Judge: No immunity for city in Smokebrush suit

By Lance Benzel Published: December 24, 2013 | 7:00 pm 0

Governmental immunity will not shield the city of Colorado Springs from a pending lawsuit alleging that workers at a downtown arts organization were sickened by a poorly contained environmental hazard, a judge has ruled.

The decision by 4th Judicial District Judge Timothy J. Schutz on Friday marked a key victory for the Manitou Springs-based Smokebrush Foundation for the Arts, which alleges employees were exposed to dangerous contaminants in the air outside the group's former offices at 219 W. Colorado Ave.

Had the judge found the city was immune from liability, as it claimed, the lawsuit likely would have been dismissed. Now, it appears poised for a jury, though an appeal by the city would probably delay a trial.

In a written statement, the City Attorney's Office said Tuesday it has yet to make a decision on whether to appeal but said it "continues to believe it is correct in its position."

The judge set a Jan. 8 deadline for the city's reply.

According to the lawsuit, Smokebrush Foundation workers were sickened and exposed to cancer-causing agents by chemically laden dirt blowing from a city-sponsored demolition project that began in February at the city's Gas Administration Building along the rail corridor. The group says independent testing also found that an underground chemical plume had also seeped onto its property, all the legacy of a former tenant next door: a turn-of-the century coal plant that contaminated soil with coal tar before it was converted into a natural gas plant in 1931 and eventually dismantled in the 1950s and 60s.

The Colorado Department of Public Health and Environment determined in the early 1990s that the pollution was effectively mitigated by an asphalt parking lot and buildings that sat atop the contaminated ground.

The suit alleges that the city failed to ensure erosion-control measures were in place, however, when it hired a demolition firm to remove the parking lot and knock down two buildings, including the gas building. The result: Contaminated dirt was free to blow through the area, the group says. The area is now again covered by asphalt.

The swath of southwest downtown is now part of the footprint being eyed to house a stadium as part of the City for Champions initiative.

Kat Tudor, founder and creative director of The Smokebrush Foundation, said the judge's ruling clears the way to seek damages for health problems in the wake of the demolition. The group's staff of six employees began contracting respiratory illnesses when the dirt was disturbed by the demolition, she said. The group moved to Manitou Springs this summer and plans to sell its former location. Tudor cheered the win even as she raised questions about lingering risks, especially given plans for a tourist destination.

In its statement, the City Attorney's Office said the city acted with "great care" in remediating the site, it defended its handling of the claim and restates the city's position that state law does not permit lawsuits against governmental entities in this situation.

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