City & County of Denver Ex Rel. Board of Water Commissioners v. Gallegos

916 P.2d 509, 1996 WL 189806
CourtSupreme Court of Colorado
DecidedMay 28, 1996
Docket95SC13
StatusPublished
Cited by55 cases

This text of 916 P.2d 509 (City & County of Denver Ex Rel. Board of Water Commissioners v. Gallegos) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City & County of Denver Ex Rel. Board of Water Commissioners v. Gallegos, 916 P.2d 509, 1996 WL 189806 (Colo. 1996).

Opinions

Chief Justice VOLLACK

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals’ decision in Gallegos v. City and County of Denver, 894 P.2d 14 (Colo.App.1994). In reversing the trial court’s judgment, the court of appeals broadly interpreted the term “public water facility,” as set forth in the Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988 & 1995 Supp.) (the GIA), to include private property. We reverse the court of appeals and remand to the court of appeals with directions to reinstate the judgment for the City and County of Denver notwithstanding the jury verdict.

I.

On May 7, 1991, Troy Gallegos (Gallegos) was visiting a friend on private property. As he was leaving, Gallegos stepped on a water meter pit lid which was located on the private property. The lid gave way and he fell into the meter pit, sustaining injuries that are the basis of this lawsuit. Prior to bringing this suit against the Denver Water Department (Denver), Gallegos settled with the property owners through their insurance company in the amount of $8,200.

The Denver Water Department is regulated by Operating Rules which were adopted by the Board of Water Commissioners. The Operating Rules provide that a landowner owns the water meter pit located on his property and is responsible for its maintenance. The Operating Rules further provide that the Denver Water Department controls the specifications, installation, and use of residential water meters and meter pits.

In Gallegos’ claim against the Denver Water Department, he asserted that Denver was negligent in its use of the water meter pit which caused his injuries. At trial, the jury found Denver negligent and entered a verdict in favor of Gallegos. However, the trial court determined that the Denver Water Department was immune from liability pursuant to the GIA because the water meter pit was on private property. The trial court thus entered judgment for the Denver Water Department notwithstanding the verdict. However, the court of appeals, holding that the Denver Water Department was not immune from liability for Gallegos’ injuries, reversed and ordered the trial court to enter judgment consistent with the jury verdict.

II.

In 1971, we prospectively overruled our prior decisions that recognized the defense of sovereign or governmental immunity in tort actions. Evans v. Board of County Comm’rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971); see also Flournoy v. School Dist., 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). In response to our decisions abrogating governmental immunity, the General Assembly enacted the GIA, which controls the disposition of this case. See Ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1204-11; Bertrand v. Board of County Comm’rs, 872 P.2d 223, 226 (Colo.1994). The GIA restored sovereign and governmental immunity by statute, granting to state and local governments limited liability.

Because governmental immunity is in derogation of common law, legislative grants of immunity must be strictly construed. Bertrand, 872 P.2d at 226. Never[511]*511theless, our primary task in construing a statute is to determine and give effect to the intent of the legislature. State v. Hartsough, 790 P.2d 836, 838 (Colo.1990). To discern legislative intent, we look first to the statutory language, giving words and phrases their plain and ordinary meaning. Id.

The GIA is intended to limit the liability of governmental entities, exposing them only to the liability specifically provided for in the Act. As stated in the GIA’s declaration of policy:

[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.

§ 24-10-102, 10A C.R.S. (1988) (emphasis added). Therefore, the GIA requires that exceptions to governmental immunity be interpreted narrowly in order to avoid imposing liability not specifically provided for in the statute.

III.

The GIA provision at issue, section 24-10-106(l)(f), 10A C.R.S. (1988), provides:

Sovereign immunity is waived by a public entity in an action for injuries resulting from:
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(f) The operation and maintenance of any public water facility....

§ 24 — 10—106(l)(f). In interpreting this exception to governmental immunity, we must resolve whether water meter pits are a public water facility. Additionally, we must determine whether the Denver Water Department engages in the operation and maintenance of water meter pits, as required for waiver of immunity.

A.

Pursuant to section 24 — 10-106(l)(f), the Denver Water Department is liable in this ease only if water meter pits are a public water facility. Neither the term “public water facility” nor “public facility” is defined by the GIA. Furthermore, there is no “ordinary meaning” for either phrase. The legislature, however, has recently defined the term “public facility” in a statutory provision entitled ‘Water Conservation Board and Compacts.” §§ 37-60-101 to -130,15 C.R.S. (1990 & 1995 Supp.). This provision states:

“Public facility” means any facility operated by an instrument of government for the benefit of the public including, but not limited to, a governmental building, park or other recreational facility, school, college, university, or other educational institution, highway, hospital, or stadium.

§ 37-60-126(l)(b), 15 C.R.S. (1995 Supp.) (emphasis added). Hence, the determinative factor in defining a public facility is whether the facility is operated “for the benefit of the public.”

Section 37-60-126(l)(b) states that the facility itself, not the government entity, must operate for the benefit of the public in order to qualify as a public facility. The statute then provides examples of public facilities, all of which have the common feature of being accessible and beneficial to members of the general public. These examples are distinguishable from water meter pits, which are used for the sole benefit of the property on which they are located and are not beneficial to the general public.

Nevertheless, Gallegos cites Burnworth v. Adams County, 826 P.2d 368 (Colo.App.1991), for the proposition that water meter pits are a public water facility. Burnworth, however, is distinguishable from the current case because it involved a storm drain that had been relocated onto a landowner’s property. The storm drain in that case was both operated and maintained by a county. Burnworth, 826 P.2d at 369. Furthermore, despite its location on private property, the storm drain was operated for the benefit of the general public, and not just for the benefit of the property on which it was located.

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Bluebook (online)
916 P.2d 509, 1996 WL 189806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-county-of-denver-ex-rel-board-of-water-commissioners-v-gallegos-colo-1996.