Lawsuit over urban explorer death at abandoned Gates Rubber factory going to trial

Should the family of a man who died after a fall at the long-vacant Gates Rubber factory be awarded damages?

Or, to put it another way: Are property owners liable if unauthorized persons injure themselves while trespassing on their grounds?

Both questions will have to be answered by a jury now that the lawsuit filed two months ago by the parents of John Polzin (pictured) against the developers and subcontractors in charge of the Gates Rubber site failed to reach a settlement.

The wrongful death suit stems from a September 2007 accident -- recounted extensively in the Westword feature "Gone" -- that left 23-year-old Polzin paralyzed with serious injuries leading to his death a month later.

The Metropolitan State College of Denver student and two friends had gone to the massive, abandoned industrial complex to take photos and explore the inside, as many had done before. But Polzin had barely stepped into the darkened, former administration building when he fell thirty feet into an open elevator shaft.

The tragedy might have been laid to rest as a random accident if Polzin's parents, Donna and Larry, hadn't learned that a citizen had complained about the dangerous nature of that the same elevator shaft. And just seven days earlier, a Denver police officer had contacted a demolition contractor working on an adjacent site about the shaft, and the fact that several gates around the property were either unlocked or left open.

Lawyers for the Polzin family didn't return Westword's e-mails. But court filings indicate they are seeking more than $100,000 plus punitive damages, which could reach into the millions.

The lawsuit -- which names Alpine Demolition, Misers Asbestos Removal and Cherokee Denver as defendants -- couldn't come at a worse time for the $1 billion Gates project. Envisioned as one of Denver's premier transit-oriented developments (second only to Union Station), the property has been slammed by the housing crisis, leading to legal disputes between builders and the master developer, Cherokee Denver. The main Gates buildings were due to be demolished by last January but are still standing.

Lawyers for Cherokee have asserted that they took reasonable efforts to keep trespassers off of the property and had no knowledge of complaints -- even while doing everything possible to push responsibility for Polzin's death onto the general contractor, Littleton-based IRG Assumptions.

In their own filings, attorneys for Alpine argue that Polzin's status as a trespasser absolves the company from liability in his accident. "Landowners in Colorado owe no duty to act to make their premises safe for trespassers," argues one motion. "In Colorado, a person who wrongfully enters the property of another proceeds at his own peril, and he must accept the existing conditions of the premises as he finds them, even if there are 'dangerous conditions' on the premises." While landowners owe a reasonable "standard of care" to invitees or licensees, the motion continues, they owe nothing to trespassers: "Holding that a landowner has a duty to make the premises safe for trespassers would render the distinction between trespassers, licensees and invitees meaningless."

Now it looks like a jury will be deliberating over such distinctions, and a trial date could be set in the coming months if the judge rules against the defendants' motions to dismiss. -- Jared Jacang Maher

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Jared Jacang Maher