Springer v. City and County of Denver, No. 99SC543.

• Docket Nº: No. 99SC543.
• Citation: 13 P.3d 794
• Case Date: November 14, 2000
• Court: Supreme Court of Colorado

13 P.3d 794

Karen SPRINGER, Petitioner,
v.
CITY AND COUNTY OF DENVER, Respondent

No. 99SC543.

Supreme Court of Colorado, En Banc.

November 14, 2000.

13 P.3d 796

Rossi, Cox, Kiker & Inderwish, P.C., John J. Rossi, John H. Inderwish, Janet S. Drake, Aurora, CO and Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, CO, Attorneys for Petitioner

J. Wallace Wortham, Jr., City Attorney, Geoffrey S. Wasson, Assistant City Attorney, Stan M. Sharoff, Assistant City Attorney, Denver, CO, Attorneys for Respondent.

Hoffman Reilly Pozner & Williamson, Wendy Fisher, Julie M. Williamson, Denver, CO, Attorneys for Amicus Curiae The Colorado Trial Lawyers Association.

Ken Salazar, Attorney General, Friedrick C. Haines, Assistant Attorney General, Litigation Section, Denver, CO, Attorneys for Amicus Curiae State of Colorado.

Justice HOBBS delivered the Opinion of the Court.

The Colorado Governmental Immunity Act (CGIA) waives the defense of governmental immunity in an action for injuries resulting from a dangerous physical condition of any public building arising from its construction or maintenance. See § 24-10-106(1)(c), 7

13 P.3d 797

C.R.S. (2000). We granted certiorari to review the court of appeals' decision in Springer v. City & County of Denver, 990 P.2d 1092 (Colo.App.1999) to determine whether petitioner Karen Springer (Springer) can maintain her negligence action against the City and County of Denver (the City) in light of the CGIA.¹ We hold that a public entity does not have governmental immunity when it constructs a public building through the services of an independent contractor and a dangerous condition arises from that construction. We further hold that when a public entity provides a public building for public use, it owes a nondelegable duty to protect invitees under Colorado's premises liability statute from an unreasonable risk to their health and safety due to a negligent act or omission in constructing or maintaining the facility

I.

On December 30, 1995, Springer fell from her wheelchair as she attempted to enter the Temple Buell Theater (Theater) for a performance. The wheelchair abruptly stopped upon hitting a threshold plate at the foot of the Theater entrance, thrusting her to the floor. The threshold plate protruded approximately one inch above the surrounding floor.

The Theater is a public facility, part of the Denver Performing Arts Complex (Complex), that the City caused to be constructed, owns, operates, and maintains. The City renovated the Complex and built the Theater in the early 1990s. The City employed the services of an independent contractor, PCL Construction Services, Inc. (PCL), to construct the Theater. Architectural plans for the Theater called for a one-half-inch threshold at the base of the entrance. However, from the time the Theater opened in October 1991 to the time of Springer's fall in December 1995, the threshold plate protruded at approximately twice that height.

Springer brought suit against the City (1) alleging negligence in failing to construct, inspect, and maintain the threshold in a non-dangerous condition, and (2) seeking compensation for her injuries resulting from her fall. She asserted that the City was vicariously liable for the negligence of PCL and its subcontractors in negligently constructing the threshold plate as part of the building. The City responded with a motion to dismiss on the pleadings under C.R.C.P. 12(b)(1), claiming that it was immune from suit under the CGIA.

The trial court denied the City's motion, finding that the protruding threshold plate constituted a dangerous condition of a public building, an exception to governmental immunity under section 24-10-106(1)(c). The trial court determined that the threshold plate was "constructed" by the City within the meaning of section 24-10-103(1), 7 C.R.S. (2000), notwithstanding the role of PCL as an independent contractor to the City. The court noted that to decide otherwise would render governmental entities "immune from liability for dangerous conditions simply because the act of construction was delegated to a general contractor." The trial court further determined that the defect in the threshold plate did not result solely from design, but rather was due to faulty construction or maintenance, and that, under either scenario, the City did not have immunity from suit.

13 P.3d 798

The City appealed, and the court of appeals reversed and remanded for further proceedings related to maintenance only. The court of appeals concluded that governmental immunity existed for construction, despite section 24-10-106(1)(c), for two reasons. First, the court of appeals concluded that the waiver under section 24-10-106(1)(c) applies only for the alleged negligent acts or omissions of city employees, not of independent contractors and subcontractors. See Springer, 990 P.2d at 1096. Second, the court determined that, even if knowledge of a faulty condition could be imputed to the City, such knowledge was insufficient to constitute waiver of governmental immunity. See id. at 1097

We begin our immunity analysis with a review of the CGIA, its waiver provisions, and the appropriate standard of review. We then determine whether a public entity is excused from liability because it hired an independent contractor to construct the building for it. Finally, we consider the scope of a public entity's liability for a dangerous condition of a public building.

II.

We hold that a governmental entity is liable for the dangerous condition of a public building constructed by the entity through the services of an independent contractor, and that premises liability applies under Colorado's statute in regard thereto.

A.

The Colorado Governmental Immunity Act

1. Interpretation of the Act

In 1971, we decided a trilogy of cases, fundamentally altering the law of governmental immunity in Colorado.² See Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. School Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). These three decisions abrogated Colorado's common law of governmental immunity. They also recognized that the General Assembly could reestablish governmental immunity by statute, if it desired. See Evans, 174 Colo. at 105, 482 P.2d at 972.

The General Assembly responded by enacting the CGIA. See ch. 323, sec. 1, §§ 130-11-1 to 17, 1971 Colo. Sess. Laws 1204, 1204-11. The CGIA establishes governmental immunity from suit against public entities and their employees in tort cases, but then waives immunity under certain circumstances and also provides exceptions to certain waivers. See § 24-10-106.

Because governmental immunity under the CGIA derogates Colorado's common law, we strictly construe the statute's immunity provisions. See Bertrand v. Board of County Comm'rs, 872 P.2d 223, 227 (Colo. 1994). As a logical corollary, we broadly construe the CGIA provisions that waive immunity in the interest of compensating victims of governmental negligence. See Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000); Walton v. State, 968 P.2d 636, 643 (Colo.1998).

2. Standard of Review

Governmental immunity raises a jurisdictional issue. See Walton, 968 P.2d at 643; Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1383-84 (Colo.1997). When the jurisdictional issue involves a factual dispute, a reviewing court employs the clearly erroneous standard of review in considering the trial court's findings of jurisdictional fact. See Walton, 968 P.2d at 643. However, if the alleged facts are undisputed and the issue is purely one of law, the appellate court reviews the jurisdictional matter de novo. See Corsentino, 4 P.3d at 1087; Swieckowski, 934 P.2d at 1384. Here, we review the trial court's ruling de novo because the issue of immunity when a public entity uses an independent

13 P.3d 799

contractor to construct its building is a legal question.

3. Dangerous Condition of a Public Building

In construing the immunity, waiver, and exception to waiver provisions of the CGIA, we give effect to the intent of the legislature. See Bertrand, 872 P.2d at 228. We look to the language of the statute, giving words their plain and ordinary meaning. See id. If the plain language of the statute demonstrates a clear legislative intent, we look no further in conducting our analysis. See Jones v. Cox, 828 P.2d 218, 221 (Colo. 1992).

Section 24-10-106(1) of the CGIA provides:

A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:

. . .

(c) A dangerous condition of any public building.

Cities and counties are within the definition of "public entity." See § 24-10-103(5). By its plain language, section 24-10-106(1)(c) provides the City with immunity from liability in all claims for injury, which lie in tort or could lie in tort, but the statute waives immunity in actions for injuries resulting from a dangerous condition of any public building. Whether the City enjoys immunity in this case depends on whether the protruding threshold plate that caused Springer's injury constituted a "dangerous condition" within the meaning of the statute.

Section 24-10-103(1) defines "dangerous condition" as:

[A] physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. Maintenance does not include any duty to upgrade, modernize, modify, or improve

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