Weld County Bd. of County Com'rs v. Slovek

1309 upon need 25(b) review be served the Commis- We conclude gov that C.A.R. appeal, interpreted sion commence erns petition an service of a for review in a 8-74-107(2), (1982 Supp.), compensation section C.R.S. proceeding, workers’ and ser appeal mean is perfected that an upon vice the Industrial Commission may filing petition for review with by serving be effectuated the Attorney appeals twenty days notifi- within after Accordingly, General. we reverse and re Lowery, cation of the final decision. 666 mand these cases for reinstatement of the Filing ap- P.2d at 566. with the petitions for appeals. review the court of jurisdiction on peals was held to confer Judgments reversed and remanded to the Id. court. address merits of Even though statute involved appeals. requires herein “service of a copy

petition upon filing the commission and appeals,” with the

same section

8-53-119(3), (1985 Supp.), the stat C.R.S. remains to the proper

ute silent as method requirement

of service. We no discern upon

that service made the Com 25(b)

mission specifically itself when C.A.R. provides on party represent that service The BOARD OF COUNTY COMMIS ed counsel be made shall on counsel. WELD, SIONERS OF the COUNTY OF choose to adhere our conclusion Colorado, State of Petitioner-Defend Lowery copy peti that service of a ant, governed by tion is C.A.R. 25. (1985 8-53-128,

While section 3 C.R.S. Supp.), SLOVEK, requires Attorney Sr., Slovek, General to John P. P. John brought against Jr., Gary defend actions Indus- W. Slovek and Michael S. Slovek, only upon request trial Commission Respondents-Plaintiffs. Commission, director or reality of No. 84SC414. Attorney situation that the office of the represents regularly General the Industrial Supreme Colorado, Court of Commission in of this matters nature. En Banc. presumption representation of such does impose Aug. such an onerous burden Attorney office so General’s as to offend a

sense of Such is especially fairness. true the Attorney

when General’s office has

filed the motion to dismiss in case each

under consideration.

When legislature considered 8-53-119(3),

amendments to section lan-

guage prior containing statute specific

outline of procedures replaced

by a reference Appellate to the Colorado 8-53-119,

Rules. Ch. sec. spon-

Colo.Sess.Laws 311. The bill’s expressed adopt proce-

sor an intent to already existing

dural rules appellate Adoption

rules. of those rules included the

provisions contained in service C.A.R. concerning damages,

ment affirm the costs, award of remand case for proceedings. further I.

A trial to place July the took in following 1982. The statement of the facts comes findings from the oral by made the and, necessary district court where sup- David, Atty., Thomas 0. Weld Co. Lee D. plement findings, those the from evidence Morrison, Barker, Bruce T. Asst. Co. At- presented at trial. tys., Greeley, petitioner-defendant. Sr., Slovek, Plaintiffs P. John and his Anderson, Sandman, P.C., Calder & Gary sons, Slovek, Jr., Gary John P. W. Slovek Calder, Aurora, L. for respondents-plain- Slovek, and Michael jointly approxi- S. own tiffs. mately twenty-two acres of land in Weld County. The St. Vrain River runs from LOHR, Justice. through northerly west to east part the of granted We certiorari to review the mea The property. great majority their of damages sure utilized by the Colorado river, Sloveks’ land lies south of the and Appeals of for negligent injury Court Sr., Slovek, John P. resides on that of property in real County Slovek Board of property. county the The land owns south Commissioners, 697 (Colo.App. P.2d 781 of the river immediately and the west of 1984), and to determine whether the award upstream and from the Sloveks’ against costs of the Board defendant land, county operates gravel On its the a County County Commissioners Weld Apit. separates pond narrow dike in a the (county) in permissible. that case was Af gravel pit pond a from on the located Slo- ter a trial to the County the Weld veks’ and used them for fish- $15,- District Court awarded ing and other purposes. recreational costs, in damages, plus in favor of the Sometime in 1978 or county the cut owners, Sloveks, plaintiff property the and opening river its property the bank on against county upon county's the based the to allow water to drain river into the negligence allowing river water to enter gravel pond pit the that had formed in the pit gravel a on its overflow from 1, 1980, May high area. On water in pit, the and inundate much of Sloveks’ the St. Vrain a reversal of the property. The caused flow trial court assessed dam through ages upon poured based the the breach so that between water difference county’s pond the market into the values the from the Sloveks’ river. Eventually, county’s overflowed, flooding. pond before and after the The the Sloveks asserting, appealed, among poured separating and water over the things, dike county’s pond proper- should have mea the been Sloveks’ restoring sured the proper ty. cost of their The water overflowed the Sloveks’ ty existing fence, the pond condition away before and washed number flooding plus additional for their amounts of trees and some fish that had been enjoyment loss use addition, and pond. stocked the Sloveks’ discomfort; annoyance and their deposited the flood waters silt and debris agreed court of appeals large and remanded portion over of the Sloveks’ land pond, case to portion the district court for a redeter- Sloveks' eroded cross-appeal, pond, damaged mination On banks of the rejected county’s separating properties, also dike dike challenge containing pond and a third the award costs. modi the Sloveks’ fy affirm appeals’ judg the court of on the land. The trial court dike Sloveks’ Instead, negligent county was the trial court concluded that

concluded that reduc- it the manner maintained negli- value of the Sloveks’ in the river bank and that breach flood. gence flood of water caused resulted in the plaintiffs’ property.1 damaged the presented evidence no awarded, land; the cost Concerning the to be Slovek, Jr., county’s evidence John P. testified as to related fish, lost, engi- fencing ap- and an reduction in An trees and market value. appearing praiser appearing neer of the Sloveks on behalf on behalf $68,900 testified testified that that would between the Sloveks’ $119,300, depending property immediately on the extent of the flood was unknown, $56,000. pond, are For reasons sedimentation Sloveks’ appraiser the was not asked to state repair damage of the to the land caused all property engineer opinion the of the The also testi- as to value by high water. the $93,000 that court found would be after the flood. The trial fied an additional that “a appraiser’s actually was protect against fu- the valuation required riprap to {see property after the inci- of the of the river banks valuation ture erosion Sloveks’ dent,” persuaded this 1). apparently being of district court determined footnote The fence, by closing argument of the fish and trees fact the of the Slo- that the value $1,550. determining lost The court’s award for veks’ counsel.2 the value was However, flood, property prior issue of the trial these losses not at here. the rejected argument purchase price the noted of the Sloveks’ first that the $64,500 property that of the in 1978 was and that the Gary in his property rest the the land itself— W. Slovek had testified that of —to restoring opinion property prior of to cost of the the value the was the $130,000 $150,000.3 The existing prior the the condition to the flood. flood was why alleged the not in the future. One reason trial the Sloveks also that occur 1.In the award based county negligent trial court decided not to was in the manner the restoring property to its straightened portion on the costs of the previously the which it original only that the evidence vicinity condition was the St. Vrain River in their the that these costs was to the effect the breach and in the manner which they pre-tort would far exceed the value county’s flow of the river bank altered the the property. county emphasizes point The alongside As a result of river the Slovek land. appeals’ ruling. challenge to the court of alleged negligence, the Sloveks acts of the the when cost of work on river were claimed that their own banks dam- engineer’s river out of banks aged during high May subtracted period water ground repair total estimate —on the that the expressly The trial court found there 1980. county any has not been found to liable for liability county part no result- was damage may Sloveks’ have occurred straightening ing river. Con- from relationship river between restora- banks—the bank, cerning liabil- the cut in the river county may for which the be liable costs ity by the result found court to from action pre-tort significantly changes. Utiliz- damage caused when water flowed was ing figures, engineer’s cost county's pond and from the river into the then damage county has for which the been found can be in- onto the Sloveks' ferred, Thus it $36,100 ranges below the be liable from stated, —well although specifically it was $86,500— pre-tort finding court’s $16,500 as to value—to liability trial no on the that the court found pre-tort above value. damage high any done The Sloveks to the Sloveks’ river banks. water argu- transcript closing shows that The trial 2. appeal erred in argued the trial court reported were not transcribed ments were but finding Board was liable not alleged in the record. or included damage banks. The to the river signifi- P.2d at A appeals affirmed. 697 Gary restoring findings, Contrary portion of cost of the Sloveks’ to the trial court’s cant expert the Sloveks’ as testified to Slovek estimated that the $300,000 $350,- repairing engineer, represented flood was $130,000 the cost its value after the flood to the Sloveks’ river banks and $150,000. work that erosion would further to ensure “judicial quately proved, notice that court then took the court should award rising real period prices, was a estate such damages Id. also.” perhaps rising rapidly as but as the appeals affirmed the district felt, plaintiff who testified and I find that court’s award of plaintiffs. costs to the Id. the value of the before the inci- argued at 782. The county had that there $70,000.” dent was The trial court award- legal was no authority imposition for the ed the the difference in market costs in this appeals instance. The court of flood, $14,- value before and after disagreed, concluding “[wjhere pub- entering judgment, 000. In the court also entity lic sovereign waives its immunity plaintiffs. awarded costs to the suit, subject costs in the appeals The court of reversed the district same manner private litigant.” as a Id. damages, court’s award of for the follow- petition then filed a for cer- ing reason: tiorari, arguing that the court of plaintiffs’ contention that in reversing erred the award of where, here, private is a and in affirming the award of costs. We residence and plaintiffs’ interest is in begin with an examination of the issue of having restored, plaintiffs the property costs.4 repair” are entitled to “cost those damages proximately caused defend- II. negligence. ant’s The award of such re- 54(d) provides C.R.C.P. that “costs pair effectively costs will more return against Colorado, of state its officers plaintiffs position they in were agencies, imposed only shall be to the prior injury. to the permitted by extent law.” Counties are appeals 697 P.2d at court 783. The of also political state, subdivisions of the Beaver plaintiffs might concluded that the be enti- Meadows County v. Board Commis of damages tled to for the loss of the use and sioners, 928, (Colo.1985), 709 P.2d 932 so enjoyment and that John P. applies county the rule when a or its board Slovek, Sr., occupant, might as owner county litigant. is a commissioners damages annoyance

be entitled to for appeals discomfort. The The county argues court conclud- that there is no ed, however, imposition unclear law that it was that authorizes the of court record against county “whether the considered costs in this court case. In availability damages plaintiffs.” particular, county of these notes that while the Accordingly, Act, Id. appeals Immunity re- Colorado Governmental -118, (1982 manded the that 10 matter so district 24-10-101 to C.R.S. & §§ damages Supp.), permits court could for 1985 expressly person “award those re- pair proximately damages costs caused defend- recover in tort from the state and, circumstances, negligence, ant’s if the court deter- under certain the act does mines provide imposition that for loss of use for the of costs enjoyment annoyance means, against and for argu discom- the state. This Sr., Slovek, proceeds, fort to John ment been ade- that an award of costs can county ing (see appeals, argued 4. In the court of also river to the Sloveks’ banks fn. finding 1) outrageous the trial court erred in that the with the and a claim of conduct on the substantially complied county, and that the trial court erred provisions notice Immunity Colorado Slovek, Governmental Sr., concluding in P. that John was not Act, 24-10-109, (1982), 10 C.R.S. entitled to emotional distress and for county compliance had waived strict expenses medical to the related incident. The requirement. ap- with the notice The court of appeals the trial court on all affirmed affirmed, 782, peals county at 697 P.2d and the these issues. Id. at 783. petition Sloveks filed a petition did not certiorari. In the include this issue for certiorari, raising the emotional dis- appeals, Sloveks outrageous tress and issues. We de- conduct argued also court erred in that the trial dismiss- petition. nied that ing negligence their additional claims concern- 1314 38, (emphasis accompany in an 193 at 572 P.2d at 134 award Colo. an argues original). as one us. our such

action Zwick excep discussion Dept. Lee v. Colorado Recently, dicta, “ordinary tions to the rule” was Health, (Colo.1986), 221, 718 228-29 P.2d squarely we should when considered propriety imposing examined the any conclude that oth negli on the state when loses a costs er is inap than diminution market value brought action under the Govern gence addition, propriate. contends Immunity mental Act. We concluded exceptions if there can even entity public pursu has been sued “a rule, ordinary none Act taxed in con costs ant not agree situation. We do against judgment entered nection with the present ease limited dimi opinion in Lee Id. at 229. Our it.” nution of market value. dispositive this issue. injury The measure of costs. con- affirm the award of We not invariable.” Colo “is real appropriate mea- sider next issue Bridge rado & Construction Co. v. sure of Preuit, 107, 109, 224 P. 223 75 Colo. (1924) (in department). As noted III. Zwick, above, quotation goal A. is to compensating owner re owner for actual loss suf imburse that Simpson, v. In Zwick 193 Colo. 572 Colo, Simpson, fered. Zwick at action, (1977), trespass we were P.2d 134; Bridge & Colorado Con 572 P.2d at concerning the with an issue confronted Preuit, Co. v. struction 75 Colo. appropriate measure of way, 223. Worded another “the P. at property, and we concluded as fol- to real attempts put primarily law of torts lows: position nearly injured person in a as noted, As the prior possible equivalent position his after the is ordi value before and (Second) of the tort.” Restatement Torts narily applied a rule to measure (1979). 901 comment § to real omitted.] [Citations early part In goal compensato two decisions Since the of the law facts similar century, which involved ry reimbursement suffered, we stated that the actual loss course, diminution of may, in measure of was the there be instances Mogote-Northeastem Con value. or restoration cost be a market Gallegos, Ditch Co. v. (1) 70 solidated Colo. more measure such as 550, 552, 668, (1922); Mustang value, has no 203 P. 669 property where Reservoir, Hissman, v. Canal & Land Co. Big Mining Five Co. v. Hand as in Left 310-11, 800, (1911); Co., 308, 545, (1923); P. 49 112 P. 801 Ditch 73 216 719 Colo. Colo. Rapid Springs Transit see also Colorado (2) repairs already have been where Co., Albrecht, 201, v. Colo.App. Brighton Railway Co. made, 22 Fort v. Ditch 957, (1912). 462, (1926); 204-05, We soon Big Five 123 P. 959 79 246 P. 786 Colo. Big Mining however, Co., Five Co. v. noted, su Mining Co. Hand Ditch v. Left Co., 547, 545, Hand Ditch (3) 73 Colo. 216 pra; a re where Left (1923), 719, rule “is P. 720 that this cently acquired private residence and being cases in having application, there prop universal interest restored, justice.” not do ef which it would erty repair costs will more others, recognized position case fectively him to the he return damages, including as in Bobrick measures prior injury, different restoring property to its 375, Taylor, v. 822 the cost of 171 467 P.2d Colo. condition, may appropriate un (1970). original

1315 standard, certain circumstances if the actual loss der a Restatement comment relies on truly compensated, is to be al such as the suffered factors nature of the owner’s acknowl though consistently particular, we have not use of the whether —in potential edged for deviation from the the property personal owner uses as a residence,5 “ordinary commonly rule” and have de whether the owner has some way very general personal in a the cir having fined reason for condition, deviation. permit original cumstances that will its or both—and the na See, Simpson, injury Zwick v. 193 Colo. at ture e.g., particular, whether —in 38, 134; Taylor, P.2d at 171 reparable 572 Bobrick v. and at cost. what 375, 379, 822, (1970) (in (Second) 467 P.2d 824 Colo. Restatement com Torts 929 § department); County factors, extents, Dandrea v. Board ment b. These varying Commissioners, 343, 348-49, 144 Colo. 356 have also been considered of significance 893, (1960) (in department); 896 P.2d Fort commentators and courts Co., 462, Brighton v. Ditch 79 Colo. 465- See, have considered the issue. e.g., Zwick 786, 66, (1926) (in P. 787 department); 38, 246 v. 193 Simpson, Colo. at 572 at P.2d 134; Bridge States, & v. F.Supp. Colorado Construction Co. v. United 242 Maloof 183-84 Preuit, 109, 223; 175, 75 224 (D.Md.1965); Colo. P. at see Mikol v. Vlaho Co., 93, Freel v. Ozark-Mahoning poulos, 1000, also 208 Ariz. 86 340 P.2d 1001 93, (D.Colo.1962) (applying (1959); 98-99 F.Supp. Co., Arras v. Columbia 52 Quarry law); 560, Engeln, 192, 195-96, 651 Ill.App.3d Colorado Gladin v. Von 10 Ill.Dec. 367 905, 907 (Colo.App.), 580, (1977); P.2d cert. denied N.E.2d 583-84 General Out (Colo.1982); but Advertising see State v. door Realty Colorado Co. v. La Salle Nicholl, 84, 86-87, 888, 247, 141, 150 P.2d Corp., Ind.App. Colo. 370 141 218 N.E.2d (1962) (in (following (1966); department) 889 Mus 148-52 Samson Construction Co. language Brusowankin, tang suggesting 458, Reservoir 218 Md. 147 A.2d rule). 430, (1958); Investments, soundness as an absolute To the “L” 434-37 Ltd. 319, Mustang Lynch, extent Reservoir Mo- v. 212 Neb. 322 N.W.2d (1982); proposi gote-Northeastem Serpico, stand for 654-56 Huber v. N.J. Super. 329, (1962); only appropriate 176 A.2d Jen Etlinger, in tort kins v. 78 A.D.2d 432 N.Y. to real (1980) (mem. decision); D. value, they S.2d is diminution market are no Dobbs, Handbook on the Law Remedies longer sound and have for some not been (1973). 5.1 at 311-18 time. § 929(l)(a) (Sec Section Restatement enu the factors ond) provides Torts appropri (Second) that “in an merated in Restatement of Torts important ate case” owner should be 929 comment b are in deter to mining allowed choose as the of dam for appropriate measure whether case is ages application either diminution of market value “cost of restoration” rather cost of or “the restoration that has been than “diminution market value” as may reasonably The Re be incurred.” measure of for tortious conclude, however, explicitly statement does not what is land. con define that the However, justi in “appropriate governing “appropri case.” what is an siderations fying departure the deviation from the market value ate case” for from the market Simpson, repair In one in use costs as the measure of Zwick we stated that particu repair in which the be an limited to stance cost of no means such facts. lar, "recently appropriate measure of is when the whether the has been recently acquired private acquired" "is a resi itself a definitive factor. having repair be dence and the interest is in Nor can it be said that costs can never proper proper restored.” 193 Colo. at 572 P.2d at measure when the ty was the as a used 134. This factual situation in Bobrick v. is not used residence or when it is purpose. Taylor approved in we an award of dam as a residence for some other ages 376-78, repair. own based on the cost of 171 Colo. at Each must be evaluated under its case 467 P.2d at 823-24. circumstances. of the trial court susceptible reduc to the discretion standard are

value retrial, guided by can the considera- and that no formula to a set list opinion applied in produce litmus-test cer tions discussed devised that will may develop on retrial. flexibility pro the evidence that retain the tainty yet Indeed, the in cases. all duce fair resulte if this court contends that examples of efforts numerous reflect cases the cost of restoration to be con allows themselves to extricate courts damages, fair sidered a yielded fair rigid standards that bonds place cap on the ness demands that we birth, gave them cases that results argues recovery of such costs. The unjust conse perceptibly that lead but not exceed the costs should facts. applied to different quences when property, of the see diminution of the value Dobbs, 5.1 on Remedies Handbook § See 1001, or, Vlahopoulos, 340 P.2d at Mikol v. the selection of prefer to leave at 311.6 We least, pre-tort exceed the should not damages in measure of appropriate “L” Invest see of the trial the discretion each case to ments, 322 N.W.2d at 656. Lynch, Ltd. v. previ by the considerations informed Dobbs, generally Handbook on Reme See court must take The trial ously discussed. dies, at 317-18. 5.1§ goal of reim principal guidance as its difficulty rejecting We have no for losses actual bursement precisely limit offered. It is be the first suffered, Simpson, 193 see Zwick v. ly in market value is not cause the reduction must but 572 P.2d at Colo. at adequate measure of many instances an damages that exceed vigilant not to award is, not an suffered —that it is the loss punish inflict compensation and goal closely approximates amount that most encourage eco ment on the defendant required to return the what expenditures nomically remedial wasteful courts pre-tort position owner —that the trial court plaintiff. Finally, by the of res plaintiffs to recover the costs allow for its decision the reasons must articulate To appropriate circumstances. toration appellate re effective so as to facilitate recovery amount that does limit the to an view. of market value not exceed tlie diminution case, court did present In the allowing the purpose undermines Rather, it con- not exercise this discretion. “L” alternative measure See by the diminution sidered itself bound Investments, 322 N.W.2d at Lynch, Ltd. v. Therefore, we test. 656; Dobbs, on Remedies 5.1 Handbook the court at 317-18. reversed, contrary to the court but compelling Although a more case the cost of not direct that appeals, we do restricting the award of made for Rather, can be with- applied. repair measure be pre-tort value of the land—on costs to the restora- of a cost of precluding the use out should not have theory that defendants leave tion standard irrep- they pay would pay more than appropriate measure the selection realty alike. not tend to treat all interests that no one It seems obvious compen- They may, full in an effort to afford likely com- to be sation, physical dam- treat two cases of even these interests pensate to sill cases, differently, approaching case of age quite particular, realty. older ones Some differently quite from a damage to structures recognize one that more than often failed to damage shrubbery. Sometimes this one case of more than kind of interest and hence silentio; approach practiced sub but flexible damage might involved in real kind explicit recognition very considerable generally there is as- property Such cases cases. or desir- today rule is sufficient that no one single, universal measure sumed that a realty-dam- devised, damages in as a measure of realty if able age even for had to cases, probably now most courts many and adequately compensate it failed to approach. single older inflexible tendency avoid the to seek cases. This older Dobbs, Remedies on the Law practice Handbook largely given way D. rule has now Courts, omitted). (footnotes (1973) today at 311 approach. do 5.1 a more flexible damage adopt arable total decline to B. —we as an limit either. If invariable concluding Besides that the Sloveks are costs, reparable, and the al- costs, entitled to recover restoration though greater value, original than are not court of appeals held they further are wholly in relation to that unreasonable val- entitled to loss of recover for use and en- ue, and if the evidence demonstrates that joyment of property and that occupant- payment likely of market value will not Slovek, Sr., owner John P. is entitled to adequately compensate owner annoyance recover for and dis- personal special reason, some for comfort, if those losses “have been ade- conclude that the selection of the cost quately proved.” 697 P.2d at 783. The proper of restoration as the measure of county argues allowing a damages would be within the limits of owner to recover under all of these theories triple trial court’s discretion. not amounts double if recovery. true, although This need not be care must Obviously, to the that a property extent taken to ensure that awarded is allowed costs owner to recover of resto- compensate for these various do losses for greater that are ration than the diminution separate injuries, and avoiding distinct mul- value, possibility in market there is the tiple recovery for same injury. monetary the owner will receive a windfall 929(1) (Sec Section of the Restatement choosing by the property to restore and ond) of Torts states that instead, by selling profiting to the extent for real injury awarded should that restoration costs recovered exceed the (a) compensation include the diminution problem diminution of market value. restoration, of market value or costs of different, except degree, is no if restora- above; (b) as described “the loss of use of costs are tion allowed in amount exceed- land”; (c) annoy and “discomfort and ing pre-tort property. as an occupant.” ance [the landowner] possibilities These suggest the need for adopted The court of first the Re by careful evaluation trial court to as- analysis statement in Miller v. Carnation any damages sure that allowed excess of Co., 1, 4-5, Colo.App. 564 P.2d either are truly two measures (Colo.1977), cert. denied and followed the reasonably necessary achieve the cardi- Restatement and in this Miller Slo objective making nal whole. Commissioners, County vek Board of summary, we conclude that the selec- P.2d at 783. We not considered tion provision the Restatement before. property requires tort to real Restoring pre-tort posi- the owner to his by exercise of informed discretion awarding represent single that no measure of dam- compensating the cost of restoration —or ages and arbitrary no limit the amount owner for the loss market value permissible applied can be to limit the exer- awarding instead of restoration costs— cise that discretion. The trial court im- nothing compensate does the owner for properly considered bound to itself the property, any, the loss of the use of if diminution of value here and did test during injurious incident or because of Therefore, exercise discretion. temporary interference with use caused judgment must be reversed. continuing the incident until the appeals’ turn next repaired. In order to make the rulings concerning possibility of addi- whole, compensation paid owner tional of the use the loss for this loss of if such loss can be use enjoyment annoy- and for by competent established evidence. ance discomfort suffered John P. Slovek, Sr., the injury enjoyment as a result of use and loss of the normally conceived of (Second) Torts 929 comment statement ability to § loss of the owner’s

terms when the ability to e. It has been said that owner loss of an rent or the receive general occupant, the enterprise the land is not an carry on an economic recovery only for the is that is allowed hypotheti- of a rule measured terms reason, the loss of rental val- objective measure of For this of rental value. cal loss ue, nonoccupant-owner cannot recov- recov- and a appeals held here that suf- any annoyance or discomfort limited to the er for loss of use “is ery for the damage. property by reason of the property occa- fered value of the loss of rental Dobbs, Id.; on Reme- 783. see also Handbook by invasion.” 697 P.2d at sioned Why must al- 5.3 at 333-34. this commentators dies some courts and obvious, and the distinc- ways be so is not recognized property certain that while have scrutiny value, may is com- not bear as that term has no rental however, here, understood, have no reason to the intrinsic na- case. We monly due definitively. of its settle this issue property or because ture of use, spe- property may goal remains the is clear is that What cial, “use value” to the owner subjective injured landowner for compensation of the Dobbs, Handbook on Rem- occupant. See result from the any all losses that and (and cited and n. 10 cases 5.3 at 333 edies § liable, is for which the defendant conduct therein). An should be allowed owner proper- including the use of the the loss of or loss of any interference with recover for injuries in the any separate ty, any, if from anoth- that results this “use value” discomfort, physi- annoyance or nature of satis- if that loss can be er’s tortious action possible In this is cal illness.8 in concrete terms.7 factorily demonstrated findings court’s to tell from the district silently rejected the Sloveks’ whether it addition, injury to the personal of use and for for loss claims form of discomfort landowner in the annoyance and discom- enjoyment and for harm, physical annoyance, even sickness ground fort on separate result of the may a distinct and opinion of an proven or because been and com damage. If reasonable property to such issue, not entitled that the Sloveks were presented is petent evidence of law. On re- compensation as a matter Re- be awarded. compensation should also injuries those tire not event when county argues are not a short-lived that the Sloveks immediately reparable. the loss of the use entitled continuing property lack of because their their plaintiffs’ carefully own the evi- is due scrutinize use of The courts should proper- repairs compensation is allowed not to undertake decisions dence to ensure damaged separate ty it in its condition. and dis- not to use those losses that are certainly factors to be considered there is an obvi- are situation in which These tinct. One overlap duplication determining Sloveks are entitled to potential whether the for an ous the defend- elects to for loss of use caused be when a would But, factors that also diminution of market actions. based on ant’s receive did evidence that the owners for loss of rental be relevant include and also seeks value, so to restore the in the market value not have the resources and the reduction attempts loss of used evidence that some extent the that it could be reflects to damaged permanent property’s condition— to a to use the rental value due situation, swimming attempt possibly plaintiffs’ relevant injury. such as Another unsatisfactory wholly here, damaged pond claim of inter- an owner’s would be when —were noneconomic, subjective with this "use In connection and thus discontinued. with a ference annoyance, continu- dis- argument, contends that "a arises in value” person’s the own- ing interests suffered interference with comfort or inconvenience conceptually finding impairment of use of affected are two interests essential for a er. The personal. Obvi- continuing proprietary, one nature of the property.” distinct —one While consideration, however, "use value" ously, the more the again a factor interference considerations, always grounded be a in noneconomic it must is no reason that there be- possibility the distinction imagine greater possible to factor. It is definitive recovery types could the two the use of tween interference with situation in which flowing injuries blurred. caused mand, expressly damages should determine measure of in this the court case.” While just- is evidence to whether there sufficient the court stated that it would make a damages grounds. ify ruling an award on definitive at that time and that it arguments to would listen on the issue at a

C. trial, point in later the the trial court did county that if af The contends we state: appeals’ ruling firm the a that I just my general will make state- [B]ut different measure of should be ment, my general gener- view of the case, applied county in this the be should al measure of to injury to land given opportunity present an to evidence before, is the value the difference be- pertinent on remand that new tween value before the argue standards. Sloveks Now, after injury. value you are as improper give

would be the county an acquainted well many, as I am with the necessary other chance introduce many Supreme decisions of the Colorado present evidence record is point, on the Court and there are varia- sufficient a correct determination tions, circumstances, and under certain the county. repair. includes the cost of On hand, In where the Simpson, repair greatly Zwick v. the trial court had awarded exceeds the value of the I my based on appro- restoration costs. The court of doubts that that would be an reversed, short, holding priate that under my impression measure. In proper general circumstances the measure repair of dam that the of the use cost to ages was the guide diminution market a it’s diminution property. ap value of the The court of of the.property. value peals ordered that a of dismissal The plain- trial then noted that the ground be plaintiff entered on that the tiffs’ expert had testified as to cost of a presented any concerning had not evidence “far exceeds the diminution of market value. 193 Colo. property,” and that the court had “some 38, 572 P.2d at We affirmed the court question in mind under circum- those appeals’ proper conclusion that the mea proper stances it would the cost sure of was that case the dimi repair.” The trial court never deviated nution of market value. 193 Colo. at 38- from this view of the measure 572 P.2d at 134. we conclud damages. Following these statements ed that “it inequitable would be to fore the rest of the evidence possibility recovery close the because presented by plaintiffs concerning dam- plaintiff present failed to evidence on ages to do with the diminution of the theory which the trial court In the de- inapplicable.” felt was 193 Colo. at case, fendant’s evidence of dam- Therefore, P.2d at 134. held we that the ages introduced concerned diminution of plaintiff given opportunity should on the market value. present remand to evidence the diminu argue that the Sloveks trial tion of market value. Id. ruling precluding never made a definitive case, In present county argues presenting from con evidence that it position plain- the same as the repair. cerning cost of strict except tiff in v. Simpson, Zwick sense, Zwick, true. But we did on seeks new trial remand litigant com not state that order evidence resto- pletely foreclosed an order of the court agree. ration costs. We presenting evidence on the alternative presentation During plaintiffs’ on new trial n Rather, attorney damages may required. for the asked ruling the court “for a concluded that a new trial general case when the three Zwick alternatives necessary in that rule. theory on present evidence a failed to felt was the trial court damages “which “the persuaded I am trial court not

inapplicable.” at 572 P.2d at 193 Colo. Majority did not exercise discretion.” [its] the case. present true of 134. This is also judge op. at When the trial 1316. commu inequitable, it would be We conclude that understanding of nicated his Colorado law record, allow the on not to majority op. on the subject, see at 1319- evidence on what opportunity told that trial counsel was the court intended the decisions of the on “to follow appeal determined has been point,” the Supreme on and Colorado Court damages appropriately measure of proper damages that the measure of “de in the discretion considered pends on Trial record the circumstances.” court, is con damages measure that trial also judge expressed trial at The clearly trary trial court con to what the share, skepticism, propri I about the tri applicable throughout the sidered to be ety of restoration where the al. repair significantly exceeds the value of the Accordingly, we affirm judge the The stated that Id. although appeals, for different court the issue ruling he was on but that not herein, remand expressed and reasons his of what the impression law was. court this matter to be returned My Record examination of on the issue of a new trial pleadings record reveals that the and the must measure only. The trial court diminution-of-market- alternatives to the with the consistent again until value issue addressed were opinion. expressed in this views for a motion new trial. See Sloveks’ Edwards, (Alas P.2d 625 282 Andersen v. ERICKSON, J., part in dis- concurs and 1981). ka part. sents in short, dis- trial court exercised its J., VOLLACK, in and dis- part concurs the fact that the cretion in view of Sloveks ROVIRA, J., joins in the part sents in and prove proved neither nor offered partial and dissent. concurrence pre- they anything but the were entitled to sumptively correct measure Justice, ERICKSON, concurring in part establishing The threshold burden dissenting part: in applicability of the alternatives Zwick III of I dissent from Part respectfully of Torts was not met. and the Restatement agree opinion. While I majority acknowledges majority The opinion, majority I do much of the damages falls within damage postured issue is in a believe the trial court. Unfortunate- discretion of the trial permits us direct the manner that relating to diminution ly, the evidence remand to consider recognized flaws market value suffers in Part III. I concur with set forth issues opinion majority and Justice both the all other issues. majority view, in my dissent. Vollack’s correctly majority mand whether or not there is sufficient each involved case. trial sit damages. evidence to award such If need ting as the trier of fact or in instructing be, testimony taken, further may be but jury, should if need not the trial court can make appro- damages, of either the of diminution mar priate findings and conclusions from the ket value as a result of the presently record as it exists. tort, prop cost of restoration of the erty pre-tort disagree condition. I rulings by Because certain the court opinion’s majority failure limit during trial on plaintiffs’ based request total to the market value of the for a as applicable determination property at the time of the tort. The bet damages, measure of I would concur ter rule would majority opinion Part III. C. of the determine its discretion whether there county should be an opportunity afforded restoration, can be and to award such dam put testimony on as to the cost of resto- ages only if the cost restoration is less Furthermore, ration. based the lack of equal than or to the difference between the record, testimony evidence should be value of the land before and after the oc produced to establish the value of prop- currence of the injury. v. Mikol Vlaho erty prior to flood and the value poulos, (1959); 86 Ariz. 340 P.2d 1000 after the flood. I the mat- v. Blanton and Co. Transamerica Title ter should be remanded retrial Co., Ariz.App. Insurance 536 P.2d question only, and the determi- (1975). nation cost of repair damages either damages, long diminution of as value If majority opinion is applied with no amount does exceed the cap on the limit of value difference between market awarded, an unwarranted windfall to the the time injured party may purpose result. The inju- market value of the after the compensation for of property the invasion ry- rights place injured is to party in a pre-tort position. In no instance should recovery of damages in excess the mar I am authorized to state that Justice ket value immediately pre joins in this concurrence dis- ROVIRA ceding plain allowed. The sent.

tiff greater should not be able recover partial amount destruction than one

could recover for total destruction than one

could recover for total destruction of the

subject If the ex

ceeds the market would be the

difference between the market value of the

property just and the after the “L” In

vestments, Lynch, Ltd. Neb. (1982).

322 N.W.2d 651 notes occurred, as reflected in the errors which trespass general measure of do not warrant the record before this hearing of market value. trial. I action is the diminution a further or a new would issue, P.2d court on the Simpson, 193 Colo. 572 affirm the trial Zwick v. majority I on all other and concur with (1977). exceptions there are 133 While issues. rule, prove must general one showing facts he is entitled to invoke Justice, VOLLACK, concurring recovery. measures of alternative dissenting part: Shott, 189 P. Colo. See Hoover majority II of the Here, Part (1920). the Sloveks failed I concur with I of costs. affirming the award opinion application of one of establish a basis III., B., respectfully dissent to Part A. majority opinion in Part III. B. con- majority opinion permit which would siders whether the would enti- amount restoration cost to exceed tled to for loss of use enjoy- ment, of market annoyance, diminution value. resulting discomfort acts of ruling defendant. The I with majority opinion findings trial court lacks selection matters, and the trial should each lies case within the discre expressly findings determine on re- tion of trial based upon the facts

Case Details

Case Name: Weld County Bd. of County Com'rs v. Slovek

Court Name: Supreme Court of Colorado

Date Published: Aug 25, 1986

Citation: 723 P.2d 1309

Docket Number: 84SC414

Court Abbreviation: Colo.