Steven Swanson Secures Appellate Victory for Construction Company in Personal Injury Case

Partner Steven Swanson successfully represented a construction company client on appeal before the Colorado Court of Appeals. The court affirmed summary judgment in favor of Steven’s client, InfraSource Underground Construction Services, LLC n/k/a Mears Group, Inc., in a personal injury action resulting from the deterioration of a sidewalk panel that caused alleged injuries to the plaintiff.

Originally, the plaintiff sued InfraSource and three additional parties, alleging liability for an injury he suffered due to the replacement of a concrete sidewalk panel six-and-a-half years prior.

Between October 2009 and February 2010, InfraSource had been subcontracted by a utility company to install underground fiber optic cables at the Cherry Hills Village Elementary School to allow improved internet access to its students. Upon inspection, InfraSource and its subcontractor determined a concrete sidewalk panel would need to be removed and replaced to install the cables.

In August 2016, while riding his bicycle, the plaintiff claimed that he was seriously injured after cycling over the sidewalk panel and crashing. He then filed a claim against InfraSource and the other parties alleging negligent construction work on the panel.

InfraSource responded by filing a motion asserting that the plaintiff’s claims were time-barred under the Construction Defect Action Reform Act’s (CDARA) statute of repose. The court held the project constituted an improvement to real property under CDARA and that the date of substantial completion for InfraSource was the date on which it last performed actual construction work as established by its payment applications, mechanics lien waivers and as-built drawings, leading the plaintiff to appeal the ruling.

In the appeal, the plaintiff argued that a utility project is not an improvement to real property and that substantial completion was delayed until final payment or until completion of follow-up projects by separate contractors.

The Colorado Court of Appeals rejected the arguments and upheld the trial court decision in favor of InfraSource and its subcontractor, finding that the plaintiff’s claims were time-barred. It also affirmed the award of defense costs to InfraSource.

The court’s decision affirms the CDARA statute of repose and further expands the definition of improvements to “real property” in Colorado, setting precedent for similar cases in the future.

Steven Swanson leads the construction law and design professional liability practice in the firm’s Denver office. He concentrates his practice in the areas of construction law, professional liability defense and mechanics lien litigation and regularly practices before state, federal and bankruptcy courts, state regulatory/licensing agencies and in arbitration and mediation proceedings.

The case is Stuart Kritzer and Janet Kritzer v. Qwest Corporation; InfraSource Underground Construction Services, LLC, n/k/a Mears Group, Inc.; and Paonia, Inc., f/k/a Paonia, LLC Colorado Court of Appeals Arapahoe County District (Case No. 20CA0025 (17CV32950 consolidated with 18CV31970)). Opinion filed on September 2, 2021.