Jones v. Westernaires, Inc., 92CA2110

• Decision Date: 02 December 1993
• Docket Number: No. 92CA2110,92CA2110
• Citation: 876 P.2d 50
• Parties: Paula Jo JONES and Richard W. Jones, Plaintiffs-Appellants, v. WESTERNAIRES, INC., a Colorado Not-for-Profit corporation, Defendant-Appellee. . V
• Court: Colorado Court of Appeals

Page 50

876 P.2d 50

Paula Jo JONES and Richard W. Jones, Plaintiffs-Appellants, v. WESTERNAIRES, INC., a Colorado Not-for-Profit corporation Defendant-Appellee.

No. 92CA2110.

Colorado Court of Appeals Div. V.

Dec. 2, 1993.

Rehearing Denied Feb. 3, 1994.

Certiorari Denied July 11, 1994.

Beckman & Gordon, P.C., John D. Beckman, Wheat Ridge, for plaintiffs-appellants.

Dickinson, Everstine & Prud'Homme, Richard L. Everstine, Denver, for defendant-appellee.

Opinion by Judge BRIGGS.

In this action to recover damages for personal injuries, plaintiffs, Paula Jo and Richard W. Jones, appeal from the summary judgment which dismissed their claims against defendant, Westernaires, Inc. Plaintiffs contend the trial court erred in not limiting the immunity provided under § 13-21-116, C.R.S. (1987 Vol. 6A) to individual volunteers. We affirm.

Defendant, a nonprofit corporation, is a volunteer organization organized for the purpose of teaching and promoting horseback riding and other equestrian activities for young persons. According to the complaint, in January 1991, plaintiff Paula Jo Jones severely injured her leg when she stepped into a trench adjacent to a barn on defendant's property. Richard W. Jones' derivative claim was for loss of consortium.

At the time of the incident, Paula Jo Jones--an adult volunteer in defendant's organization--was attempting to guide an out-of-control wagon toward a stack of hay under the pole barn. The complaint alleged that the trench constituted a dangerous condition and that defendant was negligent in the design, excavation, illumination, and construction of the barn and its adjoining grounds. Defendant filed an answer denying negligence and asserting several affirmative defenses.

Defendant also filed a motion for summary judgment, supported by affidavits and other documents, asserting that it was immune from liability pursuant to § 13-21-116 and other statutes. Plaintiffs filed a response to the motion, supported by affidavits, asserting, among other things, that § 13-21-116 limits immunity to individual volunteers. The trial court determined that defendant was immune from liability pursuant to § 13-21-116 and was therefore entitled to summary judgment.

Plaintiffs present two arguments in support of their contention that the trial court erred in barring their claims under § 13-21-116. First, they argue that the heading of § 13-21-116, either alone or in conjunction with the language of § 13-21-116(2.5)(a), C.R.S. (1987 Repl.Vol. 6A), demonstrates a legislative intent to provide immunity to individual volunteers only. Alternatively, they argue that § 13-21-116 conflicts with the Volunteer Service Act, § 13-21-115.5, C.R.S. (1993 Cum.Supp.) and, because the latter is the more recently adopted statute, it must be given a controlling effect to restrict the grant of immunity to individual volunteers only. We are not persuaded by either contention.

Section 13-21-116 was originally enacted in 1986. The intent of the general assembly in adopting this section is set forth in § 13-21-116(1), C.R.S. (1987 Repl.Vol. 6A):

It is the intent of the general assembly to encourage the provision of services or assistance by persons on a voluntary basis to enhance the public safety rather than to allow judicial decisions to establish precedents which discourage such services or assistance to the detriment of public safety.

Section 13-21-116(4), C.R.S. (1987 Repl.Vol. 6A) defines the term "person" to include a corporation, partnership, or association.

Section 13-21-116 was amended in 1987 by the addition of § 13-21-116(2.5)(a), C.R.S. (1987 Repl.Vol. 6A). See Colo.Sess.Laws 1987, ch. 103 at p. 553. That subsection provides as follows:

No person who performs a service or an act of assistance, without compensation or expectation of compensation, as a leader, assistant, teacher, coach, or trainer for any program, organization, association, service group, educational, social or recreational group, or nonprofit corporation serving young persons or providing sporting programs or activities for young persons shall be held liable for actions taken or omissions made in the performance of his duties except for wanton and willful act or omissions; except that such immunity from liability shall not extend to protect such person from liability for acts or omissions which harm third persons.

In adopting this amendment, no change was made to the declaration of legislative intent in § 13-21-116(1) or to the inclusion of a corporation within the definition of a "person" in § 13-21-116(4).

Our primary task in interpreting a statute is to provide a construction that will render the enactment effective in accomplishing the purpose for which it was adopted. See Civil Service Commission v. Pinder, 812 P.2d 645 (Colo.1991). We are not persuaded that the purpose of § 13-21-116, as amended, is accomplished by refusing to extend immunity to corporations under any circumstances.

At the outset, we reject plaintiffs' contention that the section heading adopted for § 13-21-116(2.5) ("immunity for volunteers assisting organizations for young persons") itself requires that we restrict application of the immunity provisions of § 13-21-116(2.5) to individuals only. Although a court may use a legislatively selected heading as an aid in construing a statute, it forms no part of the legislative text and no implication or presumption of a legislative construction is to be drawn solely from it. Section 2-5-113(4), C.R.S. (1980 Repl.Vol. 1B); In re Petition of U.M. v. District Court, 631 P.2d 165 (Colo.1981).

Plaintiffs contend that, aside from its title, the text of § 13-21-116(2.5)(a) demonstrates that the General Assembly intended to distinguish individual volunteers to whom immunity is granted from the underlying organizations they assist. The argument is that the persons who provided services for programs and organizations are immune, but not the programs and organizations themselves. Under this interpretation of the statute, § 13-21-116(4) extends immunity under § 13-21-116(2.5) only to an organization providing services to another organization that in turn is providing services for young persons. We reject such a limited construction.

Section 13-21-116(2.5) provides immunity for, among others, those who perform a service or act of assistance as an assistant for any "program" or "organization" or other listed entity. Unless the legislative intent is clearly to the contrary, the use of the disjunctive "or" demarcates different categories. See People v. McCoy, 821 P.2d 873 (Colo.App.1991); see also Bloomer v. Board of County Commissioners, 799 P.2d 942 (Colo.1990); World of Sleep v. Davis, 188 Colo. 443, 536 P.2d 34 (1975) (the use of the disjunctive indicates a choice, not a fusion of the words to be applied).

Furthermore, when, as here, the declared intent of the General Assembly indicates the purpose and objective of a statute, we must give effect to that intent in interpreting any language which is subject to more than one interpretation. See Civil Service Commission v. Pinder, supra. The declared intent in § 13-21-116(1) is to encourage "persons" to volunteer services and assistance, and "person" is defined in § 13-21-116(4) to include a corporation.

We are not persuaded that an organization providing assistance to another organization which provides a program for youth is more deserving of, or more in need of, immunity than the organization providing the program, or that the General Assembly intended to limit immunity in such a manner. We therefore conclude that the statute reasonably construed provides immunity for a volunteer providing services as a leader, assistant, teacher, coach, or trainer for a program serving young persons or providing sporting programs or activities for young persons, even if that volunteer...