Daniel v. City of Colorado Springs

JUSTICE COATS,

concurring in the judgment only.

35 While I too believe the court of appeals misconstrued the Act in finding that it declines waiver of governmental immunity for all parking facilities, as a general category or class, and while I would similarly reverse the judgment below, I nevertheless take issue with the majority's understanding of the "park or recreation area" waiver of the statute. In particular, I disagree with the majority's newly-minted tripartite framework for assessing whether a public facility is "located in any park or recreation area maintained by a public entity," as well as its interpretation and application of the statutory terms "facility" and "public," in all three of the CGIA cases it resolves today. Unlike the majority, I believe the terms "public facility" and "recreation area," despite not being defined in the Act itself, have well-accepted meanings, which can be discerned from clear referents elsewhere in the revised statutes; the lengthy and detailed 1968 Legislative Council Report and proposed bill, from which the current Act is directly taken; and the historical trail of court opinions and corresponding amendments to the provisions of the Act. I therefore consider it both unneec-essary, and unwise, to effectively rewrite the parks and recreation provision, as I believe the majority does, by mandating an analytic framework designed, by its very terms, to leave to courts, in each individual case, the determination of the breadth and applicability of the waiver.

1 36 Because "public facility" appears as a separate term in the Act only with regard to parks and recreation areas, and because immunity is waived for a dangerous condition of an otherwise unspecified "public facility" only to the extent that the "public facility" in question is "located in," as distinguished from "adjacent" to or "contiguous" with, a "park or recreation area maintained by a public entity," $ 24-10-106(1)(e), CRS. (2013), the intended meaning of the phrase "park or recreation area" would appear to be the logical starting point and key to construing the seope of the waiver. The majority's tripartite framework for analysis focuses on drawing boundaries, distinguishing primary from secondary or tertiary purposes, and engrafting on contiguous or adjacent properties, but it appears to simply presume, or better, take for granted, that a "recreation area," as contemplated by the Act, is separate and distinct from a "park" and was intended to include any space the primary purpose of which, as determined by a court in assessing its own jurisdiction under the Act, is the "promotion of" some kind of "recreation." By contrast, I believe the phrase "parks and recreation" to have long been a matter of common legal usage in this jurisdiction, both known to and intentionally chosen by the drafters to identify those public properties expressly designated and operated as parks or recreation areas by the applicable public entities themselves, according to their own governing provisions.

37 Although the Colorado Governmental Immunity Act was not enacted until 1971, following the decision of this court "simply to undo" the extensive case law of the jurisdiction recognizing and applying the doctrine of sovereign or governmental immunity, Evans v. Bd. of Cnty. Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971); see also Flournoy v. Sch. Dist. No. One, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971), a proposed bill (from which the Act was clearly constructed), along with the report of the committee appointed to study the problem of governmental civil immunity, was submitted by the Legislative *901Council to the Forty-Seventh General Assembly in September 1968, Colo. Legislative Council, Report to the Colorado General Assembly: Governmental Liability in Colorado, Research Publication No. 134 (1968) [hereinafter Report]. While it had become necessary by 1971 to first reinstate the umbrella of governmental immunity before partially waiving it, and while a number of additional exceptions were added to the original waiver provisions, the basic structure and terminology of the proposed bill were retained. Compare Report, at xxvii-lii (Ree-ommended Bill to Provide for Governmental Immunity and Liability in Colorado), with House Bill 71-1047, 1971 Laws 1204-18 (Governmental Immunity). Since that time, a number of legislative amendments have responded to interpretational disputes and judicial decisions, including a substantial reworking of the Act in 1986, House Bill 86-1196, 1986 Colo. Sess. Laws 878-82, which gave greater emphasis to the obligation of governments to protect the public weal, id. at 873-74; Chuck Berry & Tami Tanoue, Amendments to the Colorado Governmental Immunity Act, 15 Colo. Lawyer 1191 (1986).

138 As enacted in 1971, the parks and recreation waiver, in particular, appeared in a form substantially different from the original 1968 proposal. Compare § 130-11-6(1)(f), C.R.S. (1963 & 1971 Supp.), with Report, at xxx-xxxi (Recommended Bill § 6(f)). Where the original proposal would have waived immunity for dangerous conditions of public facilities only to the extent those facilities were located in parks or recreation areas maintained by a public entity, and would have excepted even from that class of public facilities roads and highways, the statute as enacted actually reconfigured the language of the original proposed bill (in an unclear and confused attempt to either add exceptions to the proposed waiver or instead expand the waiver to include parking lots and transportation facilities) in such a way that it arguably created an enormously broad waiver for dangerous conditions of all public facilities, regardless of location, with exceptions only for roads and highways located in parks and recreation areas, public parking facilities, and public transportation facilities maintained by a public entity.1 In the major overhaul of 1986, this obvious syntactical morass, which resulted in large part from the omission of a single comma, following the term "roads and highways," was corrected by converting the waiver for public facilities back into a waiver for no more than a "public facility located in any park or recreation area maintained by a public entity." See House Bill 86-1196, 1986 Colo. Sess. Laws 876. At the same time, the specific references to roads and highways, public parking facilities, and public transportation facilities (whatever purpose they had previously been intended to serve) were eliminated, and the existing waivers for dangerous conditions of public hospitals, jails, and public water, gas, sanitation, electrical, power, and swimming facilities were relocated from their separate provisions to create a single series of dangerous condition waivers, of which the waiver concerning parks and recreation areas became merely one element. Id.

139 By the time of the original study, it had become common for the statutes, city charters, and municipal ordinances of this state to use, and often marry, the terms "parks" and "recreation" in empowering governmental bodies, typically in the form of departments, districts, and boards, to acquire, or advise with regard to the aequisition of, land for park and recreational purposes. Neg, eg., §§ 62-19-1 to -9, C.R.S. (1963 & 1967 Supp.) (State Park and Recreation Functions); § 62-19-2 (conferring powers to acquire land for park or recreational purposes); § 62-19-38 (conferring *902powers to adopt regulations "to protect and maintain all areas for state park and recreation purposes"); §§ 89-12-1 to -85, C.R.S. (1963 & 1967 Supp.) (Metropolitan Recreation Districts); § 89-122 ("A metropolitan recreation and/or park district is one to supply recreational facilities within the district"); § 89-12-4(2)(b) (mandating that a proposed district's name must include "metropolitan recreation district," "metropolitan park district," or "metropolitan recreation and park district"); § 114-1-7, C.R.S. (1963 & 1967 Supp.) (defining "recreational facility" or "recreational system" as including "such land or interest in land as may be necessary, suitable, or proper for park or recreational purposes"). Despite much amendment and consolidation, the revised statutes have continued to provide, for instance, for the creation and operation of "park and recreation districts." See § 32-1-1005, C.R.S. (2018). Similarly, the charters and ordinances of cities and towns regularly continue to provide for the designation, operation, and management of park and other recreational facilities through separate departments and boards, specifically charged with such responsibilities. See, e.g., Denver, Colo., Code of Ordinamces §§ 24.1-24.7 (Parks and Recreation); § 2.4.1 (Department of Parks and Recreation created.); § 24.2 (Manager of Parks and Recreation.); § 2.4.8 (Board of Parks and Recreation.); § 24.4 (Powers and duties of Department of Parks and Recreation.).

€40 It can hardly be denied that both state and local governments have long found it necessary to provide specific enabling legislation for the acquisition, operation, and maintenance of parks and recreation areas and facilities, and have generally done so through the creation of special districts or departments, or in the case of the state, by authorizing local governments to create such districts or departments under specified conditions. Presumably, even the majority would concede that the term "park" normally refers only to an area so created and maintained by an entity with the power to do so. Rather than every area the primary purpose of which is the promotion of recreation, I consider it manifest that a "recreation area maintained by a public entity," just as the case of a park, refers only to those areas designated and maintained by a public entity, according to the applicable laws and regulations of that entity, as a recreation area.

141 Not only does the majority's broad, court-determined definition of a recreation area make it exceedingly difficult for a public entity to know in advance the dangerous conditions for which it will be lable in civil actions and adequately insure against or otherwise plan for the use of public funds to cover such liability; but in addition to historical context, the structure and language of the waiver provision itself strongly suggest a deliberate attempt to restrict the partial waiver of sovereign immunity to facilities over the designation of which the entity maintains some control. Were the term "recreation area" intended as broadly as the majority postulates, it would have been unnecessary to separately include in the same series an express waiver for dangerous conditions of swimming facilities, the primary, if not sole, purpose for which is clearly recreation. See § 24-10-106(1)(e). Additionally, because sovereign immunity exists and is partially waived only with regard to public entities, separately specifying that the waiver applies only to those parks or recreation areas "maintained by a public entity" would similarly be unnecessary, except to clarify that immunity is waived only with regard to those areas designated and maintained by the entity itself as parks or recreation areas. See id.

(42 For all intents and purposes, the scope of the waiver is meaningfully cireum-scribed almost entirely by its limitation to a "park or recreation area," not by its additional reference to "public facilities." The Legislative Counsel Report could not more clearly demonstrate that the term "facility" was used throughout to distinguish artificial or man-made objects from natural conditions of the property in question. Report, at 140 ("The committee concluded that a distinction should be made between (1) injuries caused by negligence in the construction, maintenance, failure to maintain, etc. of artificial, man-made objects (swing sets, buildings, ete.) and (2) injuries caused by the natural conditions of a park.... In short, this means that sovereign immunity does not ap*903ply with respect to man-made objects and does apply to natural objects."). This usage was not only retained by the 1971 enactment, but in 1986, with the removal of surplusage from the definition of "dangerous condition," it also became clear that "facility" is used in the Act so broadly as to describe all those things as to which a dangerous condition can even exist. See $ 24-10-108(1.3) (" 'Dangerous condition' means either a physical condition of a facility or the use thereof....").

§43 While I find unpersuasive for a number of reasons the majority's vigorous attempt at historical explanation why the legislature must have intended a waiver of immunity for recreation area parking lots, primary among them being my disagreement that the statute ever made an exception for public parking facilities located in parks or recreation areas, I also, therefore, find such efforts completely unnecessary. As manmade rather than natural, a parking lot is clearly a facility within the usage of the Act.

T 44 Although I also do not find it particularly problematic for classification of the parking lot at issue in this case, I similarly find unpersuasive the majority's attempt to define "public" in this context in terms of accessibility and benefit to the public. For this definition, the majority relies primarily on case law in which the issue involved the operation and maintenance of a "public water facility," in which we looked to the legislature's use of the term "public facility" in a statute concerning water conservation and drought mitigation planning. See City & Cnty. of Denver v. Gallegos, 916 P.2d 509 (Colo.1996), overruled in part for other reasons by Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000). While a water facility may merely have to be for the benefit of the public in order to be a "public water facility," unlike a park or recreation area, water facilities themselves cannot meaningfully be said to exist for the use and enjoyment of the public. Also unlike parks and recreation areas, with regard to which immunity is waived only for dangerous conditions of their public facilities, immunity is waived not only for dangerous conditions but also for the operation and maintenance of public water and other designated facilities See § 24-10-106(e), (f). In the context of parks and recreation areas, the limitation of waiver to "public" facilities appears to distinguish those man-made objects designed for use by the public from facilities existing instead for use by the entity, in the operation and maintenance of the park or recreation area for the benefit of the public.

T 45 Finally, the phrase "located in" simply cannot be understood to mean adjacent to or contiguous with. Rather, on the face of the waiver, the public facility in question must be one that is located in the park or recreation area either because it is itself managed or maintained by the entity as a component part of the park or recreation area or, if not, because it is nevertheless physically situated within the boundaries of the park or reere-ation area. Precisely how much and what kind of property constitutes the park or recreation area in question must be determined by reference to official designation by either the public entity itself or the department, district, or board charged by the entity with the operation and maintenance of parks and other recreation areas. Of particular significance for the current litigation, the City Code of Colorado Springs, like Denver and other cities, provides for a particular department of the city to be responsible for parks and recreation and cultural services. Colorado Springs, Colo., City Code § 4.1.101 (2018). Further, it provides for a Parks and Recreation Advisory Board, § 4.1.103, the power and duties of which expressly include acting in an advisory capacity to the Department and City Council in all matters pertaining to, among other things, golf courses and related facilities, § 4.1.104.

1 46 Unlike the majority, I would evaluate the status of the parking lot in question on the basis of its designation and treatment by the Department or City Council as a "related facility," under the management of the golf course itself, I believe this approach comports with the better construction of the provisions of the Act, as specifying the kinds of facilities for which immunity will be waived by all public entities but leaving to the entity in question the determination whether to provide such facilities, with a full *904awareness that in doing so, it will not have immunity from liability.

147 Sometime after this court abolished sovereign or governmental immunity for the jurisdiction, subject to reinstatement by the legislature, we announced that the legislature's provision for the reinstatement of immunity would be construed narrowly but its provision for the partial waiver of immunity would be construed broadly. See, e.g., Corsentino, 4 P.3d at 1086. In light of our retreat from perhaps centuries of common law recognizing sovereign immunity, and our invitation to the General Assembly to reinstate it to the extent desired, I consider the rationale for this particular rule to be highly questionable. While rules presuming intended outcomes, even when appropriate, are universally considered merely rules of last resort, applicable only to resolve ambiguity that has proven resistant to all other aids to construction, see BP Am. Prod. Co. v. Patterson, 185 P.3d 811 (Colo.2008); nevertheless the impact of such a rule on cases like those before the court today is a reality that cannot be ignored.

4 48 Should the General Assembly continue to respond to statutory constructions with which it is dissatisfied on a piecemeal basis, rather than by providing a more systematic, and unambiguous, rationale for its waiver policy, this rule of construction will undoubtedly continue to dominate the resolution by both trial and appellate courts of individual challenges to immunity waiver. Whether our withdrawal from the field of sovereign immunity nearly a half-century ago, in favor of interpreting the General Assembly's treatment of the subject, has led to a more rational and equitable system of allocating public funds to recompense government-caused injuries must, at least in my opinion, remain for now a matter of debate.

[ 49 Because I would reverse the judgment of the court of appeals for the reasons I have outlined rather than those of the majority, I concur in the judgment only.

I am authorized to state that JUSTICE EID joins in this concurrence.

. The following illustrates the changes made to section 6(f) of the Report's Recommended Bill in the 1971 enactment:

(f) A dangerous condition of any public facility, except roads and highways, located in parks or recreation areas, PUBLIC PARKING FACILITIES, and PUBLIC TRANSPORTATION FACILITIES maintained by such public entity.; but,
»Nothing in this paragraph (f) OR IN PARAGRAPH (E) OF THIS SUBSECTION (1) shall be construed to prevent a public entity from asserting the defense of sovereign immunity to an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area, OR HIGHWAY, ROAD, OR STREET RIGHT-OF-WAY;