Mountain States Telephone & Telegraph Co. v. State Department of Highways , 857 P.2d 502 ( 1993 )

Opinion by

Judge METZGER.

Defendant, State Department of Highways, appeals from a judgment awarding property damages of $10,302.07 to plaintiff, Mountain States Telephone and Telegraph Company, d/b/a U.S. West Communications, Inc. We affirm.

The amended complaint alleged that, in January 1989, defendant’s employees had excavated an area near a street intersection in order to place a traffic sign in the median strip. It further alleged that, during the excavation, defendant’s employees negligently “nicked” two of plaintiff’s underground cables. According to the complaint, plaintiff discovered the damage five days later, after moisture had seeped into and damaged the interior of the cables.

The amended complaint also alleged that defendant had breached its duty to give notice as required by the “Excavation Requirements” statute, § 9-1.5-101, et seq., C.R.S. (1986 Repl.Vol. 3B), before excavating for the sign. Finally, the complaint alleged that, because the state was a “person” to whom the statutory duty applied, sovereign immunity had been implicitly waived for defendant’s violation of that duty and defendant was liable for the resulting damage.

Defendant filed a motion to dismiss the amended complaint. In the motion, defendant acknowledged that it was subject to the requirements of § 9-1.5-101, et seq., but it asserted that sovereign immunity had not been waived for any damage resulting from its failure to comply with the statute.

The trial court denied defendant’s motion after determining that the General Assembly intended an implied waiver of sovereign immunity in the event of a public entity’s failure to abide by the terms of § 9-1.5-103 and § 9-1.5-104, C.R.S. (1986 Repl.Vol. 3B).

Subsequently, defendant filed an answer to the amended complaint denying any negligence and asserting again that plaintiff’s claims were barred by the doctrine of governmental immunity.

After a bench trial, the court found that defendant had a statutory duty to contact plaintiff before performing the excavation and that defendant’s failure to do so constituted negligence. Also, it reiterated its conclusion that the Excavation Requirements statute created an implied waiver of sovereign immunity. Accordingly, judgment was entered against defendant for the stipulated damages amount of $10,-302.07 plus interest and costs.

I.

Defendant contends that the trial court’s determination of liability was erroneous because governmental immunity has not been waived pursuant to § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A) for damage caused by negligent excavation. Defendant further argues that any provisions of the 1981 Excavation Requirements statute which could be construed as providing for compensatory damages against a public entity were negated by the 1986 amendments to the Governmental Immunity Act. We disagree.

When two apparently contradictory statutes relate to the same subject matter and two alternative constructions are possible, this court will adopt an interpretation that gives effect to both statutes. Further, a statute that is specific in its terms is not repealed by a later enactment which is in general terms unless an intent to do so is clear and unmistakable. People v. District Court, 196 Colo. 249, 585 P.2d 913 (1978).

Here, in pertinent part, the Excavation Requirements statute specifically imposes the following duty:

[N]o person shall make or begin excavation without first notifying an owner, operator, or association of owners and operators having underground facilities in the area of such excavation.

Section 9-1.5-103(3)(a), C.R.S. (1986 Repl. Vol. 3B) (emphasis supplied). In addition, an excavator must immediately notify a facilities owner of the location and extent of any damage and must cooperate to mitigate damages to the extent reasonably possible. Sections 9-1.5-103(5) and 9-1.5-103(7), C.R.S. (1986 Repl.Vol. 3B).

Further, “person” is defined as “any individual, partnership, association, corporation, or joint venture; the state, any political subdivision of the state, or any instrumentality or agency of either.” Section 9-1.5-102(6), C.R.S. (1986 Repl.Vol. 3B) (emphasis supplied).

Here, we perceive no basis for concluding that the General Assembly intended to repeal the specific provisions of the excavation statute when it subsequently amended the more general immunity act. To the contrary, one of the 1986 amendments to the Governmental Immunity Act was the enactment of § 24-10-106.5(1), C.R.S. (1988 Repl.Vol. 10A) which provides, in pertinent part, that: “Nothing in this section shall be construed to relieve a public entity of a duty of care expressly imposed under other statutory provision.” Further, one of the basic but often overlooked purposes of the Governmental Immunity Act is to permit a person to seek redress for injuries caused by a public entity, and the immunity created by that Act, being in derogation of the common law, must be strictly construed. State v. Moldovan, 842 P.2d 220 (Colo.1992).

In State v. Moldovan, supra, our supreme court addressed the issue whether the state could be held liable in damages for breach of a statutory duty to maintain fences adjacent to state highways. After considering the nature of the statutory duty involved and the purpose sought to be achieved by that duty (protection of highway motorists from the danger of injuries), it concluded that the state could be held liable in damages on a theory of general negligence.

Here, the express purpose sought to be achieved by the excavation statute is “to prevent injury to persons and damage to property from accidents resulting from damage to underground facilities by excavation.” Section 9-1.5-101.

We conclude that the concern for public safety underlying the Excavation Requirements statute, along with the specific provisions of § 9-1.5-103 and § 24-10-106.5(1), manifest a legislative intent to create a private remedy in damages under general negligence principles on behalf of an owner whose underground facilities are damaged by the state’s failure to comply with the Excavation Requirements statute. See State v. Moldovan, supra.

Accordingly, we conclude that the trial court did not err in awarding plaintiff its stipulated damages.

II.

Defendant also contends that the trial court erred in its determination that defendant’s activities constituted an “excavation.” In support of this contention, it argues that the removal of a signpost is not equivalent to an “excavation” within the meaning of the statute. Again, under the circumstances present here, we disagree.

Section 9-1.5-102(3), C.R.S. (1986 Repl. Vol. 3B) states:

‘Excavation’ means any operation in which earth is moved or removed by means of any tools, equipment, or explosives and includes augering, backfilling, ditching, drilling, grading, plowing-in, pulling-in, ripping, scraping, trenching, and tunneling.

Defendant’s witness, a highway maintenance employee who was involved in the replacement of the signpost, testified that the crew “augered down” to a depth of 36 inches to remove the old sign. In the process, the power auger removed old post wood shavings and broken pieces of post, sand, and gravel. In replacing the post, it was necessary to backfill around the hole.

Based upon this evidence, we conclude that trial court correctly determined that defendant’s activities in replacing the signpost amounted to an “excavation” within the meaning of the statute.

III.

Defendant further contends that the trial court erred in awarding compensatory damages to plaintiff because the provisions of the Excavation Requirements statute indicated that injunctive relief was intended to be the sole remedy for failure to comply with its terms. In support of this contention, while acknowledging that the statute recognizes that an action for compensatory damages may exist, defendant argues that no legislative intent to impose civil liability for violations was “clearly expressed.” However, because this argument was neither raised nor considered in the trial court, we decline to address it on appeal. See Dove v. Delgado, 808 P.2d 1270 (Colo.1991); Roberts-Henry v. Richter, 802 P.2d 1159 (Colo.App.1990).

In view of our resolution of the foregoing issues, we consider it unnecessary to address plaintiffs remaining contention.

Judgment affirmed.

PIERCE, J., concurs. DAVIDSON, J., dissents.