October 18, 2017

Colorado Supreme Court: Non-negligently Constructed and Maintained Playground Equipment Cannot be “Dangerous Condition” for CGIA Waiver Purposes

The Colorado Supreme Court issued its opinion in St. Vrain Valley School District RE-1J v. Loveland on Monday, May 22, 2017.

Governmental Immunity—Waiver of Governmental Immunity—Dangerous Condition.

In this case, the supreme court considered the Colorado Governmental Immunity Act’s “recreation-area waiver,” which deprives a public entity of immunity in an action for injuries resulting from a dangerous condition of a public facility located in a recreation area. Specifically, the court examined the meaning of “dangerous condition” under the recreation-area waiver. The court held that a non-negligently constructed and maintained piece of playground equipment cannot be a “dangerous condition” under the waiver. Given this holding, the facts respondents alleged cannot show that a “dangerous condition” existed in this case. The court therefore concluded that the recreation-area waiver did not apply and petitioner retained its immunity from suit. The court reversed the judgment of the court of appeals and remanded to that court to reinstate the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CGIA Does Not Apply to Claims by Metropolitan District Against Developers

The Colorado Court of Appeals issued its opinion in Tallman Gulch Metropolitan District v. Natureview Development, LLC on Thursday, May 18, 2017.

Colorado Governmental Immunity Act—Public Employee Immunity for Torts.

Richardson owned Natureview Development, LLC (Natureview) and platted and developed Tallman Gulch, a real estate development. In 2006, the Tallman Gulch Metropolitan District (the District) was formed to provide public improvements and services to its residents and taxpayers. Richardson was president of the District’s Board of Directors (Board). Tallman Gulch went into foreclosure, and despite being aware of the foreclosure proceedings, Richardson, acting as president of the District’s Board, signed off on the issuance of $4,214,000 in bonds to Natureview in exchange for the then-existing infrastructure improvements in Tallman Gulch. Ten days after the bonds were issued, the district court authorized the public trustee sale of Tallman Gulch, which was sold in 2011.

The District filed various claims against Natureview and Richardson, alleging it suffered an injury when it issued over $4 million in bonds to Natureview and Richardson, despite Tallman Gulch’s foreclosure status. The District argued that Richardson breached his fiduciary duty to the District as a Board member by approving issuance of bonds in a financially reckless manner and in bad faith, failing to disclose and consider the development’s financial and foreclosure status in making the bonds decision. Defendants moved to dismiss on various grounds. As relevant here, defendants argued that the court lacked subject matter jurisdiction over the claims against Richardson under CRCP 12(b)(1), asserting that the claims were based on Richardson’s actions as an officer of the District and were thus barred by the Colorado Governmental Immunity Act (CGIA). The court denied the motion to dismiss.

On appeal, defendants argued it was error to conclude the CGIA did not apply to the District’s claims against Richardson. Richardson argued that as a public employee he was immune under the CGIA with regard to the District’s tort claims against him. Here, the District, the public entity that employed Richardson, sued him for his malfeasance while in its employ. The plain language of the statute is unambiguous as to the immunity of the entity or employee when called upon to defend against tort claims, but it is silent as to suits brought by a public entity plaintiff. The CGIA clearly states that its purpose is to limit the liability of public entities in defending against tort claims, and thus to lessen the burden on taxpayers who provide funding for public entities. To prevent the District from recovering its loss by allowing Richardson to claim immunity as a public employee does not effectuate the purposes of the CGIA. The Court of Appeals concluded that the district court correctly concluded that the CGIA did not on its face apply to the District’s claims against Richardson.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: City Waived Immunity by Failing to Maintain Road

The Colorado Court of Appeals issued its opinion in Dennis v. City & County of Denver on Thursday, September 22, 2016.

Colorado Governmental Immunity Act—Deteriorated Roadway—Unreasonable Risk to Health or Safety of Public.

Heyboer sustained injuries as a passenger on a motorcycle that could not timely brake when a car unexpectedly turned left in front of it. Dennis, as conservator and guardian for Heyboer, brought this negligence and premises liability action against the City and County of Denver (City). The complaint alleged that (1) the City had a duty to maintain the roadway free from dangerous conditions that physically interfered with the movement of traffic, (2) it breached that duty by allowing the roadway to fall into disrepair, (3) it knew of the deteriorated state of the road from prior complaints, and (4) Heyboer’s injuries resulted from the City’s breach of its duty of care.

The City moved to dismiss under C.R.C.P. 12(b)(1), asserting immunity and denying the allegations. The district court conducted a hearing and granted the City’s motion.

On appeal, Heyboer argued that she satisfied her burden of proving an unreasonable risk to the health or safety of the public; she contended that the court erred in finding no evidence of an unreasonable risk and, by doing so, erred as a matter of law in refusing to find a waiver of immunity. Both the record and the court’s factual findings demonstrated that the City failed to maintain the road as required by C.R.S. § 24-10-103(2.5), thereby creating an unreasonable risk to the health or safety of the public. The court of appeals concluded that the district court clearly erred in its factual finding that the record contained no evidence of an unreasonable risk to the health and safety of the public. This also leads to the conclusion that it was error to find, as a matter of law, that there was no waiver of immunity under the Colorado Governmental Immunity Act.

The judgment was reversed and the case was remanded for reinstatement of the complaint.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer Entitled to Bring Interlocutory Appeal Regarding Whether Sovereign Immunity Applied

The Colorado Supreme Court issued its opinion in Martinez v. Estate of Bleck on Monday, September 12, 2016.

Colorado Governmental Immunity Act—Interlocutory Appeal—Sovereign Immunity—Willful and Wanton Conduct.

Bleck was injured when Officer Jeffrey Martinez’s firearm  discharged during an attempt to subdue Bleck. Bleck filed a state law battery claim against Martinez, and Martinez filed a motion to dismiss, claiming immunity under the Colorado Governmental Immunity Act (CGIA). The trial court found that Bleck had adequately pleaded willful and wanton conduct by Martinez and thus denied Martinez’s motion. Martinez then filed an interlocutory appeal with the Court of Appeals. The Court of Appeals held that it lacked jurisdiction to hear the appeal because Martinez was only entitled to qualified immunity, which is not appealable on an interlocutory basis, not sovereign immunity, which is. The Supreme Court reversed and concluded that whether a public employee’s conduct is willful and wanton under the CGIA implicates sovereign immunity. Thus, the plain language of the CGIA affords Martinez a right to an interlocutory appeal. The Court further held that the trial court erred in (1) not deciding the issue of whether Martinez’s conduct was willful and wanton, and (2) using a negligence standard to define willful and wanton. Accordingly, the Court remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Colorado Governmental Immunity Act Does Not Apply to Prospective Injury

The Colorado Supreme Court issued its opinion in Open Door Ministries v. Lipschuetz on Monday, May 23, 2016.

Colorado Governmental Immunity Act—Injury—Nature of Action.

The Supreme Court held that the Colorado Governmental Immunity Act (CGIA), CRS §§ 24-10-101 to -120, does not bar claims for prospective relief from a future injury. Open Door Ministries (Open Door) had not suffered an injury by the time it filed its cross-claims against the City and County of Denver. Therefore, Open Door’s cross-claims—which sought prospective relief to prevent a future injury—were not subject to the CGIA. Open Door was not required to comply with the CGIA’s notice provision, and the trial court had jurisdiction over the cross-claims.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Late Filing Not Allowed Under Excusable Neglect Because Claim Not Meritorious

The Colorado Supreme Court issued its opinion in Sebastian v. Douglas County on Monday, February 29, 2016.

Hearing and Determination—Pleading—Civil Procedure.

In his action under 42 USC § 1983, plaintiff alleged that his Fourth Amendment rights were violated when he was bitten by a K-9 police dog. His claim was dismissed after he failed to respond to a motion to dismiss. Thereafter, he filed a motion to set aside the judgment under CRCP 60(b)(1), asserting that his failure to respond was caused by excusable neglect. The trial court denied the Rule 60(b)(1) motion, and the court of appeals affirmed, concluding that plaintiff failed to demonstrate that he had alleged a meritorious claim or defense, the second factor to be considered under Rule 60(b)(1). The court of appeals reasoned that plaintiff failed to allege an intentional seizure by the government as required under Brower v. County of Inyo, 489 U.S. 593, 596 (1989). More specifically, the court of appeals reasoned that an intentional seizure occurs when an officer releases a K-9 into a particular “space” and the plaintiff is bitten within that space.

The Supreme Court affirmed, but on narrower grounds. The Court rejected the court’s “space” analysis and instead found that the allegation regarding an intentional seizure in plaintiff’s complaint amounts to a legal conclusion, which is insufficient to allege a meritorious claim under Rule 60(b)(1).

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Zip Line at Public School Inherently Dangerous So CGIA Does Not Apply

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on Thursday, September 24, 2015.

Governmental Immunity—Recreation Area Waiver.

In 2008, 9-year-old Alexa Rae Loveland was playing in her public elementary school’s playground. While using a zip line, she fell and fractured her wrist and right forearm. Alexa and her parents filed a tort action against the school’s principal and St. Vrain Valley School District RE-1J (District).

The District moved to dismiss under CRCP 12(b)(1), asserting lack of subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands argued immunity was waived under CRS§ 24-10-106(1)(e) because the injury arose from a “dangerous condition” of a “public facility located in any park or recreation area maintained by a public entity.” The trial court granted the District’s motion, finding that playground equipment is not a public facility.

On interlocutory appeal, a division of the Court of the Appeals reversed, holding that the zip line constituted a public facility located in a recreation area. The Supreme Court granted certiorariand held that “an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground.” Because the trial court made no findings of fact regarding “the remaining requirements of the recreation area waiver,” however, the Supreme Court remanded the case. On remand, the District again moved to dismiss and the trial court again granted the motion.

On this second appeal, the Lovelands argued that it was error for the trial court to conclude they had not satisfied the requirement that the injury was a result of a dangerous condition that was a result of the physical condition of the public facility. The Court of Appeals agreed. The zip line was inherently dangerous and its mere presence was the physical condition of the playground, the use of which created the dangerous condition that caused Alexa’s injuries.

The trial court also found that the Lovelands had not shown that the particular zip line constituted an unreasonable risk to public health or safety. The Court held there was not enough evidence presented on this issue and, thus, it was error for the trial court to hold this was not shown as a matter of law. A hearing is therefore necessary to make factual findings on this issue.

The Court further held that the trial court properly dismissed the claims against the principal because there was no allegation that she was involved in the decision to install the zip line. Rather, the allegations went to claims of negligent supervision, which are barred by the CGIA. Because an award of attorney fees is mandatory when a trial court dismisses an action under CRCP 12(b), the principal is therefore entitled to her reasonable attorney fees on appeal as they relate to the claims against her. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Municipality Waived Immunity for Dangerous Condition of On-street Parking Spot

The Colorado Court of Appeals issued its opinion in McKinley v. City of Glenwood Springs on Thursday, September 10, 2015.

Colorado Governmental Immunity ActInjuries—Parking Area—Municipal Street—Immunity—Waiver.

Linda McKinley pulled her car into a parking spot on a municipal street in the City of Glenwood Springs (City). She stepped out of her car and tripped in a four- to five-inch deep depression in the pavement of the parking area. The McKinleys filed a complaint seeking to hold the City liable for Linda McKinley’s injuries and William McKinley’s loss of consortium. The City moved to dismiss the complaint based on the Colorado Governmental Immunity Act (CGIA), which was denied by the trial court.

On appeal, the City argued that the trial court erred in denying its motion to dismiss based on the CGIA. CRS § 24-10-106(1)(d)(I) of the CGIA waives immunity for injuries occurring in parking areas of a municipal street. Because the trial court’s finding that the depression was a dangerous condition that interfered with traffic is supported by evidence in the record, the trial court’s order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Red Rocks’ Creation Rock is Natural Condition of Unimproved Property

The Colorado Court of Appeals issued its opinion in Ackerman v. City & County of Denver on Thursday, July 16, 2015.

Personal Injury—Colorado Governmental Immunity Act—Waiver—Unimproved Property.

Plaintiffs filed this personal injury action after being struck and injured by rocks that fell from “Creation Rock,” a rock formation that abuts one side of the Red Rocks Park amphitheater, while attending a concert. The City and County of Denver (Denver) brought this interlocutory appeal after the trial court determined that Denver’s immunity from suit had been waived.

On appeal, Denver argued that the trial court erred in finding it had waived its immunity under the Colorado Governmental Immunity Act (CGIA). Creation Rock is a natural sandstone monolith that rises 300 feet and extends the entire length of the amphitheater on the north side. Therefore, Creation Rock is a natural condition of unimproved property. Denver’s voluntary efforts to protect the public from a natural condition does not render the government liable for injuries that occur when those efforts are inadequate. Further, plaintiffs’ location in the amphitheater does not support a waiver of immunity under CRS § 24-10-106(1)(e) for injuries caused by a natural condition. The order was reversed and the case was remanded with directions to dismiss plaintiffs’ claims against Denver for lack of subject matter jurisdiction under the CGIA and to award Denver its attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Apply Retroactively

The Colorado Court of Appeals issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Thursday, June 18, 2015.

Colorado Governmental Immunity Act—Gas Facility Exception—Public Building Exception.

The Smokebrush Foundation (Smokebrush) alleged that various contaminants had migrated from the City of Colorado Spring’s (City) property onto its property, causing damages. The district court denied the City’s motion to dismiss, concluding that the City’s immunity was waived under two statutory provisions of the Colorado Governmental Immunity Act (CGIA): the gas facility exception and the public building exception. The district court also concluded that these waiver provisions applied retroactively to contamination that undisputedly occurred before the CGIA was enacted.

On appeal, the City argued that the trial court erred in finding that the CGIA applied retroactively. Nothing in the CGIA states that it is intended to operate retroactively. Therefore, the CGIA operates prospectively, effective July 1, 1972. Accordingly, to the extent that Smokebrush’s allegations were based on contamination stemming from the City’s coal gas operations in the 1920s and 1930s, the district court erred in concluding that the gas facility or public building exceptions to governmental immunity applied retroactively. The City is therefore immune from tort claims based on such contamination.

The City argued that the district court erred in concluding that the City was subject to suit under the gas facility and public building exceptions to governmental immunity for the injuries claimed by Smokebrush from alleged asbestos migration during the demolition activities on the property beginning in late 2012. The legislature waived governmental immunity for injuries resulting from “[t]he operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.” Because the City’s property was not used in the collection, production, or distribution of natural gas and only housed administrative functions after the 1930s, the gas facility exception did not apply. Governmental immunity is also waived for injuries resulting from a dangerous condition of a public building. Although the City acknowledged that the property was a public building, this exception only applies to “constructing” and “maintaining” a public building. When the asbestos allegedly migrated to Smokebrush’s property, the property was in the process of being completely demolished. The dangerous condition definition applicable to the public building exception does not expressly recognize negligence claims stemming from demolition of a public facility. Therefore, the public building exception did not apply. The order denying the City’s motion to dismiss was reversed and the case was remanded to the district court with instructions to grant the motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Traffic Camera Bills Vetoed; PERA Reduction, School Safety, and More Bills Signed

On Wednesday, June 3, 2015, Governor Hickenlooper signed six bills into law and vetoed two bills. To date, he has signed 296 bills into law and vetoed two bills. The bills on which he took legislative action Wednesday are summarized here.

Signed

  • HB 15-1391 – Concerning an Adjustment to the Total Employer Contribution Rate of the Denver Public Schools Division of the Public Employees’ Retirement Association in Connection with the Equalization Status of the Association’s Denver Public Schools Division with the Association’s School Division as Required by the Merger of the Denver Public Schools Retirement System with the Association, by Reps. Lois Court & Jim Wilson and Sen. Pat Steadman. The bill reduces the employer PERA contribution rate, effective January 1, 2015, and allows adjustment of the employer contribution rate every five years.
  • SB 15-213Concerning the Limited Waiver of Governmental Immunity for Claims Involving Public Schools for Injuries Resulting from Incidents of School Violence, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. The bill allows schools and school districts to be held liable if they fail to exercise reasonable care in protecting students and staff from reasonably foreseeable acts of violence.
  • SB 15-214 – Concerning Creating a Legislative Committee on Safety in Schools, and, in Connection Therewith, Making an Appropriation, by Sens. Mark Scheffel & Bill Cadman and Reps. Crisanta Duran & Dickey Lee Hullinghorst. The bill establishes the School Safety and Youth Mental Health Committee to study issues related to school safety and prevention of threats to safety.
  • SB 15-221 – Concerning Public Transit Officers, by Sen. John Cooke and Reps. Jessie Danielson & Kevin Priola. The bill clarifies that a public transit officer who is classified as a peace officer through his or her job is a peace officer at all times, even when off-duty.
  • HB 15-1359 – Concerning the Creation of the Achieving a Better Life Experience (ABLE) Savings Program for Individuals with Disabilities, by Reps. Jessie Danielson & Lois Landgraf and Sens. John Kefalas & Beth Martinez Humenik. The bill allows the Department of Higher Education to create the ABLE Savings Program for people with disabilities so they may create accounts exempt from federal taxable income.
  • SB 15-288Concerning the Compensation Paid to Certain Public Officials, by Sens. Randy Baumgardner & Mary Hodge and Reps. Millie Hamner & Bob Rankin. The bill aligns the salaries of legislative branch officials with the salaries of judicial branch officials.

Vetoed

  • SB 15-276 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement, by Sens. David Balmer & Morgan Carroll and Reps. Kevin Van Winkle & Stephen Humphrey. The bill would have prohibited the issuance of citations from traffic cameras with specific exceptions for toll roads and toll highways.
  • HB 15-1098 – Concerning the Elimination of the Use of Automated Surveillance Camera Vehicle Identification Systems for Traffic Law Enforcement, by Reps. Kevin Van Winkle & Steve Lebsock and Sen. Tim Neville. The bill would have required local governments to obtain voter approval before utilizing red light cameras, and would have required existing programs to receive voter approval in 2017 in order to continue.

In addition to the bills signed Wednesday, Governor Hickenlooper signed six bills into law on Thursday, bringing the total number of signed bills to 302. The bills signed Thursday are summarized below.

  • HB 15-1367 – Concerning Retail Marijuana Taxes, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Pat Steadman. The bill refers a ballot issue to voters regarding whether the state may retain and spend revenue created from retail marijuana excise taxes.
  • HB 15-1249 – Concerning Amendments to the Fees Associated with Water Pollution Control, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. KC Becker and Sen. Mary Hodge. The bill recodifies fees for clean water and drinking water programs, and adds fees for pesticide application activities and CDPHE certifications.
  • HB 15-1341 – Concerning Increasing the Penalty from a Class 6 Felony to a Class 5 Felony for Sexual Exploitation of a Child by Possession of Sexually Exploitative Material, and, in Connection Therewith, Making an Appropriation, by Reps. Kathleen Conti & Rhonda Fields and Sens. John Cooke & Michael Johnston. The bill increases the penalty for possession of certain sexually exploitative material and modifies terms concerning electronic media.
  • HB 15-1033 – Concerning Long-Term Strategies to Address Colorado’s Aging Population, and, in Connection Therewith, Creating a Strategic Action Planning Group to Develop a Comprehensive, Long-Term Action Plan for Colorado’s Aging Population and Making an Appropriation, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill creates a strategic planning group to study issues facing Coloradoans age 50 and older, and outlines specific study areas.
  • HB 15-1335 – Concerning Access to Personal Records Relating to a Person’s Family History, by Reps. Lori Saine & Jonathan Singer and Sens. Vicki Marble & Linda Newell. The bill allows an adult adoptee to obtain access to a non-certified copy of an original birth certificate and amended birth certificates of adult siblings or half-siblings.
  • SB 15-206 – Concerning Phased Conservation Easement Donations for Conservation Easements Donated On or After January 1, 2015, and, in Connection Therewith, Lowering Transaction Costs for Agricultural Producers, Facilitating Endangered Species Mitigation, and Making an Appropriation, by Sens. Ellen Roberts & Mary Hodge and Reps. Alec Garnett & Jon Keyser. The bill increases the credit awarded for the first $100,000 of a conservation easement tax credit and also increases the maximum credit for a single donor.

Vetoed

  • HB 15-1390 – Concerning an Increase in the Allowable Finance Charge for Certain Consumer Credit Transactions, by Reps. Jovan Melton & Jack Tate and Sens. Chris Holbert & Cheri Jahn. The bill would have increased the unpaid balance limit for current tiered maximum finance charges allowed on certain supervised loans and consumer credit sales.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Waiver of Governmental Immunity Requires Showing of Excessive Speed and Endangering Life or Property

The Colorado Court of Appeals issued its opinion in Dempsey v. Denver Police Department on Thursday, May 21, 2015.

Personal Injury—Interlocutory Appeal—CRS § 24-10-108—Automobile Accident—Police Officer—Colorado Governmental Immunity Act.

Plaintiffs were struck by a police vehicle driven by Officer Jossi, who was en route to a possible robbery and traveling at a high rate of speed. Plaintiffs brought this action against Officer Jossi, along with the Denver Police Department and the City and County of Denver (collectively, Denver), seeking compensation for the injuries they sustained in the accident.Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under theColorado Governmental Immunity Act (CGIA). The trial court denied the motion, and Denver appealed.

To find a waiver of immunity, the trial court was required to find that Officer Jossi both exceeded the lawful speed limit, taking into consideration any traffic conditions that would qualify as a “special hazard” to require a lower speed, and endangered life and property. The record does not clearly demonstrate that the trial court made a finding as to whether Officer Jossi was exceeding the lawful speed limit at the relevant time. Therefore, the order was vacated and the case was remanded for further findings.

Summary and full case available here, courtesy of The Colorado Lawyer.