City of Colorado Springs v. Powell, No. 01SC87.

• Decision Date: 17 June 2002
• Docket Number: No. 01SC87.
• Citation: 48 P.3d 561
• Parties: CITY OF COLORADO SPRINGS, a home rule municipality, Petitioner, v. Valerie POWELL, natural parent of decedent, Steven Powell, individually and as next friend and natural parent of James Powell, a minor, Respondent.
• Court: Colorado Supreme Court

48 P.3d 561

CITY OF COLORADO SPRINGS, a home rule municipality, Petitioner, v. Valerie POWELL, natural parent of decedent, Steven Powell, individually and as next friend and natural parent of James Powell, a minor, Respondent.

No. 01SC87.

Supreme Court of Colorado, En Banc.

June 17, 2002.

Patricia K. Kelly, City Attorney, Colorado Springs, Colorado, Attorney for Petitioner.

Glenn S. Pressman, Melat, Pressman & Higbie, LLP, Colorado Springs, Colorado, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

This is our first opportunity to examine a provision of the Colorado Governmental Immunity Act (CGIA) that allows suit for injuries resulting from the operation and maintenance of a sanitation facility. This wrongful death and personal injury action arises out of an accident in Colorado Springs where two brothers fell into a drainage ditch. One brother survived with injuries, the other did not.

We hold that a drainage ditch is a sanitation facility within the meaning of the CGIA. We further outline the extent of the waiver provision. We do not import the design limitation from the dangerous condition provision of the CGIA into the operation and maintenance provision. Furthermore, we do not limit the operation and maintenance provision to acts or omissions that take place within the facility. Following the plain language of the waiver and the definitions provided in the CGIA, we hold that any injury that allegedly results from an act or omission that is connected with the purpose of the facility is sufficient to establish a waiver of immunity.

I. Facts and Prior Proceedings

Valerie Powell (Powell) brings this action on her own behalf as well as on behalf of her son James and her deceased son Steven. This action arises out of an accident that occurred when the boys were twelve and five years old, respectively. While Powell was attending a class in a building owned by N.S. Properties, James and Steven played outside, near the building. Their play brought them to the edge of a city drainage ditch. Both boys slipped and fell into the drainage facility. James was able to pull himself out of the facility; Steven's body was later found downstream.

Powell brought negligence claims against both the City of Colorado Springs (the city) and N.S. Properties. The city moved to dismiss Powell's complaint or, in the alternative, for summary judgment, claiming governmental immunity.

Powell argued that either of two provisions of the CGIA permit her to sue. First, section 24-10-106(1)(f) allows suits for injuries resulting from the operation and maintenance of a sanitation facility (operation and maintenance provision). 7 C.R.S. (2001). Second, section 24-10-106(1)(e) allows suits for injuries resulting from a dangerous condition of a sanitation facility (dangerous condition provision). 7 C.R.S. (2001). Powell asserted that the condition of the facility supports a finding that she may sue under either of these provisions. Specifically, she alleged that the ditch itself had steep concrete sides that made escape difficult, the fence protecting the facility had been knocked down, the banks of the facility were muddy and overgrown with bushes, and there were no signs warning of the danger of injury or death.

The trial court agreed that Powell could bring suit. The court held that the operation and maintenance of a facility includes the entire easement associated with the facility and that the "slippery surfaces, edges obscured by overgrowth and shrubbery and destroyed barriers" arose from the operation and maintenance of the facility. Regarding the dangerous condition waiver, the court determined that further discovery was required.

The court of appeals affirmed. Powell v. City of Colorado Springs, 25 P.3d 1266 (Colo. App.2000). In a published opinion, the court noted that the "city's negligent failure to maintain the area surrounding the drainage ditch may have contributed to Steven's death and James' injuries." Id. at 1268. The court concluded that this was sufficient for both an operation and maintenance waiver and a dangerous condition waiver. Id. We granted certiorari.

II. Analysis

In Colorado, governmental immunity for tort actions was common-law based. In 1971, this court overruled common law governmental immunity in its entirety. Evans v. Bd. of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. Sch. Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). We did so because the waivers to immunity and the exceptions to those waivers had become exceedingly complicated and in many ways arbitrary. Evans, 174 Colo. at 101, 482 P.2d at 970. We left it up to the General Assembly to determine the proper parameters of governmental immunity. Id. at 105, 482 P.2d at 972. The legislature responded with the CGIA.

The CGIA allows injured persons to sue governmental entities in certain specific circumstances. § 24-10-106, 7 C.R.S. (2001). The provisions allowing suit are to be construed broadly, in favor of the injured party. See Bertrand v. Bd. of County Comm'rs, 872 P.2d 223, 227 (Colo.1994)

. Whether a governmental entity can be sued is a question of subject-matter jurisdiction. Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916, 923 (Colo.1993). The injured plaintiff has the burden of establishing that immunity has been waived. Id. at 925.

In the current case, Powell alleges she can sue under two provisions of the CGIA. First, she argues that, pursuant to section 24-10-106(1)(f), immunity is waived because the injury resulted from the operation and maintenance of a sanitation facility. This provision details that:

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, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.

§ 24-10-106(1)(f), 7 C.R.S. (2001).

Second, pursuant to section 24-10-106(1)(e), Powell argues that immunity is waived because the injury resulted from the dangerous condition of a sanitation facility. This provision allows suit for injuries resulting from:

(e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility.

§ 24-10-106(1)(e), 7 C.R.S. (2001).

Because the trial court found that suit was proper under the operation and maintenance provision, we begin our analysis there. We first examine the scope of the term "sanitation facility" and hold that the phrase encompasses the drainage facility at issue here. Second we apply the operation and maintenance provision to the facts alleged in this case. We hold that because Powell has established a nexus between the injuries alleged and the operation and maintenance of the facility, immunity is waived. Because we find that the suit can be maintained under section 24-10-106(1)(f), we do not address a XX-XX-XXX(1)(e), dangerous condition waiver.

A. Definition of "Sanitation Facility"

This is our first opportunity to address the scope of the term "sanitation facility" in the CGIA.¹ The court of appeals, however, has interpreted the phrase "sanitation facility" on a number of occasions. See Scott v. City of Greeley, 931 P.2d 525 (Colo.App. 1996)

; Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996); Burnworth v. Adams County, 826 P.2d 368 (Colo.App. 1991). In the first of these decisions, Burnworth, the court looked to other provisions in the Colorado Revised Statutes in an attempt to discern the meaning of "sanitation facility." 826 P.2d at 370. After examining the definitions of similar terms, the court concluded that the sanitation facility exception of the CGIA included injuries resulting from the operation and maintenance of a storm drain. Id.²

In subsequent cases, the court of appeals held that an injury from a storm sewer and an injury from ice accumulation in part of a storm water drainage system were within the ambit of the sanitation facility exception. Scott, 931 P.2d 525; Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996). We agree with the court of appeals' interpretation of sanitation facility.

When construing a statute, we strive to give effect to the intent of the General Assembly. State v. Nieto, 993 P.2d 493, 500 (Colo.2000). When a phrase has a plain meaning, or is defined in the statute, we need not resort to rules of statutory interpretation. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 470 (Colo.1998). As a logical corollary, when a phrase is not defined and does not have a plain meaning, we explore other sources. Nieto, 993 P.2d at 501.

Because "sanitation facility" is not defined in the CGIA and does not possess a common meaning, we must look outside of the statute to interpret the phrase. Accord City & County of Denver v. Gallegos, 916 P.2d 509, 511 (Colo.1996)

(concluding that the phrase "public water facility" in section 24-10-106(1)(f) does not have an ordinary meaning). "Sanitation facility" is a technical term and should be construed accordingly. See § 2-4-101, 1 C.R.S. (2001)(directing that "phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly"); Nieto, 993 P.2d at 500.

Although sanitation facility is not defined, "sanitation district," § 32-1-103(18), 9 C.R.S. (2001), and "sewerage facilities," § 30-20-401(4), 9 C.R.S. (2001), are. We look to the definitions of these phrases to aid our analysis. See B.G.'s, Inc. v. Gross, 23 P.3d 691, 694 (Colo.2001)

(noting that other statutes dealing with the same subject is an extrinsic aid to statutory interpretation). A "sanitation district" is defined as a "special district that provides for storm or sanitary sewers, or both, flood and surface drainage,...