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Trinity Broadcasting of Denver Inc. v. City of Westminster3/15/1993
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There is an obvious conflict between the trial court's orders of December 18, 1990 and January 28, 1991 regarding when Trinity discovered its injury . In the first order, the trial court held that the injury had been discovered in May 1989 and in the second order it concluded that the injury was discovered in early 1988. The notice given would have been timely under the first ruling but untimely under the second. The trial court's rationale for its change of discovery dates is unclear. It is uncertain what, if any, effect the trial court gave to Westminster's concession regarding Trinity's discovery of its injury. The concession itself is somewhat ambiguous but it may have been the basis for the trial court's finding in its December 19, 1990 order that Trinity discovered its injury in May 1989. Certainly the parties were confused regarding which party bore the burden of proof and what was the test for discovery of injury. Under the circumstances, the trial court should have held a hearing as requested by the parties. Such hearing would have permitted the full development of a factual record and determination of the proper legal test to be applied.
Trinity's claims are based on continuing trespass caused by the migration of water from Westminster's water tanks or water mains to Trinity's property. Trinity was injured when the water entered its property and that injury could have been discovered if soil tests had shown an abnormal amount of water present in Trinity's soil. No such discovery occurred. Rather, the parties agree that the injury was manifested by structural damage to Trinity's building. The question is when Trinity knew or should have known that the building was damaged by the tortious act of another rather than a naturally occurring phenomenon such as pre-existing soil conditions.
The Governmental Immunity Act does not permit an injured party to ignore evidence which would cause a reasonable person to know that he or she has been injured by the tortious conduct of another. The Act's notice period places a burden on the injured party to determine the cause of the injury , to ascertain whether a governmental entity or public employee is the cause, and to notify the governmental entity within 180 days from the time when the injury is discovered. Thus, in this case, the date of discovery is not postponed until Trinity knew or should have known that Westminster was the source of trespassing water. It is enough to trigger the notice period if Trinity knew or should have known that the structural damage to the building resulted from an abnormal amount of water in ground soil.
On remand, the trial court should handle this issue under Rule 12(b)(1) and conduct such further proceedings as may be necessary to determine whether Trinity gave timely notice to Westminster under the Governmental Immunity Act.
C.
Finally, Trinity argues that the notice provision of section 24-10-109, 10A C.R.S (1988), is unconstitutional as violative of due process of law. Trinity does not appear to argue that it has been deprived of procedural due process, but rather that its right to obtain judicial resolution of a dispute involving a public entity has been violated.
In Evans v. Board of County Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971), we recognized that the General Assembly has the discretion to restore sovereign and governmental immunity in whole or in part, or to place limitations upon the actions that may be brought against the state or its subdivisions. Because, as we have said many times, the notice period rationally furthers a legitimate state interest, Uberoi v. University
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