2018 CO 10
Colo.2018Background
- Smokebrush Foundation (and two individual plaintiffs) own property adjacent to city-owned former coal gasification site in Colorado Springs; plaintiffs operate a wellness center and alleged health harms from contamination.
- Historical coal gasification (ca. 1890–1931) produced coal tar that contaminated subsurface soils; the city later dismantled the plant and built a Gas Admin Building; buildings were idled and demolished in 2013 with asbestos abatement.
- Plaintiffs sued the City alleging injuries from (1) airborne asbestos released during the 2013 demolition and (2) subsurface migration of coal tar pollutants from the historical gas plant, asserting negligence, nuisance, trespass, etc.
- The City moved to dismiss under the Colorado Governmental Immunity Act (CGIA), claiming immunity; plaintiffs invoked CGIA waivers: § 24-10-106(1)(c) (dangerous condition of a public building) for asbestos, and § 24-10-106(1)(f) (operation and maintenance of a public gas facility) for coal tar.
- District court denied dismissal; the Colorado Court of Appeals reversed in full. The Colorado Supreme Court granted certiorari and affirmed in part (asbestos claims dismissed) and reversed in part (coal tar claims may proceed), remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asbestos releases during the 2013 demolition fall within the CGIA waiver for a "dangerous condition of any public building" (§ 24-10-106(1)(c)). | Asbestos release resulted from City’s negligent construction/maintenance of the public facility/site; waiver applies. | Demolition is not "constructing" or "maintaining" a facility under CGIA definition; waiver does not apply. | Held: Demolition of a building in its entirety is neither "constructing" nor "maintaining" for § 24-10-103 definitions; waiver under § 24-10-106(1)(c) does not apply — asbestos claims dismissed. |
| Whether coal tar contamination from historical coal gas plant is covered by the CGIA waiver for "operation and maintenance of any public . . . gas facility" (§ 24-10-106(1)(f)), given the plant’s operations predated the CGIA. | The coal gas plant was a public gas facility; the subsurface contamination is a continuing injury resulting from its operation/maintenance and was discovered after CGIA enactment, so waiver applies. | Waiver cannot be applied retroactively to conduct that occurred before the CGIA’s effective date; City enjoyed immunity for pre-CGIA operations. | Held: The coal gas plant qualifies as a public gas facility and the contamination "resulted from" its operation/maintenance. Because plaintiffs’ causes of action accrued after the CGIA and the contamination was continuing, § 24-10-106(1)(f) waives immunity — coal tar claims may proceed. |
| Whether applying the § 24-10-106(1)(f) waiver to pre-enactment operations would be impermissibly retroactive. | Plaintiffs: the continuing migration/discovery after enactment makes application prospective; CGIA waiver governs injuries accruing post-enactment. | City: Applying waiver to historical conduct is retroactive and contrary to presumption against retroactivity. | Held: Court treats the relevant tort as continuing (migration discovered post-CGIA), so applying the waiver is not retroactive; waiver applies. |
Key Cases Cited
- Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (framework for resolving CGIA jurisdictional motions/hearings)
- Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo. 2001) (construction/maintenance definitions include alterations during facility’s service life)
- Evans v. Board of County Commissioners, 482 P.2d 968 (Colo. 1971) (abrogation of common-law sovereign immunity prospectively only)
- Hoery v. United States, 64 P.3d 214 (Colo. 2003) (continuing trespass/nuisance: ongoing migration/presence of contamination can create a continuing cause of action)
- Jilot v. State, 944 P.2d 566 (Colo. App. 1996) (interpretation of "gas facility" in CGIA context — gas meaning gaseous fuel for heating/illumination)
- Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000) (CGIA immunity provisions construed strictly; waivers construed broadly)
- Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo. 1994) (historical discussion of sovereign/governmental immunity)
- City of Colorado Springs v. Powell, 48 P.3d 561 (Colo. 2002) (plaintiff bears burden to show waiver of immunity under CGIA)