Carriker et al v. City & County of Denver et al

Filing 107

ORDER granting in part and denying in part 74 Denvers Renewed Motion to Dismiss Plaintiffs Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1), by Judge William J. Martinez on 7/22/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2365-WJM-KLM
CLAYBORN CARRIKER, and
DORIS CARRIKER,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, COLORADO,
ISS FACILITY SERVICES, INC.,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT DENVER’S RENEWED MOTION TO DISMISS

Plaintiffs Clayborn Carriker and Doris Carriker (collectively “Plaintiffs”) bring this
action against Defendants City and County of Denver, Colorado (“Denver”) and ISS
Facility Services, Inc. (together “Defendants”), alleging that their negligence proximately
caused Clayborn Carriker to slip and fall on the premises of the Denver International
Airport (“DIA”), causing him injuries, and that Doris Carriker suffered a consequential
loss of consortium. (Second Am. Compl. (“SAC”) (ECF No. 64) ¶¶ 21-41.) Before the
Court is Denver’s Renewed Motion to Dismiss Plaintiffs’ Second Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (“Motion”). (ECF No.
74.) For the reasons set forth below, the Motion is granted in part and denied in part.
I. BACKGROUND
Plaintiffs Clayborn Carriker and Doris Carriker are a married couple residing in
Florida. (SAC ¶¶ 7-9.) On August 23, 2011, Plaintiffs were traveling by air and

changed planes at DIA en route to Iowa. (Id. ¶ 16.) While entering a restroom in
Terminal 4 of DIA, Mr. Carriker slipped on an unknown slippery substance on the floor
and fell. (Id. ¶¶ 1, 25.) Mr. Carriker suffered a fractured hip and other injuries. (Id.)
Due to his injuries, Mrs. Carriker was consequently deprived of her husband’s
consortium. (Id. ¶ 41.)
In letters from Plaintiffs’ counsel dated December 15, 2011, Plaintiffs each
notified Denver of their intent to sue Denver for damages (together “Notices”). (See
ECF No. 74 Exs. A & B.) Plaintiffs’ letters each described the incident, Mr. Carriker’s
injuries, and Mrs. Carriker’s alleged loss of consortium. (Id.)
Plaintiffs filed their Complaint (ECF No. 1) on September 5, 2012, and an
Amended Complaint (ECF No. 11) on October 5, 2012. Plaintiffs alleged that
Defendants were liable under the Colorado Premises Liability Act (“CPLA”), Colo. Rev.
Stat. §§ 13-21-115, et seq., and that their injuries were caused by Defendants’
negligent failure to maintain the bathroom floor in a safe condition, failure to warn of the
danger of the slippery substance on the floor, failure to install and maintain a non-slip
surface on the floor, and failure to train and supervise their personnel to maintain the
safety of the premises. (ECF No. 11 ¶¶ 24-29.)
On May 30, 2013, the Court granted Denver’s Motion to Dismiss, finding that
Denver was immune from suit because Plaintiffs’ claims did not fall into any exception
to the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. §§ 24-10-101 et
seq. (ECF No. 41.) Plaintiffs sought to amend the Complaint a second time to reassert
and clarify their allegations against Denver. On September 16, 2013, the Court granted

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Plaintiffs’ Motion for Leave to Amend the Complaint and accepted the SAC as filed.
(ECF No. 69.) The SAC restated Plaintiffs’ claims against Denver and added an
allegation that Defendants negligently constructed the floor at DIA such that its inherent
slipperiness was exacerbated by the unknown slippery substance on it. (ECF No. 64
¶¶ 25, 27.)
On October 9, 2013, Denver filed the instant Motion. (ECF No. 74.) Plaintiffs
filed their Response on October 22, 2013 (ECF No. 76), and Denver filed its Reply on
November 4, 2013. (ECF No. 77.)
II. LEGAL STANDARD1
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction
over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that
the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction
rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994) (recognizing that federal courts are courts of limited jurisdiction
and may only exercise jurisdiction when specifically authorized to do so).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of
fact in the complaint, without regard to mere conclusory allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing
subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power &

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Although the Motion is filed pursuant to both Rules 12(b)(1) and 12(b)(6), all of
Denver’s arguments in the Motion are asserted under Rule 12(b)(1). Accordingly, the Court
addresses only that subsection herein.

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Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss
the cause at any stage of the proceeding in which it becomes apparent that jurisdiction
is lacking.” Id.
III. ANALYSIS
The Motion raises three arguments that Plaintiffs’ claims against Denver should
be dismissed: (1) Plaintiffs’ claim that the floor at DIA was negligently constructed must
be dismissed for failure to comply with the notice provisions of the CGIA; (2) Denver is
immune to Plaintiffs’ claims for negligent failure to supervise, train, warn, or install a
non-slip surface, because they do not fall within recognized exceptions to the CGIA;
and (3) Mrs. Carriker’s loss of consortium claim should be dismissed because it is
derivative of Mr. Carriker’s claim. (ECF No. 74 at 16-11.) The Court will discuss each
argument in turn.
A.

Notice
The CGIA codifies governmental immunity from suit in tort cases brought against

Colorado public entities and employees. Colo. Rev. Stat. §§ 24-10-101 et seq. “Cities
and counties are within the [CGIA’s] definition of ‘public entity.’” Springer v. City & Cnty.
of Denver, 13 P.3d 794, 799 (Colo. 2000); Colo. Rev. Stat. § 24-10-103(5). However,
the CGIA also contains exceptions, waiving immunity for certain cases. See Colo. Rev.
Stat. § 24-10-106(1). The question of whether governmental immunity under the CGIA
has been waived is one of subject matter jurisdiction. See Trinity Broad. of Denver, Inc.
v. City of Westminster, 848 P.2d 916, 925 (Colo. 1993).
The CGIA “requires a person claiming to have suffered an injury by a public

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entity to file written notice within 180 days after the discovery of the injury, regardless of
whether the person knew all of the elements of the claim.” Id. at 923. The notice
requirement is a jurisdictional prerequisite to a tort action under the CGIA, and “failure
of compliance shall forever bar any such action.” Colo. Rev. Stat. § 24-10-109(1).
Nevertheless, the Colorado Supreme Court has held that the term “compliance” in § 2410-109(1) is not to be interpreted as “strict compliance” but rather as “substantial
compliance”. Woodsmall v. Reg’l Transp. Dist., 800 P.2d 63, 69 (Colo. 1990); see also
City & Cnty. of Denver v. Crandall, 161 P.3d 627, 632 n.5 (Colo. 2007) (contrasting the
notice’s timeliness requirement, which is subject to strict compliance, with “the
adequacy of the notice’s contents[, which] is subject to a substantial compliance
standard”). To substantially comply with the notice requirement, a claimant is required
“to file written notice with the public entity and to make a good faith effort to include
within the notice, to the extent the claimant is reasonably able to do so, each item of
information listed in Section 24-10-109(2).” Woodsmall, 800 P.2d at 69. The requisite
information that must be contained in the notice is as follows:
(a) The name and address of the claimant and the name and address of
his attorney, if any;
(b) A concise statement of the factual basis of the claim, including the
date, time, place, and circumstances of the act, omission, or event
complained of;
(c) The name and address of any public employee involved, if known;
(d) A concise statement of the nature and the extent of the injury claimed
to have been suffered;
(e) A statement of the amount of monetary damages that is being
requested.
Colo. Rev. Stat. § 24-10-109(2).
Denver acknowledges that Plaintiffs provided timely Notices, but contends that
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they fail to substantially comply with § 24-10-109(2) because they made no mention of
“negligent construction” as the basis for Plaintiffs’ claims. (ECF No. 74 at 7.) In support
of its argument, Denver cites Hamon Contractors, Inc. v. Carter and Burgess, Inc., 229
P.3d 282, 298 (Colo. Ct. App. 2009), wherein the plaintiff’s letters failed to substantially
comply with the notice requirement because they did not allege any injury relating to
inadequate drainage design that predated the plaintiff’s contract with the city, instead
mentioning only injuries from drainage problems during the term of the contract. (See
ECF No. 74 at 7.)
Denver argues that Plaintiffs’ failure to state in their Notices that their injuries
were caused by negligent construction of the floor, and not solely a slippery substance
on the floor, is analogous to Hamon. (Id.) The Court finds Hamon readily
distinguishable. The Hamon court found the plaintiff’s notice inadequate because it
failed to allege the factual basis, including the date and circumstances of the act
complained of, for the pre-contractual tort claims it later brought. See 229 P.3d at 298;
Colo. Rev. Stat. § 24-10-109(2)(b). Here, however, Denver does not dispute that
Plaintiffs’ Notices properly allege the injuries they suffered, and a factual description of
how and when the injuries occurred. Plaintiffs’ Notices thus satisfy the requirements of
§ 24-10-109(2)(b) and (d) that a claimant must indicate the “factual basis of the claim,
including the date, time, place, and circumstances of the act, omission, or event
complained of”, and describe “the nature and the extent of the injury”.
Denver’s argument amounts to an assertion that Plaintiffs’ Notices are deficient
because they fail to allege the legal basis for their claims, namely, negligent

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construction of the floor at DIA. However, the plain language of the CGIA does not
require a claimant to provide notice of its legal theory of the claim, and Denver has cited
no authority supporting such a requirement. Accordingly, the Court finds that Plaintiffs’
Notices substantially comply with the notice requirement of § 24-10-109(2), and
dismissal of Plaintiffs’ claims is not warranted on that basis.
B.

Failure to Supervise, Train, Warn, and Install a Non-Slip Surface
Denver next moves to dismiss Plaintiffs’ claims for negligent failure to train and

supervise employees, failure to warn of a hazardous condition, and failure to install and
maintain a non-slip surface, contending that the CGIA provides it with immunity from
these claims. (ECF No. 74 at 8.) Plaintiffs state that their claims against Denver fall
under an exception to the CGIA at § 24-10-106(1)(c), wherein “[s]overeign immunity is
waived by a public entity in an action for injuries resulting from . . . [a] dangerous
condition of any public building”. (SAC ¶ 5.) The CGIA defines “dangerous condition”
as:
either a physical condition of a facility or the use thereof that constitutes
an unreasonable risk to the health or safety of the public, which is known
to exist or which in the exercise of reasonable care should have been
known to exist and which condition is proximately caused by the negligent
act or omission of the public entity or public employee in constructing or
maintaining such facility. . . . A dangerous condition shall not exist solely
because the design of any facility is inadequate.
Colo. Rev. Stat. § 24-10-103(1.3).
Denver does not contest that Plaintiffs’ claims for negligent construction and
negligent maintenance appear to fall within § 24-10-103(1.3), but instead argues that
Plaintiffs’ claims for negligent failure to train and supervise employees, failure to warn of
a hazardous condition, and failure to install and maintain a non-slip surface on the floor
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do not fall under the “dangerous condition” exception. (ECF No. 74 at 8-10.) Denver
cites Colorado case law holding that these types of claims are not encompassed in
negligent construction or maintenance for the purposes of determining whether
immunity has been waived under the CGIA. (ECF No. 74 at 9-10 (citing, e.g., Douglas
v. City & Cnty. of Denver, 203 P.3d 615, 619 (Colo. App. 2008) (“the failure to post
warning signs or to supervise does not involve the use of a dangerous physical
condition of the building that is associated with its maintenance” and “‘[m]aintenance’
does not include any duty to upgrade, modernize, modify, or improve the design or
construction of a facility”); Mason v. Adams, 961 P.2d 540, 546 (Colo. Ct. App. 1997)
(“the failure to post warning signs cannot serve as the basis for finding a dangerous
condition and thus a waiver of sovereign immunity”)).)
Plaintiffs’ Response does not cite any contrary case law, and unsuccessfully
attempts to factually distinguish the cases cited by Denver. (See ECF No. 76 at 9-11.)
Plaintiffs have failed to establish any legal basis for this Court to diverge from the
holdings therein. Accordingly, the Court finds that, insofar as they are construed as
separate claims for relief, Plaintiffs’ claims against Denver for failure to train and
supervise, failure to warn, and failure to install a non-slip floor are barred by the CGIA.
Therefore, Denver’s Motion is granted as to these separate claims.
However, Plaintiffs raise another argument, contending that the failure to warn is
“evidence of negligence in the maintenance of the building,” and the failure to install a
non-slip floor is an indication of “defective initial construction.” (Id. at 11.) That is,
these allegations are not to be construed as separate claims that must each fall under
an exception to the CGIA, but instead should be considered “constituent evidentiary
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pieces of Plaintiffs’ claim” for negligent construction and maintenance. (Id. at 9.)
Plaintiffs’ argument is supported by the Colorado Court of Appeals’ decision in Mason
v. Adams, in which the state’s failure to post warning signs did not fall under an
exception to the CGIA, but the trial court did not err in considering it as evidence
indicating that the state had ignored available means to mitigate the existing danger of
loose sand and gravel on the roadway. See Mason, 961 P.2d at 547.
Construed as such, the Court finds that Plaintiffs’ contentions regarding Denver’s
alleged failure to train, supervise, warn, and install a non-slip floor may be considered
as factual and evidentiary allegations supporting their claims for negligent construction
and maintenance, but not as separate claims upon which liability may be based.
C.

Loss of Consortium
With respect to Mrs. Carriker’s loss of consortium claim, Denver merely refers to

its previous two arguments: first, that Mrs. Carriker failed to comply with the notice
requirement of the CGIA, and second, that because Mr. Carriker’s claims must be
dismissed in their entirety, the derivative loss of consortium claim must also be
dismissed. (ECF No. 74 at 10-11.)
As discussed above, the Court has found that Plaintiffs substantially complied
with the notice requirement, and has dismissed Plaintiffs’ claims against Denver for
negligent failure to train, supervise, warn, and install a non-slip floor only insofar as
those allegations are construed as separate claims. Mr. Carriker’s claims for negligent
construction and maintenance under the Colorado Premises Liability Act remain
pending. Accordingly, the Court finds no basis on which to dismiss Mrs. Carriker’s loss
of consortium claim, and the Motion is denied in that respect.
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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Denver’s Renewed Motion to Dismiss Plaintiffs’ Second Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(1) (ECF No. 74) is GRANTED
IN PART and DENIED IN PART;

2.

The Motion is GRANTED with respect to Plaintiffs’ claims for failure to train,
supervise, warn, and install a non-slip floor, insofar as those allegations are
construed as separate claims; and

3.

The Motion is DENIED in all other respects.
Dated this 22nd day of July, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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