City & County of Denver Ex Rel. Board of Water Commissioners v. Gallegos

CHIEF JUSTICE VOLLACK delivered the Opinion of the Court.

[25] JUSTICE SCOTT, dissenting:

[26] The Denver Water Department's¹purpose is to provide water services to the citizens of Denver. This singular purpose necessitates its operation and maintenance of Denver's public water facility and involves the private property at issue in this case. Under the Colorado Governmental Immunity Act (GIA), "[s]overeign immunity is waived by a public entity . . . for injuries resulting from" negligent conduct in "[t]he operation and maintenance of any public water facility." §24-10-106(1)(f), 10A C.R.S. (1988). Before this court, the Denver Water Department concedes that reading a water meter falls within the meaning of "operation" under section24-10-106(1)(f). The trial court below found that Denver Water Department's negligent handling of the water meter lid, after reading the water meter, led to Gallegos's injuries. Therefore, I am convinced that, under the GIA, Denver is liable for injuries caused by its employee's negligence in reading the water meter. Moreover, unlike the majority, I believe title and ownership are extraneous and superfluous when determining liability for negligent acts or omissions of a public entity or public employee acting within the scope of employment.

[27] The Denver Water Department regulates the nature, installation, and use of residential water meters and meter pits, including the meter pit and cover plate.²Denver Water Department employees have unlimited access to water meter pits despite the fact they are considered private property. Although title rests with the land owner, Denver employees access water meter pits for purposes of operation and maintenance of the Denver "public water facility." Gallegos's injuries resulted from an act or omission of a Denver Water Department employee in the exercise and performance of the employee's duties with respect to the operation and maintenance of the Denver "public water facility." As a consequence, immunity is waived. Denver must therefore bear the burdens and responsibilities of its actions, as imposed by the GIA. Accordingly, because I would affirm the judgment of the court of appeals, I dissent. [29] The Denver Water Department and its employees are under the control of a Board of Water Commissioners (the "Board").³Page 514The Board has adopted a comprehensive set of regulations (the "Operating Rules") for the Denver Water Department. The Operating Rules dictate the specifications, installation, and use of residential water meters and meter pits, including the meter pit and cover plate.

[30] A former Denver Water Department employee testified that (1) meter maintenance is the responsibility of the Water Department; (2) notice from the Department triggers the financial responsibility of the owner for maintenance of the water meter pit; (3) and land owners do not make repairs because repairs are part of the maintenance performed by the Denver Water Department or department approved plumbers.

[31] A water meter pit houses the water meter each land owner is required to provide in order to receive water services from the Denver Water Department. The Denver Water Department has unlimited access to each water meter pit and its water meter, both of which must be constructed and installed in accordance with the Operating Rules.

[32] The Operating Rules require citizens to purchase and install water meters so that the Denver Water Department can charge citizens the appropriate water use fee. Additionally, water meters provide the Denver Water Department with a means by which it can regulate water consumption for both billing and conservation purposes. Therefore, citizens are required to allow Water Department employees unlimited access to water meter pits.

[33] In order to read the water meter or to facilitate maintenance, a Denver Water Department employee must free or unscrew a lock nut and must also remove the cover plate and the frost plate. After accessing the meter, the employee must return both the frost plate and cover plate. To properly secure the cover plate, the employee must tighten the lock nut. [34] In January 1991, the subject water meter froze, and as a consequence, the Denver Water Department replaced it. On March 15, 1991, less than two months before Gallegos's fall, a Denver Water Department employee accessed the water meter pit to read the meter. There is no evidence in the record that anyone other than a Denver Water Department employee had removed the cover plate or had accessed the water meter pit from the time the meter was last read to the time of Gallegos's fall. Several witnesses testified that the frost plate was not in place at the time of Gallegos's accident. It was uncontroverted that the land owners had no cause to access the water meter pit or to handle the cover plate, particularly between the time of the last reading and the accident. [36] In 1971, we prospectively overruled our prior decisions that recognized the defense in tort actions of governmental immunity. Evans v. Board of County Comm'rs,174 Colo. 97,105,482 P.2d 968,972(1971); see also Flournoy v. School Dist.,174 Colo. 110,482 P.2d 966(1971); Proffitt v. State,174 Colo. 113,482 P.2d 965(1971). In response to our decisions abrogating governmental immunity, the General Assembly enacted the GIA. See Ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1204-11; Bertrand v. Board of County Comm'rs,872 P.2d 223,226(Colo. 1994).

[37] In Stephen v. City County of Denver,659 P.2d 666(Colo. 1983), we first noted that, because governmental immunity is in derogation of Colorado's common law, "legislative grants of immunity must be strictly construed." Id. at 668 n. 3; Bertrand,872 P.2d at 226. Our construction of statutoryPage 515exceptions to immunity should be applied so as to be "compatible with, and supported by, our prior conclusion that the GIA, being in derogation of the common law, is to be strictly construed," Bertrand,872 P.2d at 229; thus, as a logical corollary, exceptions to governmental immunity should be broadly construed.

[38] The majority's reading of the GIA, however, is inconsistent with this precedent and our prior statement of the law. The majority's interpretation of the GIA treats provisions granting immunity as if immunity was, in fact, the common law. Hence, the majority reads grants of immunity broadly, rather than narrowly. The majority, for example, ignores a significant portion of the Declaration of Policy in section24-10-102, 10A C.R.S. (1988), which states in relevant part:

The general assembly . . . recognizes that the supreme court has abrogated the doctrine of sovereign immunity . . . and that thereafter the doctrine shall be recognized only to such extent as may be provided by statute.

[40] Section24-10-106(1)(f), 10A C.R.S. (1988) provides in relevant part:

Immunity and partial waiver. (1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:

. . . .

(f) The operation and maintenance of any public water facility . . . by such public entity.

[41] (Emphasis added.)

[42] The majority holds that if a water meter pit is located on private property, it is not a "public water facility." See maj. op. at 9. However, the plain language of section24-10-106does not recognize the distinction that the majority finds controlling. I disagree for at least two reasons. First, the plain language of the controlling statute does not permit a determination of immunity based upon title to property. Neither section24-10-106nor the GIA draw a distinction between immunity and the waiver of immunity based on whether the negligent conduct of the governmental actor occurs on public or private property. Second, even under the Operating Rules, private property that is under the control of the Denver Water Department is considered part of the Denver "water system." [44] The plain language of section24-10-106(1)(f) does not draw a distinction based on ownership or legal title; thus, contrary to the majority's holding, a water meter's location on private property is not dispositive of whether negligent conduct of water department employees occurs or does not occur in the exercise and performance of duties related to the "operation" or "maintenance" of a "public water facility."

[45] In Burnworth v. Adams County,826 P.2d 368(Colo.App. 1991), cert. denied, (Colo. March 10, 1992), the court of appeals reasoned that if the General Assembly intended to extend the grant of governmental immunity to prevent liability for negligent conduct on a land owner's property, it would have further amended the act "at that time or in subsequent sessions of the General Assembly." Id. at 370. Rather, for purposes of immunity waiver, the GIA only requires that a government be engaged in the "operation and maintenance of any public water facility." §24-10-106(1)(f).

[46] The result of the majority's holding would limit "injuries resulting from . . . [t]he operation and maintenance of any public water facility" to conduct occurring on government property. This can only lead to an unfortunate and absurd result: granting immunity under circumstances where Denver employees are most likely to encounter citizens, while recognizing a waiver of immunity only for acts committed on property owned by the Denver Water Department where employees are most unlikely to encounter or cause injury to citizens.Page 516

[47] A second consequence of the majority's rationale is that in some cases the Denver Water Department will have immunity, while in other cases, due to ownership of the water meters, Denver will be liable. Under the Operating Rules, effective January 1, 1991, all flat rate customers subscribing to Denver Water are to be converted to meter status. While the Denver Water Department converts from flat rate to metered services, the ownership of meters will vary, some installed by land owners and some installed by the Denver Water Department. Chapter 9 Meters, Rule 9.01 of the Operating Rules states:

9.01 Ownership. Meters which are read for billing purposes by the Water Department shall be owned by, and installed at the expense of, the licensee of the premises served by such meters, except as hereinafter provided and except that the Board shall install meters at its own expense to convert flat rate services to metered services pursuant to 2.026 and shall own the meters so installed.

[48] (Emphasis added.)

[49] The conversion process will cause differences in title to meters among citizens in the same neighborhood. Waiving sovereign immunity for Denver Water Department owned meters and not for land owner meters installed prior to 1991 would lead to incongruous and inconsistent results. That is, for meters installed by Denver after 1991, Denver will have waived immunity, while for meters similarly installed prior to 1991, Denver is granted immunity by the majority. [51] Section24-10-103(3)(a), 10A C.R.S. (1988), defines "operation" as, "the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any . . . public water . . . facility." "Denver Water Department concedes that the process of reading a meter in a meter pit may rise to the level of `operation' of that meter pit." (Petitioner's Opening Brief at 11.) Here, Gallegos alleged that the department's employees negligently failed to replace the cover or lid of the subject water meter pit after reading the meter. The Denver Water Department controls the nature of the water meter and, for all practical purposes, has exclusive control over the use and maintenance of the water meter pit under its Operating Rules. Thus, as contemplated by the statute, the Denver Water Department may be held accountable for the negligent acts of its employees in the "operation and maintenance" of its water system, including actions of its employees for the purpose of reading water meters. Furthermore, a retired employee of the Denver Water Department testified "that the Water Department maintains the meter in the bottom of the pit." Thus, in light of Denver's acknowledged operation and maintenance of the subject pit, I conclude that the subject water meter pit comes within the definition of "public water facility" as set forth in the GIA. [53] Denver Water Department's own Operating Rules define its "water system" as "[t]he plant, facilities, system and assets, controlled by the Board pursuant to its Charter authority." Thus, under the Operating Rules, themselves, the pivotal element in establishing an ownership interest in the subject pit and lid is neither title nor location; but rather, control. Given the extent of the regulations Denver Water Department promulgates over water meter pits, Denver Water Department exerts control over a system, which by its own Operating Rules, incorporates the water meter pit at issue in this case.

[54] Denver Water Department requires land owners to purchase and install water meters according to Denver Water Department's detailed regulations. The Operating Rules compel the land owner to purchase and install a water meter, which Denver Water Department must approve.⁵The Operating Rules further require the land owner to use only Denver Water Department approved plumbers. Denver Water DepartmentPage 517promulgates detailed specifications for water meter pits setting forth, inter alia, requirements for design, size, location, construction, plumbing, and dimensions. Operating Rules 9.05 and 9.051a provide:

Location. All meters must be located so as to allow free and non-hazardous access at reasonable times for reading, removal, inspection and replacement, and so that the entire supply of water to the premises will at all times be accurately measured. If, at any time, an existing meter location does not conform to the standards enumerated in this section, such installation shall be modified so that it does conform. A remote reading device must be installed when such device is reasonably necessary to eliminate reading estimates.

The specific location of meters installed at customer expense shall be designated by the customer, subject to the approval of the Water Department. Two meter locations which are acceptable to the Water Department are:

(1) in a frost proof meter pit or vault within the boundaries of a public street or not more than 5 feet from the property line and adequately protected from the hazards that may surround it . . . .

[55] Operating Rule 6.04 provides that "[t]he maintenance and protection of privately owned piping, . . . . except meters whether located in or upon public or private property is the exclusive responsibility of the owner thereof. . . ." (Emphasis added.)

[56] The thoroughness of Denver Water Department's regulations, its unlimited access to the land owners' property in order to read the meter, and its unlimited control over water meters causes otherwise private property to be part of the Denver public water system. Hence, if only for the limited purpose of the GIA, the water meter pit, whether title rests with the land owner or after 1991 with Denver, is part of a "public water facility."

[57] Liability predicated on control is consistent with our precedent in Burnworth,826 P.2d at 368. In Burnworth, the court of appeals held that a storm drain, which a governmental entity relocated onto a land owner's property, was deemed to be part of a "sanitation facility" within the meaning of the GIA's immunity waiver. Id. at 370. The drain was still construed to be a public facility despite its location on private property. Moreover, liability was imposed based upon Adams County's operation and maintenance of the sanitation facility, notwithstanding ownership or location. See id. Thus, control of the property, not its location or title, determined whether a public entity was engaged in the operation and maintenance of a public facility. [59] Under the plain language of the GIA, governmental immunity is waived only if the activity at issue relates to the facility's purpose. "Public water facility" is not defined in the GIA. However, the legislature has defined the term "public facility" in the "Water Conservation Board and Compacts" of the Colorado Revised Statutes, sections37-60-101to -130, 15 C.R.S. (1990 1995 Supp.):

(b) "Public facility" means any facility operated by an instrument of government for the benefit of the public including, but not limited to, a government building, park or other recreational facility, school, college, university, or other educational institution, highway, hospital, or stadium.

[60] §37-60-126(1)(b), 15 C.R.S. (1995 Supp.) (emphasis added); see also Pack v. Arkansas Valley Correctional Facility,894 P.2d 34,37(Colo.App. 1995) ("[T]he maintenance of visitor parking areas in order to facilitate prison visitation is not directly related to the purpose, as distinct from the operation, of a correctional facility.").

[61] The majority states that water meter pits are not part of a "public facility" because "each water meter only benefits the property on which it is located." Maj. op. at 6. The majority's reasoning, however, incorrectly focuses upon the water meter pit. As a result, the majority ignores the Denver water system and oversimplifies the purpose of water meters as well as their role in an entire water services system.

[62] The Denver Water Department, in supplying water to consumers, operates its entire water system for the benefit of the public.Page 518Millis v. Board of County Comm'rs,626 P.2d 652,659(Colo. 1981); Colorado Open Space Council Inc. v. City County of Denver,190 Colo. 122,124,543 P.2d 1258,1260(1975). By supplying water to residents and land owners within Denver's borders, the Denver Water Department operates its water system for the benefit and general welfare of the public, rather than for the sole benefit of individual water users. Water meter pits are essential elements in supplying citizens with water services, and the Denver Water Department utilizes them for the benefit of the city at large.

[63] The water meter pit does not exist at the behest of the land owner. Rather, Denver Water Department mandates the water meter pit for regulatory purposes directly related to the public service it provides. Of necessity, Denver Water Department must access the water meter pit in order to read the water meter so that it can regulate the water services it provides to the land owner. By measuring the amount of water provided, water meters play an important role in the Denver Water Department's ability to regulate water services.

[64] The court of appeals noted, and it is undisputed, that the Denver Water Department utilizes a metering system for recording water usage in order to charge and collect sums that land owners or residents of the affected property owe for the water services provided. Gallegos v. City County of Denver,894 P.2d 14,17(Colo.App. 1994). For example, by measuring the use of each individual recipient, Denver can charge customers based on consumption. By doing so, citizens are encouraged to control consumption and conserve — thus benefitting the city and all its residents. Moreover, by measuring consumption, the Denver Water Department can make important policy determinations such as imposing voluntary or involuntary water use restrictions.

[65] The majority suggests that the water meter pit is not a "public water facility." See maj. op. at 5-6. However, Gallegos has not argued nor has the court of appeals held that the water meter pit itself, is a public water facility. Instead, by recognizing Denver's control over the water meter pit and the purpose or function of water meters, the court of appeals determined the water meter pit is part of a public water facility.

[66] The majority's attempt to have us focus solely upon the water meter pit, alone, begs the question and ignores the import of the statute's intended reach. [68] Although the Operating Rules articulate land owners' duties and responsibilities, given the extent of Denver Water's regulations, the Operating Rules only shift the cost of certain Denver Water Department activities to land owners. The Operating Rules transfer neither control nor maintenance responsibility for the water meter pit from Denver Water to land owners.

[69] To recognize governmental immunity here, as the majority suggests, would enable government entities to avoid responsibility for their negligence by merely delegating or subcontracting certain activities to private parties, or transferring title to equipment or property by rule or regulation to private parties. Similarly, by essentially shifting the cost of some of its activities through its Operating Rules, the Denver Water Department should not be excused from the negligent operation or maintenance of property within its control. [71] Denver Water Department may not be excused from liability for negligence in its operation and maintenance of property under its control, especially when such conduct arises out of its "operation and maintenance of [a] public water facility." Whether the activities of Denver Water Department employees occur on private property or Denver Water Department sites, section24-10-106(1)(f) waives immunity for negligent conduct that is directly related to the performance or execution of duties or responsibilities of Denver employees. The touchstone of the instant liability inquiry is whether the negligent conduct arises out of duties or functions that relate to the "operation and maintenance" of the Denver public water facility and not title to the property orPage 519instrumentality that is the vector of the negligent conduct. Unlike the majority, therefore, I conclude that, consistent with the plain language of section24-10-106(1)(f) of the GIA, the negligent conduct of water department employees when accessing water meter pits, though privately owned, may result in a waiver of immunity if the conduct occurs in connection with the Water Department's "operation and maintenance of [a] public water facility." Thus, I would affirm the judgment of the court of appeals and return this case to that court for remand to the trial court with directions to reinstate the jury's verdict.

[72] I am authorized to say that JUSTICE LOHR and JUSTICE MULLARKEY join in this dissent.