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HomeMy WebLinkAbout2024CV31043 - Zaffos v. City of Fort Collins - 03 - Complaint and Jury Demand1 District Court, Larimer, Colorado 201 LaPorte Avenue, Ste 100 Fort Collins, CO 80521 Phone: (970) 498-6100 ↑ Court Use Only ↑ Linda Zaffos Plaintiff, vs. City of Fort Collins Defendant 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. Division: PLAINTIFF’S COMPLAINT AND JURY DEMAND COMES NOW, Plaintiff, Linda Zaffos, by and through undersigned counsel, VanMeveren Law Group, P.C., Karl W. Hager appearing, and states as her Complaint against Defendant as follows: I. PARTIES 1. At all times pertinent hereto, Plaintiff Linda Zaffos (“Zaffos”) was and is a private individual and resident of New Jersey, with a mailing address of 19 Emerson Drive, Morganville, NJ 07751. 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 November 25, 2024 2:52 PM FILING ID: 4BF9B46A5D74D CASE NUMBER: 2024CV31043 2 II. JURISDICTION AND VENUE 3. Jurisdiction is appropriate in this Court pursuant to C.R.S. § 13-1-124. 4. Venue is appropriate in this Court pursuant to Colorado Rules of Civil Procedure 98(c). 5. ZAFFOS complied with the jurisdictional notice requirement to the CITY under C.R.S. § 24-10-109. 6. 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. 7. The injuries suffered by ZAFFOS are the direct result of a dangerous condition created by the CITY that physically impeded the flow of pedestrian traffic. 8. The CITY’s duty to ZAFFOS to keep the sidewalk safe is non-delegable. 9. The CITY, as part of a landscaping project, had raised, concrete “tree bed” planters (the “PLANTER”) along the sidewalk of College Avenue to be used for landscaping. 10. The PLANTER in question was positioned partially in the walking path on the sidewalk of College Avenue in front of the Aggie Theater on the street side, and was not being used for landscaping at the time of the INCIDENT. The warning cones and spray paint were not present on the date of the INCIDENT. EXHIBIT 1 - Photographs 11. The PLANTER, positioned in the walking path of pedestrians at night without any warning, was a road condition that created a chance of injury, damage, or loss which exceeded the bounds of reason. 12. The PLANTER in the walking path of pedestrians on the sidewalk constituted an unreasonable risk to the health and safety of the public. 13. The PLANTER in the walking path of pedestrians on the sidewalk was known to exist, or should have been known to exist in the exercise of reasonable care. 14. Plaintiff’s injuries are the result of a physical condition of a public facility. 15. The dangerous condition should have, and would have, been known by the CITY if the Defendant had exercised reasonable care. 16. The dangerous condition was proximately caused by the acts or omissions of the CITY through maintaining the sidewalk in front of the Aggie Theater on College Avenue during the landscaping project. 17. It was reasonably foreseeable that: (a) pedestrians such as ZAFFOS would use the sidewalk on College Avenue at night, (b) it would be difficult for a pedestrian to see the PLANTER 3 at night and (c) that serious injury, such as the injuries suffered by ZAFFOS, could result from the dangerous condition. 18. The PLANTER, in its condition on December 20, 2023, existed for a period of time and was such a nature that, in the exercise of reasonable care, it would have been discovered. 19. The knowledge of the dangerous condition of any of the CITY’s subcontractors is imputed to the CITY. 20. The CITY knew or should have known of the dangerous condition at the time of the INCIDENT, as the PLANTER was thereafter leveled to flush with the walking surface as part of the CITY’s continued landscaping project. 21. The PLANTER was on a sidewalk under the CITY’s control, operation and maintenance and was planned to be remediated as part of the landscaping project. III. GENERAL ALLEGATIONS 22. At all times material to the allegations of this Complaint, the CITY owned, controlled and/or maintained the sidewalk on College Avenue, the shared-use roadway located in Fort Collins, Larimer County, Colorado. 23. College Avenue and its sidewalk is located within the municipal limits of the CITY. 24. Prior to December 20, 2023 the CITY was engaged in a landscaping project (the “PROJECT”) on the sidewalk of College Avenue, which included leveling an unused, concrete tree planter (the “PLANTER”) located on the street-side of the sidewalk on College Avenue. 25. The CITY did not undertake any measures to advise the public of the risks due to the PLANTER being located on the sidewalk in the walking path of pedestrians with no markings or additional lighting. 26. The CITY did not place signs or foot traffic control devices to alert the public of the dangerous condition prior to the INCIDENT. 27. Following the INCIDENT, the CITY painted the sidewalk to alert pedestrians of the dangerous condition and thereafter leveled the PLANTER to flush with the walking surface. EXHIBIT 2 - Photographs 28. The dangerous condition was unreasonable. Warning signs, additional lighting, walking path diversions or the like could have been used while the CITY waited to complete the PROJECT rather than just leaving the unmarked, obtruded PLANTER in the walking path. 4 29. On December 20, 2023, ZAFFOS was walking on the southbound sidewalk of College Avenue near the Aggie Theatre. 30. As ZAFFOS was walking southbound on the eastern sidewalk of College Avenue, she was unaware of the presence of the vacant PLANTER positioned in the walking path of the sidewalk, impeding the flow of pedestrian traffic. ZAFFOS encountered the PLANTER unexpectedly and was unable to avoid it. 31. As ZAFFOS was walking the poorly lit sidewalk, her right foot unexpectedly caught the inside wall of the PLANTER. She tripped and fell violently to the sidewalk. ZAFFOS’ right knee contacted the sidewalk first, followed by her torso, face and teeth. 32. ZAFFOS was unaware of the presence of the PLANTER on the sidewalk prior to the INCIDENT on December 20, 2023. 33. The sidewalk on College Avenue and the PLANTER positioned on it in front of the Aggie Theatre are located in an area which the Defendant, their employees, representatives or agents regularly accessed on or before December 20, 2023. 34. Defendant failed to post any warnings or other indicators of the presence of the PLANTER and failed to establish any pedestrian traffic control devices in the area where the INCIDENT occurred prior to December 23, 2023. 35. The presence of the PLANTER in the walking path on the sidewalk constituted a physical condition of a public facility that physically interfered with the flow of pedestrian traffic. 36. The presence of the PLANTER in the roadway presented unreasonable risks to the health and safety of the public. 37. Leaving the PLANTER exposed in the walking path of the sidewalk on College Avenue with no warnings, additional lighting, pedestrian traffic control devices or other indicators created a foreseeable chance of injury, damage and/or loss which exceeded the bounds of reason. 38. The CITY knew of the presence of the PLANTER on the sidewalk or should have known of the PLANTER’s presence on the sidewalk through the exercise of reasonable care. 39. The PLANTER’s presence in the walking path of the sidewalk, without any warnings or pedestrian traffic control devices utilized, was proximately caused by the negligent act or omission of the Defendant in maintaining the roadway, the sidewalk located on the eastern side of College Avenue. 40. As a result of the incident, ZAFFOS suffered serious, permanent bodily injury, including, but not limited to, damage/injury to several of her teeth with injury to other areas of her mouth and facial bones, her chest and her right knee. ZAFFOS broke several teeth, 5 damaged her bridge and injured her ribs, nose, lip and right knee during the course of the fall. 41. As a result of injuries sustained in the incident, ZAFFOS required urgent dental and medical care, as well as significant ongoing dental care. 42. As a direct and proximate result of the incident, ZAFFOS sustained and will continue to sustain damages as more specifically alleged below. IV. FIRST CLAIM FOR RELIEF (Premises Liability – as against the CITY) 43. ZAFFOS incorporates by reference paragraphs 1 through 42 of this Complaint as if fully set forth herein. 44. At all times pertinent hereto, the provisions of C.R.S. §13-21-115 were in effect. 45. At all times pertinent hereto, the CITY owned, leased or otherwise legally occupied College Avenue and the sidewalk where the INCIDENT occurred. 46. At all times pertinent hereto, the CITY controlled the sidewalk on College Avenue where the INCIDENT occurred. 47. The CITY was a “landowner” of the area where the INCIDENT occurred as contemplated by C.R.S. §13-21-115. 48. At all times pertinent hereto, ZAFFOS was an invitee as that term is contemplated by C.R.S. §13-21-115. 49. The condition and existence of the PLANTER in the walking path of the sidewalk on College Avenue was a dangerous condition on the sidewalk that physically interfered with the flow of pedestrian traffic and presented an unreasonable risk of harm and injury to pedestrians. 50. The CITY knew or should have known of the dangerous condition existing on the sidewalk of College Avenue where the INCIDENT occurred. 51. The CITY generally had a nondelegable duty to use reasonable care with respect to any danger it created on the sidewalk of College Avenue where the INCIDENT occurred of which it knew, or it should have known. 52. The CITY unreasonably failed to use reasonable care with respect to the danger presented by the condition and existence of the PLANTER in the walking path of the sidewalk on College Avenue, thereby exposing ZAFFOS to a foreseeable and unreasonable risk of physical injury or harm. 6 53. 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. 54. ZAFFOS’ damages suffered as a direct and proximate result of the CITY’s failure to exercise reasonable care in constructing, maintaining or managing the sidewalk/roadway on the sidewalk of College Avenue 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. other compensatory damages. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment in her favor and against Defendant 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, pre and post judgment interest, expert witness fees, costs, consequent ial 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 25th day of November 2024. 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 7 Plaintiff’s Address: 19 Emerson Drive Morganville, NJ 07751. 8 CERTIFICATE OF FILING I hereby certify that on November 25, 2024 the foregoing Complaint was filed with the Court via ICCES according to the Colorado Rules of Civil Procedure. /s/ Jenn Schossow Jenn Schossow Legal Assistant, VanMeveren Law Group, P.C.