Cordova v. PUEBLO WEST METROPOLITAN DIST., 97CA1266.

• Decision Date: 24 December 1998
• Docket Number: No. 97CA1266.,97CA1266.
• Citation: 986 P.2d 976
• Parties: Alonso G. CORDOVA; Mark Allen Cordova; Theresa Marie Randall; and Thomas Anthony Cordova, Plaintiffs-Appellees, v. PUEBLO WEST METROPOLITAN DISTRICT and Dan Corsentino, Sheriff of the County of Pueblo, Defendants-Appellants.
• Court: Colorado Court of Appeals

986 P.2d 976

Alonso G. CORDOVA; Mark Allen Cordova; Theresa Marie Randall; and Thomas Anthony Cordova, Plaintiffs-Appellees, v. PUEBLO WEST METROPOLITAN DISTRICT and Dan Corsentino, Sheriff of the County of Pueblo, Defendants-Appellants.

No. 97CA1266.

Colorado Court of Appeals, Division IV.

December 24, 1998.

Rehearing Denied January 21, 1999.

Certiorari Granted September 7, 1999.

Richard R. Macrorie, Pueblo, Colorado, for Plaintiffs-Appellees

Senter Goldfarb & Rice, L.L.C., William L. Senter, Peter H. Doherty, David L. Zwisler, Denver, Colorado, for Defendant-Appellant Pueblo West Metropolitan District

Vaughan & DeMuro, Gordon L. Vaughan, Shelby Felton-Schnack, Colorado Springs, Colorado, for Defendant-Appellant Dan Corsentino

Opinion by Judge KAPELKE.

In this wrongful death action arising from an automobile accident, defendants, Pueblo West Metropolitan District (District) and Dan Corsentino, Sheriff of Pueblo County (Sheriff), appeal from orders of the trial court denying their respective motions to dismiss for lack of subject matter jurisdiction based on assertions of governmental immunity. We affirm in part, reverse in part, and remand with directions.

Erlinda A. Cordova (deceased) died as a result of injuries she sustained on July 30, 1995, when her car collided with a patrol car driven by a deputy sheriff of Pueblo County. Plaintiff Alonso G. Cordova is the surviving husband of deceased, and plaintiffs Mark Allen Cordova, Theresa Marie Randall, and Thomas Anthony Cordova are her surviving children.

In their first claim in the complaint, plaintiffs allege that the District created a dangerous condition of a road or street by having negligently maintained a median strip which contained trees and bushes that obstructed the vision of the deceased and contributed to her injuries and eventual death.

In their second claim, plaintiffs allege that the Sheriff is liable under the doctrine of respondeat superior for the negligent and willful and wanton conduct of the deputy sheriff in having failed to drive with due regard for the safety of the deceased. Specifically, they allege that, at the time of the accident, the deputy was driving 60 miles per hour in a 35 mile per hour zone while approaching a dangerous intersection affording limited visibility.

The District and the Sheriff filed separate motions to dismiss under C.R.C.P. 12(b)(1) based on the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. 1998(GIA). The trial court denied both motions, and this appeal followed.

I.

The District contends that the trial court erred in determining that its governmental immunity was waived pursuant to § 24-10-106(1)(d)(I), C.R.S, 1998. We agree.

Section 24-10-106, C.R.S.1998, provides that sovereign immunity shall be a bar to any action against a public entity for injuries which lie in tort or could lie in tort, except as provided in other specified statutory sections.

Plaintiffs rely on § 24-10-106(1)(d)(I), which provides in pertinent part 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 which physically interferes with the movement of traffic on the paved portion" of such public highway, street, or road.

In the trial court, plaintiffs urged, and the trial court agreed, that by allowing trees and bushes to grow to the point of obscuring vision at the intersection where the accident occurred, the District had created a dangerous condition "which physically interferes with the movement of traffic on the paved portion of the roadway."

Because the immunity created by the GIA is in derogation of the common law, immunity provisions must be strictly construed, while waiver provisions are entitled to deferential construction in favor of victims who have been injured by the negligence of governmental employees. Walton v. State, 968 P.2d 636 (Colo.1998); Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994). The issue of sovereign immunity is one of subject matter jurisdiction, and the plaintiff has the burden under C.R.C.P. 12(b)(1) to prove jurisdiction. Hallam v. City of Colorado Springs, 914 P.2d 479 (Colo. App.1995).

Because the interpretation of provisions of the GIA is a question of law, rather than a factual determination, the trial court's interpretation is subject to independent review. Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995).

In construing statutory provisions, a reviewing court must attempt to give effect to the intent of the General Assembly and must afford the statutory terms their plain and ordinary meaning. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997).

The statutory provision at issue here, § 24-10-106(1)(d)(I), creates a waiver of governmental immunity only if the dangerous condition of the roadway "physically interferes" with the movement of traffic.

We disagree with the trial court's conclusion that overgrown trees and bushes in a median would constitute a physical interference with the movement of traffic on the paved portion of the street. The street itself was clear and free of any objects or other obstructions. While the vegetation is alleged to have impaired the ability of drivers to view traffic driving on the other side of the median strip, that condition does not constitute a "physical" interference with the movement of traffic.

Further, in our view, a contrary conclusion can be reached here only by ignoring and failing to give effect to the plain meaning of the word "physically," used by the General Assembly. Such an interpretation would conflict with the principle that we must, if possible, give effect to every word of a statute. Charlton v. Kimata, 815 P.2d 946 (Colo. 1991).

Plaintiffs point to the statement by the supreme court in State v. Moldovan, 842 P.2d 220, 224 (Colo.1992), that a "dangerous condition on a public highway that `physically interferes with the movement of traffic on the paved portion' of the highway is not limited only to those dangerous conditions that have their physical source in the highway surface itself." In Moldovan, however, the absence of a right-of-way fence enabled a cow to run onto the highway, thereby creating a dangerous condition that physically interfered with the movement of traffic. The cow physically obstructed the road.

Similarly, in the other principal cases relied on by plaintiffs and cited by the trial court in its ruling, the dangerous condition resulted in actual physical obstructions of the roadway. In Hallam v. City of Colorado Springs, supra,

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