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HomeMy WebLinkAbout2023CV30276 - Higgins V. V. City Of Fort Collins, Et Al. - 025 - City Motion To Dismiss DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Ave., Ste. 100 Fort Collins, CO 80521 (970) 494-3500 Plaintiff: CHRISTIAN HIGGINS v. Defendants: CITY OF FORT COLLINS, C&L WATER SOLUTIONS, INC., SUNBELT RENTALS, INC., KODIAK FIELD SERVICES, LLC, and BCH COURT USE ONLY SERVICES, LLC Andrew W. Callahan, #52421 acallahan@wicklaw.com WICK & TRAUTWEIN, LLC Case No.: 2023CV30276 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 Division: 4C DEFENDANT CITY OF FORT MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Andrew W. Callahan of Wick & Trautwein, LLC, and this Motion to Dismiss pursuant to C.R.C.P. 12(b)(1) and the Colorado Governmental Immunity Act as follows: Certificate of Conferral Undersigned counsel conferred with counsel for Plaintiff, who opposes the motion. I. I NTRODUCTION allegation that she sustained injuries when she ran over a water hose while on a nighttime bike ride on Welch Street near Edora Park in the City of Fort Collins. A picture of the hose at the location of the incident is attached hereto as Exhibit 1. Plaintiff alleges that the City hired Defendant C&L Water Solutions, Inc. to perform sewer bypass services for ongoing construction. (Complaint, ¶10). There was a sewage spill and C&L subcontracted with Defendants Sunbelt, Kodiak and BHC Services to assist in remediating the sewage spill. (Complaint, ¶¶ 11-13). Defendant Sunbelt connected the hose (Exhibit 1) to an approved fire hydrant and laid it across Welch Street, without notifying traffic control or the City in any way. (See Email from Christopher Larson to City, Exhibit 2). Plaintiff then struck the hose laid out by Defendant Sunbelt and was injured. Of the five claims contained in her Complaint, Plaintiff raises two claims against the City. The first is a claim for premises liability and the second is a claim for negligence. For the reasons set forth below, both claims against the City should be dismissed pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction II. S TANDARD OF R EVIEW 1. Motion to Dismiss An affirmative defense raised for lack of jurisdiction over the subject matter of a case may court of any authorPeople In Interest of P.K., 411 P.3d 963, 968 (Colo. App. 2015). E.g. Maphis v. City of Boulder, 504 P.3d 287, 291 (Colo. 2022). Id. 2. The general assembly . . . recognizes that the state and its political subdivisions provide essential public services and functions and that unlimited liability could Page 2 of 8 disrupt or make prohibitively expensive the provision of such essential public services and functions. The general assembly further recognizes that the taxpayers would ultimately bear the fiscal burdens of unlimited liability and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens. * * * It is further recognized that the state, its political subdivisions, and the public employees of such public entities, by virtue of the services and functions provided, the powers exercised, and the consequences of unlimited liability to the governmental process, should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article. C.R.S. § 24-10-102 (emphasis added). In light of these policy considerations and principles, the general assembly has strictly limited the potential liability of public entities, including cities. C.R.S. § 24-10-103(5). Except for in an instance of waiver as expressly described y shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may -10-106(1) (emphasis added). 3. Trinity Hearings Martinez v. Weld Cty. School Dist. RE-1, 60 P.3d 736, 739 (Colo. App. 2002). he defense of sovereign immunity, the court must immediately suspend discovery unrelated to sovereign immunity and decide that issue. § 2410City & Cty. Of Denver v. Dennis¸ 418 P.3d 489, 494 (Colo. 2018). ich the existence of jurisdiction may turn is for Ferrel v. Colo. Dept. of Corrections, 179 P.3d 178, 183 procedures employed in Trinity Broadcasting of Denver v. City of Westminster Finnie v. Jefferson Cty. School Dist. R-1¸79 P.3d 1253, 1259 (Colo. 2003). Page 3 of 8 III. M OTION 1. The City is Immune to Suit Under the Colorado Governmental Immunity Act. By its plain language, the CGIA applies to cities, such as Defendant City of Fort Collins. From the outset, Plaintiff fails to expressly argue that the City waived its immunity or to refer to the CGIA whatsoever. ty should be dismissed for lack of subject matter jurisdiction. 2. The City Did Not Waive Its Immunity. pleadings do not establish that the City waived its immunity. A public entity waives immunity if highway, road or street which physically interferes with the movement of traffic . . . of any public highway, road, street, 24-10- 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 act or omission of the public entity. . ..-10-103(1.3). Interpreting this same subsection regarding waiver, the Colorado Supreme Court stated last must which exceeded the bounds of reasonMaphis, 504 P.3d at 292 (emphasis added) (quoting City & Cty. Of Denver v. Dennis¸ more than a foreseeable risk of Id. at 291- Page 4 of 8 totality of the circumstances presented by the undisputed evidence as to whether that particular Id. at 292. a. The Hose Itself Was Not a Dangerous Condition. In Maphis, the Court of Appeals and the Supreme Court of Colorado both held that a two- and-a-half inch sidewalk deviation did not constitute a dangerous condition, even though the City of Boulder itself had already designated the deviation as a hazard and planned to remedy the issue. Id. Similarly, in Dennis, 418 P.3d 489 (Colo. 2018), a claimant suffered injuries related to cracks and ruts in the road at an intersection. Just days before the incident, t Engineer had inspected the site, testifying that he considered the state of the road to be . Id. at 493. The Colorado road \[or condition\] could cause an injury, but that risk is reasonable. The CGIA requires more than a foreseeable risk of harm; it requiId. at 497. In the instant case, But, on its own, a hose lying on the street does not create a chance of injury exceeding the bounds of reason. It is true, as may be illustrated such a hose may foreseeably pose some risk. Still, the hose was a relatively small obstacle, situated in its location for a limited period of time, and placed there in the course of completing a necessary City project. The existence of the hose itself does not carry an unreasonable risk of injury to hold otherwise would subject public entities such as the City of Fort Collins to an unreasonably high risk of liability. This is especially true in this case, where the City was, reasonably, unaware of the fact that the hose had been left on the street (with or without accompanying signage), as discussed below. Page 5 of 8 b. The Failure to Post Signs Is Not a Dangerous Condition. Furthermore, the failure to post warning signs, as alluded to in Paragraph Complaint, even if true, does true that, in theory, the use of caution signs or cones may reduce the risk of injury. However, the legislature has explicitly granted immunity for claims of negligence based on failure to post As used in this section, the phrase physically interferes with the movement of traffic shall not include traffic signs, signals, or markings, or the lack thereof. C.R.S. § 24-10-106(1)(d)(I). Pursuant to § 24-10-106(1)(d)(I), the failure to post warning signs cannot serve as the basis for finding a dangerous condition and thus a waiver of sovereign Mason v. Adams, 961 P.2d 540, 546-47 (Colo. App. 1997). establish that the City waived immunity. c. Plaintiff Fails to Establish That the City Knew because Plaintiff does not state any facts establishing that the City knew or should have known about the hose. To establish that a dangerous condition existed in accordance with C.R.S. § 24-10- 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 its location. Nor does she argue that the City received any reports or complaints about the hose prior to her accident; that it was such a large discrepancy as to be immediately obvious to the City or to other members of the Page 6 of 8 public; or that she otherwise believes that any City employees actually knew about the hose. It Defendants (nor would such a claim be permitted under the CGIA). As a result of the lack of detail Complaint, Plaintiff does not establish that the City knew or reasonably should have known about the hose and therefore waived immunity. no substantial reason why it should have known about it. (See Exhibit 2). d. Even if the City had some knowledge of the hose at issue, it would still be protected under sovereign immunity because it was not the proximate cause of the hose being placed on the roadway. C.R.S. § 24-10-103(1.3) defines dis 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. The test for proximate or \[l\]egal cause depends largely on the question of the foreseeability of the harm. Scholle v. Ehrichs, 519 P.3d 1093, 1104 (Colo. App. 2022), as modified (Sept. 15, 2022), cert. granted, 22SC639, 2023 WL 2904486 (Colo. Apr. 10, 2023). To prove proximate cause, the plaintiff must establish that the harm Id. Here, Plaintiff does not allege that the City is the proximate cause of the hose being laid across the roadway. In fact, Plaintiff alleges that the City contracted with one or more subcontractors who placed the hose in the location where Plaintiff struck it. The facts support this conclusion. (See Exhibit 2). Page 7 of 8 under C.R.S. § 24-10-103(1.3), and thus there is no subject matter jurisdiction to assert this claim against the City. IV. C ONCLUSION WHEREFORE, Defendant City of Fort Collins asks this Honorable Court to dismiss the claims brought Immunity Act and Rule 12(b)(1). th Respectfully submitted this 8 day of June, 2023. WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Attorneys for Defendant City of Fort Collins CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION was filed with the Court via Colorado Courts E-filing th System (CCES) this 8 day of June, 2023 and served on all counsel of record. /s/ Jody L. Minch ___ Page 8 of 8 6.We apologize for this, as we BOTH thought you were all in the know on this. Of course, you are held harmless and not liable and we will defend you if this escalates. 7.From now on, I will be sure to follow up on the City’s requirements regarding these issues, as I did think it was odd that there was no communication from the City on this. So, I should have followed through. Our hope is that Sunbelt does the right thing and settles with her out of court, but we are unsure of her/sunbelts direction at this point. I have asked Joe (sunbelt) for updates with no success. Our insurance is ultimately wrapped into this so we are covered either way. Let me know if there is anything else I can do or information you may require. Again we are very sorry about this mis-communication on this issue. Thank you for your time! Christopher Larson Chief Operations Officer \[t.sidekickopen08.com\] MAINTENANCE · TRENCHLESS · EXCAVATION 12249 Mead Way Littleton, CO 80125 (303) 791-2521 Office (720) 980-6501 Mobile clarson@clwsi.com www.clwsi.com \[clwsi.com\] This message is only for the intended recipient(s) and is confidential in nature . Employees are required to refrain from making defamatory statements and refrain from infringing or authorize any copyright infringement or any other legal right that may be protected by legal privilege. C & L Water Solutions, Inc does not accept liability in respect to communications that are contrary to company policy or outside the scope of the employment of the individual concerned. In addition, the employee responsible will be liable for damages. Employees who receive such an email must notify their supervisor immediately. If you receive this email in error, please notify the sender immediately via e-mail if you have received this e-mail by mistake; then, delete this e-mail from your system. EXHIBIT 2