Longbottom v. State Board of Community Colleges & Occupational Education , 17 Brief Times Rptr. 821 ( 1993 )

Opinion by

Judge TURSI.

Plaintiff, Richard Martin Longbottom, appeals from the judgment which dismissed his claims against defendants, the State Board of Community Colleges and Occupational Education, Trinidad State Junior College, Frank Fry, William Stanley, and Thomas Sullivan. We reverse and remand for further proceedings.

The complaint alleges that, on September 15, 1989, while plaintiff was enrolled as a student in a gunsmithing class at Trinidad State Junior College, he suffered the partial amputation of one hand while attempting to operate a jointer machine in the college’s machine classroom. It further alleged that defendants were negligent in permitting the classroom premises to be maintained in an unsafe and dangerous condition inasmuch as the jointer machine was not equipped with proper safety guards and defendants permitted students to operate the machines without proper instruction or supervision.

Pursuant to C.R.C.P. 12(b)(1) and 12(b)(5), defendants filed a motion to dismiss the complaint on the basis that the causes of plaintiffs injuries were not among those for which sovereign immunity had been waived pursuant to § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A). Specifically, the motion asserted that plaintiffs allegations of negligent failure to instruct and supervise did not allege an actionable tort for which immunity had been waived.

It further asserted that no waiver of immunity existed for the claims of negligent hiring and supervision. Finally, it asserted that the claim for unsafe maintenance of the premises based on the machine’s lack of safety guards did not fall within the statutory waiver for a “dangerous condition of a public building” in § 24-10-106(l)(c) and § 24-10-103(1), C.R.S. (1988 Repl.Vol. 10A).

Plaintiff filed a response to the motion, asserting that the mere presence of the defective, dangerous, and unguarded machine in the classroom constituted a “dangerous physical condition of a facility” and that negligent training, supervision, and entrustment constituted expected “uses” of the facility within the meaning of § 24-10-103(1).

Defendants filed a reply in which they noted that plaintiff had not alleged that the structure of the building itself was defective. Accordingly, defendants reasserted that immunity had not been waived for plaintiffs claims based upon negligent entrustment and supervision or the presence of a dangerous object within a public building.

The trial court determined that plaintiffs complaint related to the use of a woodworking machine rather than the physical condition of the building itself. Accordingly, it concluded that the alleged facts did not fall within the waiver of immunity in § 24-10-106(l)(c). We disagree.

In ruling on a motion to dismiss for failure to state a claim, the trial court must accept the facts of the complaint as true and determine whether, under any theory of law, plaintiff is entitled to relief. If relief could be granted under such circumstances, the complaint is sufficient. Schlitters v. State, 787 P.2d 656 (Colo.App.1989). Furthermore, the immunity created by the Governmental Immunity Act, being in derogation of the common law, must be strictly construed. State v. Moldovan, 842 P.2d 220 (Colo.1992).

It is conceded by all parties that the injury sustained by the plaintiff occurred in a public building; therefore, the critical question is whether the injuries also resulted from a dangerous condition of any public building. See § 24-10-106(l)(c).

As defined in § 24-10-103(1), C.R.S. (1988 Repl.Vol. 10A),

‘Dangerous condition’ means a physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility, (emphasis supplied)

Statutory words and phrases should be given effect according to their plain and ordinary meaning and the statute must be read and considered as a whole. People v. District Court, 713 P.2d 918 (Colo.1986). It is presumed that the General Assembly has knowledge of the legal import of the words it uses and that it intends each part of the statute to be given effect. People v. Guenther, 740 P.2d 971 (Colo.1987).

Moreover, a statute should be interpreted to give consistent, harmonious, and sensible effect to all its parts. People in Interest of D.L.E., 645 P.2d 271 (Colo.1982). Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. Charnes v. Boom, 766 P.2d 665 (Colo.1988).

Hence, if plaintiffs complaint, as fairly read, claims a dangerous condition of a public building, § 24 — 10—1—6(l)(c), and dangerous condition, as defined by § 24-10-103(1), means the physical condition of a facility or the use thereof, then if a public school building is a facility being put to its intended use, the dismissal of his complaint was improper.

Webster’s Third New International Dictionary Unabridged 812 (1976), as pertinent here, defines “facility” as:

[Sjomething that promotes the ease of any action, operation, transaction, or course of conduct ... (excellent facilities for graduate study): something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.

Although plaintiff in his complaint used the word premise instead of facility, he clarified his concept of a facility in his response to the motion to dismiss, and argued that dangerous condition includes the physical condition of a facility or the use thereof. Cf. Reynolds v. State Board of Community Colleges, 853 P.2d 539 (Colo.App.1992). Clearly, as pertinent here, the public school building is a facility which had in it a condition dangerous to the expected use thereof.

Here, there is no question that the classroom was part of a facility for use by the students in order to advance their education in gunsmithing, their chosen profession. The jointer was also an integral part of the facility used to serve this particular end. Therefore, we conclude that the complaint and response give sufficient notice to the defendants of the nature of the claim and that the claim stated is within the purview of the Governmental Immunity Act.

Defendants argue that since the word facility is used in the additional waiver of immunity contained in § 24-10-106(l)(e), this in some manner repeals the definition of dangerous condition of any public building as found in § 24-10-103(1) and applied to § 24-10 — 106(l)(c). We are not persuaded.

Further, the defendants’ reliance on Jenks v. Sullivan, 826 P.2d 825 (Colo.1992) and Mentzel v. Judicial Department, 778 P.2d 323 (Colo.App.1989) is misplaced. Clearly, the intended use of the courthouse in Jenks was not to facilitate the criminal act of a third party, nor was the intended use of the probation offices in Mentzel to facilitate a drunken party.

The judgment of the trial court is reversed, and the cause is remanded to it for reinstatement of the complaint.

SMITH, Justice,^* concurs. HUME, J., dissents.