State v. Moldovan

Decision Date14 December 1992
Docket NumberNo. 91SC769,91SC769
Citation842 P.2d 220
PartiesThe STATE of Colorado and the Colorado Department of Highways, Petitioners, v. David J. MOLDOVAN, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Gregg E. Kay, First Asst. Atty. Gen., Simon P. Lipstein, Asst. Atty. Gen., Denver, for petitioners.

Bragg, Baker & Cederberg, P.C., James A. Cederberg, Denver, for respondent.

Kathleen E. Haddock, Denver, for amicus curiae Colorado Mun. League.

Harding & Ogborn, James M. Edwards, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

Justice QUINN delivered the Opinion of the Court.

In Moldovan v. State, 829 P.2d 481 (Colo.App.1991), the court of appeals reversed a summary judgment entered by the district court against the plaintiff, David J. Moldovan, and in favor of the defendants, the State of Colorado and the Colorado Department of Highways, on Moldovan's tort claim for injuries sustained when his motorcycle collided with a cow on a state highway. The district court ruled that, although Molodovan's claim was not barred by the Colorado Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988), the state owed no duty to Moldovan because, in its view, section 35-46-111 of the Colorado Fence Law, §§ 35-46-101 to -114, 14 C.R.S. (1984), did not manifest a legislative intent to create a private right of action for the violation of the legislatively imposed obligation on the state to maintain a right-of-way fence along or adjacent to a state highway. In reversing the summary judgment and remanding the case for further proceedings, the court of appeals agreed that Moldovan's claim was not barred by the Colorado Governmental Immunity Act, but held that section 35-46-111 of the Fence Law imposed a duty on the state to maintain fences adjacent to its highways in order to "keep the highways safe for motorists such as plaintiff." 829 P.2d at 484. We granted the State of Colorado's and the Department of Highways' petition for certiorari to determine whether the court of appeals properly decided those issues. We affirm the judgment of the court of appeals with respect to Moldovan's tort claim based on the theory of general negligence, as distinguished from negligence per se, against the state defendants.

I.

On August 29, 1987, David Moldovan was driving his motorcycle westbound on Colorado Highway 96, a federal-aid highway, 1 when a cow ran onto the highway from adjacent land. Moldovan struck the cow and sustained personal injuries in the collision. Moldovan brought suit against the State of Colorado and the Colorado Department of Highways (the state). 2 According to Moldovan's complaint, the cow was owned by Edward F. Reese and had been in a pasture adjacent to the highway, but the fence separating the highway from the pasture was in disrepair, enabling the cow to gain access to the highway. Moldovan claimed that the state failed to properly maintain the right-of-way fence adjacent to the highway, that its failure to do so was a violation of section 35-46-111 of the Fence Law and constituted negligence and negligence per se, and that the state's negligence was the cause of the cow's entry onto the highway and the ensuing collision and injuries sustained by Moldovan. The state, as relevant here, denied the allegations of negligence and alleged that Moldovan's complaint failed to state a claim for relief.

After answering the complaint, the state moved for summary judgment on the ground that Moldovan's complaint was barred by the Colorado Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988), and that Moldovan's complaint failed to state a claim under the theory of either general negligence or negligence per se because the Fence Law does not create a private cause of action against the state for injuries sustained by a highway user. The district court granted the motion for summary judgment. Although the court acknowledged that there was a genuine issue of fact concerning whether, for purposes of the Governmental Immunity Act, the condition of the fence constituted a dangerous condition which physically interfered with the movement of traffic on the highway, the court ruled that the Fence Law did not create a private civil remedy for personal injuries caused to a highway user.

Moldovan appealed to the court of appeals, which reversed the judgment of the district court. The court of appeals agreed with the district court that Moldovan's complaint was not barred by the Colorado Governmental Immunity Act, but reversed the district court's determination that section 35-46-111 of the Fence Law does not create a cognizable tort claim against the state and remanded the case to the district court for further proceedings. We granted the state's petition for certiorari to consider whether Moldovan's claim is barred by the Colorado Governmental Immunity Act and whether, if not barred, section 35-46-111 of the Fence Law creates a private tort remedy for a motorist injured by the state's negligence in failing to maintain a right-of-way fence adjacent to a state highway. We address these questions in turn.

II.

The state argues that the intent of the Governmental Immunity Act is to hold public entities responsible only for injuries caused by a failure to maintain safe conditions on a highway surface and not for injuries caused by conditions which are not an integral part of the highway itself, such as the failure to maintain a fence adjacent to the highway. We reject the state's contention.

A.

The Colorado Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988), was enacted in 1971 to reestablish the doctrine of sovereign immunity for public entities following this court's abrogation of the doctrine in Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971). We have held that the immunity created by the Governmental Immunity Act, being in derogation of the common law, must be strictly construed. See City of Aspen v. Meserole, 803 P.2d 950, 955 (Colo.1990); Bloomer v. Boulder County Bd. of Comm'rs, 799 P.2d 942, 946 (Colo.1990); Stephen v. City and County of Denver, 659 P.2d 666, 668 n. 3 (Colo.1983). Strict construction of the scope of legislatively created immunity is consistent with one of the basic but often overlooked purposes of the Governmental Immunity Act--that is, to permit a person to seek redress for personal injuries caused by a public entity. Woodsmall v. Regional Transp. Dist., 800 P.2d 63, 69 (Colo.1990).

The crux of the Governmental Immunity Act critical to this case are the versions of sections 24-10-106(1)(d) and 24-10-103(1), 10A C.R.S. (1988), which were enacted in 1986 and were in effect on August 29, 1987, when Moldovan was injured while driving his motorcycle on the state highway. 3 Section 24-10-106(1)(d), in relevant part, states:

Sovereign immunity is waived by a public entity in an action for injuries resulting from:

* * * * * *

A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion ... of any public highway, road, [or] street.... As used in this section, the phrase "physically interferes with the movement of traffic" shall not include traffic signs, signals, or markings, or the lack thereof, but shall include the failure to repair a stop sign or a yield sign which reassigned the right-of-way or the failure to repair a traffic control signal on which conflicting directions are displayed, if such failure constituted a dangerous condition as defined in section 24-10-103(1).

Section 24-10-103(1), to which section 24-10-106(1)(d) expressly refers, defines a "dangerous condition" 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. For the purposes of this subsection (1), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. 4

In Stephen v. City and County of Denver, 659 P.2d 666, we considered whether an improperly placed stop sign at the intersection of a city street constituted a dangerous condition on a public street. The Stephen case arose out of the prior versions of sections 24-10-106(1)(d) and 24-10-103(1), 10 C.R.S. (1982). Section 24-10-106(1)(d) stated that sovereign immunity was waived for "[a] dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway, road, [or] street," and section 24-10-103(1) defined a "dangerous condition" as "the physical condition of any public ... highway, road, or street ... where the physical condition of such facilities or the use thereof constitutes a risk to the health or safety of the public." In concluding in Stephen that the improperly placed stop sign constituted "a dangerous condition which interferes with the movement of traffic," we reasoned as follows:

The apparent purpose of the general assembly in not extending sovereign immunity to actions for injuries resulting from dangerous conditions of roads or streets was to make governments liable for failure to maintain those facilities in a condition safe for public use. Thus, the dangerous conditions for which a government is to be liable are those "which [interfere] with the movement of traffic," section 24-10-106(1)(d), and "dangerous condition" is defined to extend to those physical conditions of roads or highways that affect their use in a way that "constitutes a risk to the health or safety of the...

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