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City of Colorado Springs v. Powell6/17/2002
JUDGMENT AFFIRMED
EN BANC
This is our first opportunity to examine a provision of the Colorado Governmental Immunity Act (CGIA) that allows suit for injuries resulting from the operation and maintenance of a sanitation facility. This wrongful death and personal injury action arises out of an accident in Colorado Springs where two brothers fell into a drainage ditch. One brother survived with injuries, the other did not.
We hold that a drainage ditch is a sanitation facility within the meaning of the CGIA. We further outline the extent of the waiver provision. We do not import the design limitation from the dangerous condition provision of the CGIA into the operation and maintenance provision. Furthermore, we do not limit the operation and maintenance provision to acts or omissions that take place within the facility. Following the plain language of the waiver and the definitions provided in the CGIA, we hold that any injury that allegedly results from an act or omission that is connected with the purpose of the facility is sufficient to establish a waiver of immunity.
I. Facts and Prior Proceedings
Valerie Powell (Powell) brings this action on her own behalf as well as on behalf of her son James and her deceased son Steven. This action arises out of an accident that occurred when the boys were twelve and five years old, respectively. While Powell was attending a class in a building owned by N.S. Properties, James and Steven played outside, near the building. Their play brought them to the edge of a city drainage ditch. Both boys slipped and fell into the drainage facility. James was able to pull himself out of the facility; Steven's body was later found downstream.
Powell brought negligence claims against both the City of Colorado Springs (the city) and N.S. Properties. The city moved to dismiss Powell's complaint or, in the alternative, for summary judgment, claiming governmental immunity.
Powell argued that either of two provisions of the CGIA permit her to sue. First, section 24-10-106(1)(f) allows suits for injuries resulting from the operation and maintenance of a sanitation facility (operation and maintenance provision). 7 C.R.S. (2001). Second, section 24-10-106(1)(e) allows suits for injuries resulting from a dangerous condition of a sanitation facility (dangerous condition provision). 7 C.R.S. (2001). Powell asserted that the condition of the facility supports a finding that she may sue under either of these provisions. Specifically, she alleged that the ditch itself had steep concrete sides that made escape difficult, the fence protecting the facility had been knocked down, the banks of the facility were muddy and overgrown with bushes, and there were no signs warning of the danger of injury or death.
The trial court agreed that Powell could bring suit. The court held that the operation and maintenance of a facility includes the entire easement associated with the facility and that the "slippery surfaces, edges obscured by overgrowth and shrubbery and destroyed barriers" arose from the operation and maintenance of the facility. Regarding the dangerous condition waiver, the court determined that further discovery was required.
The court of appeals affirmed. Powell v. City of Colorado Springs, 25 P.3d 1266 (Colo. App. 2000). In a published opinion, the court noted that the "city's negligent failure to maintain the area surrounding the drainage ditch may have contributed to Steven's death and James' injuries." Id. at 1268. The court concluded that this was sufficient for both an operation and maintenance waiver and a dangerous condition waiver. Id. We granted certiorari.
I
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