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Digliani v. City of Fort Collins8/19/1993
Plaintiffs, employees of the Fort Collins Police Department and their immediate family members, appeal the dismissal of their claims against defendants, City of Fort Collins; its Chief of Police; its Risk Manager; and Robert Ballard, individually and in his official capacity as facility maintenance employee. We affirm.
In 1989, a roofing company that is not a party to this appeal made repairs at the dispatch facility of the Fort Collins Police Department. Thereafter, employees of the police department were exposed to toxic chemicals which originated from this roof repair.
Plaintiffs assert that defendants, though aware of the presence of the noxious fumes, failed to intervene on their behalf to alter the ventilation system and to prevent the chemical vapors from entering their workplace. Further, plaintiffs assert that defendants inadequately investigated the alleged health hazard, concealed information regarding the chemical toxicity while returning them to work, and failed to provide proper medical attention.
Plaintiffs sought relief based upon claims grounded on common law principles of tort and contracts, as well as on violation of their civil rights under § 42 U.S.C. 1983. Defendants' C.R.C.P. 12(b) motion to dismiss was granted by the trial court.
I.
Plaintiffs first contend that the trial court erred in dismissing their claim for relief under 42 U.S.C. § 1983. We disagree.
To prevail under 42 U.S.C. § 1983, a claimant must allege that the conduct complained of was committed by a person acting under color of state law and also that the conduct deprived the claimant of a constitutional right. State v. DeFoor, 824 P.2d 783 (Colo. 1992). Furthermore, in Collins v. City of Harker Heights, U.S. , 112 S. Ct. 1061, 1069, 117 L. Ed. 2d 261, 274, (1992) the Supreme Court concluded that:
neither the text nor the history of the Due Process Clause supports claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.
In Collins, the widow of a city sanitation department employee who died of asphyxia after entering a manhole to unstop a sewer line brought a § 1983 action against the city. Her complaint alleged that the city was on notice of this danger to its employees because of a previous incident in which one of its employees had been rendered unconscious in a manhole.
She maintained that her husband had a right under the Due Process Clause of the Fourteenth Amendment to be free from unreasonable risks of harm resulting from the city's custom and policy of deliberate indifference toward the safety of its employees. She then alleged that the city had violated that right by failing to warn its employees of the known risks of entering manholes and by failing to train them to avoid the dangers inherent in working therein.
The court concluded that the claim that the city's alleged failure to train its employees or to warn them about known risks of harm could not be properly characterized as arbitrary or conscience-shocking in a constitutional sense. Consequently, the Supreme Court affirmed dismissal of the complaint on the ground that it did not allege a constitutional violation.
We are unable to distinguish Collins from the facts pled here.
The due process clause does not purport to supplant traditional tort law by establishing rules of conduct to regulate liability for injuries that arise from living together in society. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Furthermore, it "is not a g
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