 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
City of Colorado Springs v. Powell6/17/2002
-10-106(1)(f), an injured plaintiff can sue for "injuries resulting from . . . he operation and maintenance of any public . . . sanitation facility." We must first determine what the concepts "operation" and "maintenance" mean. Operation is defined in the CGIA:
"Operation" means the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public hospital, jail, or public water, gas, sanitation, power, or swimming facility. § 24-10-103(3)(a), 7 C.R.S. (2001).
This broad definition of "operation" includes the concept of "maintenance." Although not defined by the CGIA, the common meaning of maintenance is "the work of keeping a building, machinery, etc. in a state of good repair". Webster's New World Dictionary of the American Language 854 (2nd ed1974). Moreover, in Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997), this court noted that "maintain" is defined as "keeping a constructed edifice, structure, or improvement in the same general state of being, repair, or efficiency as initially constructed." 934 P.2d at 1385; see also Medina, 35 P.3d at 455. Surely repair of a facility is a "power , dut , and function " contemplated by the term "operation."
We must determine, then, if Powell has alleged injuries that resulted from an act or omission of the city that is legally vested in the city regarding the purpose of the ditch. Or, more simply, whether the injuries resulted from something the city did or did not do that is connected with the purpose of the ditch.
In this case, Powell makes a number of allegations regarding the cause of her sons' injuries. She points to the steep concrete ditch without a means of escape, the absence of signs warning of the danger of injury or death, the fence in disrepair, and the muddy, overgrown banks of the ditch. All of these allegations can be characterized as either inadequate design, or creating an unsafe situation. We discuss each of these in turn.
First, Powell claims that the city was negligent in failing to post warning signs that would have alerted passersby to the danger of the ditch. She also contends that the city was negligent in constructing the ditch with steep concrete sides that make it difficult to escape. In support of its assertion that these allegations deal with design flaws, the city submitted an affidavit to the trial court of a city engineer who oversaw the design and construction of the drainage ditch. The engineer noted that the steep concrete sides of the ditch are as designed and that the ditch was not designed to include a fence or warning signs. We agree that both of these allegations take issue with the design of the ditch. Had the ditch been designed with warning signs or with a means of escape, the injuries might have been prevented.
The city does not contest that the design of the ditch is connected with the purpose of the ditch. Rather, it argues, citing Swieckowski, that the CGIA limits suit for injuries resulting from design flaws. We disagree.
An injured plaintiff cannot sue under the "dangerous condition" provision of the CGIA merely by alleging design flaws. Swieckowski, 934 P.2d at 1386. The design exception, however, is an express statutory provision of the CGIA and it only applies to the dangerous condition provision. See § 24-10-103(1), 7 C.R.S. (2001) (explicitly excepting design flaws from the statutory definition of "dangerous condition.") By its very terms, the operation and maintenance provision does not require a finding of a dangerous condition. Compare § 24-10-106(1)(f), 7 C.R.S. (2001)(allowing suit for an
Page 1 2 3 4 5 6 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|