Dennis v. City & Cnty. of Denver
| Decision Date | 22 September 2016 |
| Docket Number | Court of Appeals No. 15CA1572 |
| Parties | Sean DENNIS, as conservator and on behalf of Doreen Heyboer, Plaintiff–Appellant, v. CITY AND COUNTY OF DENVER, Colorado, Defendant–Appellee. |
| Court | Colorado Court of Appeals |
Bachus & Schanker, LLC, David Krivit, Scot C. Kreider, Denver, Colorado, for Plaintiff–Appellant
Cristal Torres DeHerrera, Interim City Attorney, Wendy J. Shea, Assistant City Attorney, Jamesy C. Owen, Assistant City Attorney, Denver, Colorado, for Defendant–Appellee
Opinion by JUDGE FREYRE
¶ 1 In this case, we address whether the defendant, the City and County of Denver,1 waived its immunity for injuries Doreen Heyboer sustained as a passenger on a motorcycle that could not timely brake when a car unexpectedly turned left in front of it. The answer depends on whether a deteriorated roadway is an "unreasonable risk to the health or safety of the public" under § 24–10–103(1.3) C.R.S. 2016 of Colorado's Governmental Immunity Act (CGIA), a precursor to establishing a "dangerous condition" under § 24–10–106(1)(d)(I), C.R.S. 2016. This is a novel question. Plaintiff Sean Dennis, as conservator and guardian for Heyboer, brought this negligence and premises liability action against the City.
¶ 2 The complaint alleged that the City had a duty to maintain the roadway free from dangerous conditions that physically interfered with the movement of traffic, that it breached this duty by allowing the roadway to fall into disrepair, that it knew of the deteriorated state of the road from prior complaints, and that Heyboer's injuries resulted from the City's breach of its duty of care.
¶ 3 In response, the City moved to dismiss under C.R.C.P. 12(b)(1). It asserted immunity and denied Heyboer's allegations. The district court conducted a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster , 848 P.2d 916 (Colo. 1993) and issued a judgment granting the City's motion. It concluded that the City was immune from suit because "[t]he Plaintiff produced no evidence , either through a witness or an exhibit, that this dangerous condition posed ‘an unreasonable risk to the health and safety of the public’ as required by § 24–10–103(1.3)." (Emphasis added.) It further concluded that Heyboer failed to sustain her burden of proof.
¶ 4 We conclude that the court clearly erred in its factual finding that the record contained no evidence of an unreasonable risk to the health or safety of the public because the record contradicts that finding.2 Indeed, both the record and the court's factual findings show the City's knowledge of the road's poor conditions, the City's admission that road surface conditions raised a public safety risk, and the City's determination that the road was dangerous but not dangerous enough to fix. These facts demonstrate that the City failed to maintain the road as required under § 24–10–103(2.5), thereby creating an unreasonable risk to the health or safety of the public. In reaching this conclusion, we necessarily find that Heyboer satisfied her burden of proof.
¶ 5 We further conclude that because the record contains evidence of an unreasonable risk to the health or safety of the public, the court erred as a matter of law in finding no waiver of immunity under § 24–10–106(1)(d)(I). Accordingly, we reverse the court's judgment and remand the case for reinstatement of the complaint.
¶ 6 The facts of the accident are not disputed. On September 20, 2013, while riding as a passenger on the back of a motorcycle driven by Veres, Heyboer was thrown from the motorcycle when Veres suddenly braked to avoid a collision. Veres was traveling eastbound on Mississippi Avenue, and as he neared the intersection with Broadway, a car suddenly turned left across traffic in front of him. He applied the brakes, but he was unable to avoid the accident and hit the right rear panel of the car. Heyboer suffered permanent brain injuries from the accident.
¶ 7 At the hearing, the City conceded knowledge of the road's deteriorated condition, conceded that Heyboer was injured at the intersection, and conceded that it had a duty to maintain the road at that intersection. However, it denied that the condition of the road posed an unreasonable risk to the health or safety of the public, a requisite showing under § 24–10–103(1.3), which defines "dangerous condition."
¶ 8 In its judgment, the court found that Veres examined the pavement after the crash and determined that it had played a role in his inability to stop. Veres described more than fifteen years of experience as a motorcycle driver and said he regularly maintained his motorcycle.
¶ 9 The court found Heyboer's accident reconstruction and vehicle dynamics expert, David Bilek, reliable, and he opined that the collision would not have occurred if the road surface had been smooth, that the road's condition interfered with the movement of traffic, and that the road's uneven surface interfered with Veres' braking ability.
¶ 10 The court's judgment extensively recited the testimony of William Kennedy, the City's Pavement Engineer. Kennedy admitted that road surface condition was a factor in determining public safety risk, that the intersection where the accident occurred was well worn and in very poor condition, and that he was never fiscally constrained in repairing potholes.
¶ 11 Kennedy described a Pavement Condition Index (PCI) the City used to rate road conditions from excellent to very poor. Kennedy used this index to prioritize his repair work and said the PCI of this intersection was "very poor." He clarified that the PCI was not a measure of dangerousness, but he said that it provided an objective and rational basis for determining maintenance and repair needs and priorities. He admitted that this intersection was dangerous at the time of the accident but opined that it was not dangerous enough to fix. He said he had never found an intersection in Denver to be dangerous.
¶ 12 The court's judgment recited testimony from the City's two witnesses. The officer who investigated the crash, Stephanie Linkus, did not find that the road conditions played a role in this accident. Similarly, the City's accident reconstruction and mechanical engineering expert, Guy Barbera, opined that the road's surface did not interfere with braking and that the collision would still have occurred if the road conditions had been smooth. No witness opined on whether the road condition posed an "unreasonable risk."
¶ 13 Governmental immunity is an issue of subject matter jurisdiction. City of Colorado Springs v. Powell , 48 P.3d 561, 563 (Colo. 2002) ; Springer v. City & Cty. of Denver , 13 P.3d 794, 798 (Colo. 2000). The General Assembly enacted the CGIA in response to three cases abrogating Colorado's common law of governmental immunity.
Padilla in Interest of Padilla v. Sch. Dist. No. 1 , 25 P.3d 1176, 1180 (Colo. 2001) (); § 24–10–102, C.R.S 2016. The CGIA establishes governmental immunity from suit in tort actions, but it waives immunity under specific circumstances, including, as relevant here, when there exists "[a] dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic." § 24–10–106(1)(d)(I).
¶ 14 The CGIA's purpose is twofold: (1) to protect the public from unlimited liability and excessive fiscal burdens; and (2) to allow the common law of negligence to operate against governmental entities, subject to the exceptions barring specific suits. See State v. Moldovan , 842 P.2d 220, 222 (Colo. 1992) (). Because the CGIA derogates Colorado's common law, we strictly construe the statute's immunity provisions. Springer , 13 P.3d at 798. Conversely, we broadly construe the CGIA's waiver provisions in favor of victims injured by the negligence of governmental agents. Id. ; Walton v. State , 968 P.2d 636, 643 (Colo. 1998).
¶ 15 If governmental immunity is raised before trial, "the issue is properly addressed pursuant to a C.R.C.P. 12(b)(1) motion to dismiss." Corsentino v. Cordova , 4 P.3d 1082, 1087 (Colo. 2000). Under C.R.C.P. 12(b)(1), the injured plaintiff bears the burden of proving the court's subject matter jurisdiction under the CGIA and that immunity has been waived. Tidwell ex rel. Tidwell v. City & Cty. of Denver , 83 P.3d 75, 85 (Colo. 2003) ; Powell , 48 P.3d at 563. Any factual dispute upon which the existence of jurisdiction may turn is for the district court to resolve after weighing the evidence, finding facts, and entering conclusions of law. Swieckowski v. City of Fort Collins , 934 P.2d 1380, 1384 (Colo. 1997) ; see also Walton , 968 P.2d at 641.
¶ 16 On review, we defer to the district court's factual findings unless they are clearly erroneous and unsupported by evidence in the record. See Walton , 968 P.2d at 645. A finding is clearly erroneous if there is no support for it in the record. See Cont'l W. Ins. Co. v. Jim's Hardwood Floor Co. , 12 P.3d 824, 828 (Colo. App. 2000), as modified on denial of reh'g (May 18, 2000).
¶ 17 Once questions of historical fact are resolved, the question of whether a governmental entity is entitled to immunity is one of law, which we review de novo. Jordan v. Panorama Orthopedics & Spine Ctr., PC , 2013 COA 87, ¶ 11, 350 P.3d 863, aff'd , 2015 CO 24, 346 P.3d 1035 ; Douglas v. City & Cty. of Denver , 203 P.3d 615, 618 (Colo. App. 2008).
¶ 18 Similarly, the interpretation of statutory definitions is a question of law that we review de novo. Douglas , 203 P.3d at 618. Therefore, in reviewing a district court's determination of whether a dangerous condition exists under the CGIA, we review the court's findings of historical fact for clear error, deciding only whether there is any evidence in the record to support those findings. Jordan , ¶ 11....
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