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City of Westminster v. Centric-Jones Constructors9/11/2003
984).
Here, although the trial court did not address the punitive damages claim in directing a verdict for Travelers, we have agreed with the trial court that the City failed to prove actual damages. Hence, as a matter of law, the City cannot recover punitive damages. See, e.g., Pulliam v. Dreiling, 839 P.2d 521 (Colo. App. 1992).
Accordingly, we conclude the trial court did not err in directing a verdict in favor of Travelers on the City's bad faith claim.
V. Summary Judgment for Bates
The City next argues that the trial court erred in granting summary judgment in favor of Bates on its negligence claim. We disagree.
To establish negligence by a professional, the plaintiff must show: (1) duty; (2) breach of duty; (3) a causal connection between the breach and resulting injury; and (4) damage to the plaintiff. United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992).
The trial court entered summary judgment on the basis that "there is no genuine issue of material fact that the movant was not negligent and the design work it did was not a cause of any of the plaintiff's claimed damages." We discern a disputed factual issue concerning breach of duty, but nevertheless agree that summary judgment was proper for lack of evidence of causation.
If "facts are undisputed and reasonable minds could draw but one inference from them, causation is a question of law for the court." Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987).
Bates performed design work on the clearwell, including the outlet pipe. The City asserted that Bates was accountable for water leakage from the outlet pipe which wetted the fill below the clearwell, resulting in movement of the fill and destabilization of the bedrock that damaged the clearwell.
Bates' summary judgment motion relied on testimony from the City's structural engineering expert that, "I'm not sure [Bates' design is] beneath the standard of care," and that the problem with the clearwell "was primarily determined by the - the construction of the engineering fill and the - and installation of its materials and composition."
In its response, the City cited the opinion of another expert that Bates had been negligent in certain aspects of the design. The City then pointed to its soils expert's opinion that leakage from the outlet pipe "may have resulted in damage" to the clearwell.
The soils expert testified that water leakage from the outlet pipe created a "hydraulic gradient" which moved fill out from underneath the clearwell. However, he did not express the specific opinion that this movement either harmed the clearwell or shortened its useful life.
Moreover, his "may have resulted" opinion is not sufficient evidence that Bates' alleged breach of the standard of care probably or likely caused the City injury. See Howard v. TMW Enters., Inc., 32 F. Supp. 2d 1244 (D. Kan. 1998). Testimony as to what may have happened does not create a genuine issue of material fact as to causation. Sturman v. First Nat'l Bank, 729 P.2d 667 (Wyo. 1986); cf. Rumsey's Claimants v. State Comp. Ins. Fund, 162 Colo. 545, 427 P.2d 694 (1967).
Because we uphold the summary judgment for lack of causation evidence, we do not address Bates' argument that the deposition testimony of the City's structural engineer on standard of care constitutes an adoptive admission under CRE 801(d)(2)(B) and (D) which precludes the City from asserting a contrary position based on the testimony of Jones' expert.
Accordingly, we discern no reversible error in the summary judgment entered in favor of Bates.
VI. Jury
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