Norsby v. Jensen

• Decision Date: 13 July 1995
• Docket Number: No. 93CA2158,93CA2158
• Citation: 916 P.2d 555
• Parties: Charles NORSBY, Plaintiff-Appellant, v. William JENSEN, individually; The Department of Corrections of the State of Colorado; The State of Colorado; Warren Diesslin, in his official capacity as Warden of the Buena Vista Correctional Facility; Michael Perry, in his official capacity as Director or Head of the Regimented Inmate Discipline and Treatment Program at the Buena Vista Correctional Facility; and Aristedes W. Zavaras, in his official capacity as the Director of the Colorado Department of Corrections, Defendants-Appellees. . IV
• Court: Colorado Court of Appeals

Page 555

916 P.2d 555

Charles NORSBY, Plaintiff-Appellant, v. William JENSEN, individually; The Department of Corrections of the State of Colorado; The State of Colorado; Warren Diesslin, in his official capacity as Warden of the Buena Vista Correctional Facility; Michael Perry, in his official capacity as Director or Head of the Regimented Inmate Discipline and Treatment Program at the Buena Vista Correctional Facility; and Aristedes W. Zavaras, in his official capacity as the Director of the Colorado Department of Corrections, Defendants-Appellees.

No. 93CA2158.

Colorado Court of Appeals Div. IV.

July 13, 1995.

Rehearing Denied Aug. 17, 1995.

Certiorari Denied April 22, 1996.

Law Offices of John R. Holland, P.C., John R. Holland, Denver, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Larry D. Tannenbaum, Sr. Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge KAPELKE.

In this negligence action to recover damages for personal injuries, plaintiff, Charles Norsby, appeals from the judgment of dismissal entered on the basis of sovereign immunity in favor of defendants, the Department of Corrections (DOC), the State of Colorado (State), and William Jensen, Warren Diesslin, Michael Perry, and Aristedes W. Zavaras (the individual defendants). We affirm.

In his complaint, plaintiff alleged that he was injured in 1992 while he was incarcerated in the Buena Vista Correctional Facility. At the time of his injury, plaintiff was a participant in the Regimented Inmate Discipline and Treatment Program (the Program), which is governed by § 17-27.7-101, et seq., C.R.S. (1994 Cum.Supp.) (the Act).

Plaintiff asserted negligence claims against all defendants and a claim under 42 U.S.C. § 1983 (1988) against defendant Jensen for alleged violations of his constitutional rights. In addition, plaintiff asserted a claim for declaratory relief requesting that the court hold unconstitutional § 17-27.7-103(1), C.R.S. (1994 Cum.Supp.), which provides that "the department is absolved of liability for participation in the program." Pursuant to C.R.C.P. 12(b)(5), defendants moved to dismiss plaintiff's claim for declaratory relief. The trial court granted the motion and, on defendants' motion for clarification, also dismissed plaintiff's negligence claims against all defendants. The trial court certified its order as final pursuant to C.R.C.P. 54(b). Defendant Jensen did not move for dismissal of the § 1983 claim against him, and the trial court did not dismiss that claim.

I.

We agree with defendants' contention that the trial court should have treated the motion as one to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), but conclude that remand is unnecessary.

Our supreme court has declared that the issue of sovereign immunity is one of subject matter jurisdiction and that motions to dismiss on the basis of sovereign immunity are to be determined in accordance with C.R.C.P. 12(b)(1), not under C.R.C.P. 12(b)(5), which applies to motions to dismiss for failure to state a claim. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); see also Kittinger v. City of Colorado Springs, 872 P.2d 1265 (Colo. App.1993). Thus, the trial court should have treated this matter as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1).

However, if a reviewing court is satisfied that all relevant evidence has been presented to the trial court, it may apply C.R.C.P. 12(b)(1) to the record without a remand. See Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993). Such is the case here.

We review the trial court's determination of this threshold jurisdictional issue under the highly deferential, clearly erroneous standard. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra; Cline v. Rabson, 862 P.2d 1035 (Colo.App.1993).

II.

Plaintiff first contends that the trial court erred in determining that, under § 17-27.7-103(1), defendants are immune from liability for damages plaintiff suffered while participating in the Program. We perceive no error.

Our goal in interpreting any statute is to determine and give effect to the intent of the General Assembly. United Blood Services v. Quintana, 827 P.2d 509 (Colo.1992); First Bank v. State, 852 P.2d 1345 (Colo.App.1993). In doing so, we look first to the language of the statute itself. People v. Wiedemer, 852 P.2d 424 (Colo.1993).

A statute should be "construed as a whole so as to give consistent, harmonious, and sensible effect to all of its parts." Massey v. District Court, 180 Colo. 359, 364, 506 P.2d 128, 130 (1973); see also Martinez v. Badis, 842 P.2d 245 (Colo.1992). Thus, the meaning of any one section of a statute must be gleaned from a consideration of the overall legislative purpose. People v. Alpert, 660 P.2d 1295 (Colo.App.1982).

When interpreting two statutory sections, we must attempt to harmonize them in order to give effect to their purposes. See Ragsdale Bros. Roofing, Inc. v. United Bank, 744 P.2d 750 (Colo.App.1987); Ortega v. Industrial Commission, 682 P.2d 511 (Colo.App.1984). If possible, the provisions should be reconciled to uphold the validity of both. Cooley v. Big Horn Harvestore Systems, 813 P.2d 736 (Colo.1991).

To the extent that a conflict between the statutes is irreconcilable, however, the later enactment will prevail over the earlier. People v. Wiedemer, supra. In addition, absent clear legislative intent to the contrary, the more specific of two conflicting provisions shall prevail. In re M.S. v. People, 812 P.2d 632 (Colo.1991); People in Interest of E.Z.L., 815 P.2d 987 (Colo.App.1991).

We analyze § 17-27.7-103(1) with these principles of statutory construction in mind.

A.

Liability of the DOC

Plaintiff initially contends that the trial court erred in concluding that under *560s 17-27.7-103(1) the DOC is immune from liability for damages sustained by participants in the Program. We disagree.

The General Assembly's intent in providing for the Program was to:

benefit the state by reducing prison overcrowding and [to] benefit persons who have been convicted of offenses and placed in the custody of the department by promoting such person's [sic] personal development and self-discipline.

Section 17-27.7-101, C.R.S. (1994 Cum.Supp.). The Program, commonly referred to as the "boot camp program," is described in the Act as a rigorous 90-day "military styled intensive physical training and discipline program." Section 17-27.7-102(1)(a), C.R.S. (1994 Cum.Supp.). An integral part of the Program is a drug and alcohol education and treatment program. Section 17-27.7-102(1)(d), C.R.S. (1994 Cum.Supp.).

Participation in the Program is voluntary and is limited to nonviolent offenders thirty years of age or under who are free of any physical or mental defect that could jeopardize their ability to complete the Program. Section 17-27.7-103(1); see also People v. Young, 894 P.2d 19 (Colo.App.1994).

These provisions indicate that the General Assembly recognized that the participants in the Program would experience physical exertion and mental stress beyond that experienced by inmates in more traditional correctional facilities and that Program participants would therefore be subject to an increased risk of injury.

Immediately following the description of the criteria for participation in the Program, the Act provides that "the department is absolved of liability for participation in the program." Section 17-27.7-103(1). In our view, this provision evinces a clear legislative intent to immunize the DOC from liability for damages suffered by participants in the Program, including damages resulting from physical injuries.

We reject plaintiff's contention that, because § 24-10-106(1)(b), C.R.S. (1988 Repl.Vol. 10A) of the Governmental Immunity Act (GIA) provides that sovereign immunity is waived by a public entity in any action for injuries resulting from the operation of a correctional facility or jail, the trial court erred in interpreting § 17-27.7-103(1) as immunizing the DOC from liability for the operation of the Program.

Enacted in 1971, the GIA bars any claim against a public entity for injuries that lie in tort or could lie in tort. Section 24-10-108, C.R.S. (1988 Repl.Vol. 10A); see also Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994). This immunity is extended to public employees acting within the scope of their employment, provided their actions are not willful or wanton. Section 24-10-118(2), C.R.S. (1988 Repl.Vol. 10A).

However, the General Assembly has deemed it appropriate to waive the defense of sovereign immunity in a limited number of situations. Section 24-10-106(1)(b), C.R.S. (1988 Repl.Vol. 10A), which provides for a waiver of governmental immunity for the operation of correctional facilities or jails, creates one such exception to governmental immunity.

Thus, with respect to governmental immunity for liability for damages arising out of participation in the Program, the waiver contained in § 24-10-106(1)(b) of the GIA conflicts with the immunity provision in § 17-27.7-103(1) of the Act. However, because the Act was enacted subsequent to the adoption of the GIA, and because § 17-27.7-103(1) is more specific than § 24-10-106(1)(b), we conclude that § 17-27.7-103(1) prevails. See In re M.S. v. People, supra; People v. Wiedemer, supra; People in Interest of E.Z.L., supra. In our view, this construction of the statutes best effectuates the purposes of the legislative scheme. See In re M.S. v. People, supra.

Accordingly, we conclude that the trial court correctly determined that the DOC is immune from liability for damages plaintiff suffered while a participant in the Program.

We note that the General Assembly amended the GIA in 1994 to provide that the waiver of sovereign immunity relative to the operation of correctional...