Mason v. Adams, 96CA1276

• Decision Date: 26 December 1997
• Docket Number: No. 96CA1276,96CA1276
• Citation: 961 P.2d 540
• Parties: 97 CJ C.A.R. 3434 Lloyd D. MASON and Walter Belcher, Plaintiffs-Appellees, v. Nancy Bowen ADAMS, Defendant-Appellee, and State of Colorado, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 540

961 P.2d 540

97 CJ C.A.R. 3434

Lloyd D. MASON and Walter Belcher, Plaintiffs-Appellees, v. Nancy Bowen ADAMS, Defendant-Appellee and State of Colorado, Defendant-Appellant.

No. 96CA1276.

Colorado Court of Appeals Div. III.

Dec. 26, 1997.

Rehearing Denied Feb. 5, 1998.

Certiorari Denied Aug. 24, 1998.

Gregg C. McReynolds, P.C., Gregg C. McReynolds, Englewood, for Plaintiffs-Appellees.

White & Steele, P.C., Thomas B. Quinn, Claire Diaz, Denver, for Defendant-Appellee.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jack M. Wesoky, Senior Assistant Attorney General, Denver, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, State of Colorado, appeals the order of the trial court denying its motion to dismiss, pursuant to the Governmental Immunity Act, the negligence claim filed by plaintiffs, Lloyd D. Mason and Walter Belcher. We reverse and remand for further findings.

Defendant, Nancy Bowen Adams, lost control of her car as she was attempting to pass plaintiffs' truck on a state highway. The car struck the truck, resulting in injuries to plaintiffs. The day before, the State, through the Department of Transportation's highway operations and maintenance division, had repaired and covered the roadway with "aggregate" consisting of sand and gravel.

Plaintiffs alleged the accident was caused by the negligence of the car's driver, the State, or both. The State filed a motion to dismiss the claim against it pursuant to C.R.C.P. 12(b)(1), asserting the claim was barred by sovereign immunity. The parties stipulated the trial court could rule on the State's motion based on their briefs and evidentiary submissions.

The trial court reviewed the briefs and submissions, including the reports of two experts who had determined the accident was caused at least in part by the condition of the roadway. The court's order included the following findings of fact, which are not challenged on appeal: (1) the State had repaired and laid loose gravel on the stretch of highway on which the accident occurred 30 hours prior to the collision; (2) the highway had been open to traffic since the repairs were completed; (3) the State had not posted signs warning of loose gravel; (4) the State had not "broomed" the road surface to remove excess gravel after performing the repair; (5) the painted centerline and "fog line" delineating the lane of travel were not visible because of gravel cover; (6) from the direction of the vehicles' travel the gravel was located just after a slight curve and after a slight rise in elevation; (7) traveling from that direction, it was difficult to determine whether the gravel overlay was well bonded to the road surface; (8) the gravel from the repair work had been displaced from the normal tire paths and lay at a depth of two inches or more at the shoulder, center line, and between the traveled paths of both traffic lanes; and (9) the posted speed limit was 55 miles per hour.

Based on these findings, the trial court determined that the loose gravel on the roadway constituted a dangerous condition, as defined in § 24-10-103(1), C.R.S.1997; the State should have discovered and removed or mitigated the dangerous condition before the accident occurred, either by removing the excess sand and gravel or by posting signs; and the dangerous condition had been a cause of the accident. The court therefore concluded sovereign immunity was waived pursuant to § 24-10-106(1)(d)(I), C.R.S.1997, which incorporates the definition of "dangerous condition" in § 24-10-103(1).

I.

The State contends the trial court, in finding a waiver of immunity, erroneously construed the pertinent statutes. In effect, the State argues that, properly interpreted, § 24-10-106(1)(d)(I) shields a public entity from liability for a dangerous condition consisting of excess sand and gravel on a public road in all circumstances in which the public entity has not had actual notice of the condition. We disagree, but conclude that the cause must be remanded for further proceedings and findings.

A motion to dismiss based on sovereign, or governmental, immunity presents an issue of subject matter jurisdiction governed by C.R.C.P. 12(b)(1), and the trial court's resolution of the issue will not be reversed unless clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). The party seeking to establish the public entity's liability has the burden of proving jurisdiction. See Reynolds v. State Board for Community Colleges & Occupational Education, 937 P.2d 774 (Colo.App.1996).

The propriety of the trial court's ruling hinged on the interpretation and application to the record before it of two provisions in the Governmental Immunity Act. The first, § 24-10-103, provides in relevant part As used in this article, unless the context otherwise requires:

(1) 'Dangerous condition' means a physical condition of a facility ... 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 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.... The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition. (emphases added)

Section 24-10-106(1), C.R.S.1997, provides for the waiver of sovereign immunity in certain circumstances, including those described in the second provision relevant here, § 24-10-106(1)(d)(I):

A dangerous condition of a public highway, road, or street which ... was designed and intended for public travel or parking thereon.... Nothing in this subparagraph (I) shall preclude a particular dangerous accumulation of snow, ice, sand, or gravel from being found to constitute a dangerous condition ... when the entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice through the proper public official responsible for the roadway and had a reasonable time to act. (emphases added)

The proper construction of a statute is a question of law for the court to determine. Garcia v. State Farm Mutual Insurance Co., 920 P.2d 843 (Colo.App.1995). The primary task in construing a statute is to determine and give effect to the intent, or purpose, of the General Assembly. City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996). In doing so, we look first to the statutory language itself, giving words and phrases their commonly understood meaning. See Barela v. Beye, 916 P.2d 668 (Colo.App.1996).

In addition, when a term is defined, it must be given its defined meaning, and that definition is applicable to the term whenever it appears in the statute, unless a contrary intention plainly appears. Allstate Indemnity Co. v. Gonzales, 902 P.2d 953 (Colo.App.1995). We are further obliged to construe an entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. See In re Marriage of Wall, 851 P.2d 224 (Colo.App.1992).

The State argues the trial court erred in relying on the first sentence in § 24-10-106(1)(d)(I), then incorporating the general definition of "dangerous condition" in § 24-10-103(1) into that sentence, and thus concluding immunity was waived because the State "should have discovered" and removed or mitigated the dangerous condition. Instead, according to the State, the court should have relied exclusively on the last sentence of § 24-10-106(1)(d)(I), which precludes a dangerous accumulation of, among other things, sand or gravel from being found to constitute a "dangerous condition" unless the State had "actual notice" of the roadway's condition. However, applying these basic rules of statutory construction, we reject for at least two reasons the State's suggested statutory construction.

A.

We first reject the State's argument because, under its interpretation, only the last sentence of § 24-10-106(1)(d)(I) would apply. Hence, it would not matter that, pursuant to the definition of "dangerous condition" in § 24-10-103(1), the State could otherwise be held liable in the circumstances presented here if it had proximately caused, and should have known of, the dangerous condition. Such an interpretation, among other things, ignores the introductory clause of the subparagraph's last sentence.

The last sentence of § 24-10-106(1)(d)(I) begins by stating that "nothing" in subparagraph (I) shall "preclude" a particular dangerous accumulation of gravel from being found to constitute a dangerous condition. By its plain terms, this is not an additional preclusion of liability. To the contrary, the General Assembly has plainly stated that it is the immunity from liability that is precluded. The scope of the waiver of immunity set forth in the preceding portion of subparagraph (I) is therefore expanded--not constricted. Cf. Beck v. Buena Park Hotel Corp., 30 Ill.2d 343, 196 N.E.2d 686 (1964)(purpose of a "notwithstanding" clause is not to qualify or restrict the scope of the preceding provision; rather, it enumerates or designates the conditions in spite of which the provision is to apply).

Consideration of both §§ 24-10-103(1) and 24-10-106(1)(d)(I) indicates why the last sentence was added to expand the scope of the waiver of immunity. While § 24-10-106(1)(d)(I) waives sovereign immunity for a "dangerous condition" of a highway which physically interferes with the movement of traffic on the paved portion,...