Jenks v. Sullivan, 91SC273

• Citation: 826 P.2d 825
• Decision Date: 10 March 1992
• Docket Number: No. 91SC273,91SC273
• Parties: Robert Wayne JENKS, Petitioner, v. Sheriff Patrick SULLIVAN, Arapahoe County Sheriff, and the County Commissioners for the County of Arapahoe, State of Colorado, Respondents.
• Court: Supreme Court of Colorado

Page 825

826 P.2d 825

Robert Wayne JENKS, Petitioner, v. Sheriff Patrick SULLIVAN, Arapahoe County Sheriff, and the

County Commissioners for the County of Arapahoe,

State of Colorado, Respondents.

No. 91SC273.

Supreme Court of Colorado,

En Banc.

March 10, 1992.

Dallas, Holland & O'Toole, P.C., Neil D. O'Toole, Denver, for petitioner.

Peter Lawrence Vana, III, Arapahoe County Atty., L. Cary Unkelbach, Asst. County Atty., Littleton, for respondents.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Arnold, Deputy Atty. Gen., Denver, for amicus curiae State of Colo Chief Justice ROVIRA delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Jenks v. Sullivan, 813 P.2d 800 (Colo.App.1991), affirming the trial court's order granting summary judgment in favor of the respondents, the Arapahoe County Sheriff and the County Commissioners for the County of Arapahoe. The trial court concluded that Colorado's sovereign immunity statute bars recovery by the petitioner, Robert W. Jenks, who was injured by the acts of a third party while he was in the Arapahoe County courthouse. We affirm.

I

On January 20, 1988, a domestic relations hearing was scheduled to take place before a district court judge in the Arapahoe County courthouse at 1:30 p.m. Prior to the hearing, the judge requested the sheriff's department to screen with a metal detector all persons coming into her courtroom and to have a uniformed deputy sheriff present.

At approximately 1:00 p.m., Jenks arrived at the courthouse, accompanying the wife of Chanh Van Duong, one of the parties in the hearing. The other party, Chanh Van Duong, was already at the courthouse. Following a brief conversation between Duong and his wife, Duong shot and killed her and shot Jenks in the hand. The shooting occurred in the corridor outside the courtroom where no security precautions had been requested and before the deputy sheriff had arrived.

Jenks sued the respondents claiming that they were negligent in failing to exercise reasonable care for his safety and in failing to maintain courtroom facilities in a manner that would protect people who were in the courthouse from unreasonable harm or danger. The respondents moved for summary judgment on the ground that, as a matter of law, the Colorado Governmental Immunity Act (Act), section 24-10-101 to -120, 10A C.R.S. (1988), barred Jenks' claims. The trial court granted the motion, holding that the Act applied and Jenks' claims did not come within any of the exceptions provided for in the Act. The court of appeals affirmed, holding that the facts alleged did not fall within the dangerous condition exception to the Act, section 24-10-106(1)(c), 10A C.R.S. (1988), which it construed to relate to a physical condition of the building, not to activities conducted therein.

II

Jenks contends that the respondents did not use reasonable care in protecting him from a dangerous condition which existed in the courthouse and therefore the dangerous condition exception to the Act contained in section 24-10-106(1)(c) should be construed to include the absence of security in the courthouse at the time of the shooting. Accordingly, the question we must resolve is whether the dangerous condition exception to governmental immunity is applicable to Jenks' claim.

In Evans v. Board of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971), we abolished the doctrine of sovereign immunity, but found that the General Assembly had the authority to restore sovereign immunity, if it so chose. Id. at 105, 482 P.2d at 972. Subsequently, the General Assembly enacted the Colorado Governmental Immunity Act. In the Act's declaration of policy, the General Assembly recognized that the doctrine of sovereign immunity is in some instances an inequitable doctrine, but stated "that unlimited liability could disrupt or make prohibitively expensive the provision of ... essential public services and functions." § 24-10-102, 10A C.R.S. (1988). The General Assembly also recognized that:

[T]he taxpayers would ultimately bear the fiscal burdens of unlimited liability and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens.

§ 24-10-102. Therefore, the Act and its exceptions must be construed to meet the legislative recognition that, while sovereign immunity sometimes produces unfair results, the necessities of providing essential public services and protecting taxpayers against excessive fiscal burdens are important considerations.

The Act provides that all public entities, officials and employees are immune from tort liability unless, under the circumstances, they fit within the specified exceptions. One of these statutory exceptions, section 24-10-106(1)(c), provides that immunity is waived in an action for injuries resulting from a "dangerous condition of any public building." "Dangerous condition" is defined in section 24-10-103(1), 10A C.R.S. (1988), as follows:

[A] physical condition of a facility or the use thereof which constitutes an unreasonable 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. For the purposes of this subsection (1), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate.

(Emphasis added.)

Jenks argues that the plain meaning of the phrase "or the use thereof" relates to uses in a building. In light of the legislation following our abolishment of sovereign immunity, we are convinced that the legislature did not intend such an expansive reading of the dangerous condition exception. This conclusion is supported by the language of the statute, our cases construing the Act, and the decisions of other courts which have considered similar exceptions.

The phrase "or the use thereof" means the use of a physical condition of a facility. Condition is defined as: "Mode or state of being; state or situation; essential quality; property; attribute; status or rank." Black's Law Dictionary 293 (6th ed. 1990). Thus, the statute refers to an injury arising from the state of the building itself or the use of a state of the building, but not to one arising from activities conducted within the building. Injury stemming from the use of a dangerous or defective physical condition of the building itself might include injury resulting from, for example, using a faulty elevator or falling down defective stairs.

In essence, Jenks argues that the courthouse was operated in a negligent manner. A statute should be interpreted to give consistent, harmonious, and sensible effect to all parts. Martinez v. Continental Enterprises, 730 P.2d 308, 315 (Colo.1986); People v. District Court, 713 P.2d 918, 921 (Colo.1986). Exceptions to sovereign immunity, being in derogation of common law, must be strictly construed to restrict their provisions to the clear intent of the legislature. Bloomer v. Board of County Comm'rs, 799 P.2d 942, 946 (Colo.1990). Section 24-10-106(1) sets forth several exceptions to the general rule of sovereign immunity, of which the dangerous condition of any public building exception contained in paragraph (c) is only one. It is helpful to consider the language used by the General Assembly to carve out other exceptions to the rule of sovereign immunity in construing any one of those exceptions. Particularly instructive are two pairs of exceptions to sovereign immunity found in section 24-10-106(1)(b) and (e) and in section 24-10-106(1)(e) and (f). The first set provides in relevant part:

(b) The operation ¹ of any public hospital ... or jail by such public entity ....

(e) A dangerous condition of any public hospital, jail....

§ 24-10-106(1)(b) and (1)(e). The second set provides, as relevant:

(e) A dangerous condition of any ... public water, ... sanitation, electrical, power, or swimming facility....

(f) The operation and maintenance of any public water facility, ... sanitation facility, electrical facility, power facility, or swimming facility by such public entity.

§ 24-10-106(1)(e) and (1)(f).

Jenks' injuries resulted from the alleged negligent failure to provide security services in the courthouse. An examination of the entire statutory section reveals that the legislature intended to waive sovereign immunity only for the operation of specific types of public facilities. The omission of the term "operation" in section 24-10-106(1)(c) clearly suggests that the legislature did not intend the operation of the courthouse to be excepted from sovereign immunity. If we were to construe the dangerous condition exception contained in section 24-10-106(1)(c) broadly enough to include Jenks' claim we would render the language of subparagraphs (b) and (f) of section 24-10-106(1) redundant. Such a construction is impermissible. See People v. Terry, 791 P.2d 374, 376 (Colo.1990) ("Courts should attempt to give effect to all parts of a statute, and constructions that would render meaningless a part of the statute should be avoided.").

The same conclusion, that the legislature did not intend to waive use of the courthouse from sovereign immunity, is reached when construing the "dangerous condition" language in section 24-10-103(1). In Mentzel v. Judicial Department, 778 P.2d 323 (Colo.App.1989), the court of appeals interpreted the dangerous condition exception. The court found the language "a...