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Under the Colorado asbestos regulations applicable single family residential construction, a contractor owed no duty to inspect the premises for asbestos before beginning construction. Absent such a duty under the statutes or regulations, the court considered and rejected the owner’s argument (and expert witness testimony) asserting that, under its generally accepted standard of care, the contractor nevertheless owed a duty to inspect for asbestos. The question of whether a defendant owes a duty to act to avoid injury is a question of law to be determined by court, and the trial court is not bound by the expert conclusions of the plaintiff’s expert even where that expert testimony in not contradicted, concluded the court. Ferraro v. Frias Drywall, LLC, 451 P.3d 1255 (Colorado 2019).

The courts reasoning is quoted as follows:

“In 2003, the Department of Public Health and Environment Regulations were amended to comply with a 2001 statutory change to include single-family residential dwellings. Ch. 225, sec. 4, § 25-7-502, 2001 Colo. Sess. Laws 772 (adding “single-family residential dwelling” to “area of public access”); Dep’t of Pub. Health & Env’t Reg. 8, pt. B, § VII.C, 5 Code Colo. Regs. 1001-10 (explaining revision based on 2001 statutory change). A single-family residential dwelling is

any structure or portion of a structure whose primary use is for housing of one family. Residential portions of multi-unit dwellings such as apartment buildings, condominiums, duplexes and triplexes are also considered to be, for the purposes of this Regulation No. 8, single-family residential dwellings; common areas such as hallways, entryways, and boiler rooms are not single-family residential dwellings. (Dep’t of Pub. Health & Env’t Reg. 8, pt. B, § I.B.96, 5 Code Colo. Regs. 1001-10.)

Other definitions relevant to our analysis are those for “facility” and “facility component.” A facility is “any institutional, commercial, public, industrial, or residential structure, installation, or building (including any structure installation, or building containing condominiums or individual dwelling units operated as a residential cooperative, but excluding residential buildings having four or fewer dwelling units) ….” Id. at Reg. 8, pt. B, § I.B.45 (emphasis added). A facility component is “any part of a facility, including equipment.” Id. at Reg. 8, pt. B, § I.B.46.

Part B, section III of the regulations, entitled “Abatement, Renovation and Demolition Projects,” contains a subsection, III.A, concerning inspections. The district court relied on subsection III.A.1 to find the existence of a duty to inspect single-family residential dwellings. The regulation provides that

[p]rior to any renovation or demolition which may disturb greater than the trigger levels1 of material identified as a suspect asbestos-containing material pursuant to the EPA “Green Book”, Managing Asbestos in Place, Appendix G (1990), the facility component(s) to be affected by the renovation or demolition shall be inspected to determine if abatement is required.

Id. at Reg. 8, pt. B, § III.A.1 (emphasis added).

Because a “facility component” excludes residential buildings having four or fewer dwelling units, we conclude that this regulation does not create an inspection duty for single-family residential dwellings. Thus, while the regulation creates an inspection duty for facility components, its plain language excludes single-family residences like the Ferraros’ home, contrary to the district court’s ruling.”

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 22, No. 4 (April 2020).

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