City of Aspen v. Meserole, No. 89SC637

• Docket Nº: No. 89SC637
• Citation: 803 P.2d 950
• Case Date: December 24, 1990
• Court: Supreme Court of Colorado

Page 950

803 P.2d 950 CITY OF ASPEN, Petitioner,
v.
Mary MESEROLE, Respondent. No. 89SC637. Supreme Court of Colorado,
En Banc. Dec. 24, 1990.
Rehearing Denied Jan. 28, 1991.

Younge & Hockensmith, Earl G. Rhodes, Grand Junction, for petitioner.

James R. True, Aspen, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review Meserole v. City of Aspen, 786 P.2d 456 (Colo.App.1989). We affirm.

I

At approximately 10:00 p.m. on September 20, 1986, Mary Meserole was walking on the west side of the 200 block of Galena Street in Aspen, Colorado. She tripped over a piece of metal, apparently a remnant of a traffic sign protruding about two inches out of the sidewalk, fell, and was injured. On January 29, 1987, Meserole filed a personal injury complaint against

Page 951

Aspen. In response, the city filed a motion for summary judgment alleging that it was immune from liability for dangerous conditions present on municipal sidewalks. The district court granted that motion and dismissed the complaint.

The court of appeals reversed, 786 P.2d at 458, holding that section 24-10-106(1)(d), 10A C.R.S. (1988), waived sovereign immunity for injuries occurring on municipal sidewalks, and remanded the case to the district court for trial. We granted Aspen's petition for certiorari, and for the reasons below, now affirm the court of appeals.

II

As early as 1893, this court barred tort claims against the government based on the judicial creation of sovereign immunity. Board of County Comm'rs v. Bish, 18 Colo. 474, 33 P. 184 (1893). The rationale for granting sovereign immunity included the vast array of services provided by the government, thereby exposing it to greater potential liability than nongovernmental entities, and the inability of government to decide not to provide services because its potential liability was too great. Lee v. Colorado Dept. of Health, 718 P.2d 221, 227 (Colo.1986) (Governmental Immunity Act does not violate equal protection clause).

In 1971 we stated that judicially imposed sovereign immunity was inappropriate in a modern society, and abolished governmental immunity at the county, school district, and state levels. Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. School Dist. # 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). We also said that the General Assembly had the power to restore sovereign immunity in whole or in part, or to place limits on governmental liability. Evans, 174 Colo. at 105, 482 P.2d at 972. ¹

One year later, the General Assembly responded by adopting the Governmental Immunity Act, and the corresponding statute sections 24-10-101 to -117, 10 C.R.S. (1972). In section 24-10-106, the General Assembly waived sovereign immunity for various governmental acts, including:

A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved 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....

§ 24-10-106(1)(d) (emphasis added). Dangerous condition was defined as:

the physical condition of any public building, public hospital, jail, public highway, road, or street, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility where the physical condition of such facilities or the use thereof constitutes a risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility....

§ 24-10-103(1).

Page 952

In 1986, the General Assembly substantially amended the Governmental Immunity Act partially in response to both case law and to a growing problem of excessively high municipal insurance rates. As amended, section 24-10-106(1)(d) now waives immunity for:

A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, 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 part of the federal interstate highway system or the federal primary highway system, or of any highway which is 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. As used in this section, the phrase "physically interferes with the movement of traffic" shall not include traffic signs, signals, or markings, or the lack thereof....

There is no case in Colorado that interprets whether the Act waived immunity for dangerous conditions on sidewalks prior to the 1986 amendments. A plain reading of the statute supports the interpretation that a municipality did have a duty of reasonable care for maintenance of sidewalks, and the defendant concedes as much. The city argues, however, that the General Assembly intended to change that duty by the 1986 amendments so that immunity is no longer waived for dangerous sidewalk conditions, except in alleys.

Our primary task is to discern the intent of the General Assembly. Engelbrecht v. Hartford Accident and Indem. Co., 680 P.2d 231, 233 (Colo.1984). "To ascertain intent, words and phrases should be given effect according to their plain and obvious meaning." Id. Statutes susceptible to more than one meaning, however, must be construed in light "of the apparent legislative intent and purpose," including relevant statutory history. Id.; § 2-4-203, 1B C.R.S. (1980) ("Ambiguous statutes--aids in construction").

Aspen contends that the amended language in the first sentence of section 24-10-106(1)(d)--from, "A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway, road, street, or sidewalk within the corporate limits of any municipality" to, "A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, 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"--indicates the intent to impose immunity for most sidewalk conditions. Aspen maintains that its interpretation is supported by a plain reading of the statutory words, and that we need not delve into legislative intent. The city acknowledges, however, that the amended statute is ambiguous in that it refers to sidewalks, but contends that the waiver is now limited to only those portions of sidewalks that are used by motor vehicles, such as an alley. The trial court adopted that interpretation.

The court of appeals reversed, and held that the amended statute waived Aspen's immunity for, "A dangerous condition ... of any public highway, road, street, or sidewalk within the corporate limits of any municipality...." 786 P.2d at 457. By holding that the first use of the words "public highway, road, or street" was separate from other clauses of the statute, the court of appeals created a new, fifth category of public thoroughfares in which sovereign immunity for dangerous conditions was waived that included all county roads. We rejected that interpretation in Bloomer v. Board of County Commissioners, 799 P.2d 942 (Colo.1990), which held that section 24-10-106(1)(d) did not waive sovereign immunity for dangerous conditions occurring on county roads. ²

Page 953

Although we previously rejected the court of appeals formulation of five separate categories of thoroughfares in which immunity was waived, that decision does not resolve the issue before us here. It is impossible to discern the legislative intent regarding sidewalk conditions from the plain language of section 24-10-106(1)(d). It is possible that by adding a new clause providing that a dangerous condition must physically interfere "with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved," the General Assembly intended to remove liability for injuries sustained on sidewalks except those occurring on portions intended for motor vehicle travel. Yet the sentence begins by limiting the areas affected to public highways, roads, or streets. It is possible that the legislative intent was simply to address liability for injuries occurring on roadways but not to change existing liability for sidewalk injuries, thereby explaining the retention of "sidewalk" in later clauses. Because there is more than one possible construction of section 24-10-106(1)(d), it is incumbent upon us to determine what the intent of the General Assembly was when it enacted the 1986 amendments. See People v. Terry, 791 P.2d 374, 376 (Colo.1990).

A

House Bill 1196, sponsored in chief by State Representative Charles E. Berry, was the underlying bill that amended the Governmental Immunity Act. Both in committee hearings and in an article he co-authored in 1986, entitled Liability and Insurance Reform in Colorado, ³ Representative Berry discussed the motives behind and intent of the 1986 amendments.

Representative Berry wrote that the...