Powell v. City of Colorado Springs

• Decision Date: 08 September 2005
• Docket Number: No. 03CA2030.,03CA2030.
• Citation: 131 P.3d 1129
• Parties: Valerie POWELL, natural parent of decedent Steven Powell, individually; and James Powell, by and through his conservator, Mark Elliott, Plaintiffs-Appellants, v. CITY OF COLORADO SPRINGS, Defendant-Appellee.
• Court: Colorado Court of Appeals

131 P.3d 1129

Valerie POWELL, natural parent of decedent Steven Powell, individually; and James Powell, by and through his conservator, Mark Elliott, Plaintiffs-Appellants, v. CITY OF COLORADO SPRINGS, Defendant-Appellee.

No. 03CA2030.

Colorado Court of Appeals, Division V.

September 8, 2005.

Certiorari Granted April 10, 2006.

COPYRIGHT MATERIAL OMITTED

Melat, Pressman & Higbie, LLP, Glenn S. Pressman, Colorado Springs, Colorado, for Plaintiffs-Appellants.

Patricia K. Kelly, City Attorney, Shane White, Senior Attorney, Colorado Springs, Colorado, for Defendant-Appellee.

CRISWELL,^* J.

Plaintiffs, Valerie Powell, individually and as the natural parent of Steven Powell, deceased, and Mark Elliott, as the conservator of James Powell, appeal the trial court's judgment dismissing their complaint against defendant, the City of Colorado Springs (City). They contend that the trial court erred in concluding that the General Assembly clearly intended the 2003 legislation amending the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., to expressly exclude storm water facilities from the definition of "public sanitation facility" to be retroactive. We agree. Therefore, we reverse and remand with directions.

The factual background of this dispute is described in the supreme court's opinion in a prior appeal of this case, City of Colorado Springs v. Powell, 48 P.3d 561 (Colo.2002)(Powell II), which reflects the following:

Steven Powell met his death and James Powell was seriously injured when they both fell into a storm ditch owned and operated by the City. James was able to get himself out of the ditch; however, Steven was swept downstream where his body was later found.

Plaintiffs brought common law negligence claims against the City and the owner of the property adjoining the drainage ditch. Plaintiffs alleged that the ditch was part of a storm water drainage system owned and maintained by the City and that certain features of the area surrounding the ditch created a dangerous condition.

The City moved to dismiss plaintiffs' complaint or, in the alternative, for summary judgment, arguing that it had immunity from suit under the GIA. The trial court initially denied the City's motion, concluding that there were sufficient allegations in the complaint to provide the court with subject matter jurisdiction. The City then initiated an interlocutory appeal pursuant to § 24-10-108, C.R.S.2004.

On that appeal, a division of this court held that the City's "negligent failure to maintain the area surrounding the drainage ditch may have contributed to Steven's death and James' injuries." Powell v. City of Colorado Springs, 25 P.3d 1266, 1268 (Colo.App.2000)(Powell I). The division concluded that this allegation was sufficient to overcome the City's claim of immunity. Under this allegation, the injuries resulted from either the operation and maintenance, or the dangerous condition, of a public sanitation facility.

Upon certiorari, the supreme court held that the drainage ditch was a "sanitation facility" within the meaning of the GIA. The court also held that liability for the operation and maintenance of such a facility was not limited to acts or omissions taking place within the facility and that injuries allegedly resulting from an act or omission that was otherwise directed toward the purpose of the facility was sufficient to establish a waiver of immunity. Powell II, supra.

Shortly thereafter, the supreme court reached the same conclusion in a case also involving the death of a young boy in a drainage ditch. City of Longmont v. Henry-Hobbs, 50 P.3d 906 (Colo.2002).

The appeals in each of these cases were taken pursuant to § 24-10-108, C.R.S.2004. Thus, each of the foregoing determinations had the effect of finally resolving the issue of the district court's jurisdiction, leaving nothing further to be decided with respect to that issue. While other issues presented by the pending litigation remained to be resolved, their determination could not affect the supreme court's resolution of that issue.

In response to these two opinions, the General Assembly adopted legislation, Colo. Sess. Laws 2003, ch. 182, § 24-10-103(5.5) at 1343-44 (House Bill 03-1288), which added new definitions under the GIA for "public sanitation facility," "public water facility," and "maintenance" and amended the existing definitions for "operation" and "dangerous condition." The new definition of "public sanitation facility" expressly excludes storm water facilities.

After the enactment of these amendments, the City again moved to dismiss plaintiffs' claims, alleging that the new statute should be applied retroactively to this case. The trial court agreed and dismissed plaintiffs' claims.

Absent expressed legislative intent to the contrary, a statute is presumed to operate only prospectively. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002); see also § 2-4-202, C.R.S.2004. To overcome the presumption of prospectivity, the statute must clearly reveal a legislative intent to have the statute applied retroactively. Ficarra v. Dep't of Regulatory Agencies, 849 P.2d 6 (Colo.1993).

There is also a presumption that, when the legislature amends a statute, it intends a change in the existing law. Douglas County Bd. of Equalization v. Fidelity Castle Pines, Ltd., 890 P.2d 119 (Colo.1995). This presumption may be rebutted only by a showing that the General Assembly intended to clarify an existing ambiguity in that law. Acad. of Charter Schs. v. Adams County Sch. Dist. No. 12, 32 P.3d 456 (Colo.2001). Thus, if an amendment clarifies such an ambiguity, the law remains unchanged by the amendment, see Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000), and it may provide convincing evidence of the legislature's intent to apply the amendment retroactively. Acad. of Charter Schs. v. Adams County Sch. Dist. No. 12, supra.

Hence, to determine whether an amendment clarifies or changes a statute, we examine the plain language used by the General Assembly, the legislative history surrounding the amendment, and any ambiguity in the provision before it was amended. Acad. of Charter Schs. v. Adams County Sch. Dist. No. 12, supra. In considering these factors here, we conclude that there is no clear legislative intent that the pertinent statute was to be applied retroactively.

As noted, House Bill 03-1288 added new definitions for "public sanitation facility," "public water facility," and "maintenance" and amended the existing definitions for "operation" and "dangerous condition." However, the General Assembly did not expressly state that the new definitions were applicable to injuries occurring before the effective date of the legislation. It simply stated that the legislation "shall take effect on July 1, 2003," Colo. Sess. Laws 2003, ch. 182, § 3 at 1344; it made no reference to accrued claims, to pending lawsuits, or to its intended effect on cases already adjudicated.

Thus, the plain language of the amendments does not indicate that the General Assembly intended the legislation to have retroactive effect. See Z.J. Gifts D-2, L.L.C. v. City of Aurora, 93 P.3d 633 (Colo.App.2004)(because statutory language did not specify that amendment was to be applied retroactively, division declined to attribute an intent to enact a retroactive amendment); cf. In re Trust of Franzen, 955 P.2d 1018 (Colo. 1998)(General Assembly expressly stated that power of attorney statute did not invalidate any agency or power of attorney executed prior to its effective date).

In enacting the amendments at issue here, the General Assembly noted in its legislative declaration that the Colorado Supreme Court in Powell II and Henry-Hobbs had interpreted key terms in the GIA "in a manner that may significantly expand the potential liability of governmental entities providing utility services to the public." The legislative declaration also stated that "[a]s a result of these court decisions, modifications of, and additions to, the definitions contained in the `Colorado Governmental Immunity Act' are necessary to clarify the intent of the general assembly in adopting the Act." Colo. Sess. Laws 2003, ch. 182, § 2(c) at 1343 (emphasis added).

Although the General Assembly used the word "clarify" in this declaration, it also noted that modifications and additions to the definitions contained in the GIA were required to accomplish that clarification. Thus, while such language expresses the General Assembly's disagreement with the decisions in Powell II and Henry-Hobbs, it should be interpreted as indicating that the General Assembly intended to correct the effect of those decisions only prospectively. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 307 n. 7, 114 S.Ct. 1510, 1516, 128 L.Ed.2d 274, 286 (1994)(in analyzing whether legislation amending civil rights act was retroactive, court noted that "[w]e do not suggest that Congress' use of the word `restore' necessarily bespeaks an intent to restore retroactively" (emphasis original)); see also Norman J. Singer, Sutherland on Statutory Construction § 27.4, at 472 (6th ed. 2002)("The usual purpose of a special interpretive statute is to correct a judicial interpretation of a prior law which the legislature considers inaccurate.").

Therefore, even if we assume that the General Assembly viewed the Powell II and Henry-Hobbs decisions as representing a departure from the General Assembly's previous understanding of the meaning of "sanitation facility" under the GIA, we do not view the language used in the legislative declaration as constituting a clear expression of the General Assembly's intent to reach cases that arose before the enactment of House Bill 03-1288.

In addition, our review of the legislative history of the amending statute convinces us that this history is ambiguous with respect to the issue before us. See Hearings on H.B. 03-1288 before the House Committee on Judiciary, 64th General Assembly, 1st Session (Feb....