author: Judge NEY.

text:
    Deborah E. BOOTH, Plaintiff-Appellee, v. UNIVERSITY OF COLORADO, an Institution of the State of Colorado, Defendant-Appellant.
    No. 01CA1577.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.
    Certiorari Granted Feb. 24, 2003.
    Stone, Sheehy, Rosen & Byrne, P.C., Andrew Rosen, Boulder, Colorado, for Plaintiff-Appellee.
    Office of University Counsel, Joanne M. McDevitt, David P. Temple, Michael W. Schreiner, Boulder, Colorado, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, the University of Colorado, appeals from the trial court’s order denying its motion to dismiss the complaint of plaintiff, Deborah E. Booth. We affirm.

On October 8, 1998, plaintiff, while sitting in a classroom at the University of Colorado at Boulder, was injured when a dry erase board fell over, pinning her to her desk. Plaintiff brought this action seeking compensation for the injuries she sustained.

Defendant moved to dismiss plaintiffs complaint for lack of jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2001. Defendant asserted that the dry erase board was not a “dangerous condition” of a public building for purposes of a waiver of immunity under § 24-10-106(l)(c), C.R.S.2001. Relying on a decision by a division of this court in Reynolds v. State Board for Community Colleges & Occupational Education, 937 P.2d 774 (Colo.App.1996), defendant argued that the board must be a “fixture” in the building to constitute a dangerous condition.

Defendant subsequently moved to dismiss plaintiffs complaint on the basis that she did not serve her notice of claim in compliance with § 24-10-109, C.R.S.2001. In particular, relying on the decision in Schmidt v. Harken, 42 P.3d 34 (Colo.App.2001), defendant argued that the notice was defective because plaintiff did not serve it on the Colorado Attorney General as required by § 24-10-109(3), C.R.S.2001.

The trial court conducted an evidentiary hearing and denied both motions. Specifically, as to whether the dry erase board constituted a dangerous condition, the court found that: (1) the board constituted a physical condition of a public facility or the use thereof; (2) the condition created an unreasonable risk to the health or safety of the public; (3) defendant knew or should have known in the exercise of reasonable care that the condition existed; and (4) the condition was a direct result of the action or omission of defendant in maintaining the facility. As to whether the notice provided was adequate, the court found that: (1) the decision in Schmidt v. Harken, supra, should not be given retrospective application; (2) the notice was received by the Office of University Counsel within the 180-day limitation established by § 24-10-109(1), C.R.S.2001; (3) the attorneys in the Office of University Counsel were special assistant attorneys general, appointed by the Colorado Attorney General; and (4) receipt of the notice by the Office of University Counsel constituted receipt by the Colorado Attorney General in accordance with the decision in Schmidt v. Harken, supra.

Defendant then brought this interlocutory appeal pursuant to § 24-10-108, C.R.S.2001.

I. Notice of Claim

Defendant contends that the trial court erred in failing to determine that plaintiffs claims were barred because she failed to comply with the notice of claim requirements set forth in § 24-10-109. We disagree.

A. Applicable Standards

Section 24-10-109(1) requires that a claimant provide written notice of claim to the public entity within 180 days from the date of the discovery of the injury. Because compliance with the 180-day notice limitation is a jurisdictional prerequisite to suit, failure to provide the notice to the proper person or entity within that time bars a plaintiffs claims. Reg’l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo.1996).

Section 24-10-109(3) governs to whom the notice must be sent and provides:

If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity

The failure to comply with § 24-10-109(3) gives rise to an affirmative defense that must be timely raised by the defendant. Brock v. Nyland, 965 P.2d 1037 (Colo.1998).

In Schmidt v. Harken, supra, a division of this court held that the University of Colorado constituted the “state” for purposes of the notice provisions of the GIA. Therefore, the division concluded that pursuant to § 24-10-109(3), the plaintiff must serve the notice of claim on the Colorado Attorney General. The division specifically rejected the plaintiffs argument that because “the state” is defined as a “public entity” under § 24-10-103(6), C.R.S.2001, of the GIA, all other entities described in that section must necessarily be “other public entities” within the meaning of § 24^10-109(3). The division noted that under this interpretation, numerous entities, branches, or agencies commonly considered the state-would not be considered the state for purposes of the GIA. Accordingly, the division found that such a reading would be nonsensical.

Even if we assume that the decision in Schmidt v. Harken, supra, may be given retrospective application, based on the reasons set forth below, we conclude that the notice of claim provided by plaintiff satisfied the notice requirements of the GIA.

B. Application of § 24-10-109(3)

A plaintiff must strictly comply with the notice requirements of § 24-10-109(3) regarding to whom the notice of claim is sent. See Brock v. Nyland, supra, 955 P.2d at 1041 (court held that because the plain language of § 24-10-109(3) “is clear and unambiguous, we cannot interpret this provision to permit the filing of a notice of claim with any person or entity other than those set forth in the statute”); Curlin v. Reg'l Transp. Dist., 983 P.2d 178 (Colo.App.1999)(failure to comply with § 24-10-109(3) mandates dismissal of an action absent a showing that the public entity waived or should be estopped from raising the failure to comply as a bar to suit).

In Brock v. Nyland, supra, the supreme court held that compliance with § 24-10-109(3) is not jurisdictional and therefore the doctrines of waiver and estoppel can be applied to validate a notice that does not comply with the statute. The court noted that there was no evidence in that case that the notice had been forwarded to either the governing body or its attorney prior to the expiration of the 180-day period. The court also agreed that the notice of claim statute did not prohibit the governing body of the public entity from appointing one or more agents to receive the statutory notice on its behalf.

Here, the plaintiff sent her notice of claim to the University of Colorado on January 20, 1999, less than four months after plaintiff was injured by the dry erase board. It is undisputed that plaintiff did not send a copy of this notice to the Colorado Attorney General. However, the record indicates that the Office of University Counsel received the notice of claim on January 21, 1999, which was well within the 180-day notice period required by the GIA.

Plaintiff also presented evidence that in February 1983, the Board of Regents entered into a memorandum of understanding with the Colorado Attorney General whereby the Colorado Attorney General transferred all responsibility for the University of Colorado for court proceedings to the Office of University Counsel. It was agreed that University Counsel would “serve in the capacity of special assistant Attorney General.”

Following that agreement, any notice of claim that was served on the Attorney General would prompt a response to the claimant that provided:

This letter acknowledges receipt of your notice of claim. However, you are advised that this office does not represent the University of Colorado, its Board of Regents or University Hospital. Your future contact concerning your claim should be with their representatives.

At the same time, the Colorado Attorney General would send a letter to University Counsel, which contained the following language:

Pursuant to the agreement between our offices, I am forwarding a copy of the notice of claim to you for such action as you deem appropriate. Unless we are advised to the contrary, it is our understanding that either your office or the University’s insurance counsel will handle the representation of the interests of the University of Colorado, the Board of Regents or University Hospital in this case.

University Counsel would then send out the following notice to the claimant or the claimant’s attorney:

As University Counsel I serve as a Special Assistant Attorney General and am responsible for handling all claims involving the University. Please direct all future correspondence to this office, including any pleadings, should you decide to [pursue a claim].

The notice from the Colorado Attorney General specifically advised a claimant that the Colorado Attorney General did not represent the University of Colorado and that any contact regarding the claim should be with the University of Colorado’s representatives. This position was consistent with the letter University Counsel would send to a claimant. Thus, the correspondence with the Attorney General and University Counsel would lead a reasonable party, especially one that had been involved with a previous claim against the University of Colorado, to believe that any legal documents should be sent to University Counsel. Additionally, as the above documents make evident, the Office of the Attorney General essentially delegated all responsibility for handling claims involving the University of Colorado to University Counsel. Although the documents do not make an express delegation of the receipt of notice of claims to the University Counsel, such delegation is implicit in the documents, which also designate University Counsel as “special assistant Attorney General.”

Based on this evidence and because it is undisputed that University Counsel received the notice of claim before expiration of the 180-day notice period under the GIA, we conclude that the trial court did not err in finding that defendant was estopped from arguing that plaintiff failed to comply with the requirements of § 24-10-109(3). Hence, the court did not err in refusing to dismiss the action based on plaintiffs noncompliance with that provision. See Brock v. Nyland, supra; Curlin v. Reg’l Transp. Dist., supra.

II. Dangerous Condition

Defendant next contends that the trial court erred in finding that plaintiff had established that the dry erase board constituted a dangerous condition of a public building. We disagree.

Section 24^10-106(l)(c) provides that “[sovereign immunity is waived by a public entity in an action for injuries resulting from ... a dangerous condition of any public building.” This waiver of immunity applies if the alleged injuries occurred as a result of: (1) the physical condition of a public facility or the use thereof; (2) which constitutes an unreasonable risk to the health or. safety of the public; (3) which is known to exist or should have been known to exist in the exercise of reasonable care; and (4) which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining the facility. Section 24-10-103(1), C.R.S.2001; Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000). However, the dangerous condition “shall not exist solely because the design of any facility is inadequate.” Section 24-10-103(1); Medina v. State, 35 P.3d 443 (Colo.2001)(whether an injury resulting from a dangerous condition is caused by a failure to maintain or by inadequate design depends on the time at which the dangerous condition arose).

In Padilla v. School District No. 1, 25 P.3d 1176 (Colo.2001), .the supreme court noted that, broadly construed, the term “maintenance” encompasses ongoing repair and upkeep of the facility as it is put to the original use- or additional or different uses than originally constructed. The court also noted that the term “constructing” includes the facility as originally constructed, but also encompasses permanent or temporary alterations to the facility made during its ensuing lifetime in service to the public.

As to the first factor, we reject defendant’s contention that the dry erase board did not constitute a physical condition of a public building. Relying on the decision by a division of this court in Reynolds v. State Board for Community Colleges & Occupational Education, supra, defendant argues that the board must have constituted a fixture in order for its immunity to be waived under § 24-10-106(l)(c). However, we note that there was evidence that the board that fell on plaintiff would normally have been affixed to a wall. Thus, under these circumstances, plaintiffs injuries were directly attributable to the failure to secure the board properly. As such, we find Reynolds to be distinguishable.

In any event, in more recent cases, the supreme court has not required that the physical condition be a fixture for waiver of immunity under § 24 — 10—106(l)(c). For example, in Walton v. State, 968 P.2d 636 (Colo.1998), the supreme court held that the dangerous condition resulted from the use of an unsecured ladder on a slippery floor to access a loft for maintenance. Similarly, in Jenks v. Sullivan, 826 P.2d 825, 829 (Colo.1992), overruled in part by Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994), the supreme court cited a decision by the Missouri Supreme Court that a dangerous condition existed when the plaintiff was injured after falling off a ladder and onto a folding room divider placed at the foot of the ladder. The Missouri Supreme Court held that the “placement of the partition against the ladder created a physical deficiency in the state’s property which constituted a ‘dangerous condition.’ ” Alexander v. State, 756 S.W.2d 539, 542.

Although the mere fact of injury does not necessarily satisfy the second factor, we conclude that the evidence presented supports the trial court’s determination that the board, as situated, constituted an unreasonable risk to the health and safety of the public. Because the board was not secured, it fell over when it was bumped by a student. Additionally, it was of such a size that it took several people to lift it off plaintiff.

As to the third factor, there was evidence that the board had been present in the classroom for some time and that the room had been used by several professors for their classes. Additionally, there was evidence that the room had been cleaned on a nightly basis. This evidence demonstrated an opportunity for defendant to have discovered the risk posed by the board.

Finally, as to the fourth factor, plaintiff presented evidence that the board had been purchased as part of the renovation of another classroom. An invoice from the construction company in charge of the renovation showed that it had ordered a dry erase board for the renovation, although installation of the board was not part of the construction company’s contract. Thus, there is evidence that the dangerous condition created by the placement of the dry erase board was caused by activities associated with the construction and maintenance of the classroom. See Springer v. City & County of Denver, supra (holding that the city “constructed” the theater when it employed the services of an independent contractor).

Therefore, we conclude that the record is sufficient to support the trial court’s determination that the dry erase board constituted a dangerous condition of a public building for purposes of § 24-10-106(l)(c).

The order is affirmed.

Judge ROTHENBERG and Judge VOGT concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bryon C. KERBER, Defendant-Appellant.
    No. 01CA1173.
    Colorado Court of Appeals, Div. V.
    Nov. 21, 2002.
    Certiorari Denied March 10, 2003.

      Ken Salazar, Attorney General, Lauren Edelstein-Park, Assistant Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appel-lee.
    Laura L. Magner, Crested Butte, Colorado, for Defendant-Appellant.

       Justice BENDER would grant as to the following issue:
      Whether the trial court committed plain error in allowing the prosecutor to malee a closing argument that characterized the petitioner as a liar and expressed a personal belief about the credibility of certain witnesses.

   Opinion by

Judge ROTHENBERG.

Defendant, Bryon C. Kerber, appeals the judgment of conviction entered on a jury verdict finding him guilty of criminal mischief and third degree assault. We affirm.

According to the prosecution’s evidence at trial, defendant and his friends stopped at a restaurant in Colorado Springs. After being told there would be a lengthy wait, the group went outside to the parking lot. The manager testified that they appeared to be intoxicated.

The victims drove into the parking lot and exchanged insults with defendant’s group. One member of defendant’s group chased and then kicked the victims’ ear. When the car stopped, another group member approached the passenger side window and was struck with an object from inside the car. Defendant apparently came to the aid of his friend, wrestled the object away from the passenger in the victims’ car, and punched the passenger in the head. On the other side of the car, two members of defendant’s group assaulted the driver. One of them jumped onto the hood of the car and kicked the driver in the head.

The jury found defendant guilty of third degree assault for striking the passenger and criminal mischief for damage to the vehicle.

I.

Defendant first contends the trial court abused its discretion by denying him the right to conduct recross-examination of a prosecution witness. We disagree.

The Confrontation Clause of the United States Constitution guarantees the right of a criminal defendant to cross-examine witnesses testifying for the prosecution. U.S. Const. amend. VI; People v. Gholston, 26 P.3d 1 (Colo.App.2000). Hence, it is error to limit excessively a defendant’s cross-examination regarding the witness’s credibility, especially cross-examination concerning the witness’s bias, prejudice, or motive for testifying. Merritt v. People, 842 P.2d 162 (Colo.1992).

Nevertheless, the right of cross-examination is not absolute, and trial courts “have wide latitude with regard to the confrontation clause to impose reasonable limits on testimony that is repetitive.” United States v. Pina, 974 F.2d 1241, 1245 (10th Cir.1992); People v. Huehn, 53 P.3d 733 (Colo.App.2002); see CRE 611. A trial court’s ruling limiting the scope of cross-examination will not be disturbed on review absent an abuse of discretion. Vega v. People, 893 P.2d 107 (Colo.1995).

An abuse of discretion occurs when the court’s decision is manifestly arbitrary, unreasonable, or unfair. People v. Mandez, 997 P.2d 1254 (Colo.App.1999).

Once a party has had an opportunity substantially to exercise the right of cross-examination, the extent of further interrogation is within the sound discretion of the trial court. Courts have discretion to limit recross-examination when no new matters have been raised on redirect or additional testimony would be only marginally relevant. See People v. Vialpando, 804 P.2d 219, 223 (Colo.App.1990)(“No new issues were raised during redirect-examination. Accordingly, the trial court was not required to grant the defense an opportunity to recross-examine the witness.”); People v. Montgomery, 743 P.2d 439 (Colo.App.1987)(trial court did not abuse its discretion in refusing recross-examination where testimony was of little relevancy and would cause undue waste of time).

Here, the trial court’s stated reason for denying defendant’s request to recross-examine the witness was the late hour. This basis was insufficient for denying defendant’s request, especially where the witness was a victim and could have been ordered to return the following day. However, the record reflects that defense counsel had conducted a lengthy cross-examination of the witness and that no new material information was brought out on redirect.

Therefore, we conclude the trial court’s ruling, while based on an erroneous ground, does not require reversal. See People v. Quintana, 882 P.2d 1366 (Colo.1994)(review-ing court may affirm trial court on any ground supported by the record); see also People v. Vialpando, supra.

II.

Defendant next contends the trial court erred in denying his motion for a mistrial after a prosecution witness testified that he (the witness) had taken and failed a lie detector test. Defendant maintains that the credibility of this witness, who was a member of defendant’s group during the altercation, was damaged by the testimony about the lie detector test and that this prejudiced defendant because the witness had substantially corroborated defendant’s version of events. We agree that evidence of the lie detector test was inadmissible, but disagree that reversal is warranted.

A mistrial is a drastic remedy and is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. People v. Evans, 886 P.2d 288 (Colo.App.1994). Absent an abuse of discretion, we will not disturb on review a trial court’s decision to grant or deny a motion for a mistrial. People v. Scott, 10 P.3d 686 (Colo.App.2000).

Lie detector or polygraph evidence is per se inadmissible in a criminal trial. People v. Dunlap, 975 P.2d 723 (Colo.1999). However, the mere reference to such testing does not require a mistrial. United States v. Blaze, 143 F.3d 585 (10th Cir.1998); People v. Preciado-Flores, 66 P.3d 155 (Colo.App.2002)(trial court did not abuse, its discretion in denying mistrial where jury was inadvertently informed defendant had taken a lie detector test, but was not told result of the test).

A Michigan court has identified several factors that should be considered in determining whether reversal is required: (1) whether the defendant objected or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than only the fact that a test was conducted. See People v. Nash, 244 Mich.App. 93, 625 N.W.2d 87 (2000). While these factors are not exclusive and not all are relevant in every case, we view them as useful guidance in resolving the issue before us.

As pertinent here, the following testimony was given by the prosecution witness on direct examination:

PROSECUTOR: Would it be fair to say that you’re upset about being charged in this case?
WITNESS: Yes, I’m very upset. Especially getting a lie detector test that I can’t pass. That you — -I can’t — it upsets me. Been trying for five days.
DEFENSE COUNSEL: Judge, I’m going to object. Move for mistrial.
COURT: The jury is instructed to disregard any testimony about any lie detector test.

(Emphasis added.)

Defendant objected to the testimony that disclosed the results of the test to the jury, and the court immediately gave a cautionary instruction. The witness appears to have given an inadvertent and unsolicited answer to a properly asked question by the prosecution. Further, after the witness blurted out that he had failed the lie detector test, the prosecutor made no other references to the testing.

Normally, another relevant factor would be whether the reference to the lie detector test bolstered the testimony of the witness and enhanced the witness’s credibility. For example, if the witness disclosed that he or she had passed a lie detector test, it would confer an unfair advantage on the party calling that witness. Here, however, although this particular witness was called to testify by the prosecution, he was part of defendant’s group and both sides relied on his testimony in part. Further, there was no testimony regarding the reason this witness was given a lie detector test.

Thus, we conclude the inadvertent disclosure that the witness had failed a lie detector test could have damaged the prosecution’s case insofar as its witness’s credibility was harmed, and also have impaired the defense insofar as the witness corroborated defendant’s version of the events.

After applying the factors suggested in People v. Nash, supra, and considering all the circumstances before the trial court, we conclude that its ruling denying the motion for mistrial based on the reference to the lie detector test was not manifestly arbitrary, unreasonable, or unfair. See People v. Mandez, supra. Hence, the ruling did not constitute an abuse of discretion by the trial court.

III.

Defendant next contends several statements made by the prosecutor during closing argument deprived him of a fair trial. He maintains that reversal is required because the prosecutor repeatedly characterized him as a liar and expressed a personal belief in the credibility of certain witnesses. We disagree.

Because defendant made no contemporaneous objections to the statements he now complains were prejudicial, his contention must be considered using a plain error standard of review. See Crim. P. 52(b). Under that standard, reversal is required only if after reviewing the record, we may say with fair assurance that the prosecutorial misconduct so undermined the basic fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).

In closing argument, counsel is entitled to argue all reasonable inferences from the facts in evidence, People v. Constant, 645 P.2d 843 (Colo.1982), and may comment on how well and in what manner a witness measures up to the tests of credibility set forth in the instructions. People v. Herr, 868 P.2d 1121 (Colo.App.1993). Counsel also may point to circumstances casting doubt on a witness’s testimony and may draw reasonable inferences from the evidence regarding the credibility of a witness or witnesses. People v. Constant, supra.

While it is improper for counsel to express a personal belief in the truth or falsity of testimony during closing argument, Wilson v. People, supra, a prosecutor’s comments must be flagrant or glaringly improper to constitute plain error. People v. Williams, 996 P.2d 237, 244 (Colo.App.1999).

Further, claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Williams, supra. See Clayton v. State, 765 A.2d 940, 942-43 (Del.2001)(while prosecutors may not express their personal opinions or beliefs about the truth of testimony, they may refer to statements or testimony as a “lie” only (1) if one may legitimately infer from the evidence that the statement is a lie, and (2) if the prosecutor relates the argument to specific evidence that tends to show the testimony or statement is a lie); see also United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir.1999)(“We have characterized as ‘unnecessary’ and ‘unwarranted’ a prosecutor’s closing argument in which he called the defendant a ‘liar’ and told the jury that defendant had not told the complete truth. We have not, however, established that referring to testimony as a lie constitutes per se prosecutorial misconduct.”) (citations omitted).

In Wilson v. People, supra, the supreme court observed that a prosecutor’s assertion of personal opinion concerning the credibility of witnesses poses two distinct dangers:

[S]uch comments can convey the impression that evidence not present to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.

Wilson v. People, supra, 743 P.2d at 418-19 (citing United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1, 14 (1985)).

Here, the prosecutor began his closing argument by stating:

[I]t is the People’s contention that you need to make initially a simple decision. Was [defendant] telling you the truth? Because if he was, if his story is true, we will concede. He is not guilty.
On the other hand, if his story is not true, by his own admission, he is guilty.

The prosecutor then made the following statements, the highlighted portions of which defendant contends constituted prosecutorial misconduct:

[T]his is what [defendant] tells the police after he lies about his name, “a black Ford Mustang comes up, a guy with nun-chucks comes out and he starts swinging. I get him away from him and throw them right there, Officer.” Of course, they’re never found.
What did [another witness] tell us? Admittedly the people would say that she was trying to cover for [defendant], as was [still another witness], but even she said they were all involved with the vehicle. They are all involved with the vehicle, then he is not telling you the truth. He is minimizing his role.
It does not make sense. It is not supported by independent witnesses. It is not the truth. As it is not the truth, he is guilty of getting angry and is drunk.
And there’s not time, according to these two [stories by the defendant’s friend and defendant], for them to do it which means [defendant is] not telling you the truth.
I do not care about the self-defense argument towards [one of the victims]. [Defendant] has it. If his story is true, he is not guilty. If he is not telling the truth, he is guilty of all counts.
[T]he victims told you different stories, and the defendants have told you different stories or the other people that were charged. How do you sort through it? How do you decide which one of these people is telling you the truth? The first one I would like to make about that is that I think it’s hard or a reasonable jury would have a hard time finding the [defendant’s witnesses] to be truthful. [The defendant’s friend] also has some credibility issues but [defendant] is sticking with their story .... I am saying that [defendant’s witnesses, defendant, and the friend whom he claims he was defending] are not telling you the truth. What little things in their stories validate the stories given by the three victims. [One of defendant’s witnesses] says yeah, he went over there. He got knocked out. This guy is standing on his head. He is kicking him left and right. I did the only thing I could. I ran up on the hood and kicked someone in the face, he fell down. That is a boldface [sic] lie.

(Emphasis added.)

The defense maintained at trial that defendant should be acquitted of the third degree assault charge because he was acting in defense of his friend. As to the damage to the victims’ vehicle, defendant testified and denied he had caused such damage. However, he admitted hitting the passenger in the head as hard as he could, and two prosecution witnesses testified that all the members of defendant’s group participated in damaging the victims’ vehicle.

Because the testimony of the sixteen witnesses was contradictory and in some respects irreconcilable, it was proper for the prosecutor to highlight for the jury inconsistencies in the statements of defense witnesses. Nor do we view it improper for the prosecutor also to argue that the testimony of the People’s witnesses was irreconcilable with that of defendant and, therefore, that one side was not telling the truth. Neither of the dangers connected with a prosecutor’s assertion of personal opinion identified in Wilson v. People, supra, is implicated here.

We therefore conclude these statements by the prosecutor, viewed within the context of the argument as a whole, do not constitute plain error.

Judgment affirmed.

Judge TAUBMAN and Judge WEBB concur.


author: Judge PIERCE.

text:
    PRICE MINE SERVICE, INC., Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, TIG Insurance Company, National Union Fire Insurance Company, Lester G. Connell, and Rocky Mountain Miners, Respondents.
    No. 02CA0375.
    Colorado Court of Appeals, Div. I.
    Jan. 2, 2003.
    Weinberger & Kanan, P.C., Michael P. Serruto, Robert A. Weinberger, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, John D. Baird, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Ritsema & Lyon, P.C., Michael A. Perales, Nancy C. Hummel, Denver, Colorado,- for Respondent TIG Insurance Company.
    No Appearance for Respondent National Union Fire Insurance Company.
    Withers Seidman & Rice, P.C., Christopher Seidman, Grand Junction, Colorado, for Respondent Lester G. Connell.
    No Appearance for Respondent Rocky Mountain Miners.
    Michael J. Steiner, Denver, Colorado, for Amicus Curiae Colorado Compensation Insurance Authority, d/b/a Pinnaeol Assurance.
    Ken Salazar, Attorney General, Frank R. Johnson, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Department of Labor and Employment, Division of Workers’ Compensation, and Mary Ann Whiteside, in her official capacity as the Director of the Division of Workers’ Compensation.
   Opinion by

Judge PIERCE.

The principal issue in this appeal is whether, petitioner, Price Mine Service, Inc., or TIG Insurance Company is liable to pay workers’ compensation benefits to Lester G. Connell (claimant) for injuries sustained in an automobile accident during the “quasi-course of employment.” If the automobile accident is compensable as part of the original injury, then TIG is liable as the insurer on risk at the time of the original injury. If the accident constitutes a separate compen-sable injury, then Price Mine is liable as an uninsured employer at the time of the accident. We conclude that TIG is liable and, therefore, set aside the order to the contrary.

Claimant suffered a work-related injury in 1997 while working for Price Mine, which was then insured for workers’ compensation liability by TIG. Claimant injured his right eye, nose, teeth, neck, right arm, back, right knee, and heel. TIG admitted liability and paid benefits relating to the original claim.

Except for eleven weeks of uncompensated attempts to work, claimant did not return to work after the 1997 injury and remained unemployed in 1998 and 1999. In 1999, he was injured in an automobile accident while returning from authorized medical treatment for the 1997 work-related injury. Claimant aggravated the previous injuries to his back and neck and suffered additional injuries to his left shoulder and elbow.

By the time of the 1999 accident, Price Mine had ceased active business operations and no longer had any employees or workers’ compensation coverage. All of the employees of Price Mine became employees of another corporation owned by the same individual, and that corporation obtained workers’ compensation from another carrier. Price Mine continued its existence solely as a real estate holding company. TIG denied liability for the second accident.

On review, the Industrial Claim Appeals Office (Panel) held that an automobile accident occurring during the quasi-course of employment period constituted a “distinct compensable event.” Therefore, it denied the claim against TIG and determined that Price Mine was liable for the additional workers’ compensation benefits as an uninsured employer.

I.

Price Mine asserts that TIG is liable for claimant’s subsequent injury, which was com-pensable by application of the quasi-course of employment doctrine. We agree.

Under the quasi-course of employment doctrine, an injury occurring during travel to or from authorized medical treatment for an industrial injury is compensable. An employer is required to provide medical treatment, and an injured employee is required to submit to it; thus, a trip to the doctor’s office becomes an implied part of the employment contract. Excel Corp. v. Indus. Claim Appeals Office, 860 P.2d 1393 (Colo.App.1993).

Under the doctrine, the second injury is not considered an intervening event that would otherwise relieve the employer from further liability. Citadel Mall v. Indus. Claim, Appeals Office, 892 P.2d 419 (Colo.App.1994).

Here, in concluding that the injuries sustained under the quasi-course of employment doctrine were not compensable consequences of the prior injury, but gave rise to a new claim for benefits, the Panel relied principally on Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App.1998). It found additional support in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App.1997), and Citadel Mall v. Industrial Claim Appeals Office, supra.

However, the Panel has reached the opposite decision in other cases, holding that subsequent injuries compensable under the quasi-course of employment doctrine do not give rise to a new claim. We agree with this latter view and conclude that a quasi-course of employment injury is a compensable consequence stemming from the underlying industrial injury.

The quasi-course of employment doctrine was created to provide the requisite connection between the employment and an injury that would not otherwise be considered to have arisen out of and in the course of employment. See 1 Larson’s Workers’ Compensation Law § 10.05 et seq. (2002). It was designed to attenuate the usual requisites of compensability, and thus, injuries received while undergoing authorized medical treatment for an industrial injury are considered compensable even though they occur outside the ordinary time and space limits of normal employment. Excel Corp. v. Indus. Claim Appeals Office, supra.

Furthermore, the proximate and' natural consequences of an industrial injury and quasi-course of employment injuries, as distinguished from injuries caused by a separate, efficient intervening event, are both considered to be within the range of compensable consequences of the original industrial injury. See 1 Larson’s, supra, § 10.01 et seq. Both types of events are compensable because of their relationship to the underlying workers’ compensation injury.

Thus, we agree with the view that quasi-course of employment injuries should not be treated any differently, for purposes of determining benefits and liabilities, from complications that are the natural and proximate results of the underlying industrial injury. The cases relied upon by the Panel for the contrary view can be distinguished factually or legally.

The determination whether the injury sustained under the quasi-course of employment doctrine was part of the first claim or a second claim was not central to the decision in Employers Fire Insurance Co., supra. There, the same insurer provided workers’ compensation benefits at the time of the original injury and at the time of the later automobile accident injury during the quasi-course of employment. The dispositive determination on appeal was the effect of a rélease given after the original injury but before the automobile accident under circumstances where the claimant, unaware that the second claim was compensable under the Act, had made a claim for benefits under his no-fault policy.

Likewise, the determination whether the subsequent injury was compensable only as a separate claim also was not central to the analysis in City of Colorado Springs, supra. There, the question presented was whether the claimant was entitled to further temporary disability benefits when there was no credible evidence that he suffered increased physical restrictions after the second injury. The issue of which insurer was liable for the subsequent benefits was not presented. Indeed, the division recognized that because the second injury resulted from treatment for the first injury, the impairments resulting from both injuries might be considered together in determining the degree of permanent medical impairment.

Finally, Citadel Mall, supra, is factually distinguishable because in that case, unlike here, the claimant’s injuries were the result of a separate, new employment relationship and an independent injury that occurred during that relationship, which had no physical or medical connection to the first injury. The necessity for on-the-job training, resulting from the claimant’s inability to perform his former job, was the only link to the first employer; the second employer was receiving the benefit of the claimant’s secretarial services and partially paying for them at the time of the second injury.

Therefore, we conclude that an injury com-pensable based upon the quasi-course of employment doctrine is not a new claim, but is properly considered a compensable consequence of the original injury. Applying that rule to this case, TIG, as the insurer on risk at the time of the original 1997 injury, remains liable for the benefits payable as a result of the automobile accident in 1999, which was compensable based on the quasi-course of employment doctrine.

According to the Division of Workers’ Compensation, this conclusion is consistent with the public policy of assuring that áíl employers have in effect current policies of insurance or self-insurance for workers’ compensation benefits, as stated in § 8-47-111(1), C.R.S.2002. It also is consistent with the legislative declaration to “assure the quick and efficient delivery of disability and medical benefits to injured workers.” Section 8-40-102(1), C.R.S.2002.

II.

Because of this disposition, we need not address the alternative assertion that Price Mine was not subject to the Workers’ Compensation Act in 1999 because it had no employees at that time.

The order is set aside, and the case remanded to the Panel to reinstate the original order obligating TIG to pay the temporary disability and medical benefits payable to claimant as a result of the 1999 automobile accident.

Judge MARQUEZ and Judge GRAHAM concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


author: Judge JONES.

text:
    Lonnie BOLEJACK, Bonnie Bolejack, Laurel Spence, and Ron Bolejack, Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY, Garnishee-Appellee.
    No. 01CA2291.
    Colorado Court of Appeals, Div. II.
    Jan. 2, 2003.

      John S. Tatum, Aurora, Colorado; Ben Klein, Denver, Colorado, for Plaintiffs-Appellants.
    Montgomery, Kolodny, Amatuzio, Dusba-bel, L.L.P., Kevin F. Amatuzio, David C. Fawley, Denver, Colorado, for Garnishee-Appellee.
   Opinion by

Judge JONES.

In this wrongful death action, plaintiffs, Lonnie Bolejack, Bonnie Bolejack, Laurel Spence, and Ron Bolejack (collectively the Bolejacks), appeal the summary judgment entered in favor of garnishee, Travelers Insurance Company. We affirm.

In 1997, John Bieg shot and killed Leroy Bolejack (victim) in a dispute arising out of their soured business dealings. Bieg owned and operated a welding business, and the victim owned and operated a crane service. Bieg was prosecuted for the murder and eventually pleaded guilty to criminally negligent homicide. The victim’s heirs, the Bole-jacks, brought an action for wrongful death against Bieg, his business, and others.

In 1999, the parties fashioned a settlement by which Bieg confessed to judgment against himself in the amount of $1 million, Bieg’s commercial liability insurers paid the Bolejacks $215,000 of that amount, and the Bolejacks agreed not to seek to collect any balance due from the commercial liability insurer. Instead, as relevant here, the Bole-jacks sought to collect, through a writ of garnishment, the remainder of the judgment from Travelers, Bieg’s homeowners insurer.

Travelers answered the writ of garnishment and denied coverage on various grounds, including the “business pursuits” exclusion to its policy. The Bolejacks disputed the denial of coverage. Travelers also filed a motion for summary judgment, asserting that the undisputed facts showed that the shooting arose out of Bieg’s business and was, thus, excluded by the “business pursuits” exclusion to Bieg’s homeowners insurance policy.

Finding no genuine issue of material fact, the court granted Travelers’ motion for summary judgment and dismissed the writ of garnishment. This appeal followed.

The Bolejacks contend that the trial court improperly granted Travelers’ motion for summary judgment because a genuine issue of material fact existed as to whether the “business pursuits” exclusion to the policy was applicable. We disagree.

Review of a grant of summary judgment is de novo. Ryder v. Mitchell, 54 P.3d 885 (Colo.2002). Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo.2002). In deciding whether summary judgment is appropriate, the court must view the facts in the light most favorable to the nonmoving party. Colo. Civil Rights Comm’n v. N. Washington Fire Prot. Dist., 772 P.2d 70 (Colo.1989).

The interpretation of a contract, including a contract for insurance, is a matter of law. Union Ins. Co. v. Houtz, 883 P.2d 1057 (Colo.1994). The words of the contract should be given their plain meaning according to common usage, and strained constructions should be avoided. Allstate Ins. Co. v. Huizar, 52 P.3d 816 (Colo.2002). An unambiguous limitation or exclusion in a policy must be enforced. State Farm Mut. Auto. Ins. Co. v. Mendiola, 865 P.2d 909 (Colo.App.1993).

The following undisputed facts are relevant to our analysis. First, the Bolejacks concede that Bieg and the victim had a prior business acquaintanceship, that the victim was at Bieg’s place of business the day of the shooting to have work done that was in the nature of Bieg’s business, and that, as such, the court “could and should find that the injury arose within the context of [Bieg’s] business.” Second, Bieg’s homeowners insurance policy with Travelers contained an exclusion for bodily injury arising out of the insured’s business activities. In relevant part, the policy reads:

Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:
arising out of or in connection with a “business” engaged in by an “insured” except those of a “clerical office employee.” This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed or implied to be provided because of the nature of the “business”....

The policy defines “business” as including any “trade, profession or occupation.”

Courts applying Colorado law have found coverage to be excluded by business pursuit exclusions tailored more narrowly than the one at issue here. In fact, courts have even denied coverage when business pursuit exclusions have contained exceptions from the exclusions for activities normally incident to nonbusiness pursuits. For example, injuries that policyholders have inflicted on children while operating in-home day care businesses have been excluded from coverage under policies that contain such exceptions to the business pursuit exclusions. See Rodriguez v. Safeco Ins. Co., 821 P.2d 849 (Colo.App.1991); Republic Ins. Co. v. Piper, 517 F.Supp. 1103 (D.Colo.1981).

We note that the Piper and Rodriguez eases are distinguishable because, here, the exclusion in Bieg’s homeowners policy contains no exception for activities ordinarily incident to nonbusiness pursuits, the injury occurred at Bieg’s place of business, and the injury arose out of Bieg’s business.

Further, we note that insurance coverages may be, and here are, “dovetailed” to cover nonoverlapping risks. One coverage may exclude a certain type of risk while another coverage expressly covers that risk to form a coordinated and unified whole of coverage. See Northern Ins. Co. v. Ekstrom, 784 P.2d 320, 324 (Colo.1989). Here, Bieg’s commercial liability insurer responded to the Bole-jacks’ civil claim to protect defendants from personal liability. Bieg’s separate, nonover-lapping homeowners insurance policy was not implicated.

Thus, we conclude that the plain language of the exclusion in the policy applies to exclude coverage for the injury Bieg inflicted.

Even viewing the facts in the light most favorable to the Bolejacks, we perceive no genuine issue of material fact to preclude judgment as a matter of law. Thus, the trial court properly granted Travelers’ motion for summary judgment.

The judgment is affirmed.

Judge CASEBOLT and Judge ROY concur.


author: Judge DAVIDSON.

text:
    LARRY H. MILLER CORPORATION-DENVER, d/b/a Larry Miller Toyota, and Universal Underwriters Insurance Company, Plaintiffs-Appellants, v. URBAN DRAINAGE AND FLOOD CONTROL DISTRICT and L. Scott Tucker, in his official capacity, Defendants-Appellees.
    No. 01CA2268.
    Colorado Court of Appeals, Div. IV.
    Jan. 2, 2003.

      Mendenhall DelPiecolo Ragland & Potry-kus, Robert D. Mendenhall, Denver, Colorado, for Plaintiffs-Appellants.
    Warnquist & Associates, Scott P. Landry, Greenwood Village, Colorado, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge DAVIDSON.

In this negligence action, plaintiffs, Larry H. Miller Corporation-Denver (Miller Toyota) and Universal Underwriters Insurance Company, appeal from the trial court judgment dismissing their complaint against defendants, Urban Drainage and Flood Control District and L. Scott Tucker, in his official capacity (collectively the District), for failure to state a claim for relief. We affirm.

The District is a special district created by the Urban Drainage and Flood Control Act (UDFCA) to coordinate the efforts of municipalities and counties in the Denver metropolitan area to control stormwater flows and flooding. See § 32-11-102, C.R.S.2002.

In 1992, the District hired an engineering firm to produce a master plan of the outfall systems’ plan of the area where Miller Toyota (the property) is located. The master plan was intended to analyze the hydraulic, hydro-logic, and existing stormwater systems’ capacity and to develop alternative plans to handle stormwater flows to minimize safety hazards and damage resulting from flooding of streets and private property.

The master plan identified an intermittent flooding problem on the property and identified problems with the Page Gulch system draining water from the property south to Clear Creek. The plan noted that the system’s existing capacity was insufficient to handle major storm flows.

The master plan also noted the plan of the Colorado Department of Transportation (CDOT) to reconstruct the southbound ramp from 1-25 to westbound U.S. 36, which borders the southeast corner of the property. The master plan recommended that preliminary plans for the reconstruction should be factored into the final outfall systems’ plan for the area because the ramp would further increase the risk of flooding on the property. The master plan evaluated the creation of various stormwater detention facilities, including condemnation of the property for use as a detention facility or, alternatively, the creation of a new storm sewer under the ramp to U.S. 36.

In 1998, CDOT prepared a drainage study for the ramp. The study noted that “most of the [m] aster [p]lan improvements would be required to solve the long-term flooding risk to the [property].”

Miller Toyota purchased the property in 1998, and thereafter, CDOT built the new highway ramp. CDOT did not implement any of the proposals in the study or the master plan. In 1999, a rainstorm caused severe flooding on the property, resulting in damages in excess of $525,000, the amount Universal paid pursuant to Miller Toyota’s insurance policy. Miller Toyota claimed as additional damages its insurance deductible, uncovered losses and expenses, and losses due to business interruption.

Alleging negligence in the design, approval, inspection, construction, operation, and maintenance of public highways and water and sanitation facilities, plaintiffs brought this action against the District, Adams County, and CDOT. The latter entities are not parties to this appeal. As to the District, plaintiffs allege that it was required to take affirmative steps to decrease the risk of flooding caused by CDOT’s construction of the highway ramp.

The District filed a motion to dismiss on the bases that plaintiffs’ claims sought to impose duties upon it beyond those legislatively mandated and that the action was barred by the Colorado Governmental Immunity Act (GIA).

The trial court did not address the District’s governmental immunity defense, but granted the motion to dismiss pursuant to C.R.C.P. 12(b)(5) on the grounds that the General Assembly did not impose upon the District the affirmative duties sought by plaintiffs, nor did it provide a private remedy for failure to perform those duties.

I.

Plaintiffs contend that the trial court erred in dismissing their complaint. We agree with the result reached by the trial court, but resolve the case on governmental immunity grounds.

In determining the viability of a claim against a governmental entity alleged, as here, to have breached a statutory duty, the court must determine first whether an exception to the GIA applies and, if so, whether the plaintiff has a private cause of action pursuant to the statute. See State Dep’t of Highways v. Mountain States Telephone & Telegraph Co., 869 P.2d 1289 (Colo.1994); State v. Moldovan, 842 P.2d 220 (Colo.1992).

Thus, we must address initially whether governmental immunity has been waived. Because the issue is one of subject matter jurisdiction, the proper procedure to determine sovereign immunity is set forth by C.R.C.P. 12(b)(1), and not C.R.C.P. 12(b)(5). See Medina v. State, 35 P.3d 443 (Colo.2001). Here, the trial court did not address the issue of governmental immunity or hold a C.R.C.P. 12(b)(1) hearing. Nevertheless, the parties addressed the issue in the trial court and in their briefs on appeal. On the pleadings before us, we can determine, as a matter of law, whether sovereign immunity is waived for the damages alleged in plaintiffs’ complaint. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

We conclude that, under the circumstances here, there has been no waiver of sovereign immunity. Thus, we need not determine whether the UDFCA provides a private remedy.

II.

Plaintiffs argue that, pursuant to the exception set forth in § 24 — 10—106(l)(f), C.R.S.2002, governmental immunity has been waived for damages to the property caused by the District’s negligent operation and maintenance of the parking lot “detention pond,” the Page Gulch system, and the concrete-lined channel under the highway ramp that connects the two. The District contends that it neither operated nor maintained the highway ramp nor any other facility on the property and had no duty to do so. We agree with the District that its immunity was not waived.

The GIA provides that sovereign immunity is waived in an action for injuries resulting from a public entity’s “operation and maintenance” of a public sanitation facility. See § 24-10-106(l)(f). Thus, to fall within this exception, a plaintiff must show that the defendant is a public entity which was negligent in the operation and maintenance of a sanitation facility. See deBoer v. Ute Water Conservancy District, 17 P.3d 187 (Colo.App.2000). The waiver provisions of the GIA are to be interpreted broadly. See Medina v. State, supra.

Here, it is undisputed that the District is a “public entity.” See § 24-10-103(5), C.R.S. 2002 (public entity includes political subdivision organized pursuant to law); § 32-11-102(l)(d), C.R.S.2002 (district created by UDFCA is a political subdivision).

Furthermore, the structures at issue — the parking lot “detention pond,” the Page Gulch drainage system, and the concrete-lined channel — are all devices used in the collection and drainage of storm water. Thus, we will assume, without deciding, that these structures are “sanitation facilities” within the meaning of the GIA. See Scott v. City of Greeley, 931 P.2d 525 (Colo.App.1996)(storm sewer); Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996)(cross-pan); Burnworth v. Adams County, 826 P.2d 368 (Colo.App.1991)(storm drain); see also § 32-1-103(18), C.R.S.2002 (“sanitation district” defined); § 30-20-401(4), C.R.S.2002 (“sewerage facilities” defined); City of Colorado Springs v. Powell, 48 P.3d 561 (Colo.2002).

The critical issue, then, concerns the term “operation,” which is defined in the GIA as “the act or omission of a public entity ... in the exercise and performance of the powers, duties, and functions vested in [it] by law with respect to the purposes of [the] facility.” Section 24-10-103(3)(a), C.R.S.2002. Although the GIA does not define “maintenance,” the broad definition of “operation” has been interpreted to include the concept of maintenance. See City of Colorado Springs v. Powell, supra.

Here, plaintiffs acknowledge that the District has no proprietary or ownership interest in either the property or the drainage systems at issue. Plaintiffs argue, nonetheless, that the District’s failure to coordinate with CDOT in building the new highway ramp, which raised the flood risk on the property, and its failure to implement specific portions of the master plan which would have prevented or reduced the risk of flooding on the property, constitute “operation and maintenance” pursuant to the GIA. Specifically, citing the definition of “facilities” set forth in § 32-ll-104(24)(a), C.R.S.2002, plaintiffs argue that despite the absence of an ownership interest or contract to operate, the District is responsible for the operation and maintenance of the “detention pond,” the Page Gulch system, and the concrete channel because these structures are used in connection with the District’s drainage and flood control system. We do not agree.

The UDFCA defines “facilities” as:

the drainage and flood control system of the [District] consisting of all properties, real, personal, mixed, or otherwise, owned or acquired by the [DJistrict through purchase, construction, or otherwise and used in connection with such system of the [District, and in any way pertaining thereto, whether situated within or without its limits, or both within and without its limits.

Section 32-ll-104(24)(a)(emphasis added).

Here, because it is undisputed that the properties at issue are not owned and have not been acquired by the District, they do not constitute “facilities” and therefore are not part of the District’s “drainage and flood control system” as defined in the UDFCA.

Furthermore, contrary to plaintiffs’ contention, the District’s statutory responsibilities in this regard are confined to properties owned or acquired by the District. See § 32-ll-102(l)(a), C.R.S.2002 (District is required to operate and maintain property it has acquired for the benefit of the people of the district); cf. City of Longmont v. Henry-Hobbs, 50 P.3d 906 (Colo.2002)(irrigation ditch maintained and used by city as part of its storm drainage system); Scott v. City of Greeley, supra (storm drainage system built by city); Smith v. Town of Estes Park, supra (cross-pan maintained by town); Bumworth v. Adams County, swpra (storm drain part of system owned by county).

Moreover, the term “operation” in the GIA must not be construed to include “[a] failure to exercise or perform any powers, duties, or functions not vested by law in a public entity.” Section 24-10-103(3)(b)(I), C.R.S.2002. Here, the District is not “vested by law” with a responsibility to own or acquire any particular property or to implement improvements suggested in the master plan.

Plaintiffs are correct that the UDFCA’s overarching purpose is the creation of the District to coordinate the efforts of other agencies to control flooding in the Denver area. See § 32-11-102. However, nothing in the UDFCA requires the District to own, operate, or maintain any drainage facilities or to acquire property to protect it from flooding.

To the contrary, by its terms, the UDFCA grants to the District the discretion to choose which properties to acquire, condemn, improve, operate, and maintain. See § 32-11-220(l)(m), C.R.S.2002 (District may “exercise all or any part or combination of the powers granted in [the UDFCA]”); § 32-11-104(24)(b), C.R.S.2002 (board may determine the facilities of the District); § 32-11-104(24)(a) (“facilities” consist of property “owned or acquired by the [District ... and used in connection with such [flood control] system of the [District”); §§ 32-11-218(l)(e), (f), C.R.S.2002 (District has power to adopt, amend, repeal, enforce, and administer rules and regulations as it deems necessary or convenient for the operation and maintenance of its facilities and any other flood control facilities under its control); § 32-ll-219(l)(c), C.R.S.2002 (District has power to enter into contracts with other parties to operate their drainage and flood control facilities for a fee, when determined by District to be in public’s best interest); § 32-ll-219(l)(g)(I), C.R.S.2002 (District has power to contract for joint use of facilities owned by another public body, as may be determined by District).

The General Assembly’s intention that the District determine how best to allocate its resources is confirmed by the financial powers and limitations imposed upon the District. See § 32-11-217, C.R.S.2002 (financial powers of district); § 32-11-501(1), C.R.S. 2002 (“Upon the conditions and under the circumstances set forth in this section, the [District] ... may borrow money to defray the cost of any project designated by the board ....”); § 32-ll-217(l)(c)(I), C.R.S. 2002 (not more than one-tenth of a mill shall be used for engineering and operations of the District, not more than four-tenths of a mill shall be used for capital construction, and not more than four-tenths of a mill shall be used for maintenance and preservation of flood-ways).

The UDFCA also specifically limits the District’s ability to incur debt to three percent of the valuation of taxable property within the District. Thus, in determining whether to acquire, condemn, operate, or maintain a particular property, the District must consider the cost of such a project. See § 32-11-534, C.R.S 2002; see also § 32-11-104(12), C.R.S.2002 (“cost” of a project includes cost of any property deemed by the District “to be necessary or useful and convenient therefor”).

We conclude, therefore, that the General Assembly did not intend to require the District to acquire — by purchase, construction, contract, or otherwise — all inadequate facilities within the District, as plaintiffs suggest, even if it was aware of flooding caused by such facilities. See § 2-4-201(1), C.R.S.2002 (it is presumed that a just and reasonable result, feasible of execution, is intended).

For the same reasons, we disagree with plaintiffs’ contention that the permissive language of the UDFCA must be read to impose mandatory duties upon the District.

Generally, the General Assembly’s use of the term “may” is indicative of a discretionary power to choose among alternatives. See, e.g., People v. Triantos, 55 P.3d 131 (Colo.2002). While the term “may” sometimes imposes a mandatory duty, it is generally deemed to be permissive absent evidence of legislative intent to the contrary. See People v. Kilgore, 992 P.2d 661 (Colo.App.1999).

Here, as discussed, nothing in the statute indicates that the General Assembly intended that the powers conferred upon the District be construed as an affirmative duty to remedy a particular situation.

People ex rel. Rollins v. Board of County Commissioners, 7 Colo.App. 229, 42 P. 1032 (1895), and Board of Supervisors v. United States, 71 U.S. (4 Wall.) 435, 18 L.Ed. 419 (1866), relied on by plaintiffs, do not say otherwise. In those cases, the courts interpreted permissive language in ordinances to require that the local government levy taxes to pay their debts. Reiterating that the legislature’s intent determines whether a statutory provision involves mere discretion or imposes a mandatory duty, the courts determined that the ordinances were not intended to leave a creditor without a remedy against the county. Here, however, we discern no such legislative intent to deviate from the plain meaning of the discretionary terms used in the UDFCA.

Plaintiffs contend that, nevertheless, even absent a statutory duty, the “vested by law” component of the definition of “operation” is satisfied by a showing that the District has a common law duty to act with reasonable care, which was invoked when the District became involved in the master plan.

However, unlike in Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991), upon which plaintiffs rely, here the District had no preexisting common law duty to act. To the contrary, the duties plaintiffs seek to enforce could only be derived from the statutory powers conferred upon the District by the UDFCA. See § 32-11-101, et seq., C.R.S. 2002; see also Board of County Commissioners v. Moreland, 764 P.2d 812 (Colo.1988)(duty to protect plaintiff from injury did not exist prior to adoption of statute). And, as discussed, the UDFCA does not impose upon the District the duties alleged by plaintiffs.

We conclude, therefore, that although the District may in its discretion choose to contract with CDOT, Adams County, or Miller Toyota to acquire their property or drainage systems, it has no statutory or common law duty to do so. Cf State v. Moldovan, supra (law imposes direct duty on division of highways to maintain fences adjacent to state highways).

Consequently, the alleged failure of the District to take affirmative steps to decrease the risk of flooding caused by CDOT’s construction of the ramp was not the exercise of “powers, duties, and functions vested in it, by law,” see § 24-10-103(3), and therefore, the District did not “operate or maintain” a sanitation facility within the meaning of § 24-10-106(l)(f) of the GIA. Accordingly, sovereign immunity was not waived.

The judgment is affirmed.

Judge VOGT and Judge CRISWELL concur.


author: OPALA, J.

text:
    2002 OK 83
    In the Matter of S.B.C., Deprived child under 18 years of age. Patricia Widick, Natural Mother and James Collins, Natural Father, Appellants, v. The State of Oklahoma, Appellee.
    No. 96,352, 96,362.
    Supreme Court of Oklahoma.
    Oct. 29, 2002.

      Patricia Widick, pro se, Tulsa, for appellant.
    Tim Harris, District Attorney, C. Kevin Morrison, Assistant District Attorney, Tulsa, for appellee.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, J.

¶ 1 Certiorari was granted to resolve a point of federal constitutional law the Court of Civil Appeals (COCA) has overlooked in reviewing this case. The dispositive issue is whether the any-competent-evidence standard applied by the COCA in this parental-rights-termination case meets the level of appellate scrutiny mandated by the U.S. Constitution’s Fourteenth Amendment. We answer in the negative.

THE ANATOMY OF LITIGATION

¶2 S.B.C. was born 5 August 2000 to petitioner Patricia Widick (Widick or mother) and James Collins (Collins or father). Wid-ick and Collins are not married but live together with the mother’s twelve-year-old son from a previous marriage. Because a job-related injury prevented the father from engaging in his occupation as a carpentry framer, he was the child’s full-time caregiver. The mother, who worked long hours, was the primary ivage earner.

¶3 Within the first few months of the child’s life, the father reported seemingly minor accidents when the child was in his care. The first occurrence took place on October 5 when he reported the two-month-old infant had rolled off the bed onto the floor. Eight days later the father reported the child rolled off the sofa. On November 13 Collins called Widick at work to report that he had fallen while holding S.B.C. On each occasion the mother examined the child and concluded no serious harm had occurred, but noted minor abrasions including a red rope-like bruising around the infant’s neck sustained during the bed incident, a small bruise on the shin from the fall off the sofa, and bruising around the eye and nose which appeared after Collins fell with the baby. S.B.C. was not taken directly to a hospital or physician as a result of the reported accidents. At a previously, regularly scheduled doctor’s visit which occurred two days after the father fell while holding S.B.C. — the physician’s report indicated the child was healthy and made no mention of suspected abuse. On the afternoon of November 21 the father noticed a swollen area on the infant’s head and phoned the mother. Neither parent indicated there had been another accident affecting S.B.C. Both parents took the child to an emergency room where x-rays indicated S.B.C. had numerous, serious injuries sustained at different times. X-rays revealed the four-month-old infant suffered a skull fracture within the last twenty-four hours, a ten-to-fourteen-day-old healing rib fracture, and a metaphyseal lesion (commonly called a “bucket handle fracture” of the tibia, which is consistent with shaken baby syndrome). The infant also exhibited “petechia” on his back (a mass of red pinpoint-like marks which are common following slapping or hitting of the skin). Suspecting abuse, the emergency room physician reported the incident and the infant was placed in protective custody.

¶ 4 After a bifurcated hearing a jury found (1) S.B.C. to be a deprived child; (2) the father physically abused the child in a manner that was severe, shocking, or heinous; (3) the mother failed to protect the child from the abuse; and (4) both parents’ rights should be terminated in accordance with applicable provisions of 10 O.S. Supp. 2000 § 7006-1.1. The trial court declared S.B.C. to stand in a deprived child status and entered an order terminating the parents’ rights. The mother appealed, complaining of insufficient notice of the abuse for a meaningful opportunity to protect the child and absence of evidence to support the verdict. The Court of Civil Appeals, Division II, applying the common law’s any-eompetent-evi-dence standard, affirmed the trial court’s order. The father’s separate appeal was later withdrawn from assignment to the Court of Civil Appeals, Division II, and transferred to this court to be consolidated with the mother’s earlier-granted certiorari for disposition by a single opinion.

APPELLATE REVIEW OF PARENTAL-STATUS-TERMINATION DECISIONS MUST BE BASED UPON THE CLEAR-AND-CONVINCING EVIDENCE STANDARD

¶ 5 Acknowledging that freedom of choice in the care and management of one’s child is a fundamental liberty interest sheltered by the Constitution, the United States Supreme Court, in Santosky v. Kramer, pronounced its constitutional command that before a state may sever the rights of parents in their natural child, the state must support its allegations at trial by at least clear-and-convincing evidence. That alone stands as a command that juries not use a different measure of proof. Simply stated, the question before us here is what standard must the appellate courts apply when reviewing disputed proof in parental-status-termination cases?

¶ 6 Appellate courts must aid in enforcing the Santosky-mandated federal constitutional standard of persuasion by canvassing the record on review to ascertain whether nisi prius fact findings rest on clear-and-convincing proof. If a lower standard of review were to be adopted for scrutiny of these critical findings, the courts of first instance would remain free to disregard the clear mandate of Santosky by allowing an impermissibly low burden of persuasion to govern at trial. Continued application of common-law review standard also would make reversal-proof those judgments which rest on competent evidence hut stand unsupported by clear-and-convincing proof. Any level of appellate scrutiny that is less stringent than that of searching for proof of clear-and-convincing nature will undermine the higher level of protection imposed by Santosky to safeguard the parents’ fundamental right to their offspring.

¶ 7 We are hence persuaded that, in order to assure faithful nisi prius compliance with the federal mandate, appellate review of a parental-bond severance must be conducted by searching for the presence of clear-and-convincing proof. The heightened test that is accorded fundamental rights would be watered down — if not indeed rendered meaningless — by the use on review of anything less than the very same standard as that which is required in the trial courts. In short, to warrant affirmance of nisi prius findings, appellate review in a parental-bond-severance proceeding must demonstrate the presence of clear-and-convincing evidence to support the first-instance decision.

¶ 8 We express here no view on any errors argued by the parents. The cause is remanded to the Court of Civil Appeals, Division II, for that court’s reconsideration by applying the review standard consistent with today’s pronouncement and for resolution of all other issues urged in the consolidated cause.

¶ 9 HARGRAVE, C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

¶ 10 WATT, V.C.J. and KAUGER, J., concur in result.

      . At the time of the hearing the father was legally married to another woman, with whom he has a child who resides with the out-of-state mother.

      . Widick has a third child who resides with his father in another state.

      . At the time of trial the father had returned to gainful employment.

      . Trial testimony indicates the x-ray revealed a fourth broken bone, a clavicle.

      . The relevant terms of 10 O.S. Supp.2000 § 7006-1.l(A)10a provide:

        * ■" * A. Pursuant to the provisions of the Oklahoma Children’s Code ... a court may terminate the rights of a parent to a child in the following situations ...
      10.A finding in a deprived child action either that:
      a. The parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court, ... * * *

      . Nealis, supra note 1 at ¶ 47, at 456.

      . COCA noted confusion in the authority sources on the standard of appellate review to be applied in parental-rights-termination cases. COCA opinion, p. 8n.l. The Supreme Court of Oklahoma has adopted the clear-and-convincing evidence standard of persuasion for the termination-seeking party. Matter of Adoption of Darren Todd H., 1980 OK 119, ¶ 18, 615 P.2d 287, 290; Matter of C.G., 1981 OK 131, ¶¶ 15-17, 637 P.2d 66, 69-71. Clear-and-convincing evidence is defined as that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. Matter of C.G., at ¶ 12n.l2, at 70 (citing Matter of Sherol A.S., 1978 OK 103, ¶ 22, 581 P.2d 884, 888 (1978).) COCA applied herein the legal standard of appellate review — that of any competent evidence. Court of Civil Appeals Opinion, Division II, p. 8.

      . Due process mandates the State to support its allegations by at least clear-and-convincing evidence before the bond between parent and child may be judicially severed. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982).

      . We have required that for termination of parental rights proof be clear and convincing. Matter of T.R.W., 1985 OK 99, ¶¶ 29-30, 722 P.2d 1197, 1203.

      . States that employ a stricter standard of review in termination cases have a stronger argument than those using a lower one. It would be anomalous to apply a low-level standard of appellate review when the law shows high regard for parental rights. James W. Paulsen, Family Law: Parent and Child, 51 SMU L.Rev. 1087, 1124 (1998). Where a fundamental liberty interest in the care and custody of a child is at stake, neither the "any evidence” standard of review for civil cases of legal cognizance nor the "reasonable evidence” standard is of "sufficient quality and substantiality to support the rationality of the judgment.” Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982). The court held in the last cited case that the appropriate standard of appellate review (where a parent's rights to the child have been severed) is whether any rational trier of fact could have found by clear- and-convincing evidence that the parent's right had been lost. Blackburn, at 826.
      A strong argument could also be advanced that failure to apply on appeal a standard of review at least equal to that which governs in the trial court is constitutionally impermissible. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), which holds that despite the normal federal "clearly erroneous” standard of appellate review (for defamation cases), independent appellate review of proof of "actual malice" must be established by evidence of convincing clarity. Because parental rights are no less fundamental than those of free speech, a review standard that is at least as protective as that which is required at trial appears mandated by analogy to the Court’s reasoning in Bose Corp. Paulsen, supra at 1124-25.