May 25, 2019

Colorado Court of Appeals: Governmental Immunity May Be Waived for Operation or Maintenance of Public Facility Performed by Independent Contractor

The Colorado Court of Appeals issued its opinion in Lopez v. City of Grand Junction on Thursday, July 12, 2018.

Negligence—Colorado Governmental Immunity Act—Waiver—Independent Contractor—Maintenance Work.

The underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Gas from the ruptured line leaked into the surrounding ground and a sewer main and migrated to a house, resulting in an explosion. Lopez, Pierson, and Gimmeson (plaintiffs) brought negligence claims against the City of Grand Junction (City) for their resultant personal injuries and property damage. Plaintiffs’ complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines. As pertinent here, the complaint alleged that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light; during this maintenance project Apeiron ruptured a gas line; and the leaking gas resulted in the house explosion. The complaint further alleged that Apeiron’s conduct should be imputed to the City. The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA). The court granted the motion.

On appeal, plaintiffs contended that the district court erroneously concluded that Apeiron’s conduct in maintaining the traffic light was not attributable to the City for purposes of waiving the City’s immunity under C.R.S. § 24-10-106(1)(f). For purposes of the immunity waiver in C.R.S. § 24-10-106(1)(f), a public entity maintains a public facility even if it hires an independent contractor to perform the maintenance. Here, plaintiffs met their burden to establish a waiver of immunity as to their negligence claims against the City.

Plaintiffs next asserted that the district court erred when it dismissed their negligence claim against the City as to its operation and maintenance of its sewer main. Plaintiffs asserted that the City’s failure to keep the main free of invasive roots was a failure to maintain that waived liability under the CGIA. Based on the record, plaintiffs failed to meet their burden to prove a waiver.

The dismissal of plaintiffs’ negligence claim against the City as to its operation and maintenance of its sewer main was affirmed. The dismissal of the negligence claims against the City for Apeiron’s maintenance work on the traffic light was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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