City of Aspen v. Meserole

Justice VOLLACK

dissenting:

I respectfully dissent from the majority’s holding that public entities are liable for dangerous conditions on sidewalks affecting pedestrian traffic, based on its interpretation of section 24 — 10—106(l)(d), 10A C.R.S. (1988), of Colorado’s Governmental Immunity Act (Act). In my opinion, the legislature intended to restrict governmental liability in subsection (l)(d) to dangerous conditions on surfaces used by motor vehicles.

We have noted that because governmental immunity is in derogation of Colorado’s common law, legislative grants of immunity must be strictly construed. Stephen v. City and County of Denver, 659 P.2d 666, 668 n. 3 (Colo.1983). Nevertheless, this court’s primary task in construing a statute is to determine and give effect to the intent of the legislature. State of Colorado v. Hartsough, 790 P.2d 836, 838 (Colo.1990). If the statutory language is ambiguous, making alternative constructions possible, then a court may look to the legislative history to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. Griffin v. H.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989). Moreover, it must be presumed that in enacting the statute the legislature intended that the public interest *958is to be favored over any private interest. § 2-4-201(l)(e), IB C.R.S. (1980).

Section 24-10-106(l)(d) provides in relevant part that sovereign immunity is waived by a municipality in a tort action for injuries resulting from

[a] dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within the corporate limits of any municipality_ As used in this section, the phrase “physically interferes with the movement of traffic” shall not include traffic signs, signals, or markings, or the lack thereof, but shall include the failure to repair a stop sign or a yield sign which reassigned the right-of-way or the failure to repair a traffic control signal on which conflicting directions are displayed, if such failure constituted a dangerous condition as defined in section 24-10-103(1).

(Emphasis added). The underscored portion of subsection (l)(d) is ambiguous in that the word “sidewalk” follows the “public highway, road, street” designation in line 7, above; yet, “sidewalk” is absent in the “public highway, road, or street” designation appearing in lines 1 and 2. Recognizing this inherent ambiguity in the statutory language, the majority determined that the legislature intended for municipalities to be liable for injuries resulting from dangerous conditions on sidewalks. In my view, the legislature did not intend such an expansion of the government’s liability. Although awkwardly written, the language of subsection (l)(d) is focused on those dangerous conditions existing on surfaces used by motor vehicles. A review of the legislative history makes it clear that the General Assembly intended for subsection (l)(d)’s imposition of government liability to be interpreted narrowly.

Legislative intent may be inferred from an examination of successive drafts of a bill or statute. Haines v. Colorado State Personnel Bd., 39 Colo.App. 459, 461-62, 566 P.2d 1088, 1090 (1977); Three Bells Ranch Assoc. v. Cache La Poudre Water Users Ass’n, 758 P.2d 164, 172 (Colo.1988). The Colorado Governmental Immunity Act was originally enacted in 1971, following the introduction of House Bill 1047. A review of prior drafts of the 1971 Act reveals that sidewalk surfaces were not intended to be covered by subsection (l)(d).

The original version of section 24-10-106(l)(d) appeared in section 130-1 l-6(l)(e) of House Bill 1047, and the first draft read as follows:

A dangerous condition of any highway, road, or street within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved highway which is a part of the state highway system.

(Emphasis added). Sidewalks were not mentioned in this version. The engrossed House Bill 1047, as amended, provided:

A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of any highway, road, or street within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved highway which is a part of the state highway system, on that portion of such highway, road, or street which was designed and intended for public travel or parking thereon.

(Emphasis in original). Again, no mention of sidewalks appeared in this revised draft, but a reference to “curbs” was added. The final language of the 1971 provision approved by the General Assembly and enacted into law, § 130-ll-6(l)(e), 1971 Colo. Sess.Laws 1206, added the word “sidewalk,” and read as follows:

A dangerous condition which interferes with the movement of traffic on the traveled portion and shoulders or curbs of *959any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved highway which is a part of the state highway system, on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon.

(Emphasis added). Based on the development of this provision, it appears that “sidewalk” was added to correspond to the designation of “curbs.” Logically, then, this waiver provision as enacted in 1971 focused solely on highways, roads, streets, and sidewalk curbs.

In 1986, the Colorado Governmental Immunity Act was amended by the adoption of House Bill 1196, 1986 Colo.Sess.Laws 873. Subsection (l)(d) was amended as follows:

A dangerous condition OF A PUBLIC HIGHWAY, ROAD, OR STREET which PHYSICALLY interferes with the movement of traffic on the traveled portion and shoulders or curbs ON THE PAYED PORTION, IF PAVED, OR ON THE PORTION CUSTOMARILY USED FOR TRAVEL BY MOTOR VEHICLES, IF UNPAVED, of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any paved highway which is a part of the federal secondary highway system, or of any paved highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon. AS USED IN THIS SECTION, THE PHRASE “PHYSICALLY INTERFERES WITH THE MOVEMENT OF TRAFFIC” SHALL NOT INCLUDE TRAFFIC SIGNS, SIGNALS, OR MARKINGS, OR THE LACK THEREOF, BUT SHALL INCLUDE THE FAILURE TO REPAIR A STOP SIGN OR A YIELD SIGN WHICH REASSIGNED THE RIGHT-OF-WAY OR THE FAILURE TO REPAIR A TRAFFIC CONTROL SIGNAL ON WHICH CONFLICTING DIRECTIONS ARE DISPLAYED, IF SUCH FAILURE CONSTITUTED A DANGEROUS CONDITION AS DEFINED IN SECTION 24-10-103(1).

Statements by the primary sponsor of House Bill 1196, Representative Charles E. Berry, further elucidate the legislative intent with regard to subsection (l)(d). See Archer Daniels Midland Co. v. State of Colorado, 690 P.2d 177, 183 (Colo.1984) (the statements of individual legislators are relevant to judicial inquiry into legislative intent).

In committee hearings and in an article coauthored with Tami Tanoue, a Colorado Municipal League staff attorney, Representative Berry articulated the following purposes for House Bill 1196: (1) to comprehensively review and update the Act since its enactment in 1971, (2) to respond to the liability insurance crisis by protecting public entities and their taxpayers from the fiscal burdens of excessive claims and unlimited liability,1 and (3) to address certain judicial constructions of the Act which were contrary to the Act’s purposes and weakened the effectiveness of some of the Act’s provisions.2

*960Representative Berry wrote that the language of subsection (l)(d) was amended to reflect the legislature’s concerns with this court’s decisions in Wheeler v. County of Eagle, 666 P.2d 559 (Colo.1983), and Stephen v. City and County of Denver, 659 P.2d 666 (Colo.1983).3 Wheeler involved an injury to a person struck by a vehicle while walking on a two-lane paved road. The victim apparently was walking on the road because the shoulder was too narrow and blocked by trees and bushes. This court held that a genuine issue existed as to whether the public entity had breached its duty under the circumstances to maintain the roadway in a reasonably safe manner for members of the public who use it. Wheeler, 666 P.2d at 561. Wheeler was read to impose a new duty on counties to provide sidewalks along county roads for pedestrian safety. According to Representative Berry, House Bill 1196 “ad-dresse[d] this new potential liability by limiting a dangerous condition on a roadway to that which occurs on the paved portion of a roadway, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved.” 4 Fearing expanded government liability as a result of Wheeler, the legislature therefore amended subsection (l)(d) with the express intent of eliminating government liability for dangerous conditions existing in areas not meant for motor vehicles.

Stephen involved a complaint against the City and County of Denver for its alleged failure to repair a turned stop sign. The turned sign made the street upon which the plaintiff was driving appear to be a “through” street and led to her subsequent collision in an intersection. This court declined to construe “dangerous condition” as limited to the “physical condition of the road surface,” and subsequently held that the waiver of immunity for a dangerous condition on a roadway applied to traffic signs. Stephen, 659 P.2d at 668.

According to Representative Berry,

H.B. 1196 addresse[d] this decision by making it clear that a dangerous condition on a roadway is indeed limited to the physical condition of a road surface. The bill provides that a dangerous condition of a roadway is one which physically interferes with the movement of traffic, and does not include traffic signs, signals, or markings, or the lack thereof, with only three exceptions: (1) the failure to repair a stop sign, (2) the failure to repair a yield sign which “reassigned the right-of-way,” or (3) the failure to repair a traffic control signal on which conflicting signals are displayed, may be found to be a dangerous condition as defined.5

(Emphasis in original). This clarification evinces a legislative intent to restrict the waiver of sovereign immunity to dangerous conditions on “road surfaces.” Together, Representative Berry’s statements demonstrate a clear legislative direction toward narrowing the scope of subsection (l)(d). To construe the statutory language in accordance with the legislative objective, we must, in my opinion, resolve subsection (l)(d)’s ambiguity in a manner that restricts the government’s liability. To expand the government’s liability to cover dangerous conditions on sidewalks would serve only to frustrate the legislature’s objective.

Section 24-10-106(1) mandates that “[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort,” unless an exception applies. Although grants of governmental immunity must be strictly construed, this court must nevertheless give effect to the legislature’s intent. The foregoing legislative history reveals a clear purpose by the General Assembly to limit government liability in subsection (l)(d) to dangerous conditions on paved or unpaved road surfaces *961upon which motor vehicles operate. Such an interpretation advances the legislature’s goal, which is to narrow, rather than expand, the scope of the exceptions to governmental immunity. In construing subsection (l)(d), we must presume that the legislature intended to favor the public interest over the private interest. We are therefore obligated to adopt a narrow construction of subsection (l)(d) that effectively limits the fiscal burdens of the taxpaying public.

I would reverse the judgment of the court of appeals.

I am authorized to say that Chief Justice ROVIRA joins in this dissent.

. The amendment to the Act's Declaration of Policy, § 24-10-102, reflected this particular concern with the addition of the following legislative rationale:

The general assembly also recognizes that the state and its political subdivisions provide essential public services and functions, and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions. The general assembly further recognizes that the taxpayers would ultimately bear the fiscal burdens of unlimited liability, and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens.

1986 Colo.Sess.Laws 873.

. Berry & Tanoue, Colorado Governmental Immunity: H.B. 1196 and Other Recent Developments, in Liability and Insurance Reform in *960Colorado 1, 1 (1986) (published by the Colorado Municipal League) [hereinafter H.B. 1196\. See also Berry & Tanoue, Amendments to the Colorado Governmental Immunity Act, 15 Colo.Law. 1193 (1986).

. H.B. 1196, supra note 2, at 6-7.

. Id.

. Id. at 7.