Bloomer v. Board of County Com'rs of Boulder County

• Decision Date: 09 October 1990
• Docket Number: No. 89SC267,89SC267
• Parties: James R. BLOOMER and Cecilia T. Bloomer, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 942

799 P.2d 942

James R. BLOOMER and Cecilia T. Bloomer, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, Defendant-Appellee.

No. 89SC267.

Supreme Court of Colorado,

En Banc.

Oct. 9, 1990.

Holland & Hart, Timothy M. Rastello, R. Kirk Mueller, Thomas K. Higley, Denver, for plaintiffs-appellants.

H. Lawrence Hoyt, Boulder County Atty., Madeline J. Mason, Asst. County Atty., Boulder, for defendant-appellee.

Marion A. Brewer, Denver, Thomas Fenton Smith, Aspen, for amicus curiae Colorado Counties, Inc.

Chief Justice ROVIRA delivered the Opinion of the Court.

In this personal injury action, the plaintiffs James R. Bloomer and Cecilia T. Bloomer petitioned for certiorari review ¹ of the trial court's ruling granting summary judgment to one of the defendants, Board of County Commissioners of Boulder County ("Board"). The court ruled that section 24-10-106, 10A C.R.S. (1988), did not waive sovereign immunity for Boulder County, a political subdivision of the State of Colorado. We granted certiorari to consider the Bloomers' statutory-construction and constitutional objections to the trial court's decision.

I

In October 1986, a pickup truck struck and severely injured James Bloomer while he was riding a bicycle through a Boulder County road intersection. In their final amended complaint, the Bloomers named numerous defendants, including the Board, alleging that the defendants failed to properly design, construct, or maintain the intersection.

The Board moved to dismiss the complaint on the ground that the Board was immune from suit under the Colorado Governmental Immunity Act (Immunity Act), §§ 24-10-102 to -120, 10A C.R.S. (1988). After the parties submitted affidavits, exhibits, and memorandum briefs, the trial court ruled that it would consider the motion as a motion for summary judgment, and then granted summary judgment in favor of the Board.

II

Section 24-10-106, 10A C.R.S. (1988), provides in relevant part:

(1) A public entity shall be immune from liability in all claims for injury which lie in tort.... Sovereign immunity is waived by a public entity in an action for injuries resulting from:

....

(d) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion customarily used for travel by motor vehicles, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any highway which is a part of the federal secondary highway system, or of any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon....

A "public entity" is defined as "the state, county, city and county, incorporated city or town, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision of the state organized pursuant to law." § 24-10-103(5).

The principles of statutory construction are well established. Interpretation of statutes is a question of law, and appellate courts need not defer to the trial court's interpretation. E.g., People v. Terry, 791 P.2d 374, 376 (Colo.1990); Colorado Div. of Employment & Training v. Parkview Episcopal Hosp., 725 P.2d 787, 790 (Colo.1986). " 'Legislative intent is the polestar of statutory construction,' " Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 691 (Colo.1990) (quoting Schubert v. People, 698 P.2d 788, 793 (Colo.1985)), and the goal of a court in construing a statute is to ascertain and give effect to the intent of the General Assembly, Stephen v. City & County of Denver, 659 P.2d 666, 667-68 (Colo.1983). To determine the legislative intent, courts look first to the statutory language. Id. If the language of a statute is clear and unambiguous there is no need to resort to interpretive rules of statutory construction. Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989).

The Bloomers initially make two arguments in support of their assertion that the trial court's construction of subsection 24-10-106(1)(d), 10A C.R.S. (1988), is erroneous: first, that the plain language of the subsection--providing that "sovereign immunity is waived by a public entity" and that "public entity" includes counties--waives the Board's sovereign immunity; ² and, second, that the legislature intended, as demonstrated by the legislative history of subsection 24-10-106(1)(d), to waive the sovereign immunity of counties for dangerous conditions present on county roads. We conclude that the trial court correctly construed subsection 24-10-106(1)(d).

The text of subsection 24-10-106(1)(d) is not "reasonably susceptible to more than one interpretation," Terry, 791 P.2d at 376, on the question of whether subsection 24-10-106(1)(d) waives sovereign immunity for counties in their construction and maintenance of county roads, and it is unnecessary to consider the statute's legislative history. ³ Subsection 24-10-106(1)(d) states that sovereign immunity is waived by a "public entity" in an action for injuries resulting from a "dangerous condition of a public highway, road, or street." While this language appears to include counties--because "public entity" is defined under the Immunity Act as including counties, see § 24-10-103(5)--the subsequent language in subsection 24-10-106(1)(d) makes no provision for waiving the sovereign immunity of counties for dangerous conditions present on county roads.

Subsection 24-10-106(1)(d) waives a public entity's sovereign immunity with regard to only four types of roads: where a "dangerous condition ... which physically interferes with the movement of traffic" relates to (1) "any public highway, road, street, or sidewalk within the corporate limits of any municipality"; (2) "any highway which is a part of the federal interstate highway system or the federal primary highway system"; (3) "any highway which is a part of the federal secondary highway system"; or (4) "any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon." We must presume that the legislature was aware of the existence of county roads, since it enacted legislation in 1953 requiring the establishment in each county of "a primary system and a secondary system of county roads," 1953 Colo.Sess.Laws 514; § 43-2-108, 17 C.R.S. (1984). See Smith v. Miller, 153 Colo. 35, 39, 384 P.2d 738, 740 (1963). Accordingly, the legislature's decision to exclude county roads must be recognized in our interpretation of subsection 24-10-106(1)(d).

The Bloomers rely on opinions issued from two different panels of the court of appeals that have construed subsection 24-10-106(1)(d) as waiving sovereign immunity for counties in an action for injuries resulting from dangerous conditions on county roads. ⁴ See Wausau Ins. Cos. v. Kit Carson County, No. 88CA1622 (Colo.App. Nov. 30, 1989) (unpublished opinion), cert. held in abeyance (1990); Madill v. County of Adams, 799 P.2d 949 (Colo.App.1989), cert. held in abeyance (1990); see also Meserole v. City of Aspen, 786 P.2d 456 (Colo.App.1989), cert. granted (1990). Although Meserole did not specifically concern the issue addressed in Wausau Insurance and Madill--whether subsection 24-10-106(1)(d) waived sovereign immunity for counties--both Madill and Wausau Insurance relied on Meserole's construction of subsection 24-10-106(1)(d).

In Meserole the court of appeals construed subsection 24-10-106(1)(d) as creating five different categories of roads, comprising the four categories we identified previously, see Part II, supra, at 945, and an additional category: "public highways, roads, or streets which are not within the boundaries of a municipality and which are not part of the federal or state highway system." The court of appeals obtained the fifth category by construing each of the numerous "of's" in subsection 24-10-106(1)(d) as creating a new category:

Under § 24-10-106(1)(d), the defense of sovereign immunity is unavailable for injuries resulting from "A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic ..., of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system ..., [or of any highway which is a part of the federal secondary highway system] ⁵, or of any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon...."

786 P.2d at 457 (emphasis supplied by the court of appeals; brackets and emphasis in brackets added).

In Madill and Wausau Insurance, the court of appeals reasoned that the legislature, by adding in 1986 the clause in subsection 24-10-106(1)(d) following the first "of," ⁶ intended to create a fifth category of roads for which sovereign immunity for dangerous conditions on those roads was waived. We do not agree with the court of appeals construction of the statute.

The legislature's use of the disjunctive "or" demarcates different categories. See, e.g., World of Sleep v. Davis, 188 Colo. 443, 446, 536 P.2d 34, 35 (1975); Sprague v. Caldwell Transp., 116 Idaho 720, 721, 779 P.2d 395, 396 n. 1 (1989). Accordingly, notwithstanding the legislature's 1986 amendment to subsection 24-10-106(1)(d), the statute continues to provide for only four categories of roads for which sovereign immunity for dangerous conditions on the roads is waived, and the disjunctive "or" distinctly marks the...