Springer v. City and County of Denver

Decision Date13 May 1999
Docket NumberNo. 98CA0545.,98CA0545.
Citation990 P.2d 1092
PartiesKaren SPRINGER, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellant.
CourtColorado Court of Appeals

Rossi, Cox, Kiker & Inderwish, P.C., John J. Rossi, John H. Inderwish, Janet S. Drake, Aurora, Colorado, for Plaintiff-Appellee

Daniel E. Muse, City Attorney, Stan M. Sharoff, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant

Opinion by Judge ROY.

In this premises liability action, defendant, the City and County of Denver (City), brings this interlocutory appeal from a trial court order denying its motion to dismiss the complaint of plaintiff, Karen Springer, pursuant to § 24-10-108, C.R.S.1998, on the basis that the action is barred by governmental immunity. We reverse and remand with directions.

Plaintiff brought this action seeking compensation for injuries she allegedly sustained when she fell from her wheelchair while attempting to enter the Temple Buell Theater (Theater), a facility owned, maintained, and operated by the City. Plaintiff alleged that her wheelchair stopped abruptly when it struck a threshold cover plate that was protruding approximately one inch above the immediate surrounding surface, causing her to fall forward out of the chair. Plaintiff alleged that the threshold was a dangerous condition in a public facility.

Following some initial discovery, the City filed a motion to dismiss under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (the Act), § 24-10-101, et seq., C.R.S. 1998.

The trial court denied the City's motion, finding that its failure properly to construct and maintain the protruding threshold cover plate created a "dangerous condition" within the meaning of § 24-10-106(1)(c), C.R.S. 1998, of the Act. The City brings this interlocutory appeal solely from the trial court's determination of a waiver of sovereign immunity under the Act.

I.

The City contends that it was error to deny it immunity under the Act based on the negligence of its independent general contractor and subcontractor with respect to the installation of the threshold and its failure to detect the dangerous condition on inspection during construction. We agree.

Public entities and their employees are immune from liability in all claims for injury which lie in tort or could lie in tort except to the extent waived by the Act. Section 24-10-106(1), C.R.S.1998 (public entity); § 24-10-118(2), C.R.S.1998 (public employee). Immunity is waived for a dangerous condition in a public building. Section 24-10-106(1)(c).

A "dangerous condition" is defined in § 24-10-103(1), C.R.S.1998, as follows:

'Dangerous condition' means 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.... A dangerous condition shall not exist solely because the design of any facility is inadequate. (emphasis added)

Whether immunity has been waived under the Act is an issue of subject matter jurisdiction, may be raised pursuant to C.R.C.P. 12(b)(1), and the trial court's determination will not be reversed unless it is clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). A plaintiff has the burden of proving jurisdiction. Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993). Because governmental immunity is in derogation of Colorado's common law, the grant of immunity is to be strictly construed and the waiver is to be liberally or deferentially construed. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994)

(strictly construed); Walton v. State, 968 P.2d 636 (Colo.1998)(deferentially construed); Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998) (deferentially construed).

If all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, the issue of waiver may be decided as a matter of law. Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995).

Here, although we conclude ultimately that the trial court did not apply the appropriate standard and resolve the factual disputes, we may nevertheless review the City's sovereign immunity assertions without remanding for an evidentiary hearing, except as to the issue discussed below in part II.

A.

The City first asserts that the trial court erred in concluding that it could be held vicariously liable for the alleged negligent acts or omissions of its independent general contractor and a subcontractor during a substantial remodeling of the Theater. We agree.

Plaintiff's second amended complaint alleges that

7. Defendant, City and County of Denver, had the duty to use reasonable care to construct ... its buildings in a reasonably safe condition for ordinary use.

....

8. Defendant, City and County of Denver, is vicariously liable for the negligence and carelessness of PCL Construction Services, Inc. and A-1 Glass with the respect to the installation of the subject threshold plate.

As such, the amended complaint indicates that plaintiff seeks to hold the City vicariously liable for the alleged negligent acts of the independent contractors. Thus, the jurisdictional question turns on whether, under the Act, an independent contractor can be a public employee.

Here, the trial court rejected the City's argument, holding that:

[To hold otherwise] [w]ould also render the `dangerous condition in a public facility' exception to immunity virtually meaningless. Few if any large public facilities are actually built by public employees.

....

There is nothing at all in the language or structure of the governmental immunity statute to suggest that the general assembly intended governmental entities which undertake to construct such facilities to be immune from liability for dangerous conditions simply because the act of construction was delegated to a general contractor.

The Act is intended to limit the liability of governmental entities, exposing them only to the liability specifically stated in the Act. As stated in its declaration of policy, the Act provides:

[Governmental entities] should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article.

Section 24-10-102, C.R.S.1998. Furthermore, the Act provides at § 24-10-106(3), C.R.S.1998:

In addition to the immunity provided in subsection (1) of this section, a public entity shall also have the same immunity as a public employee for any act or failure to act for which a public employee would be or heretofore has been personally immune from liability.

Under § 24-10-105, C.R.S.1998, a public entity is immune from liability for all claims that lie or could lie in tort which arise out of injuries sustained from acts or omissions of its employees that occurred during the performance of the employee's duties and within the scope of the employee's employment. Excepted from this immunity are acts that are willful or wanton. Hence, recovery on this theory would be possible here only if a government employee caused the negligent or wrongful acts in a willful and wanton manner or as otherwise provided in the Act. Section 24-10-103(4), C.R.S.1998, defines "public employee," in pertinent part, as follows:

[A]n officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed, but does not include an independent contractor or any person who is sentenced to participate in any type of useful public service .... (emphasis added)

It is presumed that the General Assembly has knowledge of the legal import of the words it uses and that it intends each part of a statute to be given effect. Further, the legislative choice of language may be concluded to be a deliberate one calculated to obtain the result dictated by the plain meaning of the words. People v. Guenther, 740 P.2d 971 (Colo.1987). Here, the plain language of the Act makes clear that a public employee of a public entity does not include an independent contractor.

Plaintiff does not assert that either the general contractor or the subcontractor was an employee of the City. Nor does she dispute that the general contractor and the subcontractor were independent contractors, as that term is generally defined. The contract between the City and the general contractor supports that characterization of the relationship in that it provides, inter alia, that the contractor was to "furnish all labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all of the work described, drawn, set forth, shown and included in said contract documents." This contract language is, at a minimum, consistent with an independent contractor relationship. See Restatement (Second) of Agency § 220 comment e (1958).

The Act's position with respect to independent contractors mirrors the common law. As a general rule, a person hiring an independent contractor to perform work is not liable for the negligence of the independent contractor. See, e.g., Huddleston v. Union Rural Electric Ass'n, 841 P.2d 282 (Colo.1992)

; see also Restatement (Second) of Torts §...

To continue reading

Request your trial
4 cases
  • Jaffe v. City and County of Denver
    • United States
    • Colorado Court of Appeals
    • June 22, 2000
    ...of the public entity in constructing or maintaining" a public facility. Section 24-10-103(1), C.R.S.1999. See Springer v. City of Denver, 990 P.2d 1092 (Colo.App.1999) (City was not vicariously liable under the GIA for the negligent construction of a public building by an independent genera......
  • Springer v. City and County of Denver, No. 99SC543.
    • United States
    • Colorado Supreme Court
    • November 14, 2000
    ...See § 24-10-106(1)(c), 7 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 Coun......
  • Medina v. State, 98CA2424.
    • United States
    • Colorado Court of Appeals
    • July 20, 2000
    ...the design are not encompassed in the maintenance obligation for immunity purposes. Section 24-10-103; see also Springer v. City & County of Denver, 990 P.2d 1092 (Colo.App.1999)(cert. granted December 20, Hawkins relies on Schlitters v. State, 787 P.2d 656 (Colo.App.1989), and its progeny,......
  • Quintana v. City of Westminster, 98CA2240.
    • United States
    • Colorado Court of Appeals
    • February 3, 2000
    ...be remanded for an additional finding on this issue and, if necessary, for additional evidentiary proceedings. Springer v. City and County of Denver, 990 P.2d 1092 (Colo.App.1999). Plaintiff also contends the trial court erred in excluding certain testimony from two eyewitnesses and from pl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT