700 block of Welch Street in Fort Collins, Colorado. 6 48. As HIGGINS was traveling northbound on Welch Street, she was unaware of the presence of the HOSE stretched across the roadway, impeding the flow of traffic. HIGGINS encountered the HOSE and was unable to avoid it. 49. HIGGINS was able to raise her front wheel over the HOSE at the last instant, but her rear wheel came in contact with the HOSE and jumped her bicycle and body into the air. HIGGINS continued to grip her handlebars as her body came forcefully down onto the top tube of her bicycle while her feet contacted the roadway. She was violently whiplashed through her neck and back. HIGGINS bicycle continued traveling at an appreciable speed before losing complete control and crashing approximately 30 yards from the location of the HOSE. 50. HIGGINS was unaware of the presence of the HOSE in the roadway prior to the incident on October 8, 2021. 51. Welch Street and the HOSE running across Welch Street were located in an area which the Defendants, their employees, representatives or agents regularly accessed on or before October 8, 2021. 52. Defendants failed to post any warnings or other indicators of the presence of HOSE and failed to establish any traffic control devices in the area where the incident occurred prior to October 8, 2021. 53. The presence of the HOSE in the roadway constituted a physical condition of a public facility that physically interfered with the flow of traffic. 54. The presence of the HOSE in the roadway presented unreasonable risks to the health and safety of the public. 55. Leaving the HOSE stretched across the roadway on Welch Steet with no warnings, additional lighting, traffic control devices or other indicators created a foreseeable chance of injury , damage and/or loss which exceeded the bounds of reason. 56. All Defendants knew of the HOSE’s presence in the roadway or should have known of the HOSE’s presence in the roadway through the exercise of reasonable care. 57. The HOSE’s presence in the roadway, without any warnings or traffic control devices utilized, was proximately caused by the negligent act or omission of the Defendants in maintaining the roadway, Welch Street. 58. As a result of the incident, HIGGINS suffered serious, permanent bodily injury, including, but not limited to, damage/injury to her cervical spine, her ankles, her groin area, chest, right shoulder and both elbows, as well as injury to other areas of her body. 7 59. As a result of injuries sustained in the incident, HIGGINS required urgent medical care, diagnostic imaging throughout her body, treatment by orthopedic and spine specialists, physical therapy, chiropractic and massage therapy, mental health treatment, treatment from general practitioners and medication therapy. 60. As a direct and proximate result of the incident, HIGGINS sustained and will continue to sustain damages as more specifically alleged below. IV. FIRST CLAIM FOR RELIEF (Premises Liability – as against the CITY) 61. HIGGINS incorporates by reference paragraphs 1 through 60 of this First Amended Complaint as if fully set forth herein. 62. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 63. At all times pertinent hereto, the CITY owned, leased or otherwise legally occupied Welch Street where the incident occurred. 64. At all times pertinent hereto, the CITY controlled Welch Street where the incident occurred. 65. The CITY was a “landowner” of the area of Welch Street where the incident occurred as contemplated by C.R.S. §13-21-115. 66. At all times pertinent hereto, HIGGINS was an invitee as that term is contemplated by C.R.S. §13-21-115. 67. The condition and existence of the HOSE in the roadway on Welch Street was a dangerous condition on the roadway that physically interfered with the flow of traffic and presented an unreasonable risk of harm and injury to motorists, cyclists and others. 68. The CITY knew or should have known of the dangerous condition existing on the roadway on Welch Street where the incident occurred. 69. The CITY generally had a nondelegable duty to use reasonable care with respect to any danger it created on the roadway of Welch Street where the incident occurred of which it knew, its subcontractors knew, or it should have known. 70. The CITY unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the HOSE in the roadway on Welch Street, thereby exposing HIGGINS to a foreseeable and unreasonable risk of physical injury or harm. 71. The CITY's conduct was an unreasonable failure to exercise care to protect against dangers of which it knew or should have known as contemplated by C.R. S. §13-21-115. 8 72. HIGGINS’ damages suffered as a direct and proximate result of the CITY’s failure to exercise reasonable care in constructing, maintaining or managing the roadway on Welch Street where the incident occurred, as contemplated by C.R.S. §13-21-115., include but are not limited to: a. severe physical injuries; b. past and future medical expenses; c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. V. SECOND CLAIM FOR RELIEF (Premises Liability – as against C&L) 73. HIGGINS incorporates by reference paragraphs 1 through 72 of this Complaint as if fully set forth herein. 74. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 75. At all times pertinent hereto, C&L legally occupied or was in control of the circumstances existing at Welch Street where the incident occurred. 76. C&L was a “landowner” of the area of Welch Street where the incident occurred as contemplated by C.R.S. §13-21-115. 77. At all times pertinent hereto, HIGGINS was an invitee as that term is contemplated by C.R.S. §13-21-115. 78. The condition and existence of the HOSE in the roadway on Welch Street was a dangerous condition on the roadway that physically interfered with the flow of traffic and presented an unreasonable risk of harm and injury to motorists, cyclists and others. 79. C&L knew or should have known of the dangerous condition existing on the roadway on Welch Street where the incident occurred. 9 80. C&L generally had a duty to use reasonable care with respect to any danger on the roadway of Welch Street where the incident occurred of which it knew or should have known. 81. C&L unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the HOSE in the roadway on Welch Street, thereby exposing HIGGINS to an unreasonable risk of physical injury or harm. 82. C&L’s conduct was an unreasonable failure to exercise reasonable care to protect against dangers of which it knew or should have known as contemplated by C.R. S. §13-21-115. 83. HIGGINS’ damages suffered as a direct and proximate result of C&L’s failure to exercise reasonable care in maintaining or managing the roadway on Welch Street where the incident occurred, as contemplated by C.R.S. §13-21-115, include but are not limited to: a. severe physical injuries; b. past and future medical expenses; c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. VI. THIRD CLAIM FOR RELIEF (Premises Liability – as against SUNBELT) 84. HIGGINS incorporates by reference paragraphs 1 through 83 of this Complaint as if fully set forth herein. 85. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 86. At all times pertinent hereto, SUNBELT legally occupied or was in control of the circumstances existing at Welch Street where the incident occurred. 87. SUNBELT was a “landowner” of the area of Welch Street where the incident occurred as contemplated by C.R.S. §13-21-115. 88. At all times pertinent hereto, HIGGINS was an invitee as that term is contemplated by C.R.S. §13-21-115. 10 89. The condition and existence of the HOSE in the roadway on Welch Street was a dangerous condition on the roadway that physically interfered with the flow of traffic and presented an unreasonable risk of harm and injury to motorists, cyclists and others. 90. SUNBELT knew or should have known of the dangerous condition existing on the roadway on Welch Street where the incident occurred. 91. SUNBELT generally had a duty to use reasonable care with respect to any danger on the roadway of Welch Street where the incident occurred of which it knew or should have known. 92. SUNBELT unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the HOSE in the roadway on Welch Street, thereby exposing HIGGINS to an unreasonable risk of physical injury or harm. 93. SUNBELT’s conduct was an unreasonable failure to exercise reasonable care to protect against dangers of which it knew or should have known as contemplated by C.R. S. §13- 21-115. 94. HIGGINS’ damages suffered as a direct and proximate result of SUNBELT’s failure to exercise reasonable care in maintaining or managing the roadway on Welch Street where the incident occurred, as contemplated by C.R.S. §13-21-115, include but are not limited to: a. severe physical injuries; b. past and future medical expenses; c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. VII. FOURTH CLAIM FOR RELIEF (Premises Liability – as against KODIAK) 95. HIGGINS incorporates by reference paragraphs 1 through 94 of this Complaint as if fully set forth herein. 96. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 11 97. At all times pertinent hereto, KODIAK legally occupied or was in control of the circumstances existing at Welch Street where the incident occurred. 98. KODIAK was a “landowner” of the area of Welch Street where the incident occurred as contemplated by C.R.S. §13-21-115. 99. At all times pertinent hereto, HIGGINS was an invitee as that term is contemplated by C.R.S. §13-21-115. 100. The condition and existence of the HOSE in the roadway on Welch Street was a dangerous condition on the roadway that physically interfered with the flow of traffic and presented an unreasonable risk of harm and injury to motorists, cyclists and others. 101. KODIAK knew or should have known of the dangerous condition existing on the roadway on Welch Street where the incident occurred. 102. KODIAK generally had a duty to use reasonable care with respect to any danger on the roadway of Welch Street where the incident occurred of which it knew or should have known. 103. KODIAK unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the HOSE in the roadway on Welch Street, thereby exposing HIGGINS to an unreasonable risk of physical injury or harm. 104. KODIAK’s conduct was an unreasonable failure to exercise reasonable care to protect against dangers of which it knew or should have known as contemplated by C.R. S. §13-21-115. 105. HIGGINS’ damages suffered as a direct and proximate result of KODIAK’s failure to exercise reasonable care in maintaining or managing the roadway on Welch Street where the incident occurred, as contemplated by C.R.S. §13-21-115, include but are not limited to: a. severe physical injuries; b. past and future medical expenses; c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. 12 VIII. FIFTH CLAIM FOR RELIEF (Premises Liability – as against BCH) 106. HIGGINS incorporates by reference paragraphs 1 through 105 of this Complaint as if fully set forth herein. 107. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 108. At all times pertinent hereto, BCH legally occupied or was in control of the circumstances existing at Welch Street where the incident occurred. 109. BCH was a “landowner” of the area of Welch Street where the incident occurred as contemplated by C.R.S. §13-21-115. 110. At all times pertinent hereto, HIGGINS was an invitee as that term is contemplated by C.R.S. §13-21-115. 111. The condition and existence of the HOSE in the roadway on Welch Street was a dangerous condition on the roadway that physically interfered with the flow of traffic and presented an unreasonable risk of harm and injury to motorists, cyclists and others. 112. BCH knew or should have known of the dangerous condition existing on the roadway on Welch Street where the incident occurred. 113. BCH generally had a duty to use reasonable care with respect to any danger on the roadway of Welch Street where the incident occurred of which it knew or should have known. 114. BCH unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the HOSE in the roadway on Welch Street, thereby exposing HIGGINS to an unreasonable risk of physical injury or harm. 115. BCH’s conduct was an unreasonable failure to exercise reasonable care to protect against dangers of which it knew or should have known as contemplated by C.R. S. §13- 21-115. 116. HIGGINS’ damages suffered as a direct and proximate result of BCH’s failure to exercise reasonable care in maintaining or managing the roadway on Welch Street where the incident occurred, as contemplated by C.R.S. §13-21-115, include but are not limited to: a. severe physical injuries; b. past and future medical expenses; 13 c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. IX. SIXTH CLAIM FOR RELIEF (Negligence – as against all Defendants) 117. HIGGINS repeats and repleads the allegations of paragraphs 1 through 116 of this Complaint as if fully set forth herein. 118. The Defendants owed a duty to HIGGINS to exercise reasonable care to protect her from dangers of which they knew or reasonably should have known. 119. At the date and location described above, the Defendants breached their respective duties of care. 120. The Defendants caused the HOSE to be present in the roadway on Welch Street where the incident occurred and failed to maintain the roadway in a reasonably safe condition. 121. Defendants failed to provide any warnings of the HOSE’s presence in the roadway and failed to institute any traffic control devices or other protective measures. 122. Defendants allowed the HOSE to remain stretched across the roadway with no warning signs or other indicators of its presence and created an unreasonable risk of harm to motorists, cyclists and others by doing so. 123. The dangerous condition of the HOSE in the roadway on Welch Street caused harm to HIGGINS. 124. HIGGINS’ damages suffered as a direct and proximate result of Defendants’ negligence include but are not limited to: a. severe physical injuries; b. past and future medical expenses; c. past and future pain and suffering, mental anguish and emotional distress; d. past and future loss of the normal pursuits and pleasures in life; 14 e. permanent physical impairment, disability, injury and disfigurement; f. past wage loss; and g. other compensatory damages, including property damage. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment in her favor and against Defendants for the special and general damages she sustained, including, but not limited to, past and future health care expenses, past and future pain and suffering, permanent impairment, emotional distress, loss of enjoyment of life, past and future wage loss, pre and post judgment interest, expert witness fees, costs, consequential damages, and for such other and further relief as this Court deems just and proper. VI. JURY DEMAND Plaintiff hereby demands trial by a jury of six persons of all issues so triable and submits the required jury fees with the Complaint. 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 Plaintiff’s Address: Christian Higgins 1440 Edora Road Fort Collins, Colorado 80525 15 CERTIFICATE OF ELECTRONIC FILING AND SERVICE I hereby certify that on June 29, 2023 the foregoing First Amended Complaint 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.