City and County of Denver v. Madison

• Decision Date: 11 January 1960
• Docket Number: No. 18365,18365
• Citation: 142 Colo. 1,351 P.2d 826
• Parties: CITY AND COUNTY OF DENVER, a Municipal Corporation, Plaintiff in Error, v. Rita Gaylean MADISON, a minor by her next friend, Gertrude Madison, Defendant in Error.
• Court: Colorado Supreme Court

Page 826

351 P.2d 826

142 Colo. 1

CITY AND COUNTY OF DENVER, a Municipal Corporation, Plaintiff in Error, v. Rita Gaylean MADISON, a minor by her next friend, Gertrude Madison, Defendant in Error.

No. 18365.

Supreme Court of Colorado, En Banc.

Jan. 11, 1960.

Original Opinion Adhered to on Rehearing and Refiled May 23, 1960.

John C. Banks, City Atty., Ty R. Williams, Asst. City Atty., Denver, for plaintiff in error.

G. Michael Morris, Denver, for defendant in error.

MOORE, Justice.

This is an action for damages for personal injuries. Trial of the case resulted in a verdict in favor of plaintiff for $35,000.00. The City and County of Denver, against whom said judgment was entered, brings the case here for review by writ of error. We will refer to the City and County of Denver as the City or defendant, and to the defendant in error as plaintiff.

The action was commenced April 24, 1956, and the complaint contained allegations that plaintiff was born on July 27, 1946; that no guardian or other fiduciary has ever been appointed by court order to protect the interests of the minor plaintiff; that a notice of the claim against the City was served on April 20, 1956, and that said notice was not served within the time prescribed by law for the reason that plaintiff was, and is, an infant under a disability; that the Denver General Hospital is operated by the City and County of Denver; that on February 1, 1947, when plaintiff was six months old she was taken to said hospital where a physician employed by the City determined that she was suffering from pneumonia; that she was admitted to said hospital for observation and treatment, and that as a result of the negligence of the City while a patient as aforesaid plaintiff suffered severe burns on her back, buttocks, face and arms; that said burns disfigured and crippled her so that the use of her arms and legs has been permanently impaired and that by reason of said burns she became permanently blind, deaf, mute and an idiot.

Defendant filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted for the reason that the Denver General Hospital and its employees were at all pertinent times engaged in a governmental function and therefore as a matter of law the City could not be held liable. As a further ground for said motion the City alleged that the failure to give written notice of claim within the time required by law should defeat the action. The motion to dismiss was overruled and the City filed an answer denying negligence on its part, and generally placing in issue all material allegations of the complaint.

As a separate defense the City alleged that it was immune from liability because the employees of the City whose acts allegedly caused the injuries to plaintiff were performing services in connection with a governmental function of the City and County of Denver. Additional defenses alleged by the City were that the disabilities suffered by plaintiff were caused by congenital conditions existing at the time of her birth, improper prenatal care of the mother and child, and improper care and treatment at the time of and subsequent to plaintiff's birth; that the statute of limitations, C.R.S.1953, 139-35-1, barred recovery; and that the injuries and damages sustained were caused by an unavoidable accident.

The parties stipulated concerning many of the pertinent facts, and the record establishes without dispute that plaintiff was admitted to the Denver General Hospital on February 1, 1946, where she was treated for pneumonia; that on February 7, while she was strapped in her bed part of her treatment consisted of the use of a steam vaporizer; that while thus being treated she was very seriously burned from steam or hot water, or both. The hospital record relating to the tragic incident, as recorded by the nurse who first discovered what had happened, is as follows:

'Diagnosis Lobar pneumonia. Condition serious. At 1:00 p. m. I came on duty. At 1:00 p. m. report baby's condition was reported improved since entrance into hospital. I went in to give child 2:00 p. m. formula. Around 1:30 child was getting steam inhalations and was restrained securely with double clove hitch. Finding the water container almost empty I filled the container about two thirds full with water leaving the lid to the container ajar so that excess steam could escape. The supervisors made rounds around 3:10 p. m. Found the baby all right. At about 3:25 I returned to the baby to give it water and found child severely burned. Steam droplets were dripping from the spout. I reported to the head nurse immediately. Do not know how accident occurred. Pressure inside of the container must have caused a spray of hot steam which hit the restrained baby at the top of the bed.'

The infant plaintiff suffered second and third degree burns on the left foot, left leg, buttocks, three-fourths of the area of the back, the arms, and portions of her face. At the time of trial--March, 1957--plaintiff was deaf, dumb, blind, unable to walk, and was described as an 'idiot'.

By stipulation of counsel the hospital records containing the case history of plaintiff were admitted in evidence. They disclose that she was first admitted to the hospital July 27, 1946, as a prematurely born child the product of six to seven months gestation, weighing about two pounds two ounces. She developed and was dismissed October 23, 1946, weighing approximately five pounds, having progressed to that point in the normal way that is expected in premature births. She was next admitted to the hospital February 1, 1947, and received the burns complained of on February 7, 1947.

It was further stipulated:

'* * * that the Department of Health and Hospitals, and particularly, the Denver General Hospital of the City and County of Denver, is operated, maintained and controlled pursuant to the Charter of the City and County of Denver, and in compliance with State statutes pertaining to the maintenance and operation of county hospitals, for the purpose of preserving, protecting and maintaining the health and welfare of the people of The City and County of Denver * * *.'

Dr. Collett qualified as an expert witness and testified that in his opinion plaintiff's present condition was caused by the burns which she received at the hospital.

Defendant offered no evidence. It relied on the contentions: (1) That plaintiff had failed to show negligence; (2) that the condition of plaintiff was congenital; (3) that no notice was given to the City within ninety days of the injury as required by statute; (4) that the statute of limitation barred recovery; and (5) that the City was not liable, under the doctrine of immunity, for negligence in the performance of a governmental function.

Questions to be Determined.

First. Where a person suffers personal injuries proximately caused by the negligence of employees of the City and County of Denver while caring for such person as a patient in a hospital operated by the city for the purpose of preserving, protecting and maintaining the health of the people of the city; is the municipality liable for the damages caused by the negligence of said employees?

This question is answered in the negative. Very firmly settled in the law of this state is the rule that a municipality is not liable for the acts of officers, agents or employees, committed by them in the discharge of functions or duties which are governmental in nature and which are 'exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants.' Moses v. City and County of Denver, 89 Colo. 609, 5 P.2d 581, 582. It is equally well established that the municipality is liable for the negligence acts of its agents in the performance of duties related to the proprietary or private corporate purpose of the city. As stated in Moses v. City and County of Denver, supra:

'* * * In the former case its functions are political and governmental, and no liability attaches to it, either for nonuser or misuser of a power; while in the latter it stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence.'

This distinction between the exercise of governmental power on the one hand and proprietary or corporate power on the other, is clearly laid down in a long line of decisions of this court. City of Denver v. Capell, 4 Colo. 25; Veraguth v. City of Denver, 19 Colo.App. 473, 76 P.2d 539; City of Denver v. Davis, 37 Colo. 370, 86 P. 1027, 6 L.R.A.,N.S., 1013; City and County of Denver v. Forster, 89 Colo. 246, 1 P.2d 922; Meek v. City of Loveland, 85 Colo. 346, 276 P. 30; McIntosh v. City and County of Denver, 98 Colo. 403, 55 P.2d 1337, 103 A.L.R. 1509; Schwalb v. Counely, 116 Colo. 195, 179 P.2d 667; Barker v. City and County of Denver, 113 Colo. 543, 160 P.2d 363; Atkinson v. City and County of Denver, 118 Colo. 322, 195 P.2d 977; City and County of Denver v. Austria, 136 Colo. 454, 318 P.2d 1101.

This differential between governmental and proprietary powers conferred upon municipal corporation controls the question in a given case as to whether the city can be held liable for negligence of its agents. Counsel for plaintiff relies on the decisions of this court in Ace Flying Service, Inc. v. Colorado Department of Agriculture, 136 Colo. 19, 314 P.2d 278; Colorado Racing Commission v. Brush Racing Ass'n, Inc., 136 Colo. 279, 316 P.2d 582; and Stone v. Currigan, 138 Colo. 442, 334 P.2d 740, in which the doctrine of sovereign immunity from suit in actions sounding in contract was repudiated. The rule announced in those cases has no application to actions ex delicto. The substantive law has always recognized the right of an individual to bring an action against a municipality with or without the consent of the city, and has provided that...