Unger v. Pagosa Area Water

── Unger v. Pagosa Area Water ── Court: Colorado Court of Appeals Date: May 21, 2026 Category: General 25CA0048 Unger v Pagosa Area Water 05-21-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA0048 Archuleta County District Court No. 23CV30053 Honorable Jeffrey R. Wilson, Judge William Unger and Yolanda Unger, Plaintiffs-Appellees, v. Pagosa Area Water and Sanitation District, Defendant-Appellant. ORDER AFFIRMED Division III Opinion by JUDGE KUHN Dunn and Lipinsky, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026 The Kelly Law Firm, LLC, Reid Kelly, Pagosa Springs, Colorado, for Plaintiffs- Appellees The Lane Law Firm, P.C., Sean J. Lane, Alex M. Pass, Brittney M. Townsley, Aurora, Colorado, for Defendant-Appellant ¶1 Defendant, Pagosa Area Water and Sanitation District, appeals the district court’s order denying its motion to dismiss, under the Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2025, the claims brought by plaintiffs, William and Yolanda Unger. We affirm. I. Background ¶2 According to their complaint, in April 2023, the Ungers were contacted by a neighbor about raw sewage flooding into the Ungers’ Pagosa Springs home. The Ungers lived in Texas and rented their Pagosa Springs home when they were out of town. The neighbor also informed the Ungers that the manhole cover located in front of the Ungers’ home was not secured and that the manhole was “open.” ¶3 The Ungers contacted a local restoration company to inspect the area and “prevent any further damage to the [h]ome.” The inspectors determined that the District’s sewage mainline, which was located in front of the Ungers’ home, had caused the flooding. The inspectors noted that road aggregate and debris had gotten into the open manhole and created a blockage of the sewer mainline 1  immediately to the east of the Ungers’ home. The inspectors reported the leak to the District. ¶4 The Ungers’ initial complaint alleged negligence and negligence per se. The District moved to dismiss that complaint, asserting sovereign immunity under section 24-10-106(1), C.R.S. 2025. The district court granted the District’s motion to dismiss, and the court allowed the Ungers to file an amended complaint, which is the complaint at issue in this appeal. ¶5 The Ungers’ amended complaint alleged negligent design and construction of the manhole, negligent maintenance of the manhole and the sewer system, negligent creation of a dangerous condition, and negligence per se. The District moved to dismiss the amended complaint on the grounds that it was immune from liability under the CGIA. ¶6 The district court granted the District’s motion in part, dismissing the negligent design and construction claim and the negligence per se claim to the extent it was based on “allegations that the [Ungers’] damages were caused by the negligent construction and design.” The court denied the motion as to the other two claims. 2  II. Analysis ¶7 The District contends that the district court erred by not dismissing this case in its entirety under the CGIA. Specifically, the District contends that the district court erred because (1) the Ungers didn’t demonstrate the original condition of the sewer system; (2) the Ungers’ injuries didn’t result from a dangerous condition of which the District had prior notice; and (3) the court should have held a Trinity hearing rather than forcing discovery.1 ¶8 We address each argument in turn. A. Legal Principles and Standard of Review ¶9 The CGIA generally immunizes the government from tort liability. See § 24-10-106(1). However, the CGIA also provides that a public entity can wa