Bertrand v. Board of County Com'rs of Park County

• Decision Date: 18 April 1994
• Citation: 872 P.2d 223
• Docket Number: 93SC95
• Parties: Cheryl BERTRAND, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, Respondent.
• Court: Colorado Supreme Court

Page 223

872 P.2d 223

Cheryl BERTRAND, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, Respondent.

No. 93SC95.

Supreme Court of Colorado En Banc.

April 18, 1994.

Rehearing Denied May 9, 1994.

Waltz, D'Antuono, Correll & Anderson, Richard A. Waltz, Denver, for petitioner.

Dunn, Abplanalp & Christensen, P.C., John W. Dunn, Lawrence P. Hartlaub, Vail, for respondent.

Robert F.T. Krassa, Boulder, for amicus curiae Leonard Talkington.

McFlynn & Pickett, P.C., Timothy McFlynn, Aspen, for amicus curiae Jennifer Hoffman.

Chief Justice ROVIRA delivered the Opinion of the Court.

The Colorado Governmental Immunity Act (GIA) waives the defense of sovereign or governmental immunity ¹ for the operation of a publicly owned or leased motor vehicle by a public employee. § 24-10-106(1)(a), 10A C.R.S. (1988). We granted certiorari to review Bertrand v. Board of County Commissioners, 857 P.2d 477 (Colo.App.1992), in order to construe the term "motor vehicle" for purposes of this exception.

I

As this case requires us to interpret one of the exceptions to the GIA, we believe it is appropriate first to resolve an inconsistency that has arisen in our opinions regarding the GIA. Specifically, we have stated that the immunity created by the GIA is in derogation of the common law and must be strictly construed, State v. Moldovan, 842 P.2d 220, 222 (Colo.1992); Willer v. City of Thornton, 817 P.2d 514, 518 (Colo.1991); City of Aspen v. Meserole, 803 P.2d 950, 955 (Colo.1990); State v. Hartsough, 790 P.2d 836, 838 (Colo.1990); Stephen v. City & County of Denver, 659 P.2d 666, 668 n. 3 (Colo.1983), and that the exceptions to the GIA are in derogation of the common law and must be strictly construed. Jenks v. Sullivan, 826 P.2d 825, 827 (Colo.1992); Bloomer v. Board of County Comm'rs, 799 P.2d 942, 946 (Colo.1990). In short, we have concluded that both sovereign immunity and the waiver of sovereign immunity are in derogation of the common law. In resolving this issue, we must determine whether sovereign immunity was part of the common law of Colorado, and if it was, whether it remained the law until the adoption of the GIA.

Though the origin of sovereign immunity is obscure, the doctrine, as we know it, developed in England and was based upon the historical fiction that the king could do no wrong, and thus, was free from legal accountability. See generally, Edwin M. Borchard, Governmental Responsibility in Tort, 36 Yale L.J. 1 (1926). The doctrine of sovereign immunity became deeply embedded in the English common law and subsequently, through judicial recognition and reiteration, became a familiar axiom in American jurisprudence. ² See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907); see also The Federalist No. 81, at 414 (Alexander Hamilton) (Garry Wills ed., 1982) ("It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union.").

In County Commissioners v. Bish, 18 Colo. 474, 33 P. 184 (1893), this court expressly recognized the doctrine of governmental immunity stating "[t]he rule that counties are not liable for torts, in the absence of statute, is universally acknowledged." Id. at 475, 33 P. at 184. Shortly thereafter, sovereign immunity was incorporated into our jurisprudence in In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 P. 1088 (1895). In that case, this court stated "[w]e recognize the doctrine that, without constitutional or legislative authority, the state in its sovereign capacity cannot be sued. No such authority exists in this state." Id. at 72, 39 P. at 1088. Though these early cases lack significant analysis and discussion, there is little doubt that they adopted the doctrine of sovereign and governmental immunity as the common law of Colorado. ³ See Evans v. Board of County Comm'rs, 174 Colo. 97, 107, 482 P.2d 968, 973 (Colo.1971) (Kelley, J., dissenting) ("Regardless of whether the courts erred in adopting the doctrine [of immunity], it has been the law of this state since its beginning."). ⁴

In 1971, however, this court decided a trilogy of cases that fundamentally altered the common law of Colorado regarding the doctrine of sovereign immunity. Evans, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. School Dist., 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). ⁵ Indeed, determining that the doctrine of sovereign and governmental immunity is unjust and inequitable, this court prospectively abrogated the doctrine, stating

[t]he effect of this opinion and its two contemporaries is simply to undo what this court has done and leave the situation where it should have been at the beginning, or at least should be now: in the hands of the General Assembly of the State of Colorado. If the General Assembly wishes to restore sovereign immunity and governmental immunity in whole or in part, it has the authority to do so.

Evans, 174 Colo. at 105, 482 P.2d at 972 (emphasis added). This language leaves little doubt that the Evans trilogy abrogated the common law doctrine of sovereign and governmental immunity, and thereafter, the common law no longer included the doctrine of immunity. ⁶

In response to the Evans trilogy, the legislature passed the GIA. See Ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo.Sess.Laws 1204, 1204-11. The GIA legislatively restored the doctrine of sovereign and governmental immunity and also carved out a limited number of exceptions waiving immunity for various governmental acts. Ch. 323, sec. 1, § 130-11-6(1), 1971 Colo.Sess.Laws 1204, 1206.

With this brief history in mind, we can now remedy the inconsistency that has arisen in our opinions regarding the relationship between the GIA and the common law. The first case stating that the GIA is in derogation of the common law is Stephen v. City & County of Denver, 659 P.2d 666, 668 n. 3 (Colo.1983). Specifically, the Stephen court stated:

The Colorado Governmental Immunity Act was a response to three Colorado Supreme Court decisions that prospectively overruled prior decisions recognizing a defense of governmental immunity in tort actions.... These decisions held that the legislature had authority to restore the doctrine in whole or in part. Thus, the Colorado Governmental Immunity Act is in derogation of the common law, and the legislative grants of immunity must be strictly construed.

Id. (citations omitted). The Stephen court correctly recognized that Evans created a new common law in which the doctrine of immunity no longer existed and that the GIA was enacted in derogation of the holding in Evans. See also State v. Moldovan, 842 P.2d 220, 222 (Colo.1992); Willer v. City of Thornton, 817 P.2d 514, 518 (Colo.1991); City of Aspen v. Meserole, 803 P.2d 950, 955 (Colo.1990); State v. Hartsough, 790 P.2d 836, 838 (Colo.1990). In contrast, the first case to state that exceptions to sovereign immunity are in derogation of the common law is Bloomer v. Board of County Commissioners, 799 P.2d 942, 946 (Colo.1990). In reaching this conclusion, the Bloomer court cited In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 P. 1088 (1895), which was effectively overruled in the Evans trilogy. Evans, 174 Colo. at 105, 482 P.2d at 972. The only other case stating that exceptions to the GIA are in derogation of the common law is Jenks v. Sullivan, 826 P.2d 825, 827 (Colo.1992). However, to support this proposition, Jenks cites only Bloomer. Thus, we conclude that Stephen and its progeny correctly interpret the relationship between the GIA and the common law, whereas Bloomer and Jenks do not.

In sum, the doctrine of sovereign and governmental immunity was part of the common law of Colorado until 1971 when this court abrogated the doctrine in the Evans trilogy. Thereafter, the legislature restored the doctrine and authorized a limited number of exceptions. Thus, it is apparent that the immunity created by the GIA is in derogation of the common law established in the Evans trilogy and must be strictly construed. See 3 Norman J. Singer, Sutherland Statutory Construction § 61.01 (5th ed. 1992) (discussing strict construction of statutes in derogation of the common law). To the extent that Bloomer and Jenks differ with this opinion, they are overruled.

II

We turn now to the facts of this case and the interpretation of the motor vehicle exception to the GIA. On the morning of June 26, 1989, an employee of the Board of County Commissioners of Park County (Board) was operating a road grader on a highway near Guanella Pass in Park County, Colorado. That same morning, Cheryl Bertrand (Bertrand), her children and a friend, were riding horses on a path adjacent to Guanella Pass Road in Park County. The horses were spooked by the noise of the road grader as it passed by the group, and as a result, Bertrand was thrown from her horse and was injured. Subsequently, she filed a complaint against the Board, claiming that the road grader was being negligently operated at an excessive speed, which caused her horse to bolt, and consequently, caused her accident. The Board asserted governmental immunity as an affirmative defense. Thereafter, the Board moved for judgment on the pleadings, arguing that a road grader is not a "motor vehicle" within the motor vehicle exception to immunity, see § 24-10-106(1)(a), and that Bertrand's claim is barred by the GIA. The trial court agreed and dismissed the complaint. Relying on Bain v. Town of Avon, 820 P.2d 1133 (Colo.App.1991), cert. denied, Nov. 25, 1991, the court of appeals affirmed, holding that a road grader is not a "motor vehicle" within the motor vehicle exception to the GIA.

A

The GIA bars any claim against a public entity for injuries that lie...