Opinion
No. 73-124
Decided March 19, 1974. Rehearing denied April 9, 1974. Certiorari granted June 3, 1974.
Wrongful death action by widow of workman killed in natural gas explosion that occurred after city employees had inspected the scene of a gas main break. From judgment for plaintiff, city appealed.
Affirmed
1. WORKERS' COMPENSATION — Death of Employee — Construction Company — Installation of Sewer Drains — City — Not — Constructive Employer — Not Immune — Civil Suit. In wrongful death action against city by widow of construction company employee who had been killed in a natural gas explosion while working on installation of storm sewer drains in a city street, the city cannot qualify as a constructive employer of decedent under the provisions of the Workers' Compensation Act; thus, it is not entitled to the immunity granted such constructive employees under the Act and accordingly may be subject to a civil action.
Appeal from the District Court of El Paso County, Honorable George M. Gibson, Judge.
Myrick Newton, P.C., William E. Myrick, Theodore M. Smith, for plaintiff-appellee.
Gordon D. Hinds, City Attorney, Horn, Anderson Johnson, Louis Johnson, for defendant-appellant.
Defendant-appellant (City) appeals from a judgment for plaintiff-appellee in an action for wrongful death. We affirm.
The record reflects that the City engaged Tiago Construction Company to install storm sewer drains on a street owned by the City. The decedent, Lawrence J. Ellsworth (husband of plaintiff), was employed by Tiago on this project.
In conjunction with excavation for and installation of the storm sewer, Tiago broke a two-inch gas main owned by the City, which allowed a substantial amount of natural gas to escape. Tiago made repairs and then notified the City of the break, whereupon City employees inspected the area on the day of the break and again on the following morning and concluded from testing that the break had been repaired. However, no tests were made inside the storm sewer itself.
Tiago then resumed installation of this storm sewer. Decedent entered the storm sewer with a co-worker in the area of the break and was applying grout to seal joints inside the sewer. An explosion occurred, killing decedent and his co-worker.
Plaintiff instituted this action against the City to recover damages for wrongful death, alleging that the City was negligent in maintenance and control of its gas line. The City answered, denying its negligence, alleging contributory negligence and assumption of the risk by decedent, and contending that it was immune from suit by virtue of C.R.S. 1963, 81-9-1, and 81-9-2. Prior to trial on the merits, the trial court determined pursuant to motion for summary judgment that the statutes referred to did not provide immunity for the City.
Thereafter the balance of the issues were tried to the court, and the trial court found that the City's negligence was the proximate cause of decedent's death. The City does not appeal that finding. The trial court also found that there was insufficient evidence to show contributory negligence or assumption of the risk by decedent. The trial court accordingly entered judgment for plaintiff.
Contributory Negligence and Assumption of the Risk
The City contends that as a matter of law decedent was guilty of contributory negligence because other employees of Tiago were aware of the odor of natural gas in the pipeline, and the decedent must be presumed to have normal sensitivity to odors of natural gas. The City further asserts that under these facts, as a matter of law, decedent voluntarily assumed the danger. We disagree.
The trial court found that natural gas is odorless, that an odorant designed to alert people to the presence of gas was injected by the City, and that therefore the odor must have been present during the morning prior to the explosion. However, the trial court also found that the gas was trapped in the east end of the sewer line; that for several hours prior to the explosion decedent had been working in the pipeline commencing from the west end and proceeding to the east end where the gas was trapped; that decedent was at no time warned of any danger; and, that there was no evidence to show that he detected the odor of natural gas.
Although one of Tiago's employees working above the sewer line descended into the storm sewer shortly prior to the explosion and left because of the odor, the record reflects that this worker's descent into the pipe was more rapid than that of decedent and his co-worker, and the trial court therefore concluded this worker would notice a stronger odor more readily than the decedent and his co-worker. On the basis of this evidence, the trial court found that the City had failed in its burden of proving contributory negligence or assumption of risk.
The evidence supports the findings of the trial court, and we therefore affirm. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Statutory Immunity from Suit
The City contends that C.R.S. 1963, 81-9-1, and 81-9-2, provide immunity from plaintiff's suit. We disagree.
In brief, C.R.S. 1963, 81-9-2, exempts a property owner from claims of any kind by employees of a contractor for work done on the owner's property if the contractor has workmen's compensation coverage. Conversely, if the contractor is not insured, the owner becomes liable to pay workmen's compensation benefits. C.R.S. 1963, 81-9-1, exempts a contractor from claims of any kind if he engages a sub-contractor to do part or all of the contractor's work and the sub-contractor carries workmen's compensation coverage. On the other hand, if the sub-contractor is not covered, the contractor becomes liable to pay workmen's compensation benefits.
The parties stipulated that the City owned the property on which the storm sewer was being installed, that Tiago was employed as a contractor and carried workmen's compensation insurance, and that plaintiff received the benefits authorized by the Workers' Compensation Act pursuant to Tiago's coverage.
The trial court relied on State Compensation Insurance Fund v. Alishio, 125 Colo. 242, 250 P.2d 1015, as authority for ruling that the statutes in question provide no immunity for the City in this case. The City contends that by virtue of amendments to the statute made in 1963, the Alishio case is no longer controlling. We disagree.
In Alishio, the City of Trinidad had engaged a contractor to install lightpoles and fixtures along certain city streets. The claimant's husband was employed by the contractor and was electrocuted while working on the project. The claimant filed for workmen's compensation benefits against the City, asserting that the City was liable therefor under 1935 Colo. Stat. Ann., chap. 97 § 328 and 329, (now C.R.S. 1963, 81-9-1 and 81-9-2).
Our Supreme Court held that since the legislature had clearly distinguished public employers and their employees from private employers and their employees in various sections of the Workers' Compensation Act, a claimant could only recover benefits under the Act if he qualified as a public employee, i.e., was a regular employee and on the payroll of the City. Thus, the Supreme Court held that a public employer cannot be a constructive employer under the statutes before us.
[1] The case before us poses the logical converse of Alishio and that the City here seeks to assert the immunity granted by the statute to a constructive employer. Since the City cannot qualify as a constructive employer, it is not entitled to this immunity and may be subject to a civil action pursuant to C.R.S. 1963, 81-13-8.
We have reviewed the 1963 amendments and conclude that these amendments do not affect the rule established by Alishio.
The judgment is therefore affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.