Horrell v. City of Aurora , 976 P.2d 315 ( 1999 )

Opinion by

Judge METZGER.

Plaintiff, Augustus W. Horrell, appeals the dismissal of his complaint against defendant, the City of Aurora. We affirm.

Plaintiff brought this action seeking compensation for injuries he allegedly sustained when he stepped on a loose cover plate and fell into a water meter pit that was owned, maintained, and operated by the City. Plaintiff alleged that City employees had negligently failed to lock the cover plate, replace an inner water meter cover, and warn of the dangers posed by an unlocked water meter cover.

Following discovery, the City filed a motion to dismiss under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), §24-10-101, et seq., C.R.S.1997. The City argued that plaintiffs complaint was barred under the GIA based on the holding in City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996).

The trial court agreed with the City and dismissed plaintiffs complaint.

I.

Plaintiff contends the trial court improperly applied Gallegos, swpra, in determining that the water meter pit was not a public water facility for purposes of the GIA. We disagree.

The facts at issue in Gallegos are almost identical to those in this case. There, the plaintiff was injured when he stepped on a loose water meter pit cover and fell into the meter pit. The water, meter pit was located on private property and, pursuant to Denver’s operating rules, the landowner owned the water meter pit and was responsible for its maintenance.

The court noted that under §24-10-106(l)(f), C.R.S.1997, Denver’s immunity was waived only if the water meter pit was a public water facility. Relying on the definition of the term “public facility” in §37-60-126(l)(b), C.R.S.1997, the court stated that the “determinative factor in defining a public facility is whether the facility is operated ‘for the benefit of the public.’ ” City & County of Denver v. Gallegos, supra, 916 P.2d at 511. Accordingly, because each water meter pit benefited only the property on which it was located and was not operated for the benefit of the public, the court held that water meter pits found on private property were not public water facilities. Alternatively, the court held that Denver’s immunity had not been waived under §24-10-106(1)©.

Plaintiff argues that Gallegos is distinguishable because, under Denver’s operating rales, the landowner both owns the water meter pit and is responsible for its maintenance. However, here according to plaintiff, the City both owns and maintains the water meter pits. In our view, even if true, this is a distinction without a difference.

As the Gallegos court noted: “For purposes of immunity waiver, ownership of the water meter pits is not dispositive.” City & County of Denver v. Gallegos, supra, 916 P.2d at 512. Rather, the court held that the determinative factor was whether the water meter pit was operated for the benefit of the public.

Plaintiff also asserts that we are not bound by the Gallegos decision because its conclusion, that water meter pits located on private property are not public water facilities, is merely dictum. However, that was the main issue resolved by the court. Thus, we reject plaintiffs interpretation of Gallegos.

Therefore, we conclude that the trial court properly dismissed the complaint. See also Delk v. City of Grand Junction, 958 P.2d 532 (applying Gallegos rationale to restaurant trash dumpster).

II.

Plaintiff also contends that the trial court’s determination violates Colo. Const, art. XI, §2. However, since this argument is raised for the first time on appeal, it is not properly before us for review. See Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1354, 67 L.Ed.2d 338 (1981).

The judgment is affirmed.

KAPELKE, J., concurs JONES, J., dissents.