Lopez v. City of Grand Junction , 2018 COA 97 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 12, 2018
2018COA97
No. 16CA1652 Lopez v. City of Grand Junction — Torts —
Negligence; Government — Colorado Governmental Immunity
Act — Immunity and Partial Waiver
In this negligence case implicating the Colorado Governmental
Immunity Act, a division of the court of appeals applies the
analytical framework of Springer v. City & Cty. Of Denver, 13 P.3d
794 (Colo. 2000), to conclude that under section 24-10-106(1)(f),
C.R.S. 2017, a city’s immunity may be waived for the operation or
maintenance of a public facility performed by its independent
contractor.
The division here concludes that plaintiffs met their burden to
establish a waiver of immunity as to its negligence claims against
the City of Grand Junction (City) for its independent contractor’s
maintenance work on a traffic light. Accordingly, it reverses the
district court’s C.R.C.P. 12(b)(1) dismissal of these claims. The
division, however, affirms the district court’s C.R.C.P. 12(b)(1)
dismissal of plaintiff’s negligence claims brought against the City
regarding its maintenance of a sewer line.
COLORADO COURT OF APPEALS 2018COA97
Court of Appeals No. 16CA1652
Mesa County District Court No. 13CV30147
Honorable Brian J. Flynn, Judge
Roberto Lopez, Jordan Pierson, and Kolby Gimmeson,
Plaintiffs-Appellants,
v.
City of Grand Junction, Colorado,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE LICHTENSTEIN
Taubman and Román, JJ., concur
Announced July 12, 2018
Killian Davis, P.C., J. Keith Killian, Damon Davis, Joseph Azbell, Grand
Junction, Colorado, for Plaintiffs-Appellants
Baldwin Morgan & Rider, P.C., Sophia H. Tsai, Kelly L. Kafer, Denver,
Colorado, for Defendant-Appellee
¶1 Underground maintenance of a public traffic light in Grand
Junction breached a natural gas line. Leaking gas from the
ruptured line migrated to a house, resulting in an explosion and
injuries. As a matter of first impression, we must determine
whether section 24-10-106(1)(f), C.R.S. 2017, can be applied to
waive the immunity of the City of Grand Junction (City), even
though the maintenance of the traffic light was performed by an
independent contractor. We conclude that it can.
¶2 Roberto Lopez, Jordan Pierson, and Kolby Gimmeson
(plaintiffs) brought negligence claims against the City for their
resultant personal injuries and property damage. Plaintiffs’
complaint alleges, among other things, that the City breached its
duty of care to safely maintain its utility, electric, and sewer lines.1
¶3 As pertinent here, the complaint alleges that the City
contracted with Apeiron Utility Construction (Apeiron) to upgrade
1 Plaintiffs’ complaint asserted other negligence claims against the
City and against other defendants, but those claims are not at issue
here. This appeal challenges only their claims against the City for
negligence in maintaining its utility and electric lines for the traffic
light (including a vicarious liability theory for its independent
contractor’s conduct on this project), and for negligence in
maintaining its sewer line.
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utility lines that powered a traffic light and that during this
maintenance project Apeiron ruptured a gas line, and the leaking
gas resulted in the house explosion. The complaint alleges that
Apeiron’s conduct should be imputed to the City.
¶4 The City moved to dismiss these negligence claims for lack of
jurisdiction under C.R.C.P. 12(b)(1), asserting governmental
immunity under the Colorado Governmental Immunity Act (CGIA).
¶5 In response, plaintiffs argued that the City had waived its
immunity pursuant to section 24-10-106(1)(f). This CGIA provision
waives immunity for injuries resulting from the operation and
maintenance of any public “sanitation [or] electrical facility.” After
the district court held a Trinity hearing on the motion, it granted the
City’s motion to dismiss.
¶6 Applying the analytical framework of Springer v. City & County
of Denver, 13 P.3d 794 (Colo. 2000), we conclude that the waiver of
immunity under section 24-10-106(1)(f) applies even if the
operation or maintenance was performed by a public entity’s
independent contractor.
¶7 Given this conclusion, and based on the facts found by the
district court, we further conclude that the plaintiffs met their
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burden to establish a waiver of immunity as to the negligence
claims against the City for Apeiron’s maintenance work on the
traffic light. Accordingly, we reverse the district court’s C.R.C.P.
12(b)(1) dismissal of these claims for lack of jurisdiction and
remand for further proceedings.
¶8 However, we affirm the district court’s dismissal of plaintiffs’
negligence claim against the City as to its operation and
maintenance of its sewer line, as plaintiffs’ evidence did not support
an immunity waiver under section 24-10-106(1)(f).
¶9 Because we are reversing the dismissal of two of the
negligence claims in the complaint, we deny the City’s request for
attorney fees.
I. Additional Factual Background
¶ 10 Following the Trinity hearing, the district court adopted the
City’s nine-page proposed order of dismissal, which includes the
following factual findings.
¶ 11 The City planned to install new electrical lines through an
underground conduit to fix a malfunctioning traffic light. The City
did not have the personnel or equipment to bore under the road to
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place the conduit, so it hired Apeiron to do this underground
drilling work.
¶ 12 Before selecting the location to bore the hole, and pursuant to
an agreement between the City and Apeiron, Apeiron contacted the
various utility owners to mark their utility lines. One of the utility
owners, Xcel Energy, hired Safe Site to mark its gas lines. Safe Site
marked two gas lines.
¶ 13 Once the utility lines were marked, Apeiron dug potholes to
visualize the located utility lines and then began the directional
drilling work. As it was drilling the pilot bore across the road,
Apeiron’s crew foreman felt the drill strike something. He checked
with a City employee, and they both determined that they were not
aware of any additional utility lines in the area. Apeiron resumed
its work. After drilling the pilot bore, Apeiron pulled a larger drill
head back that also pulled the new conduit back through the hole.
During this process, the drill struck a natural gas line that ran
below the two lines located by Safe Site. After this breach, gas
leaked into the surrounding ground and also into a sewer main
located approximately fifteen to twenty feet away.
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¶ 14 There was disputed evidence as to the exact path that the gas
travelled to the house, although it was not disputed that gas
entered the house through its basement, where there was a
nonfunctional toilet and unused shower. One or both of these had
a dry P-trap that allowed the gas into the basement. The gas
ignited and caused an explosion.
¶ 15 The court found that the sewer main was made of a commonly
used porous vitrified clay pipe, not intended to keep gases or
vegetation in or out. At the time of the incident, the pipe was intact
and in good condition, and the sewer main “was functioning at or
near the same efficiency as it had when it was installed.”
II. The CGIA
¶ 16 The CGIA establishes governmental immunity from suit for
public entities and their employees in tort cases, but it also waives
immunity in certain circumstances. See § 24-10-106; Springer, 13
P.3d at 798, 801 n.5; see also Daniel v. City of Colorado Springs,
2014 CO 34, ¶ 13.
¶ 17 This statutory scheme serves the purpose of protecting the
public against unlimited liability and excessive fiscal burdens, while
allowing the common law of negligence to operate against
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governmental entities except to the extent the statute has barred
suit against them. Walton v. State, 968 P.2d 636, 643 (Colo. 1998);
see Springer, 13 P.3d at 803; see also § 24-10-102, C.R.S. 2017.
¶ 18 Because governmental immunity from suit derogates the
common law of negligence, courts must strictly construe the CGIA
provisions that grant immunity. Springer, 13 P.3d at 798; Walton,
968 P.2d at 642. For the same reason, courts must broadly
construe the statute’s provisions that waive immunity in the
interest of compensating victims injured by the negligence of
government agents. Springer, 13 P.3d at 798; Walton, 968 P.2d at
643.
¶ 19 As pertinent here, a public entity’s immunity from negligence
claims will be waived for injuries “resulting from . . . [t]he operation
and maintenance of any public . . . sanitation [or] electrical facility.”
§ 24-10-106(1)(f).2
¶ 20 “Resulting from” is construed broadly to require only a
“minimal causal connection” between the injuries and the specified
2 At the Trinity hearing and on appeal, the parties do not dispute
that the City’s traffic light, conduit, and sewer main are public
facilities as contemplated by this waiver provision.
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conduct. Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75,
86 (Colo. 2003). Because the required showing is minimal, and
because discovery before a Trinity hearing is limited, the district
court should afford a plaintiff the favorable inferences of his
allegations and need not reach so far as to determine whether the
injuries were “caused by” the specified conduct. Id.
¶ 21 “Operation” means “the act or omission of a public entity or
public employee in the exercise and performance of the powers,
duties, and functions vested in them by law with respect to the
purposes of any public” power or sanitation facility. § 24-10-
103(3)(a), C.R.S. 2017.
¶ 22 This broad definition of “operation” includes the concept of
maintenance. City of Colorado Springs v. Powell, 48 P.3d 561, 565
(Colo. 2002). “Maintenance” is defined as “the act or omission of a
public entity or public employee in keeping a facility in the same
general state of repair or efficiency as initially constructed or in
preserving a facility from decline or failure.” § 24-10-103(2.5).
III. Trinity Hearing and Standard of Review
¶ 23 If governmental immunity is raised before trial, “the issue is
properly addressed pursuant to a C.R.C.P. 12(b)(1) motion to
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dismiss” for lack of jurisdiction. Corsentino v. Cordova, 4 P.3d
1082, 1087 (Colo. 2000).
¶ 24 A trial court may hold a hearing and receive any competent
evidence pertaining to the motion. Trinity Broadcasting of Denver,
Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993). Injured
plaintiffs bear the burden of proving the court’s subject matter
jurisdiction under the CGIA and that immunity has been waived.
Tidwell, 83 P.3d at 85. Plaintiffs are afforded the reasonable
inferences of their evidence supporting a waiver. Id.
¶ 25 On review, we defer to the district court’s factual findings
unless they are clearly erroneous and unsupported by the record.
City & Cty. of Denver v. Dennis, 2018 CO 37, ¶ 12; see Walton, 968
P.2d at 645. Once questions of historical fact are resolved, the
question whether a governmental entity is entitled to immunity is
one of law, which we review de novo. Dennis, ¶ 12.
IV. Maintenance of the Traffic Light
¶ 26 Plaintiffs contend that the district court erroneously concluded
that Apeiron’s conduct in maintaining the traffic light was not
attributable to the City for purposes of waiving the City’s immunity
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under section 24-10-106(1)(f). For the reasons that follow, we
agree.
A. The Conduct at Issue
¶ 27 As an initial matter, we must address the “conduct” that
plaintiffs argue is attributable to the City. The district court’s order
characterized the plaintiffs’ argument as “seek[ing] to impute any
act or omission related to locating and marking the gas lines to the
City” ― an act performed by a third party, Safe Site.
¶ 28 But at the Trinity hearing and on appeal, plaintiffs have
consistently argued that the conduct at issue was Apeiron’s act of
striking (and breaching) the natural gas line with a directional drill.
We will therefore review plaintiffs’ attribution argument as it was
argued and with deference to the district court’s findings of fact.
¶ 29 As a logical matter, any attribution of Apeiron’s conduct to the
City will only matter — for purposes of waiver — if the conduct
would have waived the City’s immunity had the City itself
committed this act.
¶ 30 The City’s immunity is waived if plaintiffs can show they had
injuries “resulting from” the specified conduct. § 24-10-106(1)(f);
Tidwell, 83 P.3d at 86. As noted above, the phrase “resulting from”
9
does not require a showing that the injuries were “caused by” the
conduct. Tidwell, 83 P.3d at 86. But there must be at least a
“minimal causal connection” between the injuries and the specified
conduct. Id.
¶ 31 At the Trinity hearing, the district court found that the City’s
project involved drilling a bore hole under the road to install a new
conduit to hold additional electrical lines for its traffic light. During
this project, the drill struck a natural gas line, breaching it. The
court found that “it is undisputed that natural gas from the breach
got into the sewer main and surrounding ground . . . [and] it is not
disputed that the gas entered the home through the basement” and
the house then exploded.
¶ 32 Construing the waiver provision broadly, and affording
plaintiffs the favorable inferences from these undisputed facts, see
id., we conclude the injuries “result[ed] from” the conduct of
striking (and breaching) the natural gas line. Thus, this conduct
would have waived the City’s immunity had the City itself
committed this act.
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B. Attribution of the Conduct
¶ 33 Because Apeiron — not the City — committed this act, we
must determine whether its conduct is attributable to the City for
purposes of the CGIA waiver.
¶ 34 The operation and maintenance waiver in section 24-10-
106(1)(f) does not mention any party except the public entity.
Nonetheless, plaintiffs argue that the supreme court, in Springer,
has already construed a different CGIA waiver provision3 to
encompass the conduct of a public entity’s independent contractor
even though that waiver provision only mentions the public entity.
Plaintiffs urge us to similarly construe the operation and
maintenance waiver provision.
¶ 35 In Springer, the supreme court initially looked beyond the
waiver’s language to other text in the CGIA, but did not find
anything that would preclude the attribution of the independent
contractor’s conduct to the public entity. See 13 P.3d at 801.4
3 The provision at issue was section 24-10-106(1)(c), C.R.S. 2017
(dangerous condition of any public building).
4 To the extent the City relies on this other text in the CGIA and
repeats the same arguments that did not prevail in Springer, we
reject those arguments.
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¶ 36 The court then turned to other means of statutory
construction to discern the legislative intent of the waiver provision
so it could assess whether that intent is consistent with attributing
the independent contractor’s conduct to the public entity.
¶ 37 First, it evaluated the waiver’s underlying rationale to analyze
why the public entity lacks immunity. Id.; see § 2-4-203(1)(a),
C.R.S. 2017. Second, it considered the alternative construction if
the waiver provision were narrowly construed to apply solely to the
acts or omissions of the public entity. Springer, 13 P.3d at 801-02;
see § 2-4-203(1)(e). Third, it evaluated whether an expansive
interpretation of the waiver — to attribute the independent
contractor’s conduct to the public entity — is consistent with the
legislative intent to comport with recognized common law negligence
principles. Springer, 13 P.3d at 802; see § 2-4-203(1)(g).
¶ 38 The Springer court determined that a public entity lacks
immunity because it is responsible for its acts (in creating), as well
as its omissions (in failing to reasonably discover and correct), an
unsafe condition in a public building. Springer, 13 P.3d at 801.
Next, it observed that if the waiver were narrowly construed to
exclude the acts or omissions of the independent contractor, a
12
public entity could simply avoid responsibility by contracting out its
work to others, which would nullify the essential purpose and effect
of the waiver. Id. at 801-02. Finally, it determined that an
expansive reading of the General Assembly’s intent — to hold a
public entity responsible for the acts of its independent contractor
— is consistent with longstanding principles of tort liability. Id. at
802 (citing Restatement (Second) of Torts § 422 (Am. Law Inst.
1965)).
¶ 39 Applying this same analytical framework to the operation and
maintenance waiver of section 24-10-106(1)(f), we are likewise
persuaded that an independent contractor’s conduct is attributable
to a public entity for purposes of waiving immunity.
¶ 40 As in Springer, the underlying rationale for waiving the public
entity’s immunity from suit is that a public entity is in a position to
avoid injury to the public when it engages in a public works project.
See id. at 801. A public entity, while operating or performing
maintenance on a public facility, is liable because it is in a position
to avoid creating (“act”) or failing to prevent (“omission”) a
circumstance resulting in injury. See id.
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¶ 41 We are not convinced by the City’s argument that the
legislature intended a different outcome because the dangerous
condition waiver focuses on a “condition,” whereas the operation
and maintenance waiver focuses on “conduct.” Under both waivers,
the governmental entity’s responsibility to avoid injury to the public
stems from its conduct while engaging in a public works project.
See § 24-10-103(1.3) (defining “dangerous condition” to be a
physical condition caused “by the negligent act or omission of the
public entity . . . in constructing or maintaining such facility”)
(emphasis added); see also Springer, 13 P.3d at 799 (“[T]he
dangerous condition must be associated with construction or
maintenance, not solely design.”).
¶ 42 Next, as in Springer, the waiver’s underlying principle would
be nullified if the public entity could escape liability by simply
hiring an independent contractor for the operation and
maintenance of its public facilities. See 13 P.3d at 801-02.
¶ 43 Finally, expansively reading the operation and maintenance
waiver to attribute an independent contractor’s conduct to a public
entity is consistent with common law principles as reflected in the
Restatement (Second) of Torts. See id. at 802 (supporting its
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interpretation of the CGIA with “longstanding principles of tort
liability”).
¶ 44 Generally, a person hiring an independent contractor to
perform work is not liable for the negligence of the independent
contractor. Huddleston ex rel. Huddleston v. Union Rural Elec.
Ass’n, 841 P.2d 282, 288 (Colo. 1992). However, there are widely
recognized exceptions to this rule. Id.
¶ 45 For example, when a public entity retains possession of its
premises during the independent contractor’s performance of
maintenance on those premises, it essentially assumes the role of a
landowner. Section 422 of the Restatement provides that the
landowner is liable for injuries caused by the negligence of the
independent contractor if the landowner retains possession of the
land while the work is being done or once the landowner resumes
possession of the land upon completion of the work. Restatement
(Second) of Torts § 422, Westlaw (database updated June 2018).
¶ 46 Indeed, the Springer court relied on section 422 to conclude
that attribution of an independent contractor’s work to a public
entity is consistent with the rationale of the dangerous condition
waiver of immunity provisions. 13 P.3d at 802. We perceive the
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same consistency with the operation and maintenance waiver.
Section 422 is not limited to dangerous conditions, but
contemplates a landowner’s liability for injuries resulting from other
acts or omissions of its independent contractor. See Restatement
(Second) of Torts § 422 cmt. c.
¶ 47 Other widely recognized common law principles of liability
attribute the conduct of the independent contractor to the employer
based on the nature of the activity. Here, plaintiffs assert — and
the City does not dispute — that the maintenance project involved
inherently dangerous activity.
¶ 48 In this vein, we look to the common law principles based on
the nature of the activity. Section 427 of the Restatement provides
that an employer of an independent contractor is liable for injuries
created during work which involves a special danger to others.
Restatement (Second) of Torts § 427. Relatedly, section 416
recognizes that an employer of an independent contractor is liable
for injuries created during work which creates a “peculiar risk of
physical harm to others unless special precautions are taken.” Id.
at § 416.
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¶ 49 Thus, expansively reading the operation and maintenance
waiver to attribute an independent contractor’s conduct to a public
entity is consistent with these common law principles. Springer, 13
P.3d at 802 (“Where the rationales underlying related legal
provisions are consistent, the application of the provisions should
likewise be consistent.”).
¶ 50 We therefore conclude that a public entity “maintains” a public
facility, for purposes of the immunity waiver in section 24-10-
106(1)(f), even if it hires an independent contractor to perform the
maintenance. Given this conclusion, and based on the district
court’s findings, plaintiffs met their burden to establish a waiver of
immunity as to their negligence claims against the City.
¶ 51 Consequently, we reverse the district court’s order dismissing
plaintiffs’ negligence claims against the City for Apeiron’s
maintenance work on the traffic light.
V. The City’s Maintenance of the Sewer Main
¶ 52 Plaintiffs next assert that the district court erred when it
dismissed their negligence claim against the City as to its operation
17
and maintenance of its sewer main.5 Plaintiffs argue that the
explosion and consequent injuries resulted from the City’s failure to
keep the sewer main in the same general state of repair as when it
was initially constructed. We affirm the district court’s dismissal of
this claim.
A. The “Operation and Maintenance” Waiver
¶ 53 Section 24-10-106(1)(f) waives governmental immunity in
actions for injuries resulting from the operation and maintenance of
a public sanitation facility. § 24-10-106(1)(f); Powell, 48 P.3d at
563.6
¶ 54 Immunity is waived if an injury results from a public entity’s
failure to keep the public facility “in the same general state of being,
repair, or efficiency as initially constructed.” § 24-10-103(2.5)
5 The court did not address plaintiffs’ argument that the operation
and maintenance waiver applied to the City’s alleged failure to keep
the sewer line in the same state of repair or efficiency. And the
court did not rule on plaintiffs’ C.R.C.P. 59 motion, which requested
the court to address this issue. Therefore, by operation of law, the
court rejected this argument. See C.R.C.P. 59(j) (any post-trial
motion that has not been decided within the allowable time period
shall be deemed denied).
6 A public “sanitation facility” includes the City’s sewer main. § 24-
10-103(5.5), C.R.S. 2017 (including structures and related
apparatus used in the collection or disposition of sewage of a liquid
nature in the definition of public sanitation facility).
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(defining maintenance). This determination focuses on what “the
city did or did not do that is connected with the purpose of the
[facility].” Powell, 48 P.3d at 565.
B. Discussion
¶ 55 Plaintiffs argue that at the time of the explosion, the sewer
main was not in the same general state of repair as when it was
installed. Over time, plant roots had grown into the sewer main,
creating gaps at the joints, which allowed the gas to enter the pipe.
Thus, they assert, the City’s failure to keep the line free of these
invasive roots was a failure to maintain which waived liability under
the CGIA.
¶ 56 The district court found that the sewer main was a vitrified
clay pipe, and that “vitrified clay pipe is porous and not intended to
keep gases or vegetation in or out of the sewer main.”
¶ 57 It found that at the time of the explosion
the sewer main was intact and in good
condition. . . . [T]he City had maintained the
sewer main, cleaning it approximately every
2.5 years. The main in that area was last
cleaned in February 2012, approximately 13
months before this incident. At that time, the
main was intact and in good condition.
¶ 58 The court also found that
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[t]he sewer main was installed in the 1940s,
and was made of vitrified clay pipe pursuant to
the original design for the sewer main. . . . On
March 19, 2013 [the day of the explosion], the
sewer main was functioning at or near the
same efficiency in 2013 as it had [been] when
it was installed.
¶ 59 Testimony at the hearing supported these findings. Steven
Guillory, the utility engineer for the City, acknowledged there was
“some vegetation at some of the joints in the pipe” but agreed the
pipe was in the same general state of repair or efficiency as when it
was initially constructed:
[City Attorney]: In your role as utility engineer
can you say whether in March of 2013 the
sewer main . . . was in the same general state
of repair or efficiency as initially constructed?
[Guillory]: Yes, I would say it was.
¶ 60 Similarly, Larry Brown, the maintenance and collections
supervisor for the City’s wastewater system, testified that he looked
at the video of the sewer main and did not remember “much in the
way” of vegetation in the line. He testified that the line was in good
condition, without any breaks, and that it was “[v]ery clean for a
sewer line.” When the City’s attorney asked him if the sewer main
was in the same general state of repair or efficiency as when it was
20
initially constructed, he testified that it was “fairly close. It looked
pretty good.”
¶ 61 True, there was conflicting testimony from Zachary Jason,
who testified that the sewer was “severely damaged and broken in
several areas [because r]oots were penetrating the clay pipe.” But
the court resolved the evidentiary dispute, finding that the “sewer
main was intact and in good condition” and “was functioning at or
near the same efficiency in 2013 as it had when it was installed.”
¶ 62 Based on this record, we agree with the district court that
plaintiffs did not meet their burden to prove a waiver under section
24-10-106(1)(f).
¶ 63 Plaintiffs nonetheless ask this court to remand for further
findings because the district court only found that the sewer was in
the same general state of efficiency, not the same general state of
repair. We decline to do so.
¶ 64 Although the district court’s order did not expressly use the
words “state of repair,” the court found that the City actively
maintained the sewer line; it was intact, in good condition, and it
functioned as it did when it was installed. See Powell, 48 P.3d at
21
 562 (A waiver results from act or omission “connected with the
purpose of the facility.”).
VI. Attorney Fees
¶ 65 The City requests an award of attorney fees pursuant to
section 13-17-201, C.R.S. 2017, which mandates an attorney fee
award when an action is dismissed for lack of subject matter
jurisdiction under the CGIA. Crandall v. City of Denver, 238 P.3d
659, 663 (Colo. 2010) (The mandatory language of section
13-17-201 applies to all tort actions, including “CGIA actions
dismissed pursuant to a C.R.C.P. 12(b)(1) motion.”). But because
we reverse that part of the judgment dismissing the traffic light
claims for lack of subject matter jurisdiction, an award of attorney
fees is not appropriate.
VII. Conclusion
¶ 66 We reverse that part of the judgment dismissing the negligence
claims against the City for Apeiron’s maintenance work on the
traffic light, and the case is remanded to the district court. We
affirm that part of the judgment dismissing plaintiffs’ negligence
claim against the City as to its operation and maintenance of the
sewer main.
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JUDGE TAUBMAN and JUDGE ROMÁN concur.
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