Construction Law

Plaintiff does not have to plead or prove compliance with CDARA

By Tim Gordon

Land-Wells v. Rain Way Sprinkler and Landscape, LLC (Colo. App. 2008)

Within the context of a personal injury action, the Colorado Court of Appeals holds that the Construction Defect Action Reform Act (CDARA) does not require the plaintiff to plead or prove compliance with the notice process of CDARA, or that the alleged injuries or damages arose from a "construction defect."

Plaintiff was injured when she slipped on an icy residential sidewalk.  She sued Rain Way, claiming that Rain Way had negligently installed landscaping in a way that allowed water and ice to accumulate on the sidewalk.

At trial, Plaintiff presented expert testimony that a landscaper has a duty to consider existing drainage systems, including buried downspouts.  Plaintiff's expert further testified that the mulch installed by Rain Way covered the end of a drain pipe, causing water to back up and freeze on the sidewalk.  Finally, Plaintiff's doctor testified that Plaintiff's injuries were directly related to her fall on the sidewalk.

The trial court entered a directed verdict in favor of Rain Way, finding that Plaintiff had failed to prove (1) compliance with the notice requirements of CDARA, and (2) that the sidewalk's icy condition was the result of a construction defect.  The Court of Appeals reversed and remanded for a new trial.

The Court of Appeals held that Plaintiff's evidence was sufficient to survive a motion for directed verdict on her negligence claim.  The Court's decision implicitly assumes that CDARA did apply to Plaintiff's lawsuit, and that Plaintiff did not comply with CDARA.  But the Court held that CDARA does not require that Plaintiff plead or prove compliance in order to sustain her burden of proof for her negligence claim.  Thus, entry of the directed verdict was improper.

The fact that CDARA explicitly provides "remedies" in the event its requirements are not followed supports the Court of Appeals' opinion.  CDARA contains two notable notification provisions.  The first is the notice-of-claim process, which is supposed to be followed before a lawsuit is filed.  C.R.S. 13-20-803.5.  If a plaintiff fails to comply with the notice-of-claim process, then the case is supposed to be stayed until the plaintiff complies.  C.R.S. 13-20-803.5(9).  The second related CDARA provision requires that the plaintiff file with the court and serve on the defendants a list of defects sixty days after the lawsuit is filed.  C.R.S. 13-20-803.  The penalty for failing to file list of defects is that the case will not be set for trial.  C.R.S. 13-20-803(3).

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Full post as published by Colorado Construction Law on May 15, 2008 (boomark / email).