HomeMy WebLinkAbout2017CV30903 - ILSE WESTPHAL V. CITY OF FORT COLLINS, ET AL - 015 - CITY'S MOTION TO DISMISS PLAINTIFF'S COMPLAINTDISTRICT COURT, LARIMER COUNTY,
COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
Phone: 970-498-6100
______________________________________________
Plaintiff: ILSE G. WESTPHAL
v.
Defendants: ANTHONY JOHN JANSA; JANSA
TRUCKING, LLC, a Colorado Limited Liability
Company; JANSA TRUCKING, LLC, a North Dakota
Limited Liability Company; THE CITY OF FORT
COLLINS, a Colorado municipal corporation
______________________________________________
Attorneys for Defendant City of Fort Collins
Peter C. Middleton, Esq., #32335
HALL & EVANS, L.L.C.
1001 17th
St., Suite 300
Denver, CO 80202
303-628-3300
303-628-3368 / Fax
middletonp@hallevans.com
John Duval
Deputy City Attorney
City of Fort Collins
300 LaPorte Avenue
Fort Collins, CO 80522-0580
970-416-2488
jduval@fcgov.com
COURT USE ONLY
__________________________
Case No. 2017-CV-030903
Div. 3C
DEFENDANT CITY OF FORT COLLINS’
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
PURSUANT TO C.R.C.P. 12(b)(1) and C.R.S. § 24-10-106
Defendant, City of Fort Collins, by and through its counsel, submits its Motion to Dismiss
Plaintiff’s Complaint pursuant to C.R.C.P. 12(b)(1) and C.R.S. § 24-10-106.
DATE FILED: November 30, 2017 3:34 PM
FILING ID: 9D3F1C7C6FAD6
CASE NUMBER: 2017CV30903
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INTRODUCTION AND SUMMARY OF RELIEF SOUGHT
Defendant, City of Fort Collins (“the City”), seeks dismissal based on governmental
immunity. Plaintiff’s claims lie in tort and the City has not waived immunity. Therefore, the
City’s motion should be granted and the lawsuit against it should be dismissed.
LEGAL STANDARDS
Under the Colorado Governmental Immunity Act (“CGIA”), 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.” C.R.S. § 24-10-106(1). The CGIA establishes governmental
immunity from suit in tort actions, but it waives immunity under specific circumstances, including
(but not limited to) (1) when there is a dangerous condition of a public building; and (2) when
there exists a dangerous condition of a public highway, road, or street which physically interferes
with the movement of traffic. C.R.S. §§ 24-10-106(1)(c) and –106(1)(d)(I).
Governmental immunity is an issue of subject matter jurisdiction. Dennis v. City & County
of Denver, 2016 COA 140 (Colo. App. 2016) citing City of Colorado Springs v. Powell, 48 P.3d
561, 563 (Colo. 2002); Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. 2000). When
a plaintiff sues a governmental entity and that entity moves to dismiss for lack of jurisdiction, the
plaintiff has the burden of demonstrating jurisdiction and that immunity has been waived. Padilla
ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176, 1180 (Colo. 2001); Tidwell ex rel. Tidwell v. City
& County of Denver, 83 P.3d 75, 85 (Colo. 2003). Any factual dispute upon which the existence
of jurisdiction may turn is for the district court to resolve after weighing the evidence, finding facts
and entering conclusions of law. Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384 (Colo.
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1997). An appellate court will not disturb the factual findings of the district court unless they are
clearly erroneous, meaning there is no support for it in the record. Id. If there is no evidentiary
dispute, governmental immunity or waiver of immunity is a matter of law, and the trial court may
rule without a hearing. Padilla, 25 P.3d at 1180.
UNDISPUTED FACTS (FOR PURPOSES OF THIS MOTION)
1. On November 22, 2016, Plaintiff was waiting for a Fort Collins bus at a bus stop along the
north side of East Harmony Road west of Zeigler Road. Plaintiff’s Complaint at ¶¶ 4, 23.
2. Plaintiff asserts that various equipment and trucks were situated off of the north side of, or
in the northernmost lane of, Harmony Road, and that several traffic cones had been placed on
Harmony Road closing portions of the northernmost lane. Id. at ¶¶ 17-28.
3. There was no curb or gutter between the bus stop shelter and the roadway. Id. at ¶ 25.
4. The bus stop shelter had an advertising panel on its west side acting as a wind break, which
obstructed the view to the west. Id. at ¶ 34.
5. Plaintiff left the bus stop and took steps toward Harmony Road to look for her bus. Id. at
¶ 35.
6. Meanwhile, Anthony Jansa was driving a semi-tractor/trailer. Id. at ¶¶ 4, and 7-12.
7. Jansa pulled to the north side of the roadway to prepare to back into a construction zone
east of the bus stop. See Traffic Accident Report, attached as Exhibit 1.
8. Jansa backed his semi-tractor/trailer and ran over the Plaintiff, who was in the roadway,
causing injury. Exhibit 1; Plaintiff’s Complaint at ¶¶ 4, 9, 36, 39, 51-53, 59-60 and 68.
9. There was no flagman or lookout or audible backup warning for the Jansa semi-
tractor/trailer. Id. at ¶¶ 37, 38, 76, 85 and 87.
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10. Jansa told officers that he observed Plaintiff at the bus stop and had no idea why she would
walk into traffic. He had not been able to see behind him. Exhibit 1.
11. Based on his investigation, investigating officer Drew Jurkofsky determined that Plaintiff
walking into the roadway was the proximate cause of the collision. Exhibit 1.
ARGUMENT
The Plaintiff’s first six claims for relief are asserted against Jansa and Jansa Trucking. The
Plaintiff’s claims against the City are found in Plaintiff’s seventh and eighth claims for relief. In
the seventh claim, attempting to argue that waiver of immunity pursuant to C.R.S. § 24-10-
106(1)(c), Plaintiff alleges that her injuries resulted due to the City’s negligence in constructing or
maintaining a public building, to wit, the bus stop shelter. Id. at ¶ 116. In the eighth claim,
attempting to argue waiver of immunity pursuant to C.R.S. § 24-10-106(1)(d)(I), Plaintiff alleges
that her injuries resulted due to the City’s negligent construction or maintenance of Harmony Road
which created a dangerous condition which physically interfered with the movement of traffic. Id.
at ¶¶ 131-132, 135. Plaintiff’s creative allegations aside, they fail to overcome the CGIA. These
statutory exceptions to governmental immunity do not apply under the facts of this case and the
City therefore has governmental immunity entitling it to dismissal.
A. Nothing in Plaintiff’s Complaint supports a finding that Plaintiff’s injuries
were caused by construction or maintenance of the bus stop shelter.
Plaintiff attempts to assert a combination of various factors which ultimately amount to a
“dangerous” public building, i.e., a dangerous bus stop shelter. Her attempt is not unlike the
plaintiff’s attempt in Padilla, who argued that the placement of a stroller combined with the use
of a storage room without a window or line of sight created a dangerous condition in a public
building, resulting in an injury to a minor. Padilla, 25 P.3d at 1179. In affirming the lower courts’
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decisions granting immunity and finding no waiver, the Colorado Supreme Court in Padilla ruled
that the plaintiff failed to allege sufficient jurisdictional facts associating her injuries with actions
or omissions of the public entity in constructing or maintaining the public building. Id.
The same holds true here. Plaintiff alleges that the bus stop shelter, purportedly a public
building, was in a dangerous condition. What Plaintiff does not do, however, is link her use of the
bus stop with construction or maintenance of the bus stop shelter. There is nothing in Plaintiff’s
Complaint supporting a finding that her injuries were caused by construction or maintenance of
the bus stop shelter. It is indisputable that there was no construction or maintenance being done
to the bus stop shelter at the time of the incident whatsoever.
Going one step further, Plaintiff was not even at or in the bus stop shelter when she was
injured. She admittedly departed from the bus stop, stepping into the roadway to see if her bus
was about to arrive. While she alleges injury due to a combination of factors such as the design
of the bus stop (referencing a panel obstructing her view to the west, and the lack of a curb or
gutter between the bus stop shelter and roadway) and the conduct of third-party Jansa, these
allegations are jurisdictional insufficient. Padilla, 25 P.3d at 1180-81 (waiver of immunity under
Section 106(1)(c) applies only if alleged injuries occurred as a result of (1) 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 exists 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 public building or facility).
Plaintiff’s injuries had nothing to do with any construction or maintenance of the bus stop
or bus stop shelter. Therefore, the waiver exception found in Section 106(1)(c) does not apply.
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B. Nothing in Plaintiff’s Complaint supports a finding that Plaintiff’s injuries
were caused by construction or maintenance of Harmony Road that physically
interfere[d] with the movement of traffic.
A plaintiff must show as a threshold jurisdictional matter that the condition upon which the
plaintiff bases her tort claim existed because of the government’s act or omission in maintaining
or constructing the condition rather than the government’s design of the condition. Swieckowski,
934 P.2d at 1384. Here, Plaintiff’s injuries had nothing to do with the construction or maintenance
of the roadway. There was no construction or maintenance of the roadway being done. Therefore,
the waiver exception found in Section 106(1)(d)(I) does not apply.
Plaintiff does not even allege that construction or maintenance of Harmony Road or that
the actual physical condition of Harmony Road is what caused or contributed to her injuries.
Instead, Plaintiff alleges that third-party Jansa “created a dangerous and hazardous condition on a
public highway” by backing up without a “flagman”, “lookout” or “audible backup warning.” See
Plaintiff’s Complaint at ¶¶ 36-38, 53. Plaintiff also alleges that there was no “curb or gutter
between the bus stop shelter and the roadway.” Id. at ¶ 25. Plaintiff alleges traffic cones were
placed in Harmony Road, but that no cones, tape, signage, or other items indicated a closure of the
bus stop shelter. Id. at ¶¶ 19, 21. Plaintiff further alleges that the City was “establishing a
construction site that encompassed” Harmony Road. Id. at 30. Even if true, these allegations are
insufficient because Plaintiff is not asserting that there was a dangerous condition caused by
construction or maintenance of the roadway, but that the dangerous condition was caused by a lack
of warnings and negligent design of temporary traffic control.
Failure to warn and failure to close cannot serve as the basis for finding a dangerous
condition and, thus, a waiver of governmental immunity. Medina v. Colorado State Hwy. Patrol,
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35 P.3d 443, 449 (Colo. 2001); see also Swieckowski, supra (failure to post a sign warning of an
end of widened portion of pavement); Willer v. City of Thornton, 817 P.2d 514 (Colo. 1991)
(failure to post sign warning of a dip in pavement); Szymanski v. Department of Highways, 776
P.2d 1124 (Colo. App. 1989) (failure to post sign warning of blind spot); see also C.R.S. § 24-10-
106(1)(d)(I) (the phrase “interferes with the movement of traffic” shall not include traffic signs,
signals, or markings, or the lack thereof).
Plaintiff’s allegations that the City was “establishing a construction site” or that the Utilities
department was “undertaking a construction project” are mere attempts to muddy the waters. Even
accepting the Plaintiff’s allegation as true, the allegations concede that it was the City’s design of
temporary traffic control, not actual construction or maintenance of the roadway itself, or the
underground utility facilities for that matter, which caused her injuries.
In Estate of Grant v. State, 181 P.2d 1202, 1206-1207 (Colo. App. 2008), the Colorado
Court of Appeals made clear that no immunity is waived when an injury occurs due to the design
of temporary traffic control. There, the plaintiff argued, and the trial court initially agreed, that
the State had waived immunity in negligently maintaining a highway by failing to employ
temporary concrete barriers and failing to require a contractor to employ adequate safety devices
and methods of traffic separation during construction. The defendant had argued that there may
have been a design inadequacy, but not negligent maintenance. The Court of Appeals agreed with
the defendant and reversed the trial court, finding that the design of a chosen traffic control plan,
even if negligent, was not a waiver of immunity. Id. Here, no construction or maintenance was
being done at the time of the incident to either the roadway or to the bus stop shelter. It is only the
design of the traffic control and lack of warnings which Plaintiff claims were negligent.
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At the heart of Plaintiff’s Complaint are allegations of negligent design of traffic control,
failure to post warnings and failure to close the bus stop. But Colorado case law makes clear that
such allegations are jurisdictionally insufficient. Reading the statute as it was meant to be read,
governmental immunity applies and no waiver applies, as a matter of law.
CONCLUSION
Defendant City of Fort Collins therefore requests that this Court enter an Order granting
its motion and dismissing Plaintiff’s Complaint against it, with prejudice, pursuant to C.R.C.P.
12(b)(1) and C.R.S. § 24-10-106; and for all other appropriate relief deemed warranted.
Dated: November 30, 2017
/s/ Peter C. Middleton
Peter C. Middleton, Esq., #32335
of HALL & EVANS, L.L.C.
ATTORNEYS FOR DEFENDANT
CITY OF FORT COLLINS
/s/ John R. Duval
John R. Duval, Esq., #10185
Deputy City Attorney
of City of Fort Collins
ATTORNEY FOR DEFENDANT
CITY OF FORT COLLINS
In accordance with C.R.C.P. 121 § 1-26(7), a printed copy of this document with original signatures is being
maintained by the filing party and will be made available for inspection by other parties or the Court upon request.
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th
day of November, 2017, I electronically filed and served
the foregoing DEFENDANT CITY OF FORT COLLINS’ MOTION TO DISMISS
PURSUANT TO C.R.C.P. 12(b)(1) and C.R.S. § 24-10-106 via the Colorado Courts E-Filing
system upon the following:
David M. Herrera, Esq.
HERMS & HERRERA, L.L.C.
3600 South College Avenue, Suite 204
Fort Collins, CO 80525
david@hhlawoffice.com
Counsel for Plaintiff
James M. Meseck, Esq., #33021
Brandon O. Hawkins, Esq., #49069
White and Steele, P.C.
600 17th
Street, Suite 600N
Denver, CO 80202
jmeseck@wsteele.com
bhawkins@wsteele.com
Counsel for Anthony J. Jansa and
Jansa Trucking, LLC
Original Signature on File
/s/Julie Eaglesham
Julie Eaglesham