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Publish Date: 9/10/2005

Mother can sue the city
Son drowned in Oligarchy Ditch in 1997 accident


LONGMONT — A state appeals court has dealt a setback to the city of Longmont in a lawsuit filed by the mother of a boy who drowned in a city-managed irrigation ditch in 1997.

In a decision issued Thursday, the Colorado Court of Appeals said the lawsuit filed by Judith Henry-Hobbs following the Aug. 13, 1997, drowning death of her son could continue.

Longmont has appealed the suit’s validity four times, losing in each instance.

“We’re reviewing the decision and considering our options,” city spokesman Rigo Leal said Friday.

Michael Henry, 10, was tubing on the Oligarchy Ditch when he fell off and got trapped at the bottom of a spillway near Spencer Street by Garden Acres Park.

In 1998, Henry-Hobbs sued both the city and the ditch company that owned the Oligarchy, arguing that both entities should have done more to prevent the “attractive nuisance” that the ditch presented.

While there were signs posted warning people against entering the ditch, Henry-Hobbs has argued the signs were rusted and unreadable and that there weren’t enough fences and other devices to keep people away.

Shortly after she filed the suit, the Oligarchy Ditch Co. paid Henry-Hobbs an undisclosed settlement described by her lawyers as “incredible.”

The city continued to fight the suit on the grounds that it wasn’t responsible for what happened on the ditch, even though it had a contract to use and maintain the waterway to carry away rain and stormwater from city streets.

In 2003, the state Legislature passed a law intended in part to protect Longmont from the lawsuit. Colorado Springs is also being sued by a mother whose son died on the same day under similar circumstances, and the two appeal cases were combined.

Longmont and Colorado Springs argued in the latest round of appeals to dismiss the case on the grounds that the law was intended to be applied retroactively.

The court disagreed.

“In considering these factors here, we conclude that there is no clear legislative intent that the pertinent statute was to be applied retroactively,” Judge John Criswell wrote. “The General Assembly did not expressly state that the new definitions were applicable to injuries occurring before the effective date of the legislation.”

The decision means that the Colorado Springs and Longmont cases can now proceed to trial, although a final appeal to the Colorado Supreme Court is possible.

Attorney Karen Colburn, who represents Henry-Hobbs, could not be reached Friday for comment.

Trevor Hughes can be reached at 303-684-5220, or by e-mail at thughes@times-call.com.

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