City and County of Denver By and Through Bd. of Water Com'rs v. Gallegos

• Decision Date: 22 April 1996
• Docket Number: No. 95SC13,95SC13
• Citation: 916 P.2d 509
• Parties: CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, a/k/a City and County of Denver Water Department, Petitioner, v. Troy Orlando GALLEGOS, Respondent.
• Court: Colorado Supreme Court

Page 509

916 P.2d 509

CITY AND COUNTY OF DENVER, acting By and Through its BOARD

OF WATER COMMISSIONERS, a/k/a City and County of

Denver Water Department, Petitioner, v. Troy Orlando GALLEGOS, Respondent.

No. 95SC13.

Supreme Court of Colorado,

En Banc.

April 22, 1996.

As Modified on Denial of Rehearing

May 28, 1996.

Patricia L. Wells, General Counsel, Denver Water Board, Amy L. Moore, Hulbert E. Reichelt, Denver, for Petitioner.

Montgomery, Green, Jarvis, Kolodny & Markusson, P.C., Dennis H. Markusson, Joyce L. Jenkins, Denver, for Respondent.

Colorado Municipal League, David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League.

Hayes, Phillips & Maloney, P.C., Herbert C. Phillips, Denver, for Amicus Curiae City of Northglenn, Colorado.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' decision in Gallegos v. City and County of Denver, 894 P.2d 14 (Colo.App.1994). In reversing the trial court's judgment, the court of appeals broadly interpreted the term "public water facility," as set forth in the Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988 & 1995 Supp.) (the GIA), to include private property. We reverse the court of appeals and remand to the court of appeals with directions to reinstate the judgment for the City and County of Denver notwithstanding the jury verdict.

I.

On May 7, 1991, Troy Gallegos (Gallegos) was visiting a friend on private property. As he was leaving, Gallegos stepped on a water meter pit lid which was located on the private property. The lid gave way and he fell into the meter pit, sustaining injuries that are the basis of this lawsuit. Prior to bringing this suit against the Denver Water Department (Denver), Gallegos settled with the property owners through their insurance company in the amount of $8,200.

The Denver Water Department is regulated by Operating Rules which were adopted by the Board of Water Commissioners. The Operating Rules provide that a landowner owns the water meter pit located on his property and is responsible for its maintenance. The Operating Rules further provide that the Denver Water Department controls the specifications, installation, and use of residential water meters and meter pits.

In Gallegos' claim against the Denver Water Department, he asserted that Denver was negligent in its use of the water meter pit which caused his injuries. At trial, the jury found Denver negligent and entered a verdict in favor of Gallegos. However, the trial court determined that the Denver Water Department was immune from liability pursuant to the GIA because the water meter pit was on private property. The trial court thus entered judgment for the Denver Water Department notwithstanding the verdict. However, the court of appeals, holding that the Denver Water Department was not immune from liability for Gallegos' injuries, reversed and ordered the trial court to enter judgment consistent with the jury verdict.

II.

In 1971, we prospectively overruled our prior decisions that recognized the defense of sovereign or governmental immunity in tort actions. Evans v. Board of County Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971); see also Flournoy v. School Dist., 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). In response to our decisions abrogating governmental immunity, the General Assembly enacted the GIA, which controls the disposition of this case. See Ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1204-11; Bertrand v. Board of County Comm'rs, 872 P.2d 223, 226 (Colo.1994). The GIA restored sovereign and governmental immunity by statute, granting to state and local governments limited liability.

Because governmental immunity is in derogation of common law, legislative grants of immunity must be strictly construed. Bertrand, 872 P.2d at 226. Nevertheless our primary task in construing a statute is to determine and give effect to the intent of the legislature. State v. Hartsough, 790 P.2d 836, 838 (Colo.1990). To discern legislative intent, we look first to the statutory language, giving words and phrases their plain and ordinary meaning. Id.

The GIA is intended to limit the liability of governmental entities, exposing them only to the liability specifically provided for in the Act. As stated in the GIA's declaration of policy:

[Governmental entities] should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article.

§ 24-10-102, 10A C.R.S. (1988) (emphasis added). Therefore, the GIA requires that exceptions to governmental immunity be interpreted narrowly in order to avoid imposing liability not specifically provided for in the statute.

III.

The GIA provision at issue, section 24-10-106(1)(f), 10A C.R.S. (1988), provides:

Sovereign immunity is waived by a public entity in an action for injuries resulting from:

....

(f) The operation and maintenance of any public water facility....

§ 24-10-106(1)(f). In interpreting this exception to governmental immunity, we must resolve whether water meter pits are a public water facility. Additionally, we must determine whether the Denver Water Department engages in the operation and maintenance of water meter pits, as required for waiver of immunity.

A.

Pursuant to section 24-10-106(1)(f), the Denver Water Department is liable in this case only if water meter pits are a public water facility. Neither the term "public water facility" nor "public facility" is defined by the GIA. Furthermore, there is no "ordinary meaning" for either phrase. The legislature, however, has recently defined the term "public facility" in a statutory provision entitled "Water Conservation Board and Compacts." §§ 37-60-101 to -130, 15 C.R.S. (1990 & 1995 Supp.). This provision states:

"Public facility" means any facility operated by an instrument of government for the benefit of the public including, but not limited to, a governmental building, park or other recreational facility, school, college, university, or other educational institution, highway, hospital, or stadium.

§ 37-60-126(1)(b), 15 C.R.S. (1995 Supp.) (emphasis added). Hence, the determinative factor in defining a public facility is whether the facility is operated "for the benefit of the public."

Section 37-60-126(1)(b) states that the facility itself, not the government entity, must operate for the benefit of the public in order to qualify as a public facility. The statute then provides examples of public facilities, all of which have the common feature of being accessible and beneficial to members of the general public. These examples are distinguishable from water meter pits, which are used for the sole benefit of the property on which they are located and are not beneficial to the general public.

Nevertheless, Gallegos cites Burnworth v. Adams County, 826 P.2d 368 (Colo.App.1991), for the proposition that water meter pits are a public water facility. Burnworth, however, is distinguishable from the current case because it involved a storm drain that had been relocated onto a landowner's property. The storm drain in that case was both operated and maintained by a county. Burnworth, 826 P.2d at 369. Furthermore, despite its location on private property, the storm drain was operated for the benefit of the general public, and not just for the benefit of the property on which it was located. The location of the storm drain on private property thus did not alter its benefit to the public.

In contrast, each water meter pit only benefits the property on which it is located. Therefore, although location is not determinative in defining public water facilities, the location of water meter pits is directly related to their lack of benefit to the public. Because water meter pits are not operated for the benefit of the public, they are not public water facilities and the Denver Water Department is not liable for injuries caused by such meter pits.

B.

In addition to Denver Water Department's immunity based on the fact that water meter pits are not a public water facility, Denver is also immune because it does not operate and maintain water meter pits. For purposes of immunity waiver, ownership of the water meter pits is not dispositive. Rather, the GIA only requires that a government be engaged in the operation and maintenance of a public water facility in order for immunity to be waived. It is thus necessary to determine whether the Denver Water Department operates and maintains water meter pits.

It is presumed that the legislature has knowledge of the legal import of the words it uses and that it intends each part of a statute to be given effect. People v. Guenther, 740 P.2d 971, 976 (Colo.1987). The legislative choice of language may be concluded to be a deliberate one calculated to obtain the result dictated by the plain meaning of the words. Id.

In section 24-10-106(1)(f), the legislature did not use the terms "maintenance" and "operation" loosely or interchangeably. The word "and" in this provision conclusively establishes that governmental immunity is waived only where the public entity both operates and maintains the public water facility. If the legislature had wished to use the term "or" instead of "and," it could have easily done so. For example, subsection (1)(b) of the same statute provides an exemption from immunity for the "operation," rather than the "operation and maintenance," of public hospitals, correctional facilities, or public jails. § 24-10-106(1)(b), 10A C.R.S. (1988). It can thus be concluded that, in drafting section 24-10-106(1)(f), the legislature intended for governmental entities to be liable only when they both operate and maintain a public water facility.

By the process of reading a meter, the Denver Water Department operates water meter pits, as required by the exception to governmental immunity. However, ...