Curtis v. Hyland Hills Park & Rec. Dist.

• Decision Date: 08 March 2007
• Docket Number: No. 05CA2520.,05CA2520.
• Parties: Leslie CURTIS, Plaintiff-Appellee and Cross-Appellant, v. HYLAND HILLS PARK & RECREATION DISTRICT, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

179 P.3d 81

Leslie CURTIS, Plaintiff-Appellee and Cross-Appellant, v. HYLAND HILLS PARK & RECREATION DISTRICT, Defendant-Appellant and Cross-Appellee.

No. 05CA2520.

Colorado Court of Appeals, Div. V.

March 8, 2007.

Certiorari Denied September 5, 2007.

Karen Colburn, Denver, Colorado; Roger Fraley, Jr., Denver, Colorado for Plaintiff-Appellee and Cross-Appellant.

Law Firm of Anthony Melonakis, Anthony Melonakis, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge CARPARELLI.

Plaintiff, Leslie Curtis, sued defendant, Hyland Hills Park and Recreation District, for injuries sustained at Water World. The district appeals the trial court's order denying its motion to dismiss for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.S.2006, and plaintiff cross-appeals challenging the trial court's determination that the attraction at which she was injured is not a swimming facility within the meaning of the CGIA. We affirm the portion of the order that concludes that the attraction is not a swimming facility, reverse the portion of the order that concludes that immunity has been waived, and remand with instructions to dismiss plaintiff's claims for lack of subject matter jurisdiction. The district may raise its request for fees and costs on remand.

I.

The district owns and operates Water World, which has several water-themed attractions. At the Thunder River attraction, visitors ride a raft down a flume. The district does not station an attendant at the top of the flume to regulate the intervals at which the visitors may place their rafts onto the flume and begin their way down. At the bottom, the raft enters a shallow pool and attendants help the visitors get out of the rafts and the water.

Plaintiff alleges that she sustained injuries when another visitor came down the flume immediately after her and collided with her raft, causing her to fall out of the raft and hit her head.

The district moved to dismiss plaintiff's complaint for lack of subject matter jurisdiction. It asserted that plaintiff's negligence claim was premised on the district's alleged failure to supervise other visitors in a manner that would have prevented her from being injured. The district contended that § 24-10-106(1)(e), C.R.S.2006, waives immunity for injuries caused by dangerous conditions at public facilities, and that to be actionable under the statute, an injury must have been caused by negligence in the construction or maintenance of the facility. The district argued that, because the alleged negligence here was unrelated to construction and maintenance, plaintiff failed to allege the existence of dangerous conditions and the district was immune from suit. Plaintiff asserted that she had alleged dangerous conditions, and that immunity was also waived by § 24-10-106(1)(f), C.R.S.2006, because Thunder River is a swimming facility.

After an evidentiary hearing, the court concluded that Thunder River is not a swimming facility, but that plaintiff's injuries were caused by dangerous conditions of a public facility, and, therefore, that sovereign immunity is waived by § 24-10-106(1)(e). Accordingly, the court denied the district's motion to dismiss.

The district filed this interlocutory appeal as permitted by § 24-10-108, C.R.S.2006.

II.

Whether a public entity's immunity is waived under the CGIA involves an issue of subject matter jurisdiction that is properly resolved by the trial court pursuant to a motion to dismiss under C.R.C.P. 12(b)(1). Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo.2000). Under C.R.C.P. 12(b)(1), the plaintiff has the burden of proving jurisdiction and demonstrating that governmental immunity has been waived. Tidwell v. City & County of Denver, 83 P.3d 75, 85-86 (Colo.2003); Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo.1993).

Statutory interpretation is a question of law subject to de novo review. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006). Under the basic principles of statutory interpretation, we first determine whether the statutory language has a plain and unambiguous meaning. People v. Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997); see also Klinger, supra, 130 P.3d at 1031. We read the statute as a whole "to give `consistent, harmonious and sensible effect to all of its parts,'" in accordance with the presumption that the legislature intended the entire statute to be effective. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005) (quoting Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo.2004)). "A statutory interpretation leading to an illogical or absurd result will not be followed." Frazier v. People, 90 P.3d 807, 811 (Colo.2004). We avoid constructions that are at odds with the legislative scheme. Klinger, supra, 130 P.3d at 1031.

III.

The district contends that the trial court erred when it concluded immunity was waived because the conditions plaintiff alleged caused her injuries were dangerous conditions under § 24-10-106(1)(e). We agree.

A.

Because the CGIA is in derogation of the common law, provisions waiving immunity are deferentially construed in favor of an injured party. Jaffe v. City & County of Denver, 15 P.3d 806, 810 (Colo.App.2000).

Under the CGIA, immunity is waived in an action for injuries resulting from a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. Section 24-10-106(1)(e).

In pertinent part, § 24-10-103(1), C.R.S.2006, defines "dangerous condition" to include physical conditions that are proximately caused by negligence in the construction or maintenance of a public facility. Jaffe v. City & County of Denver, supra, 15 P.3d at 810. To be actionable, an injury must have been caused by a physical or structural defect caused by negligence in the construction or maintenance of the facility, and not by operation of the facility. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176, 1181 (Colo.2001); Hendricks v. Weld County Sch. Dist. No. 6, 895 P.2d 1120, 1123 (Colo.App.1995).

B.

Plaintiff does not allege that she was injured as a result of a physical or structural defect that was caused by negligence in the construction or maintenance of the Thunder River attraction. Instead, she alleges that the attraction was overcrowded, that the spacing between rafts was inadequate, and that the district failed to provide personnel to ensure that sufficient space existed between rafts to minimize the likelihood of collisions.

Thus, plaintiff's only allegation is that the district was negligent in its operation of the attraction, not that there was a physical defect in the attraction's construction or maintenance. Consequently, we conclude that the trial court erred when it ruled that the absence of an individual or system to regulate the spacing of visitors in rafts constituted a dangerous condition under § 24-10-106(1)(e).

IV.

On cross-appeal, plaintiff contends that the trial court erred when it concluded that Thunder River is not a swimming facility under the CGIA. We are not persuaded.

A.

Section 24-10-106(1)(f) of the CGIA waives sovereign immunity for the "operation and maintenance of any public . . . swimming facility by such public entity." The statute does not define "swimming facility."

Even if we assume that Thunder River is a facility for purposes of the CGIA, it is not a "swimming facility."

Webster's Third New International Dictionary defines "swimming pool" as "a pool suitable for swimming; esp[ecially] a tank . . . made for swimming." It defines "swimming hole" as "a comparatively deep place in a stream locally used for swimming." Webster's Third New International Dictionary 2312 (1986).

Based on the plain and ordinary meaning of swimming, we conclude that the term "swimming facility," as used in the statute, refers to a facility that is both suitable and commonly used for swimming.

In Anderson v. Hyland Hills Park & Recreation District, 119 P.3d 533, 535 (Colo. App.2004), a division of this court declined to disturb the...