City of Aspen v. Meserole

803 P.2d 950, 1990 WL 223152

• Court: Supreme Court of Colorado
• Decided: December 24, 1990
• Docket: No. 89SC637
• Status: Published

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari to review Meserole v. City of Aspen, 786 P.2d 456 (Colo.App.1989). We affirm.

I

At approximately 10:00 p.m. on September 20, 1986, Mary Meserole was walking on the west side of the 200 block of Galena Street in Aspen, Colorado. She tripped over a piece of metal, apparently a remnant of a traffic sign protruding about two inches out of the sidewalk, fell, and was injured. On January 29, 1987, Meserole filed a personal injury complaint against Aspen. In response, the city filed a motion for summary judgment alleging that it was immune from liability for dangerous conditions present on municipal sidewalks. The district court granted that motion and dismissed the complaint.

The court of appeals reversed, 786 P.2d at 458, holding that section 24-10-106(l)(d), 10A C.R.S. (1988), waived sovereign immunity for injuries occurring on municipal sidewalks, and remanded the case to the district court for trial. We granted Aspen’s petition for certiorari, and for the reasons below, now affirm the court of appeals.

II

As early as 1893, this court barred tort claims against the government based on the judicial creation of sovereign immunity. Board of County Comm’rs v. Bish, 18 Colo. 474, 33 P. 184 (1893). The rationale for granting sovereign immunity included the vast array of services provided by the government, thereby exposing it to greater potential liability than nongovernmental entities, and the inability of government to decide not to provide services because its potential liability was too great. Lee v. Colorado Dept. of Health, 718 P.2d 221, 227 (Colo.1986) (Governmental Immunity Act does not violate equal protection clause).

In 1971 we stated that judicially imposed sovereign immunity was inappropriate in a modern society, and abolished governmental immunity at the county, school district, and state levels. Evans v. Board of County Comm’rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. School Dist. # 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). We also said that the General Assembly had the power to restore sovereign immunity in whole or in part, or to place limits on governmental liability. Evans, 174 Colo. at 105, 482 P.2d at 972.¹

One year later, the General Assembly responded by adopting the Governmental Immunity Act, and the corresponding statute sections 24-10-101 to -117, 10 C.R.S. (1972). In section 24-10-106, the General Assembly waived sovereign immunity for various governmental acts, including;

A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon....

§ 24-10-106(l)(d) (emphasis added). Dangerous condition was defined as;

the physical condition of any public building, public hospital, jail, public highway, road, or street, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility where the physical condition of such facilities or the use thereof constitutes a 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....

§ 24-10-103(1).

In 1986, the General Assembly substantially amended the Governmental Immunity Act partially in response to both case law and to a growing problem of excessively high municipal insurance rates. As amended, section 24 — 10—106(l)(d) now waives immunity for:

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, or of any highway which is part of the federal interstate highway system or the federal primary highway system, or of any highway which is part of the federal secondary highway system, or of any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon. 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....

There is no case in Colorado that interprets whether the Act waived immunity for dangerous conditions on sidewalks prior to the 1986 amendments. A plain reading of the statute supports the interpretation that a municipality did have a duty of reasonable care for maintenance of sidewalks, and the defendant concedes as much. The city argues, however, that the General Assembly intended to change that duty by the 1986 amendments so that immunity is no longer waived for dangerous sidewalk conditions, except in alleys.

Our primary task is to discern the intent of the General Assembly. Engelbrecht v. Hartford Accident and Indem. Co., 680 P.2d 231, 233 (Colo.1984). “To ascertain intent, words and phrases should be given effect according to their plain and obvious meaning.” Id. Statutes susceptible to more than one meaning, however, must be construed in light “of the apparent legislative intent and purpose,” including relevant statutory history. Id.; § 2-4-203, IB C.R.S. (1980) (“Ambiguous statutes — aids in construction”).

Aspen contends that the amended language in the first sentence of section 24-10-106(l)(d) — from, “A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any public highway, road, street, or sidewalk within the corporate limits of any municipality” to, “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” — -indicates the intent to impose immunity for most sidewalk conditions. Aspen maintains that its interpretation is supported by a plain reading of the statutory words, and that we need not delve into legislative intent. The city acknowledges, however, that the amended statute is ambiguous in that it refers to sidewalks, but contends that the waiver is now limited to only those portions of sidewalks that are used by motor vehicles, such as an alley. The trial court adopted that interpretation.

The court of appeals reversed, and held that the amended statute waived Aspen’s immunity for, “A dangerous condition ... of any public highway, road, street, or sidewalk within the corporate limits of any municipality_” 786 P.2d at 457. By holding that the first use of the words “public highway, road, or street” was separate from other clauses of the statute, the court of appeals created a new, fifth category of public thoroughfares in which sovereign immunity for dangerous conditions was waived that included all county roads. We rejected that interpretation in Bloomer v. Board of County Commissioners, 799 P.2d 942 (Colo.1990), which held that section 24-10-106(l)(d) did not waive sovereign immunity for dangerous conditions occurring on county roads.²

Although we previously rejected the court of appeals formulation of five separate categories of thoroughfares in which immunity was waived, that decision does not resolve the issue before us here. It is impossible to discern the legislative intent regarding sidewalk conditions from the plain language of section 24-10-106(l)(d). It is possible that by adding a new clause providing that a dangerous condition must physically interfere “with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved,” the General Assembly intended to remove liability for injuries sustained on sidewalks except those occurring on portions intended for motor vehicle travel. Yet the sentence begins by limiting the areas affected to public highways, roads, or streets. It is possible that the legislative intent was simply to address liability for injuries occurring on roadways but not to change existing liability for sidewalk injuries, thereby explaining the retention of “sidewalk” in later clauses. Because there is more than one possible construction of section 24 — 10—106(l)(d), it is incumbent upon us to determine what the intent of the General Assembly was when it enacted the 1986 amendments. See People v. Terry, 791 P.2d 374, 376 (Colo.1990).

A

House Bill 1196, sponsored in chief by State Representative Charles E. Berry, was the underlying bill that amended the Governmental Immunity Act. Both in committee hearings and in an article he co-authored in 1986, entitled Liability and Insurance Reform in Colorado,³ Representative Berry discussed the motives behind and intent of the 1986 amendments.

Representative Berry wrote that the three main goals of H.B. 1196 were to address judicial constructions that weakened the effectiveness of the Governmental Immunity Act, to address the “insurance crisis” faced by municipalities, and to “insure that the Act would protect public entities and taxpayers from excessive or unpredictable liability.” ⁴ In referring to the significant features of H.B. 1196, Representative Berry stated that it clarified that the immunity act applied to all actions that are or could have been brought in tort. It also clarified that authorized volunteers working for the government were covered by the Act.⁵ H.B. 1196 also required specific notice provisions, and a ninety-day “cooling-off” period that gave the government a chance to resolve the claim before a court action was filed.⁶

The amended statute also clarified that the previous limitation on the recovery of damages not to exceed $150,000 per incident for a single person, or $400,000 for two or more people injured in a single incident, applied even if the municipality purchased liability insurance with higher limits. It also removed the connection between purchasing insurance and waiving immunity.⁷

The amendment also provided “that the performance of a service or an act of assistance, or the adoption of a policy or regulation for the protection of any person’s health or safety, shall not result in the assumption of a duty of care where none otherwise existed.” ⁸ This language was in response to several court decisions involving assumed duty. See Moreland v. Board of County Comm’rs, 725 P.2d 1 (Colo.App.1985) (adoption of a building code gives rise to duty to enforce code adequately), rev’d, Board of County Comm’rs v. Moreland, 764 P.2d 812 (Colo.1988); Gilbert v. City of Arvada, 694 P.2d 847 (Colo.App.1984) (providing school crossing guards at one time of day created duty to provide at other times), affd in part and rev’d in part, Jefferson County School Dist. R-1 v. Gilbert, 725 P.2d 774 (Colo.1986); Justus v. Jefferson County School Dist. R-1, 683 P.2d 805 (Colo.App.1984) (school handbook containing policy on bicycle riding created duty to enforce policy adequately), aff'd in part and rev’d in part, Jefferson County School Dist. R-1 v. Justus, 725 P.2d 767 (Colo.1986).

In addition, the amendment declared that if a public official was immune, the public entity was also immune.⁹ The bill dealt with dangerous conditions as well, and specifically addressed our decisions in Stephen v. City of Denver, 659 P.2d 666 (Colo.1983), and Wheeler v. County of Eagle, 666 P.2d 559 (Colo.1983).¹⁰

In Stephen, we said that the government could be liable for injuries stemming from improperly maintained street signs based on the statutory interpretation of the Governmental Immunity Act. We said that “to construe ‘dangerous condition’ to be limited to the physical condition of the road surface gives too cramped a reading to the statute and ignores the purpose for which this exception to sovereign immunity was created.” Id. at 668. According to Representative Berry,

H.B. 1196 addresses this decision by making it clear that a dangerous condition on a roadway is indeed limited to the physical condition of a road surface. The bill provides that a dangerous condition of a roadway is one which physically interferes with the movement of traffic, and does not include traffic signs, signals, or markings, or the lack thereof, with only three exceptions: (1) the failure to repair a stop sign, (2) the failure to repair a yield sign which “reassigned the right-of-way,” or (3) the failure to repair a traffic control signal on which conflicting signals are displayed....¹¹

In Wheeler, we reversed summary judgment in favor of the government when a pedestrian was injured while walking on a county road where there was no sidewalk. “A genuine issue exists as to whether, under the circumstances, the County failed in its duty to exercise reasonable care to ensure the safety of motorists and pedestrians who travel upon County Road 13.” 666 P.2d at 561. Wheeler was interpreted by the General Assembly as imposing a duty upon counties to place sidewalks next to all roads. Representative Berry wrote that the 1986 amendment dealt with Wheeler “by limiting a dangerous condition on a roadway to that which occurs on the paved portion of a roadway, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved.” ¹²

Nothing in the foregoing language suggests that part of the intent of amending the immunities act was to do away with liability for dangerous conditions that existed on municipal sidewalks. Representative Berry’s explanation of H.B. 1196 referred only to limiting liability for dangerous conditions “on a roadway.” Nor did Representative Berry refer to dangerous conditions on sidewalks when he summarized the bill during the House State Affairs Committee meeting on January 30, 1986. Rather, his only reference to sidewalks was in connection with Wheeler and the bill’s intent to insure that public entities did not have a duty to build a sidewalk next to every road. Later in that hearing, an unidentified attorney who claimed to have represented the state in liability actions commented upon the provisions dealing with Wheeler and said, “If you provide a sidewalk, it’s gotta be a safe sidewalk, but you don’t have to put sidewalks next to all roads.” There was no comment from any participant including Representative Berry suggesting that one purpose of the bill was to adopt a position that sidewalks did not, in fact, have to be safe.

Representative Berry wrote that H.B. 1196 adopted in large measure the recommendations of the Governor’s Special Task Force on Tort Liability and Insurance.¹³ In that report, the only recommendation that addressed sidewalks declared:

The Task Force agreed that the adjacent homeowner or property owner should share civil liability with the governmental entity which owns the right-of-way in question. Although we do not agree on a precise rule of apportionment, it was felt that liability in such cases should be divided between the property owner and the public entity in a manner that would equitably reflect responsibility for the condition that caused the injury.¹⁴

The apportionment recommendation was not adopted by the General Assembly, and there is no other reference to sidewalks in the Task Force report.

However, during the March 17, 1986, Senate Business Affairs and Labor Committee Hearing, a representative from the Colorado Municipal League testified that the purpose of adding the language in the first part of section 24-10-106(l)(d) was to eliminate redundant language from section 24-10-103 and insure that all the facilities where dangerous conditions could occur were listed in section 24-10-106. “Thus, this amendment does strike some redundancy, but is not intended to make any substantive changes.” (Emphasis added.) That comment was surely limited to the words “public highway, road, or street” since the added words that follow were intended, according to the legislative history, to make substantive changes in prior case law. Even in that testimony, however, there is no indication that the amended words were also meant to limit liability for dangerous sidewalk conditions.¹⁵

In short, there is nothing in the legislative history to support Aspen’s interpretation that section 24 — 10—106(l)(d) limits liability for dangerous sidewalk conditions to alleys. Such an interpretation would amount to a significant change in the existing law and cannot be squared with a legislative history that fails to reflect an intent to provide public entities with sovereign immunity for all dangerous conditions on sidewalks except where they cross alleys.

Because the Governmental Immunity Act is in derogation of the common law of Colorado, legislative grants of immunity must be strictly construed. See, e.g., Stephen, 659 P.2d at 668 n. 3; Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979). A fair reading of the statute coupled with the legislative history cannot support a claim that the government is statutorily immune from liability for all dangerous conditions on sidewalks save for alleys. As we have interpreted the amendments, public entities are liable for dangerous conditions on sidewalks, whether it is people or vehicles that are traveling upon them.¹⁶

Our decision is not at odds with our opinion in Bloomer v. Board of County Commissioners. In Bloomer, we said, “The text of subsection 24-10-106(l)(d) is not reasonably susceptible to more than one interpretation on the question of whether subsection 24-10-106(l)(d) waives sovereign immunity for counties in their construction and maintenance of county roads, and it is unnecessary to consider the statute’s legislative history.” Id. at 945 (citation and footnote omitted). Although we disagreed that the 1986 amendments created a new subcategory of roads in which immunity was waived, we did not have occasion to look to the legislative history regarding immunity for sidewalk conditions.

Unlike Bloomer, section 24-10-106(l)(d) is ambiguous in that it seems to waive sovereign immunity for sidewalk conditions in part of the statute, but to not waive that immunity in other parts. It is therefore necessary to go beyond the wording and look to the history of the statute to discern the legislative intent.

B

Aspen argues that even if immunity was waived, dangerous conditions do not include the remnants of traffic signs, which is what Meserole tripped on in this case. To that end, Aspen points to the amended language in section 24-10-106(l)(d), which provides that, “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....”

Even if a two-inch segment of metal can properly be characterized as a “traffic sign,” we must again resolve the ambiguity between the wording in section 24-10-106(l)(d) that appears to limit any physical interference to those areas used by motor vehicles but later refers to dangerous conditions that exist on sidewalks. The first part of section 24-10-106(l)(d) provides a waiver of immunity for 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.” That section suggests that “physically interferes with the movement of traffic” modifies “sidewalk” and therefore excludes liability for improperly maintained traffic signs. Yet that interpretation does not comport with the apparent legislative intent to limit pre-existing liability for roadway conditions while not addressing liability for dangerous sidewalk conditions.

Again we rely on the legislative history before us, and note that the only context in which traffic signs were discussed was in the dialogue regarding Stephen and Martinez v. City of Lakewood, 655 P.2d 1388 (Colo.App.1982) (liability for nonenforcement of a no parking sign). Representative Berry limited his discussion of the phrase “physically interferes with the movement of traffic” to dangerous conditions occurring on a roadway. The purpose of that portion of the amendment, according to Representative Berry, was to make “it clear that a dangerous condition on a roadway is indeed limited to the physical condition of a road surface,” and that dangerous condition on a roadway “does not include traffic signs, signals, or markings, or the lack thereof, with only three exceptions ...” not relevant here.¹⁷

Rather than a circumstance similar to Stephen, in which a misdirected stop sign caused a traffic accident, if the metal object that caused Meserole’s fall was at one time a traffic sign, all that remained was a two-inch stub that did interfere with foot traffic. The legislative history does not support the claim that the General Assembly intended to provide absolute immunity for such a condition on a sidewalk that interferes with pedestrian traffic.

Ill

Because there is a statutory ambiguity in the 1986 amendments to section 24-10-106(l)(d), we look beyond the language of the statute to the legislative history for clarification. From that history, we can discern no intent to change the pre-existing governmental liability for dangerous conditions that exist on sidewalks so that immunity is only waived for dangerous conditions, not caused by traffic signs, on those portions of sidewalks intended for motor vehicle traffic.

Accordingly, we affirm the court of appeals and return this case to the court of appeals with directions to remand to the district court for trial.

KIRSHBAUM, J., dissents. YOLLACK, J., dissents and ROYIRA, C.J., joins in the dissent.

1 . Although there is a distinction in the common law between municipal liability for governmental and proprietary functions, see 5 Prosser, Law of Torts § 131 (1984), it is clear that there never was sovereign immunity for improperly maintained municipal sidewalks in Colorado. See, e.g., City of Denver v. Farmer, 125 Colo. 462, 244 P.2d 1086 (1952) (municipality has duty of care in maintaining sidewalks designed for pedestrian traffic); City of Alamosa v. Johnson, 99 Colo. 134, 60 P.2d 1087 (1936) (municipality required to exercise ordinary care in keeping its sidewalks reasonably safe); City of Denver v. Magivney, 44 Colo. 157, 96 P. 1002 (1908) (duty to maintain sidewalks in reasonably safe condition). Whatever immunity is extended to municipalities for dangerous sidewalk conditions must be granted by the General Assembly, and is in derogation of the common law even as it existed before 1971.

2 . Under the court of appeals construction, dangerous conditions would no longer have to interfere with traffic on any but the first category of thoroughfares in order for sovereign immunity to be waived. Our review of the record and the legislative history of section 24-10-106(l)(d) indicates that such a change was not intended.

Under our interpretation, there are four categories of thoroughfares for which immunity is waived in section 24-10-106(l)(d): (1) public highways, roads, streets, or sidewalks within the corporate limits of a municipality; (2) highways within the federal interstate or primary highway systems; (3) highways that are part of the federal secondary system; and (4) highways, roads, streets, or sidewalks that are within the state highway system on the portions designed and intended for public travel or parking thereon.

3 . C. Berry & T. Tanoue, Liability and Insurance Reform in Colorado, Including a discussion of reducing the risk of personal liability and of federal civil rights liability (1986), published by the Colorado Municipal League [hereinafter Berry & Tanoue]. See also Berry & Tanoue, Amendments to the Colorado Governmental Immunity Act, 15 Colo.Law. 1193 (1986).

4 . Berry & Tanoue at 1-2.

5 . Id. at 2.

6 . Id. at 3.

7 . Id. at 4-5.

8 . Id. at 5.

9 . Berry & Tanoue at 6.

10 . Id.

11 . Berry & Tanoue at 7.

12 . Id. (emphasis added). The remaining sections of the bill addressed liability for accumulations of snow and ice, punitive damages and the failure of plaintiffs to prove willful and wanton conduct, discussed the application of the provisions of the Act to actions brought under 42 U.S.C. § 1983, and declared the effective dates of the bill.

13 . Liability Insurance and the Law of Torts in Colorado, Problems and Remedies. Report of the Special Task Force on Tort Liability and Insurance (January 1986).

14 . Id. at 106-07 (emphasis added).

15 . [Q] [by Senator Allard] I would like to check with Tammy [the Colorado Municipal League representative]. There’s no new added provisions as to what actually exists now, is that right?

[A] That’s correct. Everything that was taken out of [section 24-10-]103 by this amendment is either already in or would be included into [section 24 — 10—] 106, so it’s not intended to take away anything and it’s not intended to add anything.

Transcript of Hearings on H.B. 1196 Before the Senate Business Affairs Committee, 55th General Assembly (1986) at 8-9 (discussing an amendment requested by the Boulder City Attorney).

16 . Aspen also claims that the amendments were aimed at overruling Martinez v. City of Lakewood, 655 P.2d 1388 (Colo.App.1982), which Aspen characterizes as a "dangerous condition of sidewalk” case. Martinez, however, involved li-abilily for injuries sustained when the plaintiff was hit by a car while stepping into the street in an area that was unimproved and contained no crosswalks or sidewalks. The plaintiff was injured because the city failed to enforce a no parking sign intended to increase visibility for pedestrians. In committee hearings, Martinez was discussed in conjunction with Wheeler and Stephen and their concomitant circumstances, rather than any discussion of dangerous conditions on sidewalks once they are built.

17 . Berry & Tanoue at 7 (emphasis added).