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City of Colorado Springs v. Powell6/17/2002
I. Analysis
In Colorado, governmental immunity for tort actions was common-law based. In 1971, this court overruled common law governmental immunity in its entirety. Evans v. Bd. of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. Sch. Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). We did so because the waivers to immunity and the exceptions to those waivers had become exceedingly complicated and in many ways arbitrary. Evans, 174 Colo. at 101, 482 P.2d at 970. We left it up to the General Assembly to determine the proper parameters of governmental immunity. Id. at 105, 482 P.2d at 972. The legislature responded with the CGIA.
The CGIA allows injured persons to sue governmental entities in certain specific circumstances. § 24-10-106, 7 C.R.S. (2001). The provisions allowing suit are to be construed broadly, in favor of the injured party. See Bertrand v. Bd. of County Comm'rs, 872 P.2d 223, 227 (Colo. 1994). Whether a governmental entity can be sued is a question of subject-matter jurisdiction. Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916, 923 (Colo. 1993). The injured plaintiff has the burden of establishing that immunity has been waived. Id. at 925.
In the current case, Powell alleges she can sue under two provisions of the CGIA. First, she argues that, pursuant to section 24-10-106(1)(f), immunity is waived because the injury resulted from the operation and maintenance of a sanitation facility. This provision details that:
Sovereign immunity is waived by a public entity in an action for injuries resulting from: . . .
(f) The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity. § 24-10-106(1)(f), 7 C.R.S. (2001).
Second, pursuant to section 24-10-106(1)(e), Powell argues that immunity is waived because the injury resulted from the dangerous condition of a sanitation facility. This provision allows suit for injuries resulting from:
(e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility. § 24-10-106(1)(e), 7 C.R.S. (2001).
Because the trial court found that suit was proper under the operation and maintenance provision, we begin our analysis there. We first examine the scope of the term "sanitation facility" and hold that the phrase encompasses the drainage facility at issue here. Second we apply the operation and maintenance provision to the facts alleged in this case. We hold that because Powell has established a nexus between the injuries alleged and the operation and maintenance of the facility, immunity is waived. Because we find that the suit can be maintained under section 24-10-106(1)(f), we do not address a 24-10-106(1)(e), dangerous condition waiver.
A. Definition of "Sanitation Facility"
This is our first opportunity to address the scope of the term "sanitation facility" in the CGIA. The court of appeals, however, has interpreted the phrase "sanitation facility" on a number of occasions. See Scott v. City of Greeley, 931 P.2d 525 (Colo. App. 1996); Smith v. Town of Estes Park, 944 P.2d 571 (Colo. App. 1996); Burnworth v. Adams County, 826 P.2d 368 (Colo. App. 1991). In the first of these decisions, Burnworth, the court looked to other provisions in the Colorado Revised Statutes in an attempt to discern the meaning of "sanitation facility." 826 P.2d at 370. After examining the definitions of similar terms, the cou
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