Antonopoulos v. Town of Telluride

• Decision Date: 10 February 1975
• Docket Number: No. 26405,26405
• Citation: 532 P.2d 346,187 Colo. 392
• Parties: John Sam ANTONOPOULOS, a minor, who proceeds by his next friend and natural quardian, his father, Sam J. Antonopoulos, and Sam J. Antonopoulos, Individually, Plaintiffs-Appellants, v. TOWN OF TELLURIDE, a Colorado Municipal Corporation, et al., Defendants and Third-Party Plaintiffs-Appellees.
• Court: Colorado Supreme Court

Page 346

532 P.2d 346

187 Colo. 392

John Sam ANTONOPOULOS, a minor, who proceeds by his next friend and natural quardian, his father, Sam J Antonopoulos, and Sam J. Antonopoulos Individually, Plaintiffs-Appellants, v. TOWN OF TELLURIDE, a Colorado Municipal Corporation, et al Defendants and Third-Party Plaintiffs-Appellees.

No. 26405.

Supreme Court of Colorado, En Banc.

Feb. 10, 1975.

Golden, Mumby & Summers, James Golden, Grand Junction, for plaintiffs-appellants.

Overholser, Slee & Brown, John W. Overholser, Montrose, for defendants and third-party plaintiffs-appellees.

KELLEY, Justice.

This is an appeal from an order of the District Court of San Miguel County granting the defendants' motion for a summary judgment. John Sam Antonopoulos, a minor, by his father and next friend, Sam J. Antonopoulos, plaintiffs-appellants, instituted this suit against Telluride, a municipal corporation, and Everett Morrow and Bob Maestes two of its peace officers, defendants-appellees, to recover damages for personal injuries sustained by the minor in a one-car accident. Sam J. Antonopoulos, owner of the automobile driven by the minor, joined a claim for damages to his automobile resulting from the accident.

The claims against the individual peace officers were based upon the alleged negligence of the officers in releasing the minor in a drunken condition, knowing that he was going to drive the automobile. The causes of action against the Town were predicated on the Colorado Governmental Immunity Act, 1971 Perm.Supp., C.R.S.1963, 130--11--1 et seq. ¹ and upon 1971 Perm.Supp., C.R.S.1963, 99--2--12, ² which makes the governmental entities of this state indemnitors of their peace officers who incur liability for torts committed within the scope of their employment.

The trial court granted a summary judgment against All of the plaintiffs' claims on the basis of 1971 Perm.Supp., C.R.S.1963, 130--11--9(1) which reads:

'Any person claiming to have suffered an injury by a public entity or an employee thereof, while in the course of such employment, shall file a written notice as provided in this section within ninety days after the date of the discovery of the injury. Substantial compliance with the notice provisions of this section shall be a condition precedent to any action brought under the provisions of this article, and failure of substantial compliance shall be a complete defense to any such action.'

We agree with the trial court's holding as it applies to the claim of Sam J. Antonopoulos against the town of Telluride which was based on the Immunity Act. However, we disagree with its ruling as it pertains to his claim against the peace officers as individuals and the Town as their indemnitor. Nor do we agree with the court's ruling as it applies to the claims of the minor against the Town and the peace officers.

On July 4, 1972, the Town of Telluride was experiencing the jubilant festivities which typically occur on this holiday of national independence. While attending their peace-keeping functions, Town Marshall Everett Morrow and Deputy Marshall Bob Maestes arrested John Sam Antonopoulos for violating the Telluride ordinance prohibiting public intoxication. Antonopoulos was taken to the Telluride jail by the marshalls and booked for this offense. Despite these initial procedures and Antonopoulos' condition, Antonopoulos was not incarcerated, but rather, was released from custody and allegedly instructed 'to leave the Town of Telluride.'

Antonopoulos left Telluride immediately and was approximately three miles west of town when the car he was driving was involved in an accident. As a result of this accident, Antonopoulos suffered severe bodily injury requiring fifteen days of hospitalization.

As stated above, the plaintiffs instituted an action against the Town of Telluride and its employees, the arresting marshalls for damages sustained to Antonopoulos and the automobile which he was driving. Liability was presmised primarily upon the alleged negligence of the marshalls and the Town under the Immunity Act as well as the Town's responsibility as an indemnitor under the Liability of Peace Officers, Act, 1971 Perm.Supp., C.R.S.1963, 99--2--12. In an effort to comply with the 9--day notice provisions of the Immunity Act (1971 Perm.Supp., C.R.S.1963, 130--11--9), on October 20, 1972, the plaintiffs sent a notice to the Town of Telluride of their intent to sue. This notice was received by the defendant Town on Tuesday, October 24, 1972. By the plaintiff's own calculation, there was a lapse of 110 days between the accident and receipt of notice.

The defendants moved the trial court for a summary judgment on the ground that the action was barred by the plaintiffs' failure to comply with section 13--11--9(1). In opposition to this motion, the plaintiffs argued that Antonopoulos was excused from compliance with this provision since he was under the dual disabilities of minority and mental and physical incapacity. The minor plaintiff relied upon his affidavit alleging that as a result of the accident, he:

'was mentally and physically incapable of recalling the events and circumstances of the accident and mentally and physically incapable of attending to his affairs, or of urging others to do so, until on or after August 1, 1972.'

This averment of incapacity was uncontested by the defendants at the time of the hearing on the defendants' motion. The trial court granted the defendants' motion, ruling:

'The plaintiffs had 90 days to give notice to the Town of Telluride of the acts complained of. The statute (Colorado Governmental Immunity Act) makes no provision for extension of time because of hospitalization, or even death. The statute makes no exception for minors. The minor plaintiff is bound by the statute even though he was a minor and was hospitalized. The minor was also released from the hospital in sufficient time to send the notice. Also, the minor could have sent the notice, as he later did, even though no guardian had been appointed.

'Due to the lack of notice, the plaintiffs cannot now maintain suit against the defendants. C.R.S. 130--11--9.'

The plaintiffs attack this ruling, contesting the constitutionality of the notice requirement. Alternatively they contend that an exception to the requirement is expressly provided for minors and mental incompetents. As to this second argument, the defendants maintain that the legislative intent to include 'within one article all the circumstances under which the state or any of its political subdivisions may be liable . . ..' was clear. 1971 Perm.Supp., C.R.S.1963, 130--11--2. The defendants contend that this legislative declaration of policy requires a strict interpretation of the notice requirement. To read any exception into an unambiguous statutory provision, the defendants argue, would constitute judicial legislation.

Inasmuch as the trial court dismissed the entire complaint, the plaintiffs have also raised a question concerning the viability of their claims against the peace officers for their alleged negligence and the Town as their indemnitor under 1971 Perm.Supp., C.R.S.1963, 99--2--12. Concerning the peace officers, it is clear that the liability of a municipality's police has traditionally existed despite the doctrine of sovereign immunity. Corder v. People, 87 Colo. 251, 287 P. 85 (1930); Cf. Johnsen v. Baugher, 92 Colo. 588, 22 P.2d 855 (1933). Hence this court's prospective abrogation of the doctrine in Evans v. Board of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971) and the legislature's enactment of the Immunity Act was without effect on a peace officer's vulnerability to liability. Therefore, the plaintiffs' claims against the peace officers is not limited by the notice provision of the Immunity Act.

The requirements of the Immunity Act are extraneous to the Town's liability under the Liability of Peace Officers Act. The secondary liability of a governmental entity as an indemnitor under this...