Swieckowski Ex Rel. Swieckowski v. City of Fort Collins

Chief Justice VOLLACK

dissenting:

The majority holds that the City of Fort Collins (the City) is immune from suit under the Colorado Governmental Immunity Act (GIA), §§ 24-10-101 to -120, 10A C.R.S. (1988 & 1996 Supp.), for injuries sustained by Timothy Swieckowski (Swieckowski) when he rode his bicycle into a paved ditch that ran perpendicular to a City street. The majority reasons that the dangerous condition of the roadway did not arise out of the City’s maintenance of the facility, but was solely attributable to the roadway’s inadequate design. Consequently, the majority concludes that section 24-10-108(1), 10A C.R.S. (1988), bars Swieckowski’s claim against the City. In my view, the City’s failure to remedy a known, obvious, and extremely dangerous condition on the roadway constitutes a negligent omission in maintaining the government facility pursuant to section 24-10-103(1). For this reason, I dissent and would reverse the court of appeals.

I.

Swieckowski suffered permanent injuries when he rode his bicycle off an abrupt edge of a newly widened roadway, causing him to fall head first into a drainage ditch five feet below the road’s surface. The City filed a motion to dismiss Swieckowski’s cause of action, alleging that the district court did not have jurisdiction to hear the case because Swieckowski’s claims were barred by the GIA. The district court dismissed Swieck-owski’s claims as they related to improper design and the City’s failure to erect warning signs, but refused to dismiss Swieckowski’s tort claims based upon negligent construction and maintenance.

II.

Because governmental immunity is in derogation of common law, legislative grants of immunity must be strictly construed. See City and County of Denver v. Gallegos, 916 P.2d 509, 510 (Colo.1996). In construing a statute, courts must look to the language of the statute, giving effect to each word and phrase using commonly accepted meanings. See Regional Transp. Dist. v. Lopez, 916 P.2d 1187, 1190 (Colo.1996). However, a reviewing court should avoid statutory constructions which lead to absurd results. See id. at 1192.

Section 24-10-106, 10A C.R.S. (1988), provides in relevant part:

(1) A public entity shall be immune from liability in all claims for injury which lie in tort ... except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:
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(d) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion ... of any public highway, road, street, or sidewalk within the corporate limits of any municipality ... which was designed and intended for public travel or parking thereon.

Section 24-10-103(1) defines “dangerous condition” to mean

*1389a physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility.

(Emphasis added.)

In analyzing the facts of this case, this court is constrained to consider dangerous conditions on roadways as either design, construction, or maintenance flaws. As the district court correctly found, the City is immune from claims which assert either an inadequate design or a failure to post warning signs. See § 24-10-103(1); § 24-10-106(l)(d). Similarly, this court is precluded from classifying the dangerous condition as a construction flaw because the construction was done by a private party. Therefore, this court must consider whether the dangerous condition arose out of the City’s duty to maintain the roadway.

While a literal construction of the term “maintaining” found in section 24-10-103(1) only encompasses the repair and restoration of existing roadways, it is my view that maintenance, in a more general sense, also includes repairing dangerous conditions which become apparent after design and construction of the roadway is complete. Once discovered, the government entity has a duty to remedy dangerous conditions which pose a significant and extreme danger to those who use the roadway. See State v. Moldovan, 842 P.2d 220, 223-24 (Colo.1992); Stephen v. City and County of Denver, 659 P.2d 666, 668 (Colo.1983).

The effect of immunizing government entities in these situations is to reward the government entity for its inaction even though the health and safety of its citizenry has been jeopardized. Such a result is contrary to both the common law and the purposes of the GIA. See Evans v. Board of County Comm’rs, 174 Colo. 97, 98, 482 P.2d 968, 968 (1971); § 24-10-102, 10A C.R.S. (1988); see also Moldovan, 842 P.2d at 222 (explaining that one of the basic but often overlooked purposes of the GIA is to permit a person to seek redress for personal injuries caused by a public entity).

I disagree with the majority’s statutory analysis which construes the word “maintaining” to only include repairing or restoring roadways to their original condition. This statutory construction renders dangerous conditions such as the one in the present case design flaws, barring any claim brought against the government entity. Under such a reading, the government is immune even if it designs a roadway that is totally inadequate for public use.1 Additionally, the fact that Swieckowski would have a cause of action against the City if he rode his bicycle into a small pothole, but is barred from suit for riding off a five-foot drop in the road, leads to an absurd result in this particular case.

Prior decisions of this court have construed the GIA to waive governmental immunity in situations where the relationship between the government’s maintenance obligation and the cause of the accident itself was more attenuated than the present case. See Moldovan, 842 P.2d at 224-25 (holding the government liable for its failure to repair a hole in a fence which allowed a cow to enter the roadway where it was then struck by a man riding a motorcycle); Wheeler v. County of Eagle, 666 P.2d 559, 561 (Colo.1983) (holding that summary judgment against the plaintiff was not appropriate for the county’s failure to trim bushes and trees alongside a road, which forced the plaintiff to walk on the road where she was then struck by an automobile); Stephen, 659 P.2d at 668 (holding the city and county liable for its failure to repair a stop sign that was turned in the wrong direction by an anonymous *1390third party, which led to an automobile accident).2

While this case is analogous to Willer v. City of Thornton, 817 P.2d 514, 517-19 (Colo.1991), where we held that a plaintiff who was injured after driving across a dip in an intersection was barred from asserting a claim under the GIA, the facts of Wilier are not nearly as extreme as the facts in the present case. Clearly, there is a distinction between a dip in the road and a five-foot precipice that makes the latter condition so dangerous that it places an immediate obligation on the government entity to make the condition safe.3

III.

The majority concedes that a newly widened road that suddenly drops five feet into a drainage ditch was “an accident waiting to happen” and that the City should have known that this dangerous condition existed. Maj. op. at 1387. As a result of the City’s failure to remedy this dangerous condition, one of its citizens was permanently injured. In my view, the City’s failure to remedy this known, obvious, and extremely dangerous condition on its public roadways constitutes a negligent omission in maintaining a government facility pursuant to section 24-10-103(1). I would therefore reverse the court of appeals and reinstate the district court’s order. Accordingly, I dissent.

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

. At oral argument, counsel for the City posited that the State could conceivably build a road that ended high off the ground without taking any precautions to prevent users from falling off its edge. So long as the road was properly maintained in its original condition, counsel for the City contended that governmental immunity would bar any claims brought against the State because such claims would be based upon the road’s inadequate design.

. In response to these cases, the General Assembly amended the definition of "dangerous condition” to include the following language: "Maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.” See § 24-10-103(1), 10A C.R.S. (1996 Supp.). This statutory change came after the accident in this case and is therefore inapplicable. However, the comments of the bill’s sponsor indicate that the amendment was attempting to address two specific fact situations. First, the General Assembly sought to rein in the case law which imposed liability upon governments for not keeping roadways free of obstructions such as livestock, abandoned cars, or car parts. See Hearing on H.B. 1291 Before the House Local Government Committee, 58th Gen. Assembly, 2d Reg. Sess. (Hearing Tape 92-10, Feb. 17, 1992) [hereinafter "House Hearings "] (statement of Rep. Faye Fleming). Second, the General Assembly sought to relieve government entities from the burden of having to constantly upgrade facilities as a result of ever-changing safety standards. See Second Reading of H.B. 1291 Beforé the House of Representatives, 58th Gen. Assembly, 2d Reg. Sess. (Hearing Tape 92-13, Feb. 27, 1992) (statement of Rep. Fleming). In addressing these concerns, the General Assembly sought to limit actionable claims to those injuries caused by the specific physical condition of the road. See House Hearings (statement of Rep. Fleming). Here, Swieckowski’s cause of action concerns a specific physical condition of the road that made it extremely dangerous. Therefore, his cause of action is consistent with the 1992 amendment to section 24-10-103(1).

. This difference in the severity of dangerous conditions is made more apparent by the injuries suffered by the respective plaintiffs in Wilier and in this case. In Wilier, the plaintiff suffered "head and neck discomfort” as a result of his car’s impact with the dip in the road. In this case, Swieckowski was rendered a quadriplegic after riding his bicycle off the roadway and into the ditch.