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

• Decision Date: 20 October 1994
• Docket Number: No. 93CA1031,93CA1031
• Citation: 894 P.2d 14
• Parties: Troy Orlando GALLEGOS, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, a/k/a City and County of Denver Water Department, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 14

894 P.2d 14

Troy Orlando GALLEGOS, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, a/k/a City and County of Denver Water Department, Defendant-Appellee.

No. 93CA1031.

Colorado Court of Appeals,

Div. I.

Oct. 20, 1994.

As Modified on Denial of Rehearing

Dec. 8, 1994.

Certiorari Granted May 15, 1995.

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

Patricia L. Wells, General Counsel, Hulbert E. Reichelt, Denver, for defendant-appellee.

Opinion by Judge RULAND.

In an action to recover damages for negligence, plaintiff, Troy Orlando Gallegos, appeals from the judgment entered notwithstanding the verdict in favor of defendant, City and County of Denver Water Department. We reverse and remand with directions to reinstate the jury verdict.

The record reflects that plaintiff walked across a public alley to visit a friend. A water meter pit was located at the rear of the friend's property and adjacent to the alley.

As plaintiff was leaving the site, he stepped on the cover plate for the meter pit. Plaintiff testified that the cover plate gave way and he fell thus suffering injuries resulting in hospitalization and surgery.

The meter pit was approximately four feet deep, and the cover protruded approximately one inch above the surface of the surrounding soil. The cover plate was attached to the meter pit by a lock nut, and pliers were ordinarily required to loosen or tighten the lock nut.

Testimony was presented indicating that a frost plate made of either rubber, aluminum, or cast iron is ordinarily installed a few inches below the cover plate to keep the water meter from freezing. A former employee of defendant testified that, depending on what material is used to construct the plate, it will support the weight of a person stepping on it. However, several witnesses testified that the frost plate was not in place at the time of plaintiff's accident.

One of defendant's employees testified that he had read the meter approximately seven weeks before the accident. To accomplish this task, the employee testified that he removed the lock nut and the cover plate, removed the frost plate, and then read the water meter. After recording the information, the employee returned the frost plate, the cover plate, and then tightened the lock nut. He also testified that he remembered the specific location of this meter pit because of its placement on the rear of the property, because it was above grade, and because it appeared to be situated in a driveway based upon the presence of tire tracks in the area.

The court submitted the question of negligence to the jury which allocated 99% to defendant, 1% to the property owners, and 0% to plaintiff. The jury awarded damages in the amount of approximately $25,000. Defendant then moved for a judgment notwithstanding the verdict, and the trial court granted the motion.

I

In support of the judgment, defendant first contends that it was immune from liability under the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. (1988 Repl.Vol. 10A), and that, therefore, the issue of negligence should not have been submitted to the jury. Plaintiff responds that defendant has waived its right to rely upon the immunity provisions of the Act on appeal because the issue was not properly presented at trial. However, we conclude that defendant may assert this contention in support of the judgment.

Generally, an appellee must file a notice of cross-appeal in order for an appellate court to consider an alleged error by the trial court that prejudiced the prevailing party. See City of Delta v. Thompson, 37 Colo.App. 205, 548 P.2d 1292 (1975). However, the appellee may assert any theory in support of the judgment which is supported by the record so long as there is no attempt to enlarge the appellee's rights under the judgment entered by the trial court. See Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991). In addition, the issue of subject matter jurisdiction may be raised at any stage of the proceeding. Hence, we conclude that the applicability of the immunity act may be raised here. See Peaker v. Southeastern Colorado Water Conservancy District, 174 Colo. 210, 483 P.2d 232 (1971).

In Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo.1993), the supreme court, in discussing §§ 24-10-108 and 24-10-109, C.R.S. (1988 Repl.Vol. 10A) stated:

Unless a plaintiff complies with the statutory requirements, including notice, sovereign immunity bars suit against a public entity for injury which lies or could lie in tort.... The terms by which a sovereign ... consents to be sued must be strictly followed since they 'define [the] court's jurisdiction to entertain the suit.'

(emphasis added)

This court has applied the rule in Trinity both to notice issues and to the issue whether immunity has been waived under § 24-10- 106, C.R.S. (1989 Repl.Vol. 10A). See Fogg v. Macaluso, 870 P.2d 525 (Colo.App.1993); Kittinger v. City of Colorado Springs, 872 P.2d 1265 (Colo.App.1993).

While the immunity issue was not presented to the trial court in accordance with the procedure adopted in Trinity, the rule in that case permits resolution of the issue on appeal if, as here, it appears that all the relevant evidence on this question was presented in the trial court.

Turning then to resolution of this issue on the merits, we conclude that, under the circumstances at issue, the applicable provisions of the Governmental Immunity Act operate as a waiver of immunity for defendant.

Specifically, § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A) provides that:

[S]overeign immunity is waived by a public entity in an action for injuries resulting from:

....

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

The term "public water facility" is not specifically defined in the Act. However, a division of this court in Longbottom v. State Board of Community Colleges & Occupational Education, 872 P.2d 1253 (Colo.App.1993), relied on Webster's Third New International Dictionary 812 to define the statutory term "facility" as follows:

[S]omething that promotes the ease of any ... operation, transaction, or course of conduct ... something (as ... plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.

(emphasis added)

Here, defendant attempts to isolate the water meter pit and the cover plate from the definition of "public water facility" by characterizing these items as privately owned. We do not view that characterization as dispositive.

In our view, this fact, standing alone, does not exclude these items as part of the "public water facility." It is undisputed that defendant controls the type of pit which may be installed as well as its general location. Denver Water Department Operating Rules 9.05 and 9.051a provide:

All meters must be located so as to allow free and non-hazardous access at reasonable times for reading, removal,...