Monday, February 5, 2018

Colorado Supreme Court rules Smokebrush Foundation clear to sue city

Posted By on Mon, Feb 5, 2018 at 1:15 PM

click to enlarge Katherine Tudor and Don Goede, founder and executive director, respectively, of the Smokebrush Foundation, as they observed testing samples taken from their property in 2013. - FILE PHOTO
  • File photo
  • Katherine Tudor and Don Goede, founder and executive director, respectively, of the Smokebrush Foundation, as they observed testing samples taken from their property in 2013.
In April 2013, we wrote about pollution from the city's former coal gasification plant drifting onto a neighbor property owned by the Smokebrush Foundation.

Feb.6, the Colorado Supreme Court issued a ruling in Smokebrush's favor on one matter, which clears the way for Smokebrush to sue the city for damages. For background on the case, see this explanation we published as the Supreme Court prepared to hear oral arguments a year ago.

The ruling said the the city is liable for gas pollution it generated almost 80 years ago that's migrated to the Smokebrush property on Cimino Drive under the Colorado Avenue bridge.

The case could impact other claims across the state that involve pollution migrating to neighboring properties, Smokebrush's attorney Randall Weiner says in a phone interview.

In fact, the city of Boulder recently reached a settlement with Xcel Energy for $3.6 million for contamination beneath city property caused by an old gas plant, he notes. "If cities can obtain monies from utilities for contaminating the sites, then certainly neighbors like Smokebrush should be able to obtain monies to clean up the site" caused by pollution year ago.

Other cities that have such sites include Sterling, La Junta and Grand Junction, Weiner says.

"We've had to jump through so many hoops just to get the opportunity to get justice for the Smokebrush Foundation," he says, noting the case will be returned to District Court in coming weeks where damages will be litigated. "Thanks to Kat Tudor and Don Goede [with Smokebrush Foundation] for having the staying power."

Weiner reports his clients have had no settlement discussions with the city.

Here's the conclusion of the Supreme Court:
For these reasons, we conclude that the City has not waived immunity under section 24-10-106(1)(c)’s dangerous condition of a public building exception for Smokebrush’s asbestos-related claims. We further conclude, however, that the City has waived immunity under section 24-10-106(1)(f)’s public gas facility exception for Smokebrush’s coal tar-related claims. Accordingly, we affirm in part and reverse in part the judgment of the court of appeals, and we remand this case to that court with instructions that the case be returned to the district court for the dismissal of Smokebrush’s asbestos-related claims and further proceedings on its coal tar-related claims.
Read the entire ruling here:



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