Adams ex rel. Adams v. City of Westminster

• Decision Date: 05 May 2005
• Docket Number: No. 03CA2007.,03CA2007.
• Citation: 140 P.3d 8
• Parties: Robert A. ADAMS, a protected person, by and through his conservators, Michael ADAMS, and Stephanie Adams, Plaintiff-Appellee, v. CITY OF WESTMINSTER, a Colorado municipal corporation, Defendant-Appellant.
• Court: Colorado Court of Appeals

Page 8

140 P.3d 8

Robert A. ADAMS, a protected person, by and through his conservators, Michael ADAMS, and Stephanie Adams, Plaintiff-Appellee, v. CITY OF WESTMINSTER, a Colorado municipal corporation, Defendant-Appellant.

No. 03CA2007.

Colorado Court of Appeals, Div. III.

May 5, 2005.

Certiorari Denied June 26, 2006.

Purvis, Gray & Murphy, LLP, John A. Purvis, Michael J. Thomson, Boulder, Colorado, for Plaintiff-Appellee.

Clisham, Satriana & Biscan, LLC, Daniel R. Satriana, Jr., Denver, Colorado; Hall & Evans, LLC, Andrew D. Ringel, Denver, Colorado; Jeffrey M. Betz, Assistant City Attorney, Westminster, Colorado, for Defendant-Appellant.

CASEBOLT, J.

Defendant, the City of Westminster, appeals the order denying its motion seeking summary judgment and dismissal, on governmental immunity grounds, of the complaint of plaintiff, Robert A. Adams. We affirm.

Plaintiff alleged that the City failed to provide fringe benefits to him as part of his employment as a lifeguard. His complaint asserted claims for breach of contract and promissory estoppel.

Arguing that plaintiff's claims lie in tort or could lie in tort and therefore are barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2004, the City moved for summary judgment. After a hearing, the trial court denied the City's motion in its entirety, finding the existence of genuine issues of material fact. However, the court did not address the City's GIA arguments.

The City then brought this interlocutory appeal pursuant to § 24-10-108, C.R.S.2004. A motions division of this court remanded the case to the trial court to address the City's GIA arguments. The trial court issued a supplemental order in which it concluded that plaintiff's claims sounded in contract, not tort, and the case was then recertified for appeal.

The City contends the trial court erred in concluding that plaintiff's claims do not and could not lie in tort. It asserts that the essence of the claims is that the City negligently failed to enroll plaintiff in health insurance coverage in a timely manner. We are not persuaded.

Sovereign immunity issues concern subject matter jurisdiction and thus are determined in accordance with C.R.C.P. 12(b)(1). See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). If, as here, the underlying jurisdictional facts are undisputed, the issue is one of law, and a reviewing court is not bound by the trial court's determinations. City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo.2000); Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

Except as set forth in the GIA, "[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant." Sections 24-10-106(1), 24-10-108, C.R.S.2004; see City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992). However, the GIA is not intended to apply to actions grounded in contract, see State Pers. Bd. v. Lloyd, 752 P.2d 559 (Colo.1988), or in promissory estoppel. See Bd. of County Comm'rs v. DeLozier, 917 P.2d 714 (Colo.1996).

Because governmental immunity is in derogation of Colorado's common law, the grant of immunity is to be strictly construed. See Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003).

Under the GIA, the form of the complaint does not determine whether the claim is based in tort or contract. Rather, the dispositive question is whether the claim is a tort claim or could be a tort claim for purposes of the GIA. In barring not only tort claims, but also claims that could lie in tort, the GIA mandates close examination of the pleadings and undisputed evidence. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo.1996). The court should review the nature of the alleged injury and the relief sought and examine whether the injury arises from the terms of a contract. CAMAS Colo., Inc. v. Bd. of County Comm'rs, 36 P.3d 135 (Colo. App.2001); Elliott v. Colo. Dep't of Corr., 865 P.2d 859 (Colo.App.1993).

In making this determination, we must be mindful of the statutory definition of "injury." Another division of this court, reading the definition of "injury" contained in § 24-10-103(2), C.R.S.2004, into the indemnification provisions of § 24-10-110, C.R.S.2004, has held that the GIA was intended to apply when the claimant seeks redress from injuries that result from tortious conduct. See City & County of Denver v. Blatnik, 32 P.3d 593 (Colo.App.2001). Indeed, cases interpreting the GIA generally support the view that governmental immunity is immunity from actions seeking compensatory damages for personal harms or injuries. See City of Colorado Springs v. Conners, supra.

Here, on July 28, 1998, plaintiff applied for a lifeguard position with the City. He interviewed with the pool manager for a .8 full-time equivalent (FTE) position, which offered fringe benefits, including general leave, health insurance, and life insurance. Because plaintiff had a prior employment termination on his record, the manager offered a .2 FTE nonbenefited position with a thirty-day probationary period. The pool manager stated that she would hire plaintiff for the .8 FTE position if he successfully completed his probationary period.

On September 30, 1998, after completion of the probationary period, the pool manager recommended plaintiff for the .8 FTE lifeguard position. The recommendation was certified on October 1, 1998, and in early October 1998, plaintiff was offered the .8 FTE position. Plaintiff underwent a physical examination for the position on October 20, 1998, and was scheduled for an orientation on October 26, 1998, at which he could have selected a health insurance plan.

On October 24, 1998, plaintiff was shot in the head and suffered permanent brain damage. The City subsequently terminated his employment effective October 25, 1998, on the basis that he could not return to work.

Before the shooting, plaintiff had been working a .8 FTE position for the City. Additionally, evidence plaintiff submitted demonstrated that all lifeguards who were receiving benefits were referred to as a "Manager on Duty," and they were responsible for preparing the daily maintenance logs and also for opening and closing the pools. Records kept by the City showed that plaintiff was scheduled as a "Manager on Duty" on Saturdays and Sundays. Plaintiff also filled out the daily maintenance logs during September and October 1998 and closed the pools. In addition, on a telephone list, a handwritten arrow went from plaintiff's name to a section where managers on duty were listed.

For a number of reasons, we conclude that plaintiff's claims do not lie, nor could they lie, in tort.

First, the nature of the alleged injury arises from the terms of a contract of employment. The undisputed evidence establishes that the City entered into a contractual employment relationship with plaintiff in which the City promised to promote him to the .8 FTE position with fringe benefits upon his satisfactory performance during the probationary period; that he successfully completed the probationary period; that he was actually performing the equivalent of a .8 FTE job before the shooting; that the City offered, and he accepted, the .8 FTE position, which was intended to provide fringe benefits; and that the City has declined to provide fringe benefits following the...