Gardner v. CITY AND COUNTY OF DENVER, COLO., Civ. A. No. 87-K-1226.
Decision Date | 15 October 1987 |
Docket Number | Civ. A. No. 87-K-1226. |
Citation | 671 F. Supp. 713 |
Parties | Bryan K. GARDNER, Plaintiff, v. The CITY AND COUNTY OF DENVER, COLORADO, Owner of Stapleton International Airport, Defendant. |
Court | U.S. District Court — District of Colorado |
Patricia Jo Stone, Denver, Colo., Guy E. Hopkins, Hopkins & Corley, Conroe, Tex., for plaintiff.
Mary A. Wells, Stephen J. Baity, Weller, Friedrich, Hickisch, Hazlitt & Ward, Denver, Colo., for defendant.
This is a diversity-based personal injuries action. Plaintiff sustained a fall in Stapleton International Airport on July 3, 1986. He alleges this was caused by a slippery wet step on an elevator. He filed suit in this court on August 14, 1987 claiming for negligence and breach of duty by defendant. He seeks damages for medical expenses, pain and suffering, lost wages and lost reputation.
Colo.Rev.Stat. XX-XX-XXX (1986) came into effect on July 1, 1986. It applies to all injuries occurring on or after that date. It reads in pertinent part as follows;
Defendant maintains plaintiff has not complied with this notice requirement. It brings a motion to dismiss. This motion is granted.
Plaintiff's response to the claim of non-compliance is the assertion that defendant is estopped from invoking this statute. He claims defendant's insurance company corresponded with him on the subject of his accident and relies upon Gray v. RTD, 43 Colo.App. 107, 602 P.2d 879 (1979).
There are a number of decisions holding defendant may be estopped by its own conduct from invoking Colo.Rev.Stat. XX-XX-XXX, Coady v. Worrell, 686 P.2d 1375 (Colo. App.1984), Isbill Assocs. v. City and County of Denver, 666 P.2d 1117 (Colo.App. 1983). All of these, however, are concerned with the forerunner of the current provision. This did not create a jurisdictional impediment, Nowakowski v. District Court, 664 P.2d 709 (Colo.1983).
In 1986 the section was re-enacted expressly creating a jurisdictional prerequisite to any action brought under the provisions of the article.
Parties cannot confer a court with subject matter jurisdiction by their own acts or omissions, Triebelhorn v. Turanski, 149 Colo. 558, 370 P.2d 757 (1962). Where a court possesses subject matter jurisdiction, however, the parties may waive lack of personal jurisdiction, Clinic Masters v. District Court for City of El Paso, 192 Colo. 120, 556 P.2d 473, 475 (1976).
I have no doubt statutory requirements of this nature, when jurisdictional, go to subject matter jurisdiction. This, for example, has long been the case with the administrative filing requirements of the Federal Tort Claims Act, Lurch v. United States, 719...
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