In a recent Colorado Court of Appeals decision, Kritzer v. Qwest Corporation, the Colorado Court of Appeals reaffirmed the protections offered by the statute of repose under Colorado’s Construction Defect Action Reform Act (“CDARA”)—but also reminded practitioners that those protections are not absolute.
For construction professionals, subcontractors, and public utilities, the case illustrates how ongoing maintenance obligations, even years after project completion, may keep the door open to liability long after you thought it was shut.
The Background: A Sidewalk, a Bicycle Crash, and a Six-Year Gap
In 2010, Qwest Corporation and its subcontractors installed underground fiber optic cables near Cherry Hills Village Elementary School. To access the cables, they removed and replaced a section of sidewalk. That work wrapped up in February 2010.
Six and a half years later, in August 2016, Stuart Kritzer crashed his bicycle over the same sidewalk panel, alleging it had deteriorated due to faulty construction. He sued the City of Cherry Hills Village, Qwest, and later, Qwest’s subcontractors, InfraSource and Paonia, for negligence and violations of the Premises Liability Act.
The trial court granted summary judgment to all defendants, citing CDARA’s six-year statute of repose. The plaintiffs appealed.
The Holding: Subcontractors Out, Qwest Stays In (For Now)
The Court of Appeals affirmed the summary judgment for InfraSource and Paonia. The court held that the sidewalk panel was an “improvement to real property,” and that the subcontractors’ work was “substantially complete” as of February 2010. Because the claims against them were filed in 2018, they were time-barred under section C.R.S. § 13-80-104(1)(a). But the court took a different view as to Qwest.
Under section 13-80-104(3), a party cannot assert the statute of repose if it had “actual possession or control” over the improvement at the time of the alleged injury. The court found disputed facts about whether Qwest, despite finishing the physical work in 2010, retained responsibility for maintaining the sidewalk panel. The record included a CDOT permit that arguably imposed ongoing maintenance obligations on Qwest and testimony suggesting the City might have relied on Qwest to address future issues. The case against Qwest was remanded for further proceedings.
Why This Matters
This case reinforces several key principles for contractors and utilities operating in Colorado:
Substantial completion is measured by the completion of the work on a specific improvement, not by when the entire project concludes or when payment is finalized. If you finish your discrete work, the repose clock starts ticking.
Improvements to real property include even small, functional components, like a sidewalk panel covering buried fiber optic lines. Courts look at whether the improvement is integral and permanent.
Statute of repose protections can be lost if you retain control or maintenance responsibility. If your contract or permit obligates you to maintain or repair part of the work, you may still face liability years later.
Consistency in legal arguments matters. Qwest argued the sidewalk panel was integral to the fiber optic project (to trigger the statute of repose) but also claimed it had no responsibility for it (to avoid the control exception). The court did not buy both.
Conclusion
Kritzer v. Qwest offers a cautionary reminder: even when construction work is long finished, liability may linger if the contractor or utility retains control or maintenance obligations. For construction professionals, this decision reinforces the importance of clearly defining the scope of work, documenting substantial completion dates, and understanding whether any ongoing responsibilities could keep them tied to a project years later. Defense counsel should scrutinize permits, contracts, and operational roles carefully, as the statute of repose is only as strong as the facts supporting it.
