Swieckowski Ex Rel. Swieckowski v. City of Fort Collins

934 P.2d 1380, 1997 Colo. LEXIS 318, 1997 WL 175043

• Court: Supreme Court of Colorado
• Decided: April 14, 1997
• Docket: 96SC89
• Status: Published

Opinions

Justice BENDER

delivered the Opinion of the Court:

This case arises out of a bicycle accident which occurred on a newly widened section of a road in the City of Port 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.

I.

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.

II.

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:

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(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.

A.

Swieckowski argues that the word “maintain,” as it appears in the GIA, includes the concept of owning the dangerous condition and that mere ownership of the condition renders the City liable to suit. He contends that “the mere act of owning and keeping a roadway in existence, if it constitutes a dangerous condition, waives sovereign immunity regardless of whether there was a failure to make repairs and regardless of whether the condition of the roadway had been altered from the time of its initial construction.” We disagree with Swieckowski’s broad interpretation of the word “maintain.”

In construing statutory provisions, a court must endeavor to give effect to the intent of the General Assembly. See State v. Hartsough, 790 P.2d 836, 838 (Colo.1990). To that end, we give the statutory terms their plain and ordinary meaning. See id. We should interpret the statute in a way that best effectuates the purpose of the legislative scheme. See Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo.1984).

Swieckowski’s proposed interpretation of the word “maintain” is not supported by the common meaning of the word “maintain.” As the court of appeals noted, “maintain” is defined as keeping a constructed edifice, structure, or improvement in the same general state of being, repair, or efficiency as initially constructed. Webster’s Third New International Dictionary 1362 (1986). Under this definition, a failure to “maintain” a roadway is not a failure to keep a roadway in existence, but a failure to restore a roadway to the state in which it was originally constructed.

Additionally, Swieckowski’s interpretation of the word “maintain” is inconsistent with the legislative history of this statute. In 1992, the General Assembly amended the definition of “dangerous condition” to include the following language: “Maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.” An Act Concerning Public Liability Pursuant to the "Colorado Governmental Immunity Act,” ch. 172, 1992 Colo. Sess. Laws 1115. Under the 1992 amendment, while the government has no duty to improve a roadway, it does have a duty to repair a roadway where the roadway has changed from its original condition and this change poses a danger. As one of the bill’s primary sponsors explained:

Also in section one, we add a definition of the word “maintenance” to clarify that the duty to maintain means only a duty to keep a street or facility in its original or improved condition. It does not include any duty to upgrade, modernize or improve a street or facility such as additional construction standards or change of the way of use might apply.

Second Reading of H.B. 1291 Before the House of Representatives, 58th Gen. Assembly, 2d Reg. Sess. (1992) (statement of Rep. Faye Fleming). This court may find a legislative amendment to be a clarification where the legislative history or the language of a statute clearly indicates an intent to clarify. See Rickstrew v. People, 822 P.2d 505, 508 (Colo.1991) (construing statutory language in light of clarification provided by subsequent amendment). Here, the bill’s sponsor stated that the purpose of the amendment was to clarify the definition of the word “maintain.” This amendment clarifies that the government’s duty to “maintain” was intended by the legislature to mean a duty to restore a facility to the same condition as originally constructed. To hold the government responsible for simply “keeping a public roadway in existence” implies a duty to improve the roadway which is contrary to the express intent of the General Assembly. In addition, the interpretation suggested by Swieckowski would virtually eliminate governmental immunity by permitting suit in most cases where the government owns the property at issue.

Swieckowski cites several cases in support of the proposition that ownership constitutes “maintenance.” While these decisions applied the term “maintain” to impose potential liability on the government for dangerous road conditions under the GIA, none of these cases held that mere ownership could give rise to potential government liability. Instead, these cases establish the proposition that the government may be liable where it failed to repair, or failed to restore a facility to its original state. See State v. Moldovan, 842 P.2d 220, 224-25 (Colo.1992) (government liable for failure to repair damaged fence which allowed cow to enter roadway); Wheeler v. County of Eagle, 666 P.2d 559, 561 (Colo.1983) (government liable for failure to clear trees and bushes which had grown to extend to the road); Stephen v. City & County of Denver, 659 P.2d 666, 668 (Colo.1983) (government liable for failure to repair stop sign which had been turned to face the wrong direction); Hallam v. City of Colorado Springs, 914 P.2d 479, 482-83 (Colo.App.1995) (government liable for failure to replace barriers when someone had moved them); Schlitters v. State, 787 P.2d 656, 657-58 (Colo.App.1989) (government liable for failure to secure loose boulders above road).

Swieckowski’s interpretation of “maintain,” under which mere ownership can give rise to liability, is unsupported. The common meaning of the word “maintain,” its legislative history, and Colorado case law support the court of appeals’ finding that a failure to “maintain” means a failure to keep a facility in the same general state of being, repair, or efficiency as initially constructed.

Applied to this case, the City is immune from liability for the roadway’s abrupt transition at the ditch; should the roadway undergo changes, potential liability would attach for failure to restore the roadway to the condition in which it was originally constructed. It is undisputed that on the day Swieek-owski was injured on the roadway, the roadway was in the same condition as when it was originally constructed. Because the roadway remained unchanged, the City did not repair the roadway, and is immune from any claims of negligence for allowing this condition to exist. We hold, therefore, that the court of appeals did not err in its determination that the City did not “maintain” the roadway for purposes of the GIA.

B.

Swieckowski also argues that the roadway constituted a “dangerous condition” because the existence of the condition was not solely due to inadequate design of the roadway and therefore, under the GIA, governmental immunity is waived. Again, we disagree.

The GIA expressly excludes from the definition of “dangerous condition” any danger solely attributable to inadequate design. See § 24-10-103, 10A C.R.S. (1988). The common meaning of the word “design” is to conceive or plan out in the mind. See Webster’s Third, New International Dictionary 611 (1986). The admitted fact that the conception, or the plan, for the roadway improvements called for the widened portion to begin at the boundary fine running along the ditch establishes that the danger posed by the roadway’s abrupt transition at the ditch was attributable solely to design.

This court addressed this “design exception” to liability in Willer v. City of Thornton, 817 P.2d 514 (Colo.1991). In Willer, the plaintiff was injured after his car struck a dip in the pavement at an intersection. The court held that the government was immune under the GIA because “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.” Id. at 517. Also persuasive is Szymanski v. Department of Highways, 776 P.2d 1124 (Colo.App.1989), where the plaintiff contended that his injuries were the result of an intersection’s “blind spot,” improper sightlines, unduly high speed limit, and lack of warning signs regarding the dangerousness of the intersection. The court of appeals found that these problems were all design flaws, despite the plaintiffs attempts to label them otherwise, and determined that the government was immune. See id. at 1125.

The parties agree that the road was constructed according to design. As the court of appeals aptly noted, the design did not call for a bridge, the filling of the ditch, the construction of a taper to bypass the ditch, or the use of barricades or fences to warn pedestrians and bicycles of the existence of the ditch. The design called for the improvement to begin abruptly at the boundary line running along the side of the ditch, which it did.

Swieckowski argues creatively that the roadway’s danger did not exist solely because of its design. He asserts that the act of joining the designed improvements with the pre-existing physical feature, namely, the drainage ditch, in part contributed to the roadway’s danger. The flaw in this position is that it assumes that the design of the improved roadway exists in the abstract, independent from the existing physical features which are contiguous to the improvement. On the contrary, existing physical features are part of a design of an improved roadway. The beveling of the downward slope of the ditch and the widened portion’s abrupt beginning at the road’s intersection with the ditch were not accidental. Both features were part of the design of the improvement. Even assuming that the City designed the improvements without considering existing physical features, the City would nevertheless be immune because the danger posed would then be attributable to the City’s negligence in failing to consider these physical features in the design of the widened, improved roadway.

C.

This ease, viewed in the light most favorable to the plaintiff as is necessary at this stage of the proceedings, presents an egregious example of the inequities of the GIA. A young boy was seriously injured. From the limited facts presented it appears that the condition that caused this accident was one which was readily predictable and could have been easily avoided. Governmental immunity exists due to the General Assembly’s policy decision to protect the government from suit by persons who are injured by the negligent acts of governmental entities. Section 24-10-102,10A C.R.S. (1988), recognizes that unlimited liability of public employees “could disrupt or make prohibitively expensive ... essential public services and functions”; that limitations are necessary to “protect the taxpayer against excessive fiscal burdens”; and that “public employees should be protected” so that they will not be “discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law.” Here, Swieckowski contends that the City permitted a hazard to exist which was, in effect, an accident waiting to happen. Further, the record as established at this early stage indicates that the danger posed by the ditch could have been remedied cheaply and easily by the placement of a barricade or a warning device at the beginning of the improvement. The legislature, however, expressly precludes liability for a public entity’s failure to post signs on a public highway.⁹

The potential for severe and disabling injury to persons, like Swieckowski, who might be riding their bicycles or walking the wrong way at night, should have been known to the City’s professionals, such as the city engineer, who approved the developer’s design and construction of the newly widened section of the road. Their involvement occurred almost twelve months before the accident, which gave the City adequate time to install some type of warning device. Protecting the City from suit discourages rather than encourages governmental agencies from remedying potential hazards to their citizens and runs counter to the sound policy of holding governmental entities responsible for their actions. See Evans v. Board of County Comm’rs, 174 Colo. 97, 101, 482 P.2d 968, 970 (Colo.1971) (abolishing judicially created sovereign immunity because the doctrine was “causing too great a degree of injustice”).

However, we are constrained by limiting principles of judicial review to interpret statutory language consistently with the intent of the General Assembly and with the plain meaning of the words chosen by this body when it enacts a statute. We may not substitute our view of public policy for that of the General Assembly.¹⁰ As discussed in this opinion, we apply traditional rules of statutory interpretation to reach the conclusion, reluctantly, that the City is immune from suit in this case.

III.

We agree with the court of appeals 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 ditch was attributable solely to the inadequate design of the improved roadway. We affirm the court of appeals and hold that the City is immune from suit under the GIA.

VOLLACK, C.J., dissents, and SCOTT, J., joins in the dissent.

1 . § 24-10-101 to -120, 10A C.R.S. (1988).

2 . Section 24-10-103(1), 10A C.R.S. (1988), provides in pertinent part:

"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.

3 .The issues on certiorari were framed as follows:

1. Whether the court of appeals erred in its statutory construction of the term “maintain” in determining whether sovereign immunity had been waived.

2. Whether the court of appeals erred in concluding that the dangerous condition of the roadway was created solely by inadequate design thus precluding waiver of sovereign immunity.

4 . Our review of the record reveals that a city engineer suggested paving the ditch; the engineer was present at the construction site to oversee the beveling of the asphalt into the ditch. The engineer explained during his deposition that leaving the slope exposed would result in erosion, compromising the strength of the pavement.

5 . Section 42-4-218.5(2), 17 C.R.S. (1984 & 1989 Supp.), provides, “Every bicycle in use ... [from sunset to sunrise] shall be equipped with a lamp on the front emitting a white light visible from a distance of at least five hundred feet to the front.” Section 42 — 4-106.5(5), 17 C.R.S. (1984 & 1989 Supp.), provides in pertinent part, "Any person riding a bicycle shall ride in the right-hand lane.”

6 . Swieckowski also sued developer K. Bill Tiley, who constructed the improvements. The trial corut granted Tiley's motion for summary judgment dismissing him from the case. The court of appeals overturned the granting of this motion, permitting Swieckowski to proceed with his claim against Tiley. Tiley petitioned this court for certiorari review of the court of appeals' decision. We did not grant certiorari on this issue.

7 . Section 24-10-108, 10A C.R.S. (1996 Supp.), provides in pertinent part:

If a public entity raises the issue of sovereign immunity .... [t]he court's decision on such motion shall be a final judgment and shall be subject to interlocutory appeal.

8 . C.R.C.P. 12(b) provides in pertinent part:

|T]he following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter....

9 . Section 24-10-106(1), 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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(d) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic.... As used in this section, the phrase "physically interferes with traffic” shall not include traffic signs, signals, or markings, or the lack thereof, but shall include the failure to repair a stop sign or a yield sign which reassigned the right-of-way or the failure to repair a traffic control signal on which conflicting directions are displayed....

10 . We note the remarks offered at the hearings on the 1992 amendments:

[Wjhat we are trying to do is restore the Governmental Immunity Act to what we envision the General Assembly when they originally passed it had in mind and move it back away from the expansive manner in which the [Supreme] Court seems to be interpreting this particular Act. And that's what is driving it completely as a result of numerous court actions and decisions that keep coming down trying to interpret what the General Assembly had in mind at one point in time.

Hearings on H.B. 1291 Before the House Local Government Committee, 58th Gen. Assembly, 2d Reg. Sess. (1992) (statement of Rep. Faye Fleming).

I want to reiterate that except for the provision regarding snow and ice removal, the court reform provisions of the bill, these changes [have] not changed the legislative intent that has existed for the Governmental Immunity Act since 1986 and before. We are not trying to change that, we are just trying to send a clear message to the court that when you say something you mean it.

Hearings on H.B. 1291 Before the House Local Government Committee, 58th Gen. Assembly, 2d Reg. Sess. (1992) (statement of Kathy Haddock of the Colorado Municipal League).