Medina v. State, No. 00SC747.

• Citation: 35 P.3d 443
• Decision Date: 27 November 2001
• Docket Number: No. 00SC747.
• Parties: Jerry MEDINA; Mary Medina; and Terri Hawkins, Petitioners, v. STATE of Colorado; Colorado State Highway Patrol; and State of Colorado Department of Transportation, Respondents.
• Court: Supreme Court of Colorado

35 P.3d 443

Jerry MEDINA; Mary Medina; and Terri Hawkins, Petitioners, v. STATE of Colorado; Colorado State Highway Patrol; and State of Colorado Department of Transportation, Respondents.

No. 00SC747.

Supreme Court of Colorado, En Banc.

November 27, 2001.

Miranda & Alonzi, P.C., Christopher A. Miranda, Ronald A. Podboy, Denver, CO, Attorneys for Petitioners Jerry Medina and Mary Medina.

Harding & Associates, P.C., Phil Harding, Jeffrey Pederson, Denver, CO, Attorneys for Petitioner Terri Hawkins.

Ken Salazar, Attorney General, Elizabeth A. Weishaupl, First Assistant Attorney General, Friedrick C. Haines, Assistant Attorney General, Litigation Section, Tort and Complex Litigation Unit, Denver, CO, Attorneys for Respondents. Justice RICE delivered the Opinion of the Court.

In this case, we clarify the relationship between "maintenance" and "design" under the Colorado Governmental Immunity Act ("CGIA" or "Act"), CGIA § 24-10-101 to -120, 7 C.R.S. (2001), thereby demarcating the scope of the state's duty to maintain a public highway. Plaintiffs, Terri Hawkins and Jerry and Mary Medina, were passengers on a charter bus traveling through Clear Creek Canyon on U.S. Highway 6 when a large boulder dislodged from a "cut slope" above the road and crashed through the roof, severely injuring Ms. Hawkins and Mr. Medina. Mr. Medina later died from his injuries. Ms. Hawkins and the Medinas each brought separate actions against the State of Colorado, the Colorado State Highway Patrol, and the Colorado Department of Transportation (collectively "the state"), among others.¹ The trial court later consolidated these actions. In their amended complaints, both Plaintiffs alleged that the state was negligent in failing to maintain the highway. Ms. Hawkins specifically claimed that the state breached its duty to maintain the highway by negligently failing to install safety devices that would have prevented the boulder from falling. The Medinas, in addition to their failure to maintain claim, alleged that the state was negligent in failing to close U.S. Highway 6 to public travel, failing to warn the public that U.S. Highway 6 was unsafe for travel, and failing to recommend that the public use alternate routes.

The state, arguing that it is immune from liability under the CGIA, brought a motion to dismiss these claims for lack of subject-matter jurisdiction pursuant to C.R.C.P. 12(b)(1). The trial court denied this motion, and the state took an interlocutory appeal under CGIA section 24-10-108, 7 C.R.S. (2001). The court of appeals held that the CGIA precluded all but Plaintiffs' failure to maintain claim. Medina v. State, 17 P.3d 178, 182-83 (Colo.App.2000).

The CGIA waives governmental immunity in actions for injuries resulting from a failure to maintain a public highway, but not in actions for injuries solely attributable to the inadequate design of a public highway. § 24-10-106(1)(d)(I), 7 C.R.S. (2001); § 24-10-103(1), 7 C.R.S. (2001); Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384-86 (Colo. 1997). "Maintain" means to keep a road "in the same general state of being, repair, or efficiency as initially constructed," Swieckowski, 934 P.2d at 1385, whereas "design" means to "conceive or plan out in the mind." Id. at 1386. Logically then, the critical distinction is temporal: an injury results from a failure to maintain when it is caused by a condition of the road that develops subsequent to the road's initial design. An injury results from inadequate design, in contrast, when it is caused by a condition of the road that inheres in the design and persists to the time of the injury. The CGIA waives immunity only for the former. This construction is grounded in the legislature's expressed purpose for enacting the CGIA and best comports with our precedent interpreting it.

We agree with the court of appeals that the CGIA waives immunity in an action for injuries resulting from the state's negligent failure to maintain a public highway. We hold, however, that it is the development of a dangerous condition of a public highway, subsequent to the initial design and construction of the highway, that creates in the state a duty to return the road to "the same general state of being, repair, or efficiency as initially constructed." Swieckowski, 934 P.2d at 1385. Because the scope of this duty — and consequently, the scope of the waiver of immunity for its breach under the CGIA — is measured in relation to the original condition of the road, it is imperative that the first step in the court's analysis be to determine the "the general state of being, repair, or efficiency" of the road as initially constructed. Only after making this determination can the trial court ascertain whether the dangerous condition of the highway causing the injury developed through a lack of maintenance subsequent to the initial design and construction of the highway, and thus, whether immunity has been waived.

In this case, the trial court never took this first step; it never determined the "general state of being, repair, or efficiency" of the road as initially constructed. Thus, all relevant evidence necessary to the resolution of the jurisdictional issue was not before the trial court. Moreover, whether Plaintiffs' injuries were caused by the state's failure to maintain the road or whether they were attributable solely to design is a disputed issue of fact in this case. Accordingly, the trial court, and the court of appeals, erred in deciding this issue as a matter of law. Consequently, we reverse the court of appeals' conclusion that, as a matter of law, the amended complaints are sufficient to survive the state's motion to dismiss merely because they allege that the state negligently failed to maintain Highway 6. Furthermore, we remand this case to the court of appeals with directions to remand the case to the trial court with instructions that it conduct an evidentiary hearing pursuant to 12(b)(1) to determine "the general state of being, repair, or efficiency of the road" as originally constructed. This will enable the trial court to determine whether the dangerous condition causing the injury in this case was allowed to develop through a lack of maintenance subsequent to the initial design and construction of the road or whether it inhered in the design itself.

The parties also dispute whether the installation of safety devices is a product of design or maintenance. Consistent with our explanation of the state's maintenance obligation, we also hold that where the installation of safety devices is necessary to return the road to "the same general state of being, repair, or efficiency as initially constructed," then the state's duty of maintenance encompasses an obligation to install such devices. Whether the installation of safety devices was indeed necessary to return the road to "the same general state of being, repair, or efficiency as initially constructed" is not reflected in the record, and accordingly, we reverse the court of appeals' conclusion that the installation of such devices was outside the scope of the state's maintenance obligation in this case as a matter of law. On remand, the trial court should make this factual determination in the course of the evidentiary hearing to be held pursuant to 12(b)(1).

Finally, we hold that, as a matter of law, the CGIA does not waive immunity for claims asserting a failure to warn, failure to close the highway, or failure to suggest alternate routes. The state's negligent construction or maintenance of a highway is what triggers a waiver of immunity under the CGIA. Negligent failure to warn, to which all these claims amount, does not.

Accordingly, we affirm in part and reverse in part. Because we are unable to determine from the record: (1) the "general state of being, repair, or efficiency" of the road as initially constructed and thus when the dangerous condition causing the injury in this case arose; and (2) whether the installation of safety devices was necessary to return the road to its "general state of being, repair, or efficiency as initially constructed," and because the subject-matter jurisdiction of the trial court over these claims depends on the determination of these jurisdictional facts, we remand this case to the court of appeals with directions to remand the case to the trial court with instructions that it resolve these issues by conducting an evidentiary hearing under C.R.C.P. 12(b)(1).

FACTS AND PROCEDURAL HISTORY

On May 25, 1996, Terri Hawkins and Jerry and Mary Medina boarded a charter bus bound for the casinos of Blackhawk and Central City. Their route was to take them through Clear Creek Canyon on U.S. Highway 6. The weather was poor; it had been raining for quite some time, and it continued to rain. As the bus approached Tunnel Two in Clear Creek Canyon, a boulder, weighing approximately five hundred pounds, dislodged from a "cut slope" above the road. The boulder tumbled down the slope, crashed through the roof of the bus, and landed in the passenger cabin, severely injuring Ms. Hawkins and Mr. Medina. Mr. Medina later died from his injuries.

U.S. Highway 6, in the vicinity of the accident, travels alongside Clear Creek through a steep and narrow canyon. It is prone to rockfall activity. In 1991, the slopes adjacent to U.S. Highway 6 were evaluated for frequency of rockfall activity. Near the location of the accident, the slopes were rated a four on a scale from one to four, with four representing the highest likelihood of rockfall activity. A year before the accident occurred, a rain-loosened boulder twelve feet in diameter fell onto the road in approximately the same location. Just thirteen hours before the accident, another rock had fallen onto the highway about one and a half miles from the location of the accident. Accordingly, the district court found that there is "evidence of other rock slides in the same area, under the same weather...