Lin v. City of Golden, No. 02CA2535.

• Docket Nº: No. 02CA2535.
• Citation: 97 P.3d 303
• Case Date: March 25, 2004
• Court: Court of Appeals of Colorado

97 P.3d 303

Yingman LIN, Shen Lin, and Bajin Zhang, Plaintiffs-Appellees,
v.
CITY OF GOLDEN, Defendant-Appellant

No. 02CA2535.

Colorado Court of Appeals, Div. I.

March 25, 2004.

Certiorari Denied September 7, 2004.¹

97 P.3d 304

Dale S. Carpenter, III, P.C., Dale S. Carpenter, III, Lakewood, Colorado, for Plaintiffs-Appellees

Burg Simpson Eldredge Hersh & Jardine, P.C., Diane Vaksdal Smith, Englewood, Colorado, for Plaintiff-Appellee Bajin Zhang.

Senter Goldfarb & Rice, L.L.C., Eric M. Ziporin, Sophia H. Tsai, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, the City of Golden, appeals the order denying its motion to dismiss, on governmental immunity grounds, the complaint brought by plaintiffs, Yingman Lin, Shen Lin, and Bajin Zhang. We affirm.

This case arises out of a pedestrian-automobile accident in which Xiaolin Zhang, the wife, mother, and sister of plaintiffs, respectively, was struck and killed. The accident occurred after dark, at an intersection within

97 P.3d 305

the City. An overhead light located at the intersection was not illuminated at the time of the accident. Plaintiffs alleged that the accident was caused, in whole or in part, by this lack of lighting and that the City was responsible for providing and maintaining the light

The City moved to dismiss plaintiffs' complaint pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2003. The City argued that § 24-10-106(1)(d)(I), C.R.S.2003, which waives a public entity's immunity from suit for a dangerous condition of a public road that physically interferes with the movement of traffic, did not apply because the lack of proper lighting did not constitute a dangerous condition that physically interferes with the movement of traffic on the roadway.

In response, plaintiffs also argued that the City waived its immunity by failing to maintain a marked crosswalk at the intersection, which previously had crosswalk markings. Plaintiffs argued that the evidence established that the City had failed to maintain the public roadway in its original condition. In support of this position, plaintiffs noted that, based on aerial photographs, a marked crosswalk had existed at that intersection in 1993, 1995, 1998, and 2000. However, on September 20, 2001, the date of the accident, the crosswalk was not marked.

In reply, the City argued that the lack of a painted crosswalk did not create a dangerous condition of a public road which physically interferes with the movement of traffic. Consequently, the City contended that its immunity had not been waived based on a failure to maintain the painted lines of the crosswalk.

The trial court denied the City's motion to dismiss, finding that the "maintenance of lighting may physically interfere with the movement of traffic." The court did not rule on whether the failure to keep the crosswalk lines painted resulted in a waiver of the City's immunity under § 24-10-106(1)(d)(I). Rather, the court noted plaintiffs' evidence that the crosswalk had been previously marked, but such markings were missing on the date of the accident. The City then brought this interlocutory appeal pursuant to § 24-10-108, C.R.S.2003.

I.

The City contends that the trial court erred in finding that its immunity had been waived because the failure to maintain the street light at the intersection may constitute a dangerous condition of a public road for purposes of § 24-10-106(1)(d)(I). Under the circumstances presented here, we disagree.

Whether immunity has been waived under the GIA is an issue of subject matter jurisdiction that is resolved by the trial court under C.R.C.P. 12(b)(1). See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). The burden of proving jurisdiction is on the plaintiff, and the trial court's findings of fact supporting a determination under the GIA will not be reversed unless clearly erroneous. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

Because the GIA derogates the common law, its grant of immunity must be strictly construed, and its waiver provisions are interpreted broadly. Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000). Nevertheless, our primary task in construing a statute is to determine and give effect to the intent of the legislature. Medina v. State, 35 P.3d 443 (Colo.2001). Accordingly, we look to the statutory language, giving words and phrases their plain and ordinary meaning, and interpreting the statute in a way that best effectuates the purpose of the legislative scheme. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997).

Section 24-10-106(1)(d)(I) provides that a public entity's immunity is waived for:

A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within the corporate limits of any municipality....

To establish that a "dangerous condition" existed, plaintiffs were required to prove (1)

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that the...