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City of Colorado Springs v. Powell6/17/2002
injury resulting from "operation and maintenance of" a sanitation facility), with ยง 24-10-106(1)(e), 7 C.R.S. (2001)(allowing suit for an injury resulting from "a dangerous condition of" a sanitation facility)(emphasis added). There is no basis for importing the design limitation from the section 24-10-106(1)(e) dangerous condition provision into the section 24-10-106(1)(f) operation and maintenance provision. Powell's allegations regarding the design of the facility, then, are sufficient to establish a right to sue.
Second, Powell alleges that a break in the fence alongside the ditch and the muddy, slippery, and overgrown sides of the ditch led to her sons' injuries. The city asserts that the banks of the ditch are not part of the drainage facility and thus not within the scope of the CGIA provision. We disagree.
The city seeks to narrow the scope of section 24-10-106(1)(f) to negligence regarding the concrete flume through which the water runs. Such a narrow view disregards the reality that areas immediately surrounding a facility often affect the overall condition of the facility. For example, in Medina, a case dealing with an immunity waiver for the dangerous condition of a roadway, we reiterated that a "roadway does not exist in the abstract and that therefore existing physical features which are continuous to the roadway are part of the design of the improved roadway." 35 P.3d at 455 (citing Swieckowski, 934 P.2d at 1386). Similarly, in State v. Moldovan, 842 P.2d 220 (Colo. 1992), we refused to limit a governmental immunity waiver to conditions that originated within the actual surface of the roadway. In Moldovan, a motorist was injured when a cow gained access to a highway through a hole in a fence adjacent to the highway. In construing the CGIA provision that allows suit for injuries resulting from a dangerous condition on a roadway, we rejected the state's argument that the CGIA provision did not include a condition that was not "an integral part of the highway itself." Id. at 222. Also, in Stephen v. City & County of Denver, 659 P.2d 666, 668 (Colo. 1983), we stated that limiting an immunity waiver "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." We noted that such a limited reading "is at odds with the presumption that in enacting the statute a just and reasonable result was intended." Id. at 667. Thus we reject the city's contention that the banks of the drainage facility are too attenuated from the facility to establish a right to sue.
The city also argues that although the fence and banks are within its eighty-foot easement, the owners of the land through which the ditch runs, not the city, is responsible. The city asserts that the government would grind to a halt if it were to be liable for the "lawful activities of a landowner." We reject the city's characterization of the inquiry.
As an initial matter, we note that actual liability is not at issue for jurisdictional purposes. " hether the state is immune and whether it is liable are two distinct inquiries." Medina, 35 P.3d at 460 n9. Accordingly, at this stage we do not address issues of negligence or causation. Swieckowski, 934 P.2d at 1384.
Moreover, Powell does not assert that the city waives immunity for the actions of a third party. Rather, Powell alleges that the city is liable either for failing to maintain the banks of its ditch or through its maintenance of the actual ditch.
A failure to maintain is within the scope of the operation and maintenance provision. The statutory definition of operation clearly includes acts of both commission
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