Foundation v. City of Colo. Springs, Court of Appeals No. 14CA0228

Citation418 P.3d 530
Case DateJune 18, 2015
CourtCourt of Appeals of Colorado

418 P.3d 530

SMOKEBRUSH FOUNDATION, Katherine Tudor, and Donald Herbert Goede, III, Plaintiffs–Appellees,
CITY OF COLORADO SPRINGS, Colorado, Defendant–Appellant.

Court of Appeals No. 14CA0228

Colorado Court of Appeals, Division II.

Announced June 18, 2015

Law Offices of Randall M. Weiner, P.C., Randall M. Weiner, Boulder, Colorado, CordingLaw, Annemarie Cording, Boulder, Colorado, for Plaintiffs–Appellees.

Treece Alfrey Musat, P.C., Kathleen M. Byrne, Robert J. Zavaglia, Jr., Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE DUNN

418 P.3d 532

¶ 1 Plaintiffs, Smokebrush Foundation, Katherine Tudor, and Donald Herbert Goede, III (collectively, Smokebrush), filed an action against defendant, the City of Colorado Springs (City), asserting various tort claims. Specifically, Smokebrush alleged that various contaminants had migrated from the City's property onto its property, causing damages. Claiming governmental immunity, the City moved to dismiss for lack of subject matter jurisdiction. After a hearing, the district court denied the City's motion, concluding that the City's immunity was waived under two statutory provisions of the Colorado Governmental Immunity Act (CGIA): the gas facility exception, § 24–10–106(1)(f), C.R.S.2014, and the public building exception, § 24–10–106(1)(c). The district court also concluded that these waiver provisions applied retroactively to contamination that undisputedly occurred before the CGIA was enacted.

¶ 2 We first conclude that the General Assembly did not intend to retroactively apply the CGIA's waiver provisions. We then address whether the two asserted waiver provisions apply to alleged asbestos contamination that occurred after the effective date of the CGIA. We conclude that they do not. Accordingly, we reverse the district court's order and remand with directions to grant the City's motion to dismiss.

I. Background

¶ 3 In 1890, a private company operated a coal gasification facility in Colorado Springs (the property). The City purchased the property in 1925 and continued to operate it as a coal gasification plant until roughly 1931, when the City began using natural gas. The plant then sat idle for decades until it was dismantled in the 1950s and 1960s.

¶ 4 At some point in the 1960s or 1970s, the City built an office building on the property for its Gas Department. Known as the Gas Admin Building, it housed administrative functions of the Gas Department, but did not produce or distribute gas.

¶ 5 The subsurface of the property was undisputedly contaminated by the coal gasification activities in the late 1800s through the early twentieth century. In 1993, the United States Environmental Protection Agency (EPA) assessed the property and listed it as a potential environmental hazard. The EPA's preliminary assessment concluded, however, that the risks associated with the subsurface contaminants were minimal because (1) the surface areas of the property were covered by asphalt parking lots and buildings and (2) migration of the contaminants into the drinking water supply was unlikely. As a result, the EPA concluded that no further remedial action was required and de-listed the property.

¶ 6 By 2009, the Gas Admin Building was no longer in use and the City began planning for demolition of the two remaining structures on the property.1 To that end, the City contracted with an environmental engineering firm to determine the location and extent of asbestos-containing materials. The engineering firm identified friable asbestos-containing materials in two areas of the Gas Admin Building.2 The City then contracted with Hudspeth & Associates, Inc. (Hudspeth) to (1) demolish the remaining structures on the site, including asbestos abatement in the Gas Admin Building; and (2) backfill and

418 P.3d 533

pave the areas where the two buildings stood. Demolition began in late 2012.

¶ 7 Smokebrush operated a health and wellness center on land neighboring the property. In March 2013, Smokebrush filed a complaint against the City and Hudspeth.3 Smokebrush alleged that, as a result of the demolition activities, the individual plaintiffs had "breathed and continue to breathe contaminants contained in the airborne dirt and dust which migrate[d]" onto their property. Specifically, Smokebrush alleged that the demolition activities allowed airborne migration of "asbestos, heavy metals[,] and other toxic substances" onto their property and that, on one day, one of the individual plaintiffs "received a blast of wind and dust ... which covered her face and person." Smokebrush asserted a variety of tort claims and a claim for "equitable relief."

¶ 8 The City moved to dismiss Smokebrush's claims for lack of subject matter jurisdiction. Specifically, the City argued that it was immune from suit under the CGIA.

¶ 9 Smokebrush responded that the City's immunity was waived under the gas facility exception, § 24–10–106(1)(f), and the public building exception, § 24–10–106(1)(c). Smokebrush also argued, for the first time, that a subsurface plume of contaminants had leached onto its property over a long period of time.

¶ 10 The district court held a hearing to determine whether the City was immune under the CGIA. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). The district court concluded that the asserted waiver provisions applied and rejected the City's argument that the CGIA could not be applied retroactively.

II. The CGIA Does Not Apply Retroactively

¶ 11 The English common law doctrine of governmental immunity developed based on "the historical fiction that the king could do no wrong, and thus, was free from legal accountability." Bertrand v. Bd. of Cnty. Comm'rs, 872 P.2d 223, 225 (Colo.1994). In 1895, the Colorado Supreme Court incorporated the doctrine into Colorado's jurisprudence. Id. ; In re Substitute for Senate Bill No. 83, 21 Colo. 69, 39 P. 1088 (1895), overruled by Bertrand, 872 P.2d 223 ; Bd. of Comm'rs v. Bish, 18 Colo. 474, 475, 33 P. 184, 184 (1893) ("The rule that counties are not liable for torts, in the absence of statute, is universally acknowledged."), overruled in part by Evans v. Bd. of Cnty. Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971). No statutory waivers of governmental immunity existed. Bertrand, 872 P.2d at 225. Rather, the "general common law rule ... was immunity." Id. at 226.

¶ 12 In 1971, however, the supreme court prospectively abolished governmental immunity in a trilogy of cases. See Evans, 174 Colo. 97, 482 P.2d 968 ; Flournoy v. Sch. Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (1971) ; Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). These decisions "also recognized that the General Assembly could reestablish governmental immunity by statute, if it desired." Springer v. City & Cnty. of Denver, 13 P.3d 794, 798 (Colo.2000).

¶ 13 The General Assembly accepted the invitation and enacted the CGIA, restoring governmental immunity, effective July 1, 1972. See DeLong v. City & Cnty. of Denver, 195 Colo. 27, 30 n.1, 576 P.2d 537, 538 n.1 (1978) ("In response [to the Evans trilogy], the legislature enacted the ‘Colorado Governmental Immunity Act,’ effective July 1, 1972."). In doing so, the General Assembly also carved out a limited number of circumstances in which it intended to waive governmental immunity. See § 24–10–106(1)(a)–(h). In light of the effective date of the CGIA, public entities essentially retained immunity before and after Evans, subject to the newly created statutory waivers.4

418 P.3d 534

¶ 14 Some of Smokebrush's claims against the City relate to the undisputed contamination which arose from the operation of a coal gasification plant in the 1920s. Smokebrush nonetheless seeks the benefit of two statutory waivers effective in 1972. The applicability of a statutory waiver of immunity that did not become effective until decades after the City's coal plant ceased operations depends upon whether the legislature intended the CGIA waiver provisions to operate retroactively.

¶ 15 Colorado statutes generally do not apply retroactively and are presumed to operate prospectively. See § 2–4–202, C.R.S.2014; see also City of Colorado Springs v. Powell, 156 P.3d 461, 464 (Colo.2007). This proscription "prevent[s] the unfairness that would otherwise result from changing the consequences of an act after that act has occurred." Powell, 156 P.3d at 465. Though retroactive application of a statute is "generally frowned upon by both common law and statute," id. it is not presumptively unconstitutional. "Retrospective" legislation, however, is. Id. ; see Colo. Const. art. II, § 11 (prohibiting the General Assembly from passing retrospective legislation). "A statute is retrospective if it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Powell, 156 P.3d at 465 (internal quotation marks omitted).

¶ 16 Deciding whether the CGIA waiver provisions operate retroactively is a two-step inquiry. Id . First, we determine whether the General Assembly intended the waiver provisions to operate retroactively. Id. Then, and only then, do we consider whether the challenged provisions are...

To continue reading

Request your trial
2 cases
  • Martinez v. CSG Redevelopment Partners LLLP, Court of Appeals No. 18CA0534
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ...cite two other cases dealing with the public building exception. In Smokebrush Foundation v. City of Colorado Springs , 2015 COA 80, ¶ 32, 418 P.3d 530, aff'd in part, rev'd in part on other grounds , 2018 CO 10, 410 P.3d 1236, the parties conceded that a building housing the administrative......
  • Parocha v. Parocha, Supreme Court Case No. 17SC406
    • United States
    • Colorado Supreme Court of Colorado
    • May 21, 2018
    ...and effective relief from potential further domestic abuse through a civil protection order entered by a court in the state in which 418 P.3d 530she resides is weighty. Moreover, as the state's civil protection law makes plain, Colorado has a very strong interest in protecting victims of do......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT