DENVER-
Families of two boys who drowned in drainage ditches in Colorado Springs and Longmont can sue the cities because government immunity did not apply at the time of the accidents, the state Supreme Court ruled Monday.
The court, in a unanimous ruling, said a 2003 law that extended government immunity to sanitation facilities including storm water drainage ditches applied only to accidents after July 1, 2003, the date the law went into effect.
The ruling immediately affects one other case, allowing a separate lawsuit against Colorado Springs and El Paso County to go forward.
In the Longmont case, Judith Henry-Hobbs sued the city after her 10-year-old son, Michael Henry, drowned while riding an inner tube down an drainage ditch.
In the Colorado Springs case, Valerie Powell sued the city after her 5-year-old son, Steven Powell, drowned in a rain-swollen drainage ditch. Her 12-year-old son, James Powell, was injured by the fast-moving water but was able to pull himself to safety.
Both drownings occurred in August 1997.
The third case stemmed from a lawsuit against Colorado Springs and El Paso County filed by property owners along Fountain Creek who claimed damage from flooding in 1999 was caused in part by the governments’ drainage systems.
Trial judges in all three cases rejected government motions to dismiss, ruling they were not covered by governmental immunity, and the Court of Appeals affirmed those rulings.
In 2003, concerned that the cases could increase government liability, the Legislature excluded storm water drainage systems from the governmental immunity law, prompting renewed requests to dismiss each of the cases.
The state appeals court agreed with the plaintiffs in each case that the 2003 law did not affect cases stemming from incidents that occurred before the law went into effect, and the Supreme Court affirmed those rulings.
The Supreme Court said the law included language predicting dire consequences unless governments were given additional protections from liability for sanitation facilities, but there was nothing specifically applying the change to existing cases.
“Equally relevant is what the statute does not say: Nowhere does (the 2003 law) specify that its modifications or additions ought to be applied retroactively,” the ruling said. “Legislation may only be applied retroactively if the Legislature clearly so intends.”
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The cases are Nos. 05SC743, 05SC744 and 05SC746.
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