Stephen v. City and County of Denver, No. 81SC402

• Docket Nº: No. 81SC402
• Citation: 659 P.2d 666
• Case Date: February 22, 1983
• Court: Supreme Court of Colorado

Page 666

659 P.2d 666 Patricia L. STEPHEN, Petitioner,
v.
CITY AND COUNTY OF DENVER, Respondent. No. 81SC402. Supreme Court of Colorado,
En Banc. Feb. 22, 1983.
Rehearing Denied March 14, 1983.

English & Thurman, P.C., Daniel Lee English, Denver, for petitioner.

Max P. Zall, City Atty., Lloyd K. Shinsato, Asst. City Atty., Denver, for respondent.

Colorado Trial Lawyers Ass'n, Mary M. Josefiak, Boulder, for amicus curiae.

LOHR, Justice.

The petitioner, Patricia L. Stephen, brought suit against the City and County of Denver for personal injuries and property damage sustained in an automobile accident that she alleged was proximately caused by the defendant's negligence in failing properly to maintain a stop sign. The Denver District Court entered judgment for the plaintiff after trial to the court, and the defendant appealed. The Colorado Court of Appeals reversed the judgment, holding that Denver was immune from liability pursuant to section 24-10-106(1), C.R.S.1973 (1982 Repl.Vol. 10) of the Colorado Governmental Immunity Act. Stephen v. City and County of Denver, 641 P.2d 295 (Colo.App.1981). We granted certiorari and now reverse the judgment of the court of appeals and direct that the judgment of the district court be reinstated.

Just prior to the accident, Stephen was driving her automobile east on 36th Avenue approaching Oneida Street. She entered the intersection without stopping, and her automobile collided with another vehicle traveling north on Oneida Street. A stop sign had been placed at the intersection by the City and County of Denver so that vehicles traveling east on 36th Avenue were required to stop before entering the intersection while vehicles on Oneida Street were allowed to continue through the intersection without stopping. However, several days prior to the accident, unknown third parties had turned the sign so that it faced northbound traffic on Oneida Street and appeared to make 36th Avenue a "through" street.

In her complaint against Denver, Stephen alleged that the defendant had a duty to

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maintain the intersection and the stop sign in a safe condition, and that it had actual notice, based on citizen complaints, of the incorrect position of the sign several days before the accident but negligently failed to correct the problem in breach of its duty. After trial, the district court made written findings of fact, generally in favor of Stephen. The court found that the defendant had both constructive and actual notice that the sign had been turned, and that it failed to correct the situation within a reasonable time after receiving such notice. The court awarded Stephen both out-of-pocket expenses and general damages. ¹

The Colorado Court of Appeals reversed the trial court's judgment, holding that governmental immunity barred recovery against Denver for its negligence because the Colorado Governmental Immunity Act ² did not "waive" the city's right to assert immunity in a negligence suit where the alleged breach of duty stems from an improperly maintained stop sign. Judge Coyte dissented, stating that the Act should be read to include improper placement of a stop sign within the statutory definition of a "dangerous condition" for which the city may be held liable and that the general assembly intended this just and reasonable result. We agree with the reasoning of the dissenting judge.

The Colorado Governmental Immunity Act creates the following relevant exception to immunity for tort claims:

(1) A public entity shall be immune from liability in all claims for injury which are actionable in tort except as provided otherwise in this section. Sovereign immunity, whether previously available as a...