Opinion
No. 99CA1725
August 31, 2000
Appeal from the District Court of Mesa County, Honorable Amanda D. Bailey, Judge, No. 98CV41.
JUDGMENT AFFIRMED
Golden, Mumby, Summers, Livingston, Kane, LLP, William M. Kane, Grand Junction, Colorado, for Plaintiff-Appellant
Kotel and Unkeless, Randy Kotel, Englewood, Colorado, for Defendant-Appellee
In this personal injury action, plaintiff, Ann deBoer, appeals from the trial court's dismissal of her complaint against defendant, Ute Water Conservancy District (Ute). We affirm.
Plaintiff was injured when she fell into a water meter pit that was located on property owned by Frank and Charlene Jones (landowners). The water meter pit, however, was owned, operated, and maintained by Ute.
Plaintiff brought separate actions against Ute and the owners of the property. These cases were subsequently consolidated in the trial court.
In her claim against the landowners, plaintiff alleged that the landowners had actual knowledge of the hazardous nature of the water meter pit and that they were negligent in failing to warn plaintiff of that hazard. The landowners moved for summary judgment. Based on Ute's exclusive ownership of, and obligation to maintain the water meter pit, the landowners asserted that they owed no duty to plaintiff under § 13-21-115, C.R.S. 1999, the premises liability statute.
The trial court granted the landowners' summary judgment motion, and plaintiff separately appealed from that decision under a C.R.C.P. 54(b) certification. On appeal, a division of this court affirmed, holding that the trial court had properly concluded that the landowners owed plaintiff no duty of care under § 13-21-115. See deBoer v. Jones, 996 P.2d 754 (Colo.App. 2000).
In her claim against Ute, plaintiff alleged that Ute had negligently operated and maintained the water meter pit (1) by constructing the pit in a manner which made it barely visible, (2) by failing to use a cover which could be easily and securely fastened, and (3) by failing to secure the cover to the rim of the pit after the last reading of the water meter.
Ute moved to dismiss plaintiff's complaint for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. 1999. Ute asserted that City County of Denver v. Gallegos, 916 P.2d 509 (Colo. 1996) and Horrell v. City of Aurora, 976 P.2d 315 (Colo.App. 1998) (certiorari dismissed on motion of parties) were dispositive of her claims and mandated dismissal of plaintiff's complaint against it.
Plaintiff maintained that Ute's immunity had been waived under § 24-10-106(1)(f), C.R.S. 1999, which provides that a public entity's immunity from suit is waived in an action for injuries resulting from the "operation and maintenance of any public water facility. . . . " Further, plaintiff argued that the decision in Gallegos was distinguishable because the public entity in that case, unlike here, did not own the water meter, nor was it responsible for maintaining it.
However, in Horrell, which involved a water meter pit located on private property that was owned, operated, and maintained by the public entity, a division of this court held that the water meter pit was not part of a "public facility," and therefore immunity was not waived under the GIA. The trial court concluded that Horrell was controlling and dismissed plaintiff's complaint against Ute. This appeal followed.
Section 24-10-106(1)(f) waives the public entity's immunity only for the "operation and maintenance of any public water facility." Therefore, to be within this waiver, the plaintiff must show that the public entity's negligence was related to a "public water facility" and that the negligence arose from the "operation and maintenance" of that facility.
In City County of Denver v. Gallegos, supra, the supreme court held that a water meter pit that was located on private property was not a "public water facility" for purposes of § 24-10-106(1)(f) because it solely benefited the property on which it was located. Additionally, the court held that Denver's immunity was not waived under § 24-10-106(1)(f) because Denver did not operate and maintain the water meter pit.
The Gallegos court narrowly interpreted the waiver of immunity in § 24-10-106(1)(f). Thereafter, in contrast, the supreme court determined that the proper standard for interpreting a waiver of immunity in the GIA is a "deferential construction in favor of victims injured by the negligence of the state." Walton v. State, 968 P.2d 636 (Colo. 1998).
In Corsentino v. Cordova, 4 P.3d 1082 (Colo. No. 99SC111, June 26, 2000) (2000WL815874), the supreme court resolved these conflicting standards by stating: "Without disturbing the interpretation of the term `public facility' that we proffered in Gallegos, we disapprove of the case's language that immunity waivers are to be construed narrowly."Corsentino v. Cordova, supra, 4 P.3d at 1086. Thus, although waivers of immunity are not to be narrowly construed, Gallegos is still controlling on the question of whether a water meter pit solely benefiting the property on which it is located is a public water facility.
In Horrell v. City of Aurora, supra, a division of this court addressed waiver of a public entity's immunity under § 24-10-106(1)(f) when the entity owned, operated, and maintained a water meter pit located on private property. The division noted that the Gallegos court held that the determinative factor as to whether a water meter pit was a "public water facility" was whether it was operated for the benefit of the public. Thus, because the water meter pit in Horrell only benefited the property on which it was located, the court held that it was not a "public water facility" and that Aurora's immunity had not been waived under § 24-10-106(1)(f). The division concluded that, under the rationale of theGallegos decision, the fact that the water meter pit was owned, operated, and maintained by Aurora was a "distinction without a difference." Horrell v City of Aurora, supra, 976 P.2d at 316.
Here, as in Horrell, the water meter pit was located on private property, and was owned, operated, and maintained by the public entity. The water meter pit solely benefited the property on which it was located. Thus, under the reasoning of both Gallegos and Horrell, we conclude the water meter pit is not a "public water facility," and Ute's immunity from suit is not waived under § 24-10-106(1)(f).
Contrary to plaintiff's contention, the supreme court in Gallegos did not predicate its determination that the water meter pit was not a "public water facility" on Denver's lack of ownership of the water meter. Rather, in resolving that issue, the court looked only at whether the water meter provided a public benefit or whether it solely benefited the property on which it was located. The court considered the question of who owned the water meter only in determining whether Denver operated and maintained the water meter pit for purposes of § 24-10-106(1)(f). However, the court specifically noted, "[F]or purposes of immunity waiver, ownership of the water meter pits is not dispositive." City County of Denver v. Gallegos, supra, 916 P.2d at 512.
We recognize that this result leaves plaintiff without a remedy for injuries she claims were caused by the negligence of a another party. However, Gallegos is controlling, and Horrell is persuasive. Thus, the doctrine of stare decisis compels this result. As the General Assembly stated in the GIA's declaration of policy, "the doctrine of sovereign immunity . . . is, in some instances, an inequitable doctrine." See § 24-10-102, C.R.S. 1999. It may be necessary for the General Assembly to amend the GIA or the premises liability statute in order to provide a remedy under circumstances similar to those presented here.
In summary, we conclude that the trial court did not err in determining that Ute's immunity from suit had not been waived under § 24-10-106(1)(f). Hence, the court properly granted Ute's motion to dismiss.
The judgment of dismissal is affirmed.
JUDGE PLANK concurs.
JUDGE TAUBMAN dissents.