Swieckowski by Swieckowski v. City of Ft. Collins
| Decision Date | 14 April 1997 |
| Docket Number | No. 96SC89,96SC89 |
| Citation | 934 P.2d 1380 |
| Parties | 21 Colorado Journal 538 Timothy W. SWIECKOWSKI, a minor, by S. Michael SWIECKOWSKI and Catherine A. Swieckowski, his parents and next friends; S. Michael Swieckowski, individually; and Catherine A. Swieckowski, individually, Petitioners, v. CITY OF FORT COLLINS, a Colorado municipal corporation, Respondent. |
| Court | Colorado Supreme Court |
Kiel & Trueax, P.C., Joseph Kiel, Englewood, Pribila & Sokolow, P.C., Anthony L. Sokolow, Colorado Springs, for Petitioners.
Sommermeyer Wick Dow & Campbell, L.L.C., Kent N. Campbell, Steven G. Greenlee, Fort Collins, for Respondent.
David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League.
This case arises out of a bicycle accident which occurred on a newly widened section of a road in the City of Fort Collins (City). The parents of fifteen-year-old Timothy Swieckowski (Swieckowski) brought this action for personal injuries he suffered. Swieckowski rode his bicycle against the flow of traffic on a newly widened section of road and tumbled head first into a ditch running perpendicular to the road. The ditch was located on private property and ran along the boundary line marking the beginning of the improved section of the road. Swieckowski, the plaintiff in the district court and the petitioner in this court, seeks certiorari review of the court of appeals' decision in Swieckowski v. City of Fort Collins, 923 P.2d 208 (Colo.App.1995), overturning the district court's order denying the City's motion to dismiss asserting immunity from suit by operation of Colorado's Governmental Immunity Act (GIA). 1 The GIA provides that a person injured because of the dangerous condition of a public roadway may not recover against the governmental agency that owns the roadway when the cause of the dangerous condition is not due to negligent maintenance or construction by the governmental agency. It also prohibits recovery when the danger to the public posed by the condition is due solely to inadequate design. 2 The court of appeals, in holding the City immune, interpreted the GIA to mean that the abrupt end to the pavement did not constitute a "dangerous condition" due to the City's "maintenance" of the roadway and that the danger posed by the roadway existed "solely because" of its design.
We granted certiorari to determine whether the court of appeals erred in interpreting the GIA requirement that for liability to attach, the municipality must have been negligent in maintaining the dangerous condition and whether the City was protected from suit under the GIA because the danger presented by the abrupt end to the pavement was caused solely by the inadequate design of the roadway improvements. 3 We agree with the court of appeals on both issues and hold that the word "maintain," as it appears in section 24-10-103(1), 10A C.R.S. (1988), means to repair or restore a roadway to the same condition as originally constructed, and that the danger to the public posed by the roadway was attributable solely to the inadequate design of the newly widened section of road. We affirm the court of appeals and hold that the City is immune from suit under the GIA.
The facts of this case are not in dispute. The City and a developer who owned land adjacent to Timberline Road in Fort Collins entered into an agreement to widen the road. Pursuant to the terms of the agreement, the developer conveyed a right-of-way to the City for the property. The developer then designed and constructed road improvements in conformance with specifications provided by the City. The improvements were to begin at a point where the road intersected with a drainage ditch owned by other private entities. The ditch ran perpendicular to the road and was approximately five feet deep and ten feet wide.
The design called for the road to be widened at a ninety degree angle at its intersection with the ditch. During the construction of this road improvement, the developer beveled off the asphalt into the drainage ditch at the point where the improvement started. 4 The result was that the newly widened portion of the road began with a steep ditch approximately ten feet wide with a paved downward slope of approximately five feet. The City approved and accepted the completed project on November 3, 1989, and made no further changes to the improvements as constructed by the developer.
On October 19, 1990, in the evening hours, Timothy Swieckowski, then age fifteen, was riding his bicycle on the newly widened portion of Timberline Road, traveling against the flow of traffic without the benefit of a bicycle light. He used the curb of the road improvement to guide his path in the dark. Because he did not have a light on his bicycle and because he was proceeding against the flow of traffic, Swieckowski was in violation of two Colorado statutes. 5 Viewed from the perspective of riding on the wrong side of the newly widened section of road and going the wrong way, as was Swieckowski, the widened portion of the road abruptly ended and dropped into the steep ditch. No guards, barriers, signs, signals, or markings indicated the presence of the ditch to warn a bicycle rider such as Swieckowski that he might drop off from the widened section of the road into the ditch. Swieckowski, hugging the curb in the dark, continued in a straight path on the widened improvement and fell head first into the ditch, sustaining injuries rendering him a quadriplegic.
Swieckowski sued the City of Fort Collins on various theories, which included the claim that the City negligently constructed and maintained the newly widened section of roadway. 6 The City moved to dismiss the suit, arguing that the district court lacked subject matter jurisdiction because the case was barred by the GIA. The district court denied the City's motion to dismiss, reasoning that the "dangerous condition" was caused by the City's "maintenance."
The City appealed the district court's denial of the motion to dismiss. The court of appeals, acting under its authority in section 24-10-108, 10A C.R.S. (1996 Supp.), to hear interlocutory appeals on sovereign immunity matters, 7 agreed with the City and overturned the district court's ruling. The court of appeals held that governmental immunity barred recovery by Swieckowski against the City because the danger posed by the ditch existed solely due to the design of the roadway and because the dangerous condition was not due to construction or maintenance performed by the City. The court of appeals remanded to the district court with instructions to dismiss the suit. Swieckowski then petitioned this court for certiorari review of the decision of the court of appeals. We agree with the reasoning of the court of appeals and affirm.
Sovereign immunity issues concern subject matter jurisdiction and are determined in accordance with C.R.C.P. 12(b)(1). 8 See Fogg v. Macaluso, 892 P.2d 271, 275 (Colo.1995). Any factual dispute upon which the existence of jurisdiction may turn is for the district court to resolve, and an appellate court will not disturb the factual findings of the district court unless they are clearly erroneous. See Trinity Broad. v. City of Westminster, 848 P.2d 916, 924-25 (Colo.1993). However, if, as here, the underlying facts are undisputed, the issue is one of law, and an appellate court is not bound by the district court's determinations. See id. at 925.
The GIA bars actions in tort against public entities, subject to the exceptions enumerated by the General Assembly in section 24-10-106(1), 10A C.R.S. (1988), which provides in pertinent part:
(1) A public entity shall be immune from liability in all claims for injury which lie in tort.... Sovereign immunity is waived by a public entity in an action for injuries resulting from:
....
(d) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within the corporate limits of any municipality....
A "dangerous condition," in turn, is defined in section 24-10-103(1), 10A C.R.S. (1988), 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 a facility.... A dangerous condition shall not exist solely because the design of any facility is inadequate.
(Emphasis added.)
To recover under this provision of the GIA, a plaintiff must show as a threshold jurisdictional matter that the condition upon which the plaintiff bases his tort claim existed because of the government's act or omission in maintaining or constructing the condition rather than the government's design of the condition. In determining whether the GIA presents a jurisdictional bar to this suit, we emphasize that we do not address issues of negligence or causation, which are matters properly resolved by the trier of fact.
The parties agreed that the City did not construct the newly widened section of Timberline Road where it intersected the ditch. Therefore, the issue is whether the danger posed by the ditch was due to "maintenance" of the widened roadway, giving rise to potential liability of the City, or whether the danger posed by the ditch was due solely to the "design" of the widened roadway, barring suit against the City. The GIA statute defines neither the word "maintain" nor the word "design." Thus, we discuss the meaning of both words in the context of the GIA.
Swieckowski argues that the word "maintain," as it appears in the...
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