Roderick v. City of Colorado Springs
| Decision Date | 18 April 1977 |
| Docket Number | No. C--932,C--932 |
| Parties | Marcia Y. RODERICK, Petitioner, v. The CITY OF COLORADO SPRINGS, Respondent. |
| Court | Colorado Supreme Court |
Morrato, Gueck & Colantuno, P.C., James L. Hammer, Jay L. Gueck, Denver, for petitioner.
Horn, Anderson & Johnson, Gordon D. Hinds, Gregory L. Johnson, Colorado Springs, for respondent.
We granted certiorari to the Colorado Court of Appeals under C.A.R. 50, to review the decision of the El Paso County District Court granting respondent's motion for partial summary judgment. We reverse the district court judgment and remand for further proceedings.
On June 4, 1973, a gas explosion occurred in the business building owned by petitioner Marcia Y. Roderick, which was supplied with natural gas by respondent City of Colorado Springs through its Department of Public Utilities. The explosion extensively damaged the building and its contents and resulted in injury to Robert M. Roderick, Jr. That same day, an insurance adjuster, Roy Hautala, employed by the insurance adjustment firm retained by respondent City of Colorado Springs, commenced investigation of the explosion. During the ensuing ninety days and afterward, Hautala negotiated on behalf of the city with petitioner's attorney and insurance company.
No settlement having been reached, petitioner and Robert M. Roderick, Jr., on October 29, 1974, filed a complaint for damages in district court. The complaint alleged that the explosion had resulted from the city's negligence and breach of warranty in supplying natural gas to petitioner's premises. The city filed motions to dismiss and for partial summary judgment, claiming that petitioner had failed to notify the city within ninety days of the explosion, as required by section 24--10--109, C.R.S. 1973.
At the hearing on the motions, Roy Hautala testified that he investigated the explosion on June 4, 1973. Later, he began negotiations with petitioner's attorney Rush R. Young, and her insurance company, although he did not receive authority to settle with them until December 1973. Also in December, he received an itemized damage list from Young. Hautala testified that he relayed the information he received to the city. He testified that he did not recall discussing the statutory notice requirement with Young.
Young testified that he and Hautala discussed the notice requirement in August 1973. Young, realizing that the ninety-day period had almost elapsed, asked Hautala, 'Do you want us to break off these discussions and go hom and write you a letter?' Hautala responded, according to Young, that such action would be useless or ridiculous since negotiations were already under way.
At the close of the evidence and arguments, the court found that petitioner had failed to give to the city the notice required by statute. The court found that Hautala, retained by the city, 'was fully informed of the general nature of the accident and of the general injuries suffered by this particular Plaintiff.' The court further found that Hautala and Young had discussed the necessity of notice, but there was no 'specific language of waiver' or 'of authority with regard to filing that notice.' Accordingly, the court ruled that the city was not barred by estoppel or waiver from asserting the defense of lack of notice and it granted summary judgment against petitioner.
C.R.C.P. 56(c) provides that summary judgment may be rendered only if 'there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.' Summary judgment is appropriate 'only in the clearest of cases, where no doubt exists concerning the facts,' Moses v. Moses, 180 Colo. 397, 505 P.2d 1302. In considering a motion for summary judgment, all doubts must be resolved against the movant. Abrahamsen v. Mt'n States T & T, 177 Colo. 422, 494 P.2d 1287.
In light of these principles, we believe the district court erred in granting summary judgment on the issues of waiver and estoppel against the city. In our view, there are genuine issues of material fact which preclude the entry of summary judgment for the city.
Section 24--10--109(1), C.R.S. 1973, provides:
Here, admittedly, the petitioner failed to provide any written notice whatsoever to the city within ninety days and cannot be said to have substantially complied with the statute. See Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766.
The district court, howerver, erred in holding, as a matter of law, that the city had neither waived nor was estopped from asserting petitioner's failure to substantially comply with the written notice provisions of the statute. Waiver and estoppel are generally issues of fact for the jury, ...
To continue reading
Request your trial
-
Mt. Emmons Min. Co. v. Town of Crested Butte
...P.2d 378 (Colo.1981); O'Herron v. State Farm Mutual Auto Insurance Co., 156 Colo. 164, 397 P.2d 227 (1964); Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). Generally, a party challenging the constitutionality of the statute or ordinance must show that the enactment w......
-
US v. Louisiana-Pacific Corp.
...given a narrow construction. First, it is well-settled that great deference is to be given to the EPA's interpretation of the Clean Air Act. Eg., Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980); Phillips Petroleum v. EPA, 803 F.2d 545, 557 (10th Cir.19......
-
Jones v. Dressel
...no genuine issue as to any material fact. Ginter v. Palmer and Company, 196 Colo. 203, 585 P.2d 583 (1978); Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977); Abrahamsen v. Mountain States Tel. and Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972); Pritchard v. Temple, 168 ......
-
Public Service Co. of Colorado v. Continental Cas. Co., s. 90-1320
...exist, with the intent that such right shall be surrendered and [PSC] be forever deprived of its benefits." Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3, 5 (1977). The evidence of CNA on the waiver issue would not support a finding that PSC voluntarily abandoned a known r......
-
Rule 56 SUMMARY JUDGMENT AND RULINGS ON QUESTIONS OF LAW.
...judgment is appropriate only in the clearest of cases, where no doubt exists concerning the facts. Roderick v. City of Colo. Springs, 193 Colo. 104, 563 P.2d 3 (1977). Summary judgment is appropriate where the admitted facts demonstrate that a party cannot prevail. Kuehn v. Kuehn, 642 P.2d ......
-
The Colorado Governmental Immuntity Act
...40. C.R.S. 1973, § 24-10-112. 41. C.R.S. 1973, § 24-10-113. 42. 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 ......
-
Estopping Local Governments in Colorado
...85CV888, Arapahoe County District Court (May 12, 1986). 25. Keen, supra, note 11. 26. Id. 27. Id. 28. Roderick v. City of Colorado Springs, 563 P.2d 3, 6 (Colo. 1977). 29. See, Flinn, supra, note 16 at 969. 30. Stackhouse, supra, note 8; Jones, supra, note 1. 31. Jones, supra, note 1. 32. K......