July 17, 2019

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.

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