Pack v. Arkansas Valley Correctional Facility, No. 94CA0144

• Docket Nº: No. 94CA0144
• Citation: 894 P.2d 34
• Case Date: January 12, 1995
• Court: Court of Appeals of Colorado

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894 P.2d 34 4 A.D. Cases 248, 10 A.D.D. 418, 6 NDLR P 87 William PACK, Plaintiff-Appellant,
v.
ARKANSAS VALLEY CORRECTIONAL FACILITY and Bill Price,
Warden, Defendants-Appellees. No. 94CA0144.
Colorado Court of Appeals,
Div. B. Jan. 12, 1995.
Rehearing Denied March 16, 1995.

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Mullen, Sadler & Felton, D. Dale Sadler, Denver, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Cristina Valencia, Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge DAVIDSON.

In this negligence action to recover damages for injuries sustained in a slip-and-fall accident, plaintiff, William Pack, appeals from the summary judgment entered in favor of defendants, the Arkansas Valley Correctional Facility and its warden, Bill Price. We affirm.

The complaint alleged that plaintiff, who has an unspecified disability, was injured in November 1992 when, as a visitor to the defendant correctional facility, he slipped and fell on ice and snow in the handicapped parking zone. Plaintiff further alleged that his injuries were caused by defendants' negligent failure to clear and maintain properly the handicapped parking area. The complaint

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also alleged that this failure violated federal laws pertaining to public accommodations for persons with disabilities.

Defendants filed an answer and a motion for summary judgment, denying negligence and asserting, among other defenses, that the action was barred because sovereign immunity had not been statutorily waived for the type of injury alleged in the complaint and that the laws pertaining to civil rights for the handicapped did not apply to a negligence claim.

Attached to defendants' motion were two affidavits from security guards at the facility who had observed plaintiff's fall. Both witnesses stated that plaintiff's fall occurred in the parking lot for disabled persons as he walked toward the back of his vehicle.

In response, plaintiff asserted that summary judgment was precluded by genuine issues of material fact concerning defendants' duties to maintain the parking area and eliminate barriers to handicapped access as well as their alleged breach of those duties. Plaintiff also asserted that defendants' sovereign immunity had been statutorily waived for injuries arising from a public entity's operation of a correctional facility.

Based upon the parties' submissions, the trial court granted defendants' motion.

I.

Plaintiff first contends that the trial court erred in concluding that sovereign immunity barred his claim. Specifically, he argues that sovereign immunity has been statutorily waived for an injury resulting from the negligent operation of a correctional facility and that maintenance of the parking lot was part of the operation of the facility. We disagree.

Initially, we note that the issue of sovereign immunity is one of subject matter jurisdiction and that, therefore, the proper procedure for determining whether a public entity is immune is governed by C.R.C.P. 12(b)(1) and not the summary judgment procedures of C.R.C.P. 56. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); Cline v. Rabson, 862 P.2d 1035 (Colo.App.1993). Nevertheless, on the record before us, we can address plaintiff's challenge to the trial court's ruling that, as a matter of law, sovereign immunity was not waived for the injury alleged in plaintiff's complaint. See Kittinger v. City of Colorado Springs, 872 P.2d 1265 (Colo.App.1993); see also People v. Terry, 791 P.2d 374 (Colo.1990) (appellate courts need not defer to trial court's interpretation of statute).

In Jones v. City & County of Denver, 833 P.2d 870 (Colo.App.1992), a division of this court held that the General Assembly intended to retain sovereign immunity for claims for injuries resulting from dangerous conditions in public parking facilities. Plaintiff argues, that, nonetheless, even if the parking lot here is a public parking facility such that his claim would be barred under § 24-10-103(1), C.R.S. (1988 Repl.Vol. 10A), his claim is not precluded because it falls within the specific waiver of immunity for the operation of a correctional facility set forth in § 24-10-106(1)(b), C.R.S. (1988 Repl.Vol. 10A). We do not agree.

A.

The Colorado Governmental Immunity Act (CGIA) expressly provides that sovereign immunity is waived in an action for injuries resulting from a public entity's "operation" of any correctional facility. Section 24-10-106(1)(b). The term "operation" is defined in the CGIA as the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purpose of the facility. Section 24-10-103(3)(a), C.R.S. (1988 Repl.Vol. 10A).

Although defendants do not dispute that defendant Arkansas Valley Correctional Facility is a "correctional facility" operated by a public entity within the meaning of the CGIA, they argue that, regardless of whether the parking lot is part of the facility itself, the "operation" of such correctional facility does not include the maintenance of the parking lot. We agree.

We are aware that, when interpreting and applying statutory waivers of immunity, one of the basic purposes of the CGIA is to

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permit injured claimants to seek redress for injuries caused by a public entity in specified circumstances. See State v. Moldovan, 842 P.2d 220 (Colo.1992). We also recognize that the scope of the immunity granted to the sovereign must be strictly construed. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994).

Nonetheless, contrary to plaintiff's interpretation, the term "operation," as used in the CGIA, circumscribes the waiver of liability for such acts. Specifically, the term encompasses only defendants' acts or omissions in exercising the powers, duties, and functions vested in them by law with respect to the purpose of the facility. Accordingly, by the plain language of the CGIA, sovereign immunity is waived only if the activity at issue relates...