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City of Colorado Springs v. Powell6/17/2002
and omission. § 24-10-103(3)(a); see also Springer v. City & County of Denver, 13 P.3d 794, 801 (Colo. 2000)(noting that "a public entity may proximately cause a condition not only by affirmatively creating it, but also by its omission in failing to reasonably discover and correct the unsafe condition"); Stephen, 659 P.2d 666 (finding a waiver of immunity for failing to re-align a stop-sign).
Powell also alleges that evidence shows that the city may not merely have been negligent in failing to maintain the banks of the ditch, but it may have affirmatively caused the condition. She speculates that in patching a hole in the ditch, the city knocked down a portion of the fence and its trucks muddied the banks of the ditch. Powell highlights evidence that would tend to show that the city was involved in maintenance in the area in which the boys obtained access to the ditch. First, Powell alleges that the fallen fence is next to a portion of the drainage ditch that has a large concrete patch indicating a repair. Second, she alleges that local business owners and workers informed her that they saw the city working in the location of the accident. Lastly, she points to testimony of city employees that they performed periodic inspections of the drainage ditch in the area of the accident and performed maintenance on an as-needed basis.
Unfortunately, the city employee testimony was not obtained until after the trial court order denying the city's motion for dismissal and the trial court failed to determine whether there was evidence of the claim that the city knocked down the fence and muddied the area while maintaining the ditch. Although we could remand for further hearing on this issue, see Medina, 35 P.3d at 460-61 (remanding with directions that the trial court hold an evidentiary hearing pursuant to C.R.C.P. 12(b)(1) to further determine whether the CGIA established a right to sue), we need not do so because we find a waiver under other facts in this case. It will be determined at trial whether the city was negligent in failing to maintain the banks of the ditch or whether it affirmatively created that condition of the banks.
III. Dangerous Condition Provision
Because we find that Powell can sue under the operation and maintenance provision, we need not address Powell's alternate argument that suit is permitted under the dangerous condition provision.
IV. Conclusion
In sum, we find that Powell's claims regarding an unsafe design fit within the provision of the CGIA that allows suit for injuries resulting from the operation and maintenance of a sanitation facility. Moreover, we find that in arguing that the city failed to maintain the banks of the ditch, Powell alleges an act or omission that is within the scope of the waiver. Lastly, there is evidence that the city affirmatively created the condition of the ditch banks in the course of maintaining the facility. This too would be grounds for suit under the CGIA. Thus, we affirm the court of appeals.
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