Crandall v. City and County of Denver, 04CA1989.

• Decision Date: 18 May 2006
• Docket Number: No. 04CA1989.,04CA1989.
• Citation: 143 P.3d 1105
• Parties: Terri CRANDALL and Joann Hubbard, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. CITY AND COUNTY OF DENVER, Colorado, d/b/a The Denver International Airport, a Colorado political subdivision, Defendant-Appellant.
• Court: Colorado Court of Appeals

143 P.3d 1105

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

No. 04CA1989.

Colorado Court of Appeals, Div. I.

May 18, 2006.

Certiorari Granted October 10, 2006.

COPYRIGHT MATERIAL OMITTED

Fognani Guibord & Homsy, LLP, John D. Fognani, Brian D. Gonzales, Kristina I. Mattson, Denver, Colorado; Childress & Zdeb, Ltd., Michael Childress, Michael Duffy, Thomas J. Loucks, Chicago, Illinois, for Plaintiffs-Appellees.

Hall & Evans, L.L.C., Chris A. Mattison, Andrew D. Ringel, Andrew J. Carafelli, Denver, Colorado, for Defendant-Appellant.

DAILEY, J.

Defendant, the City and County of Denver, brings this interlocutory appeal pursuant to § 24-10-108, C.R.S.2005, from the trial court's order denying its motion seeking dismissal, on governmental immunity grounds, of the complaint brought by plaintiffs, Terri Crandall and Joann Hubbard, individually and on behalf of others similarly situated. We affirm.

Plaintiffs brought this action to recover damages for injuries they allegedly received as a result of exposure to harmful environmental conditions at Denver International Airport (DIA), which is owned and operated by the City. Plaintiffs were both employed as customer service representatives for United Airlines in Concourse B at DIA.

Plaintiffs, individually and on behalf of others similarly situated, asserted claims of negligence, negligence per se, nuisance, premises liability, battery, and injunctive relief. Whether the class should be certified under C.R.C.P. 23 has not been ruled upon by the trial court.

The City moved to dismiss plaintiffs' claims against it on the basis that they were barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. 2005. The City argued that plaintiffs had failed to comply with the notice requirements set forth in § 24-10-109, C.R.S.2005, of the GIA. In particular, the City argued that plaintiffs had failed to file a notice of claim within 180 days of discovery of their injuries, that the notice was insufficient with regard to where plaintiffs suffered their injuries, and that the notice requirements had not been met for the class members because they were not adequately identified under § 24-10-109.

In response, plaintiffs argued that the notice was timely and complied with all the requirements of the GIA. Plaintiffs also argued that the notice was sufficient to provide notice to the City of the class members' claims.

The trial court held an evidentiary hearing on the City's motion and subsequently issued a written order. The court granted the City's motion to dismiss as to all injuries occurring prior to February 2, 2002, which was 180 days prior to the notice of claim provided by plaintiffs on August 2, 2002, and denied the motion as to any injuries suffered on or after February 2, 2002. The court also ruled that the notice was sufficient with regard to the class claimants. The City then brought this appeal.

I. Notice of Claim—Individual Plaintiffs

The City contends that the trial court erred in not dismissing plaintiffs' complaint on the basis of governmental immunity. We disagree.

A. Legal Framework

Under the GIA, an injured person seeking damages from a public entity or employee must provide written notice of the claim within 180 days of discovery of the injury. Sections 24-10-109(1), 24-10-118(1)(a), C.R.S.2005. The failure to comply with the 180-day period is an absolute bar to suit. Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo.2000).

Generally, whether a claimant has filed a timely notice of claim that satisfies the requirements of § 24-10-109(1) presents a mixed question of law and fact that must be resolved by the trial court before trial. Peterson v. Arapahoe County Sheriff, 72 P.3d 440, 443 (Colo.App.2003). In making this determination, the trial court must employ the C.R.C.P. 12(b)(1) standard, under which the plaintiff bears the "relatively lenient" burden of demonstrating that notice was properly given. See Finnie v. Jefferson County Sch. Dist. R-1, 79 P.3d 1253, 1261 (Colo.2003).

When, as here, the jurisdictional facts relating to immunity are in dispute, the court should conduct an evidentiary hearing and enter findings of fact. Gallagher v. Bd. of Trs., 54 P.3d 386, 391 (Colo.2002). The trial court's factual findings are reviewed under a clear error standard. See Tidwell v. City & County of Denver, 83 P.3d 75, 81 (Colo.2003); Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo.1993).

The notice must also substantially comply with § 24-10-109(2), C.R.S.2005, which requires a claimant to provide certain information regarding the claim. Substantial compliance means that the claimant must make a good faith effort to include within the written notice, to the extent reasonably possible, each item of information listed in § 24-10-109(2). Dicke v. Mabin, 101 P.3d 1126, 1132 (Colo.App.2004).

In determining whether the claimant has satisfied this requirement, the trial court may also consider to what extent, if any, the public entity has been adversely affected in its ability to defend against the claim by reason of any omission or error in the notice. Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 69 (Colo.1990). Thus, the purpose of the notice requirement is not to set a trap for the unwary, but rather to allow a public entity to promptly investigate and remedy dangerous conditions, to foster prompt settlement of meritorious claims, to make necessary fiscal arrangements to cover potential liability, and to prepare for defense of claims. Jefferson County Health Servs. Ass'n v. Feeney, 974 P.2d 1001, 1003 (Colo. 1998).

B. Factual Background

The trial court found that there have been different types of environmental problems at DIA since it opened in 1995. The court noted that common maintenance problems included clogged floor drains; sewage problems from backed up toilets, broken pipes, or clogged sewage pipes; the formation of mold, primarily in areas of water leakage and use; and the spillage or leakage of various chemicals used at DIA. The court additionally noted that most of these problems were adequately remedied by the City either internally or, on occasion, with the assistance of outside consultants.

The court determined that the maintenance department at DIA received about one noxious odor call per week from Concourse B, where plaintiffs worked. Concourse B contains over 2,000,000 square feet on seven levels, with each level containing approximately 285,000 square feet.

Hubbard worked as a customer service representative for United Airlines from 1995, when DIA opened, until February 19, 2002, when she quit, allegedly because of health issues caused by environmental problems at DIA. The court found that although Hubbard appeared to have exaggerated the pervasiveness and severity of her symptoms, she had experienced a wide variety of adverse symptoms on a frequent and recurring basis while she worked in Concourse B. In particular, the court noted that Hubbard suffered from a chronic recurring dermatitis condition, a variety of upper respiratory problems, dizziness, tingling in her fingers, earaches, headaches, nausea, and at least one fainting spell. The court found that in 1999, when Hubbard took time off for an unrelated surgery, her symptoms subsided, but that they immediately recurred when she returned to work. The final incident occurred on February 19, 2002, when she developed a severe skin condition that required her to leave work and seek medical attention. After leaving work at DIA, Hubbard's skin condition and other symptoms gradually improved to the point where she is largely asymptomatic.

Plaintiff Crandall has worked for United Airlines as a customer service representative since DIA opened in 1995 and continued to be employed by United Airlines at DIA through the date of the trial court's decision. Crandall also experienced a variety of symptoms that she attributed to environmental conditions on Concourse B. The court noted that she had pneumonia on at least four occasions and that she had a chronic and recurring pneumonitis condition, chronic bronchitis, and chronic pulmonary disease. The court found that these illnesses had all become symptomatic when Crandall was exposed to environmental conditions on Concourse B.

The court noted that no medical evidence was presented regarding whether the environmental conditions at DIA caused both Hubbard's and Crandall's conditions, or whether those conditions resolved completely after each plaintiff spent time away from DIA. The court additionally found that each plaintiff appeared to experience symptoms several times per month and these symptoms occurred when plaintiffs moved throughout the main level of Concourse B and when they worked in the Red Carpet Club room on the mezzanine level of Concourse B. Because each plaintiff complained of frequently sensing noxious odors at various locations on Concourse B, the court found that it did not appear that plaintiffs could specify the location or the source of the environmental problem causing their recurring symptoms.

Plaintiffs filed their notice of claim on August 2, 2002. The notice provided: "The purpose of this letter is to provide notice of the claims of our clients, and all others similarly situated, against the City and County of Denver, Colorado, in its individual capacity and as the governing body for the Denver International Airport pursuant to C.R.S. 24-10-109." The notice listed plaintiffs and twenty-five other individuals as claimants and provided their addresses. The notice also provided: "This notice is also being sent on behalf of other individuals, who have been exposed to and injured by the environmental conditions at Denver International Airport,...