Meserole v. City of Aspen

• Decision Date: 27 July 1989
• Docket Number: No. 88CA0175,88CA0175
• Parties: Mary MESEROLE, Plaintiff-Appellant, v. CITY OF ASPEN, a municipal corporation, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 456

786 P.2d 456

Mary MESEROLE, Plaintiff-Appellant, v. CITY OF ASPEN, a municipal corporation, Defendant-Appellee.

No. 88CA0175.

Colorado Court of Appeals,

Div. I.

July 27, 1989.

As Modified on Denial of Rehearing Oct. 19, 1989.

Certiorari Granted Jan. 29, 1990.

James R. True, Aspen, for plaintiff-appellant.

Younge & Hockensmith, P.C., Earl G. Rhodes and Timms R. Fowler, Grand Junction, for defendant-appellee.

Opinion by Judge RULAND.

In an action to recover damages for personal injuries, plaintiff, Mary Meserole, appeals the summary judgment entered in favor of defendant, City of Aspen. Aspen moved for summary judgment contending that its sovereign immunity from liability for the claim was not waived by the provisions of § 24-10-106(1)(d), C.R.S. (1988 Repl.Vol. 10A). The trial court agreed and dismissed the complaint. We reverse and remand for further proceedings.

The record reflects that Meserole was walking on a public sidewalk in Aspen at night when she tripped over a two-inch piece of metal protruding above the sidewalk surface. Meserole suffered various injuries in the resulting fall. The protruding metal was the stub of a missing city "No Parking" sign.

I.

Under § 24-10-106(1)(d), the defense of sovereign immunity is unavailable for injuries resulting from:

"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, or of any highway which is a part of the federal interstate highway system ... or of any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon. As used in this section, the phrase 'physically interferes with the movement of traffic' shall not include traffic signs, signals, or markings, or the lack thereof...." (emphasis supplied)

In granting summary judgment for Aspen, the trial court was persuaded that any dangerous condition which caused Meserole's injury would have to have occurred upon a public highway, road, or street which is normally used for vehicular traffic. The court noted the omission of "sidewalk" in the initial statutory reference to "public highway, road, or street" and the inclusion of "sidewalk" in the second reference to that phrase. The court reasoned that use of the term in this manner evidenced a legislative intent to limit liability to that portion of a sidewalk which crosses an alley. Meserole contends that the court's interpretation of the statute was not correct. We agree.

We look first to the words of the statute to establish legislative intent. Unless an absurd result is reached by that process, the words and phrases must be accorded their plain and ordinary meaning. Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973).

Reviewing the statute by this standard, we see that sovereign immunity is waived for a dangerous condition on certain public thoroughfares. These thoroughfares are enumerated following the word "of" based upon type and governmental classification. The initial description of thoroughfares is limited to public highways, roads, or streets which are not within the boundaries of a municipality and which are not part of the federal or state highway system. The succeeding enumerated access ways are those either within a municipality or within the federal or state highway system. Sidewalks are specifically included in the description of municipal thoroughfares. Thus, as pertinent here, the statute waives Aspen's immunity for:

"A dangerous condition ... of any public highway, road, street, or sidewalk within the corporate limits of any municipality...." (emphasis supplied)

This construction is consistent with the legislative history of the statute. A review of a transcript of the hearing before the...