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.