City and County of Denver v. Crandall

• Decision Date: 25 June 2007
• Docket Number: No. 06SC424.,06SC424.
• Citation: 161 P.3d 627
• Parties: The CITY AND COUNTY OF DENVER, Colorado d/b/a The Denver International Airport, a Colorado political subdivision, Petitioner v. Terri CRANDALL and Joann Hubbard, individually, and on behalf of all others similarly situated, Respondents.
• Court: Colorado Supreme Court

161 P.3d 627

The CITY AND COUNTY OF DENVER, Colorado d/b/a The Denver International Airport, a Colorado political subdivision, Petitioner v. Terri CRANDALL and Joann Hubbard, individually, and on behalf of all others similarly situated, Respondents.

No. 06SC424.

Supreme Court of Colorado, En Banc.

June 25, 2007.

Hall & Evans, LLC, Chris A. Mattison, Andrew D. Ringel, Andrew J. Carafelli, Denver, Colorado, Attorneys for Respondents.

Fognani & Faught, PLLC, John D. Fognani, Brian D. Gonzales, Kristina I. Mattson, Denver, Colorado, Attorneys for Respondents.

Justice HOBBS delivered the Opinion of the Court.

We accepted certiorari in Crandall v. City & County of Denver, 143 P.3d 1105 (Colo. App. 2006), to determine whether the court of appeals erred in upholding the trial court's judgment denying the City and County of Denver's ("Denver's") C.R.C.P. 12(b)(1) motion to dismiss this tort action for failure to provide a timely notice of claim pursuant to section 24-10-109(1), C.R.S. (2006), of the Colorado Governmental Immunity Act ("CGIA").¹

Two United Airlines employees who worked as customer service representatives at Concourse B of Denver International Airport ("DIA") since its opening in 1995, Terri Crandall ("Crandall") and Joann Hubbard ("Hubbard"), filed a complaint against Denver in July of 2003, each claiming personal injury and damages due to environmental contamination at DIA that included noxious odors, sewage leaks, and mold contamination. Their complaint also sought certification of a class composed of "all persons exposed to the environmental conditions at the airport from 1995 to the present."

In accordance with our decision in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), the trial court held an evidentiary hearing to determine whether it had subject matter jurisdiction over the action. In its findings of fact, the trial court determined that Crandall and Hubbard had experienced symptoms such as dermatitis, headaches, nausea, shortness of breath, bronchitis, and pneumonia, commencing in 1995 and continuing through the time of their notice of claim in 2002. During periods when they were being treated for medical conditions and were away from Concourse B their symptoms abated, but when they returned to work at Concourse B their symptoms recurred. By 1999 Crandall and Hubbard had each discovered and attributed their injury to environmental contamination at DIA, but they did not file their joint notice of claim with Denver until August 2, 2002.

At the C.R.C.P. 12(b)(1) hearing both parties contended that our decision in Gallagher v. Board of Trustees for University of Northern Colorado, 54 P.3d 386 (Colo. 2002), favored their position. In Gallagher we held that the continuing violation doctrine cannot be used to remedy an untimely filing under the CGIA. Id. at 392-93. But, the trial court construed Gallagher in favor of the claimants' position that (1) our ruling in Gallagher barred only those claims for injuries that occurred outside of the CGIA 180-day period and (2) each time the claimants' symptoms recurred constituted a separate injury under the CGIA.

Thus, the trial court refused to dismiss the complaint. Because the claimants' symptoms had recurred within the 180-day period applicable to the 2002 notice of claim, the trial court reasoned that every time the symptoms recurred constituted a separate injury for CGIA purposes. The court of appeals agreed. We disagree.

We hold that the complaint, the C.R.C.P. 12(b)(1) evidentiary hearing, and the trial court's findings of fact in this case demonstrate that each claimant, by 1999, discovered her injury attributable to general environmental contamination occurring at DIA's Concourse B. Crandall and Hubbard did not file their joint notice of claim with Denver until August of 2002, well beyond the 180-day CGIA requirement. At the Trinity hearing, for the purpose of establishing subject matter jurisdiction, they did not identify a separate and discrete occurrence that resulted in an injury they discovered and for which they made a claim within the 180-day notice period.² The trial court should have granted Denver's C.R.C.P. 12(b)(1) motion to dismiss.

Accordingly, we reverse the judgment of the court of appeals and remand this case to that court with directions to return this case to the trial court for dismissal of this action.

I.

Both Crandall and Hubbard have been employed at DIA as customer service representatives for United Airlines since DIA opened in 1995. Crandall continues her employment at DIA to date; Hubbard ceased her employment there as of February 2002. Both Crandall and Hubbard worked primarily at the boarding gates in Concourse B of DIA; they also worked in the "Red Carpet Club" rooms of Concourse B.

There have been a number of environmental problems at DIA since it opened. For instance, there have been sewage problems from backed-up toilets; clogged floor drains; areas of mold growth where water leaks; and the spillage or leakage of various chemicals. Denver has adequately remedied most of the environmental problems. Nevertheless, the DIA maintenance department continues to receive about one noxious odor call per week from Concourse B; when maintenance personnel respond, they typically cannot locate the smell or it has dissipated before they can detect it.

An investigation report in May of 1999 commissioned by United Airlines for its DIA facilities reported a three-year history of poor air quality and mold growth:

The Denver facility has had a history of indoor air quality concerns for at least the last three years. The main area of concern is the basement training operations. This basement area has a history of water leaks and mold growth on the walls and possibly under the carpeting. The area also has a history of at least one flood . . . . During the past 18 months, moldy drywall has been removed and replaced. However, employees are still reporting symptoms. In order to determine whether mold is still a problem in this area, air testing was done on 2/28/99.

Testing in May of 2002 commissioned by Denver confirmed mold contamination at various locations in Concourse B's basement level; E-coli in basement level carpet; raw sewage in utility tunnels and at certain gates; bluish colored sediment oozing from the tarmac near certain gates; and sewer gas entering into elevator shafts and the Red Carpet rooms.

By at least 1999, Crandall and Hubbard each attributed the serious health problems she suffered to environmental conditions at DIA. Crandall claims to have had pneumonia on at least four occasions, a chronic and recurring pneumonitis condition, chronic bronchitis, and chronic pulmonary disease. She was on medical leave from work between May 2001 and April 2002 due to pneumonia. In May of 2002, she filed a worker's compensation claim with United Airlines in which she listed November 1999 as her date of injury attributable to environmental conditions at DIA.

Hubbard has suffered a chronic recurring dermatitis condition that periodically causes her skin to break out, a variety of upper respiratory problems, dizziness, tingling of the fingers, earaches, headaches, nausea, and she has fainted at least once. When Hubbard had to leave work for eleven weeks in 1999 for a surgery that was unrelated to the environmental conditions at DIA, her symptoms subsided. Her problems recurred shortly after she returned to work in 2000.

Hubbard stopped working at DIA in February 2002 after she suffered what she calls "a final blowout" in which she had a skin breakout so severe that she had to leave work and seek medical attention. Since leaving work her symptoms have almost disappeared, but when she has had to enter Concourse B for personal travel she claims to have suffered an immediate onset of at least one of her prior symptoms. Hubbard has known that her symptoms could be attributed to the environmental conditions at DIA since at least 1999, when she asked her doctors if they could be a contributing factor to her ill health.

Despite having endured recurring skin and respiratory problems since 1995 and attributing those conditions to environmental problems at DIA since 1999, Crandall and Hubbard did not file their CGIA notice of claim with Denver until August 2, 2002.

In response to the notice of claim, Denver invoked CGIA immunity for failure to file a timely notice. On July 2, 2003, Crandall and Hubbard filed their lawsuit for injury and damages against Denver alleging negligence, negligence per se, nuisance, common law premises liability and/or violation of section 13-21-115, C.R.S. (2006) (actions against landowners), and battery. They also sought an injunction to abate contamination at DIA.³

Under C.R.C.P. 12(b)(1) and 12(b)(5), Denver moved to dismiss the complaint on several grounds, including that the trial court lacked subject matter jurisdiction over the claims because they were filed more than 180 days beyond the time Crandall and Hubbard each discovered her injury and the date they gave their CGIA notice to Denver. § 24-10-109(1).

After allowing document and deposition discovery on the jurisdictional issue, the trial court conducted a Trinity hearing on Denver's C.R.C.P. 12(b)(1) motion. At the hearing, Crandall and Hubbard conceded that the CGIA prevented them from asserting claims arising from injuries that they suffered and discovered more than 180 days prior to giving their CGIA notice to Denver. The 180-day notice period preceding their August 2, 2002 notice of claim would have begun on February 2, 2002.

Nevertheless, Crandall and Hubbard contended in the trial court that they had experienced symptoms from the environmental conditions within the 180-day notice period and these symptoms constituted separate injuries for CGIA purposes. Summarizing this theory, Crandall and Hubbard's attorney argued:

What we would submit, your honor, is that the plaintiffs don't have a...