Jacob v. City of Colorado Springs
| Decision Date | 14 June 1971 |
| Docket Number | No. 23292,23292 |
| Citation | 175 Colo. 102,485 P.2d 889 |
| Parties | William C. JACOB, Plaintiff in Error, v. CITY OF COLORADO SPRINGS, Colorado, a Municipal Corporation, Defendant in Error. |
| Court | Colorado Supreme Court |
L. B. Ullstrom, Denver, Leo A. Hoegh, Chipita Park, for plaintiff in error.
Horn, Anderson & Johnson, Louis Johnson, Colorado Springs, for defendant in error.
This writ of error seeks review of an order granting a motion to dismiss a complaint. The complaint alleged negligent operation and maintenance of a power line of the defendant city. The ground for the dismissal was that the plaintiff did not give written notice to the city clerk within 90 days following the injury, as required by C.R.S. 1963, 139--35--1(1). We affirm.
The plaintiff owned two lots which were traversed by an uninsulated high voltage power line of the city. The plaintiff wished to build a residence on the lots and requested the city to remove and relocate the power lines so that they would not be within the area to be occupied by the residence. The city did not comply with the request. Eight or nine months later, between August 1, 1966 and August 16, 1966, the plaintiff notified the city that he was in the process of constructing a house and renewed his request that the lines be relocated. On August 5, 1966, an assistant city attorney wrote to the plaintiff, acknowledging that the city was aware of the plaintiff's construction, that the lines were a part of the city's system, and that the employees of the city's Department of Public Utilities, as well as the city attorney's office, knew that the high voltage lines constituted a threat to construction activity below. At about the same time the city completed 110-volt electrical connections at the construction site so that plaintiff and his employees could use electrical power tools. On about August 16, 1966, an employee of the Department of Public Utilities advised the plaintiff that the city would not remove the power lines until the plaintiff paid for the removal and further that no harm would result if two power lines were not touched at the same time. Three days later while nailing roof decking the plaintiff received an electrical charge from the power lines and was injured. No notice was given the city as required by the statute, although employees of the city's Department of Public Utilities knew of the accident. The action was filed approximately 10 months after the accident.
The plaintiff argues that the statute requiring notice should not apply when the action is predicated upon negligence of a city while acting in a proprietary capacity. He cites Denver v. Taylor, 88 Colo. 89, 292 P. 594 (1930), and Crawford v. City and County of Denver, 278 F.Supp. 51 (D.C.1967), in support of this proposition. While the concurring opinion in Taylor, supra, gives some support to plaintiff's argument, the majority opinion merely held that Denver's city auditorium was not a public place under its charter provisions providing for the giving of notice as a condition precedent to an action 'for damages to any person for injuries upon any of the streets, avenues, alleys, sidewalks or other public places.' We do not find Crawford, supra, persuasive, particularly since the matter of governmental immunity is not mentioned therein.
The fallacy of this argument is that the cities enjoy governmental immunity with respect to acts performed in their governmental capacity, and that the only reason for the statute is with respect to actions arising out of acts performed in a proprietary capacity. 1 We hold that the statute relates to matters which have arisen when a city is performing a proprietary function, as well as to any other actions which might be brought as a result of negligence for which the city may be responsible.
The plaintiff's...
To continue reading
Request your trial
-
Torrez v. El Paso Cnty. Sheriff's Dep't
... ... 20-cv-02478-RMR-KLM United States District Court, D. Colorado September 16, 2021 ... RECOMMENDATION OF ... 544, 570 (2007)); see also Shero ... v. City of Grove, Okla. , 510 F.3d 1196, 1200 (10th Cir ... 2007) (“The ... *4 (citing Jacob" v. City of Colorado Springs , 485 ... P.2d 889, 891 (Colo. 1971)). \xE2\x80" ... ...
-
Estate of Goldstein v. CIR
...imposed by statute of mentally incompetent persons. The conclusions here reached are not in conflict with Jacob v. City of Colorado Springs, Colo., 485 P.2d 889; Weidensaul v. Industrial Commission, 107 Colo. 28, 108 P.2d Not all jurisdictions would decide the question as we believe Colorad......
-
Mesa County Valley School Dist. v. Kelsey
...holding on this issue in Jones v. Kristensen, 38 Colo.App. 513, 563 P.2d 959, 961 (1977)). See also Jacob v. City of Colorado Springs, 175 Colo. 102, 106, 485 P.2d 889, 891 (1971). It is clear from the record that Kelsey never provided the District with a written notice of her claim prior t......
-
Jones v. Kristensen
...least substantial compliance. This same argument based on similar facts was considered and rejected by the court in Jacob v. Colorado Springs, 175 Colo. 102, 485 P.2d 889. Following Jacob, we hold that under the facts of this case there was neither substantial compliance nor evidence of any......
-
The Colorado Governmental Immuntity Act
...C.R.S. 1973, § 24-10-109. 43. Roderick v. City of Colorado Springs, 563 P.2d 3(Colo. 1977). See also, Jacob v. City of Colorado Springs, 175 Colo. 102, 485 P.2d 889 (1971). 44. Roderick v. City of Colorado Springs, supra, note 43. 45. Id. See also, Fritz v. Regents of the University of Colo......