Willer v. City of Thornton

• Citation: 817 P.2d 514
• Decision Date: 16 September 1991
• Docket Number: No. 90SA211,90SA211
• Parties: James R. WILLER, Plaintiff-Appellant and Cross-Appellee, v. The CITY OF THORNTON, a Municipal Corporation, Defendant-Appellee and Cross-Appellant.
• Court: Supreme Court of Colorado

Page 514

817 P.2d 514

James R. WILLER, Plaintiff-Appellant and Cross-Appellee, v. The CITY OF THORNTON, a Municipal Corporation Defendant-Appellee and Cross-Appellant.

No. 90SA211.

Supreme Court of Colorado En Banc.

Sept. 16, 1991.

Robert Lynn Taylor, Alan R. Marsh, Denver, for plaintiff-appellant and cross-appellee.

Watson, Nathan & Bremer, P.C., Daniel J. Torpy, Denver, for defendant-appellee and cross-appellant.

Justice KIRSHBAUM delivered the Opinion of the Court.

Appellant and cross-appellee James R. Willer (Willer) seeks review of the trial court's order granting a motion filed by appellee and cross-appellant City of Thornton (the City) to dismiss a civil action initiated by Willer against the City. The complaint sought recovery of damages for injuries allegedly sustained by Willer in an automobile accident that occurred on a street owned by the City. The trial court held that Willer's claims against the City were barred by section 24-10-106(1)(d), 10A C.R.S. (1988) of the Colorado Governmental Immunity Act (the Act). The trial court also denied a motion for attorney fees filed by the City. We affirm the judgment of the trial court. ¹

I

The facts underlying Willer's complaint are undisputed for purposes of this appeal. He alleges that on the evening of March 12, 1987, while driving westward on Milky Way, a street owned and maintained by the City, the front wheels of his car struck a depression at the intersection of that street and Santa Fe Drive. He further alleges that the impact caused structural damage to the car and caused Willer to strike his head against the roof of the car, resulting in injuries to his neck and back.

Sometime after the accident, Willer sent a letter, undated, to the Colorado Intergovernmental Risk Sharing Agency, a self-insurance pool of which the City is a member, informing the Agency of the incident. ² On June 9, 1987, the Agency informed Willer in writing that his letter had been received and that the City denied any liability for the asserted damages.

Willer filed his complaint on March 13, 1989, alleging that the City was negligent (1) in "locating, constructing, and maintaining" the intersection of Milky Way and Santa Fe Drive in such a way that the intersection was dangerous to vehicles lawfully traveling through the intersection; (2) in failing to construct and maintain the intersection in conformity with generally accepted and recognized modes of construction and maintenance; (3) in failing to adequately light the intersection; (4) in failing to post warning signs or signals; and (5) in maintaining the "dip" in such a way that it "materially interfered with public travel and endangered the safety of lawful travelers on the public street."

On March 23, 1989, the City filed a motion to dismiss Willer's complaint under C.R.C.P. 12(b), asserting, inter alia, that Willer's claims were barred by provisions of the Act insulating governmental entities from liability for Claims based solely on allegedly inadequate design of a public facility or an alleged lack or inadequacy of "traffic signs, signals, or markings." Sections 24-10-103(1), 24-10-106(1)(d), 10A C.R.S. (1988). The City also argued that Willer's undated letter did not satisfy the notice requirements of section 24-10-109(3), 10A C.R.S. (1988). Relying on the Court of Appeals decision of Szymanski v. Department of Highways, 776 P.2d 1124 (Colo.App.1989), the trial court concluded that Willer's claims in essence alleged negligent design of an intersection and granted the City's motion.

On June 28, 1989, the City filed a motion for recovery of attorney fees in the amount of $983, pursuant to section 13-17-201, 6A C.R.S. (1987). The trial court denied the City's motion.

II

Willer initially asserts that the trial court improperly concluded that his complaint alleged only inadequate design of the intersection. He argues alternatively that the Act on its face violates the equal protection provisions of the fourteenth amendment of the United States Constitution and article II, section 25, of the Colorado Constitution.

A

Section 24-10-108 of the Act provides that "sovereign immunity shall be a bar to any action against a public entity for injury which lies in tort or could lie in tort," except as specifically provided in other provisions of the Act. Section 24-10-108, 10A C.R.S. (1988). Section 24-10-106(1)(d) of the Act provides in pertinent part as follows:

(1) ... 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 ... within the corporate limits of any municipality....

Section 24-10-106(1)(d), 10A C.R.S. (1988). Section 24-10-103(1) of the Act defines a "dangerous condition" as follows:

[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 and maintaining such facility.... A dangerous condition shall not exist solely because the design of any facility is inadequate.

Section 24-10-103(1), 10A C.R.S. (1988).

Willer's complaint alleges that the City was negligent in "locating, constructing, and maintaining" the intersection and in "failing to construct and maintain said intersection in conformity with the generally accepted and recognized modes of construction and maintenance." It also alleges that the "design, construction, and/or maintenance of the intersection ... constitutes a 'dangerous condition', as that term is defined in C.R.S. Section 24-10-103(1)." Thus Willer sought to avoid the limitations of the Act by the terms of his complaint. However, the complaint does not allege that the City's acts in constructing or maintaining the intersection differed in any way from the provisions for construction and maintenance of the intersection contained in the initial design. To the contrary, the complaint in essence asserts that the alleged failure to adequately construct or maintain the intersection consisted of a failure to post signs warning of the existence of the dip.

The circumstances here are quite similar to those considered by our Court of Appeals in Szymanski v. Department of Highways, 776 P.2d 1124 (Colo.App.1989). In Szymanski, a motorcycle collided with an automobile at an intersection in the city of Colorado Springs. The driver of the motorcycle filed a civil action against the Colorado Department of Highways, alleging that a "blind spot" in the intersection, improper sight lines, an excessive speed limit, and a lack of warning signs combined to cause his injuries. Observing that "[d]espite plaintiffs' attempts to characterize these alleged flaws as other than design defects, all of them relate to claimed inadequacies in the design of that intersection," Szymanski, 776 P.2d at 1125, and noting that section 24-10-106(1)(d), 10A C.R.S. (1988), provides that a lack of traffic signs does not constitute physical interference with traffic, the court concluded that the claims were basically claims of inadequate design and were barred by the Act. In this case, Willer's injuries resulted from the presence of a sharp dip in the roadway--a dip that was part of the initial design and construction of the intersection. The rationale of Szymanski is applicable, notwithstanding Willer's allegations of negligent construction and maintenance.

Willer also argues that the Act should be construed to bar only "inadequate," not "negligent," designs. He suggests that a roadway may be deemed "inadequate" for purposes of the Act only if it proves insufficient to support the volume of traffic using the roadway. He contends that a design resulting in the construction of a roadway that is defective when built constitutes a "negligent" design for purposes of the Act and that claims for injuries resulting from such negligence should not be barred. We reject this proposed construction.

In interpreting statutory provisions, a court must endeavor to give effect to the intent of the General Assembly. State v. Hartsough, 790 P.2d 836 (Colo.1990). While the Act is in derogation of the common law and therefore must be strictly construed, Stephen v. City and County of Denver, 659 P.2d 666 (Colo.1983), forced, subtle, strained or unusual interpretations should never be employed where the language of a statute is plain and its meaning is clear. Harding v. Industrial Comm'n, 183 Colo. 52, 515 P.2d 95 (Colo.1973).

The Act was adopted by the General Assembly in 1971 in response to three decisions of this court eliminating the common law doctrine of sovereign immunity as a defense in tort actions. ³ Stephen v. City and County of Denver, 659 P.2d at 668 n. 3. The Act established a defense of sovereign immunity for governmental entities in most tort actions, but provided six categories of acts for which such immunity was waived, including: "[a] dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway...." Section 24-10-106(1)(d), 10 C.R.S. (1973). The scope of "dangerous conditions" for which sovereign immunity was waived was originally limited by the inclusion of the phrase: "A dangerous condition shall not exist solely because the design of any facility set forth in this subsection (1) is inadequate in relation to its present use." Section 24-10-103(1), 10 C.R.S. (1973). However, the General Assembly amended the definition of "dangerous condition" in 1986 to provide that: "A dangerous condition shall not exist solely because the design of any facility is inadequate." Ch. 166, sec. 5, § 24-10-103(1), 1986 Colo.Sess.Laws 874.

The deletion of the phrase "in relation to its present use" from the definition...