February 19, 2018

Colorado Supreme Court: Petitioners’ Tort Claims for Airborne Asbestos Injuries Not Barred by Colorado Governmental Immunity Act

The Colorado Supreme Court issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Monday, February 5, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

In this case, the Colorado Supreme Court reviewed the Colorado Court of Appeals division’s conclusion that petitioners’ claims against respondent city were barred under the Colorado Governmental Immunity Act (CGIA). Petitioners asserted a number of tort claims for alleged injuries resulting from airborne asbestos released during demolition activities on the city’s property in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property. The division concluded that each of these claims was barred under the CGIA.

The supreme court first addressed whether petitioners’ asbestos-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(c) for injuries resulting from the dangerous condition of a public building. The CGIA defines a “dangerous condition,” in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in “constructing or maintaining” such facility. C.R.S. § 24-10-103(1.3). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the court concluded that the dangerous condition of a public building exception does not apply.

Next, the court addressed whether petitioners’ coal tar-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(f) for injuries resulting from the operation and maintenance of a public gas facility when, as here, petitioners’ cause of action accrued after the CGIA’s enactment but the operation and maintenance of the facility that caused the injury occurred before that enactment. Because petitioners have established that (1) the facility at issue was a public gas facility, (2) petitioners’ claimed injuries from the coal tar contamination resulted from the operation and maintenance of that facility, and (3) petitioners’ coal tar-related claims accrued after the CGIA’s enactment, the court concluded that under the plain language of C.R.S. § 24-10-106(1)(f), the city waived its immunity for these claims.

Accordingly, court affirmed the portion of the division’s judgment requiring the dismissal of petitioners’ asbestos-related claims but reversed the portion of the judgment requiring the dismissal of petitioners’ coal tar-related claims.

Summary provided courtesy of Colorado Lawyer.

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