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Westfall v. Town of Hugo3/25/1993
y implication or inaction. The statute, § 30-20-110(2), C.R.S. (1986 Repl. Vol. 12A), is specific in requiring that in each case such authorization is to be by means of "regulations" adopted by the board and by a "resolution" specifically authorizing such burning.
Moreover, given the statutory requirement that the board of county commissioners cannot approve a certificate of designation in face of the department of health's recommendation for disapproval, it also follows that the department's regulation authorizing a waiver of any requirement in section 2.2. by "the department and governing body" necessarily requires that both agencies act upon any requested waiver. Nothing within the record suggests that this has occurred. To the contrary, there is evidence that the department had noted the lack of a locked gate to keep unauthorized persons out of the site and had requested the Town to take corrective action.
Finally, the stipulation by the parties with reference to the regulations applied only to that portion regulating the Town's authority, as the operator of the landfill, to burn trash. As the trial court recognized, that stipulation had no bearing upon the regulation prohibiting access to the landfill by third parties in the absence of landfill attendants.
Under these circumstances, and given plaintiff's theory that the fire was started by some user of the disposal site who began to burn trash while the site was not supervised, which had evidentiary support, plaintiff was entitled to an instruction upon the pertinent regulation.
III.
We disagree with plaintiff's assertion that he was entitled to a directed verdict on the issue of liability. Even if we were to assume, without deciding, that the evidence established the Town's violation of the pertinent statute or regulation, there still existed a legitimate question whether plaintiff's damages were caused by that violation or whether they resulted from unusual and unforeseeable weather conditions.
IV.
Because we shall remand the cause to the trial court for a new trial, at which time the parties shall have an opportunity to amend their pretrial disclosure certificates, we need not address plaintiff's claim that the trial court abused its discretion in refusing to allow his expert to testify.
The judgment is reversed, and the cause is remanded to the trial court for a new trial.
CHIEF JUDGE STERNBERG and JUDGE NEY concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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