Smokebrush Found. v. City of Colo. Springs

• Citation: 410 P.3d 1236
• Decision Date: 05 February 2018
• Docket Number: Supreme Court Case No. 15SC627
• Parties: SMOKEBRUSH FOUNDATION, Katherine Tudor, and Donald Herbert Goede, III, Petitioners, v. CITY OF COLORADO SPRINGS, Respondent.
• Court: Supreme Court of Colorado

410 P.3d 1236

SMOKEBRUSH FOUNDATION, Katherine Tudor, and Donald Herbert Goede, III, Petitioners,

v.CITY OF COLORADO SPRINGS, Respondent.

Supreme Court Case No. 15SC627

Supreme Court of Colorado.

February 5, 2018

Rehearing Denied February 26, 2018

Attorneys for Petitioners: Law Offices of Randall M. Weiner, P.C., Randall M. Weiner, Annmarie Cording, Boulder, Colorado, Law Office of Paul Zogg, Paul Zogg, Boulder, Colorado

Attorneys for Respondent: Treece Alfrey Musat P.C., Robert J. Zavaglia, Jr., Kathleen M. Byrne, Denver, Colorado

Attorney for Amicus Curiae Colorado Municipal League: Dianne M. Criswell, Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Bachus & Schanker, LLC, Scot C. Kreider, Denver, Colorado

Attorneys for Amicus Curiae State of Colorado: Cynthia H. Coffman, Attorney General, Allison R. Ailer, Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 Petitioners Smokebrush Foundation, Katherine Tudor, and Donald Herbert Goede, III (collectively, "Smokebrush") own property on which the non-profit foundation operates a wellness center in the City of Colorado Springs. Smokebrush sued the City, contending that Smokebrush's property had been contaminated by pollutants from an adjacent property owned by the City. Specifically, Smokebrush asserted a number of tort claims for injuries from airborne asbestos released during demolition activities in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the City's property.

¶2 The City moved to dismiss for lack of jurisdiction, claiming governmental immunity from suit under the Colorado Governmental Immunity Act, sections 24-10-101 to - 120, C.R.S. (2017) ("CGIA"). Smokebrush responded that the City had waived immunity under section 24-10-106(1)(c) (waiving immunity for claims for injuries resulting from a "dangerous condition of any public building") and section 24-10-106(1)(f) (waiving immunity for claims for injuries resulting from the "operation and maintenance of any public ... gas facility") of the CGIA. The district court agreed with Smokebrush and denied the City's motion to dismiss. In a unanimous, published opinion, however, a division of the court of appeals reversed and remanded with instructions to grant the City's motion. Smokebrush Found. v. City of Colo. Springs, 2015 COA 80, ––– P.3d ––––. We granted Smokebrush's petition for certiorari and now affirm in part and reverse in part the division's judgment.¹

¶3 With respect to Smokebrush's claims regarding airborne asbestos released during the 2013 demolition activities, we conclude that the City has not waived immunity under section 24-10-106(1)(c)'s dangerous condition of a public building exception. The CGIA defines a "dangerous condition," in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in "constructing or maintaining" such facility. § 24-10-103(1.3), C.R.S. (2017). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms "constructing" or "maintaining" a facility, the dangerous condition of a public building exception does not apply.

¶4 With respect to Smokebrush's claims regarding the coal tar contamination, we conclude that under the plain language of section 24-10-106(1)(f), the City has waived its immunity for such claims. Specifically, Smokebrush has established that (1) the coal gasification plant that generated the coal tar contamination at issue was a public gas facility and (2) Smokebrush's claimed injuries from the coal tar contamination resulted from the operation and maintenance of that gas facility.

¶5 Accordingly, we affirm the portion of the division's judgment requiring the dismissal of Smokebrush's asbestos-related claims but reverse the portion of the judgment requiring the dismissal of Smokebrush's coal tar-related claims.

I. Background and Procedural History

¶6 From approximately 1890 to 1925, private entities operated a coal gasification plant in Colorado Springs. As pertinent here, coal gasification produced gas from coal through combustion, and the gas thus produced was generally used for street lighting.

¶7 In 1925, the City of Colorado Springs acquired the property and continued to operate the plant until 1931, when it converted the facility to natural gas. The coal gasification activities produced an environmentally harmful byproduct known as coal tar, which contained potentially hazardous substances that contaminated the soils on the City's property.

¶8 After a period of use as a natural gas plant, the facility sat idle until the City gradually dismantled it in the 1950s and 1960s. The City later built an office building for its Gas Department (the "Gas Admin Building"), along with one or two other structures used by other City departments, on the site. The Gas Admin Building served administrative functions and was not used to produce or distribute gas.

¶9 By 2009, the buildings on the property were no longer in use, and in late 2012, the City contracted with Hudspeth and Associates to demolish the remaining structures and convert the entire site to an asphalt parking lot. Demolition of these structures began in 2013 and included an asbestos abatement plan.

¶10 In March 2013, Smokebrush filed a complaint against the City and Hudspeth, alleging that the demolition activities "permitted the airborne migration of soils containing asbestos, heavy metals, and other toxic substances onto [Smokebrush's] property," causing health problems for occupants of the wellness center. The complaint asserted several claims, including negligence, strict liability, trespass, nuisance, and negligence per se. Although the complaint did not expressly mention the historical coal gasification operations on the property or allege injury from the subsurface migration of coal tar contaminants, it generally alleged that "[a]sbestos, heavy metals and other contaminants from the Gas and Warehouse Site have physically intruded onto [Smokebrush's] property."

¶11 The City moved to dismiss Smokebrush's complaint for lack of jurisdiction, arguing that it was immune from suit under the CGIA. Smokebrush responded that the City had waived immunity pursuant to several sections of the CGIA and also asserted, apparently for the first time, that it was injured by the migration of a subsurface plume of coal tar pollutants from the coal gasification plant that had operated on the site.

¶12 Specifically, Smokebrush argued that the City had waived governmental immunity under section 24-10-106(1)(c)'s dangerous condition of a public building exception because the City had negligently constructed and maintained the entire site of the former Gas Admin Building. Smokebrush claimed that the entire site was a "public facility" under the CGIA and that the site contained levels of asbestos and coal tar pollutants that posed an unreasonable risk to public health and safety. Smokebrush further asserted that the City had caused the release of contaminants when it demolished the remaining buildings on the site to construct a parking lot.

¶13 Smokebrush also argued that the City had waived immunity under section 24-10-106(1)(f)'s public gas facility exception. As pertinent here, Smokebrush contended that the site that housed the Gas Admin Building was a "gas facility" because that site had previously been used to provide gas fuel to the public and that the coal tar contamination at issue resulted from the operation and maintenance of this gas facility.

¶14 The City's motion proceeded to a hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924–27 (Colo. 1993). Thereafter, the district court issued a comprehensive order denying the City's motion to dismiss. In this order, the court agreed with Smokebrush that the City had waived governmental immunity for the asbestos and coal tar pollution claims under both the dangerous condition of a public building and the public gas facility exceptions set forth in sections 24-10-106(1)(c) and - 106(1)(f). Notably, the court also found—and at least for purposes of the City's motion to dismiss, no party appears to dispute—that Smokebrush first discovered the migration of the coal tar contamination in approximately 2012. Thus, the court concluded that "the Plaintiffs' claims for relief did not accrue until some forty years after the City had waived governmental immunity" under the CGIA.

¶15 The City appealed, and a division of the court of appeals reversed, concluding that the City had not waived immunity under the CGIA. Smokebrush Found., ¶¶ 2, 17–18, 38. As pertinent here, the division concluded that the City had not waived governmental immunity with respect to the alleged subsurface coal tar contamination because such contamination stemmed from coal gas operations in the 1920s and 1930s (i.e., long before the CGIA was enacted), and nothing in the CGIA states that the waiver provisions apply retroactively. Id. at ¶¶ 17–18. The division likewise concluded that the City had not waived immunity for injuries resulting from the alleged airborne asbestos contamination. Id. at ¶¶ 25–26, 33–36. With respect to these claims, the division reasoned that the public gas facility exception did not apply because no gas collection, production, warehousing, or distribution occurred on the property after the 1930s, and the Gas Admin Building, which was built in the 1960s or 1970s (after the original plant was dismantled) was never operated as a "gas facility" within the meaning of section 24-10-106(1)(f). Id. at ¶ 25. Instead, it was used exclusively for administrative purposes that were, at most, ancillary to the distribution or production of gas. Id...