Denver – A family’s lawsuit accusing the city of Colorado Springs of negligence after a 5-year-old boy drowned in a drainage ditch can go ahead, the Colorado Court of Appeals ruled today.
A three-judge panel of the appeals court overruled a trial judge who had said a state law enacted six years after Steven Powell died made the city immune from the claim.
The appeals court said the Legislature did not specifically make the law retroactive, and doing so would have violated the constitutional separation of powers among the branches of government.
Steven’s mother, Valerie Powell, filed the suit after he drowned in August 1997. Steven and his brother, James, then 12, fell into fast-moving water in the ditch while playing.
James was seriously injured but managed to pull himself out of the water. Steven’s body was found the next day.
The state Supreme Court ruled in the Powells’ case and a similar case in 2002 that government could be liable for injuries caused by the way storm drainage systems were operated.
The following year, the Legislature excluded storm water drainage systems from the law, prompting attorneys for Colorado Springs to ask the judge to dismiss the Powells’ case.
The trial judge agreed with the city’s argument that the law was retroactive, but the appeals court overruled the judge when the Powell family appealed.
The appeals court said that after the Supreme Court rules on an issue, the Legislature cannot change the law to counteract the effect of the ruling in past cases. The changes would apply only to future cases, the appeals court said.
It was the second time the lawsuit had come before the appeals court. In 2002, the court upheld a trial judge’s rejection of the city’s argument that it was immune from such a lawsuit under state law. The state Supreme Court agreed with that rejection also.
