Jacobs Investments, LLC v. Fort Collins-Loveland Water District.
2024 COA 83. No. 23CA1477. Industrial and Commercial Safety—Excavation Requirements—Documentation and Markings—Negligence—Colorado Governmental Immunity Act—Immunity and Partial Waiver—Operation and Maintenance of a Water Facility.
August 1, 2024
Jacobs Investments, LLC, d/b/a Colorado Boring Co. (Colorado Boring), is a horizontal-boring contractor that installs utilities and underground conduits. Colorado Boring gave notice of its intent to excavate to the Utility Notification Center of Colorado, which, in turn, notified the Fort Collins-Loveland Water District (district), which owned an underground water line in the excavation area. Upon receipt of that notice, the district located and marked its underground water line as required by the Excavation Requirements Statute (ERS), CRS §§ 9-1.5-101 to -108. However, the district mismarked the line’s location, and during Colorado Boring’s excavation, its boring equipment struck and ruptured an underground water line and caused flooding. Colorado Boring filed a complaint against the district alleging negligence, negligence per se, and violation of the ERS, contending that the district had a duty to mark the water line with specificity and that Colorado Boring’s damage to the water line was caused by the district’s failure to properly locate and mark the line. The district moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that it didn’t waive its immunity under the Colorado Governmental Immunity Act (CGIA) by performing its duties under the ERS because responding to requests to locate water lines isn’t a function of operating or maintaining a public water facility. The trial court denied the motion.
On appeal, the district argued that the trial court reversibly erred by finding that the district’s marking of the water line was part of the operation and maintenance of a public water facility, rather than ancillary to it, and thus concluding that the district waived immunity under the CGIA. Under CRS § 24-10-106(1)(f), a public entity’s sovereign immunity is waived in an action for injuries resulting from “[t]he operation and maintenance of any public water facility.” And CRS § 24-10-103(5.7) provides that the primary purposes of a public water facility are the “collection, treatment, or distribution of water for domestic and other legal uses.” The court of appeals concluded that providing information about its facilities in the area of a proposed excavation is ancillary to a water facility’s purposes and is not part of the facility’s operation. Here, the district didn’t waive CGIA immunity by mismarking its line because its duties under the ERS are ancillary to its primary purposes of collecting, treating, or distributing water and not part of its operational duties.
The district also asserted that the trial court erroneously found that locating and marking its water line constituted maintenance of its public water facility. The CGIA’s definition of maintenance at CRS § 24-10-103(2.5) suggests that maintenance covers acts or omissions that are intrinsic to a facility’s operation to preserve it from decline or failure, not an affirmative duty to protect against third-party actions or events. Accordingly, marking the water line wasn’t part of the district’s maintenance obligations, so the trial court erred in concluding that the district waived its immunity under the CGIA.
The order was reversed and the case was remanded for dismissal of Colorado Boring’s complaint and calculation of the district’s reasonable attorney fees.