Burnett v. State Dep't of Natural Res., Supreme Court Case No. 13SC306

• Docket Nº: Supreme Court Case No. 13SC306
• Citation: 346 P.3d 1005, 2015 CO 19
• Case Date: March 23, 2015
• Court: Supreme Court of Colorado

346 P.3d 1005
2015 CO 19

Sara L. BURNETT, Petitioner
v.
STATE of Colorado DEPARTMENT OF NATURAL RESOURCES, Division of Parks and Outdoor Recreation, Respondent.

Supreme Court Case No. 13SC306

Supreme Court of Colorado.

March 23, 2015
Rehearing Denied April 27, 2015

Attorneys for Petitioner: Law Firm of Alan G. Molk, Alan G. Molk, Greenwood Village, Colorado, The Fowler Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Kathleen L. Spalding, Senior Assistant Attorney General, Denver, Colorado

Attorney for Amicus Curiae Colorado Trial Lawyers Association: Law Offices of John F. Poor, John F. Poor, Denver, Colorado

En Banc

Opinion

JUSTICE HOOD delivered the judgment of the Court.

¶ 1 In this case, we address whether the government waived its immunity for injuries petitioner Sara Burnett sustained when a tree limb fell on her as she camped below in a designated campsite in Cherry Creek State Park. The answer turns on whether the tree was a “natural condition of ... unimproved property” under section 24–10–106(1)(e), C.R.S. (2014), of the Colorado Governmental Immunity Act (“CGIA”). If so, the government is immune from Burnett's lawsuit.

¶ 2 We hold that a “natural condition of any unimproved property” includes native trees originating on unimproved property. Because a limb from such a tree caused Burnett's injuries, the natural condition provision of section 24–10–106(1)(e) immunizes the government here.

I. Facts and Procedural History

¶ 3 Located just southeast of Denver, Cherry Creek State Park (“the Park”) encompasses 4,200 acres and includes more than thirty miles of multi-use trails for biking, hiking, and horseback riding. It also features 135 designated camping sites. The State of Colorado leases the land on which the Park is located from the U.S. Army Corps of Engineers. Despite various man-made attractions and amenities, many of the Park's naturally occurring features remain undisturbed. Among these features are several thousand trees that were on the property when the State established the Park in

346 P.3d 1007

1959. Some of these trees border the campsite at issue in this case.¹

¶ 4 The parties do not dispute the key facts giving rise to this case. On July 18, 2010, Burnett and her friend, Mackenzie Brady, went camping in the Park after they paid a fee to enter. The pair chose Campsite No. 14, which included a utility hookup, a parking area, a picnic table, and a level dirt pad. Burnett and Brady chose to pitch their tent on the dirt pad under the canopy of four mature cottonwood trees, reaching some seventy-five feet in height and flanking Campsite No. 14. The weather that night was uneventful.

¶ 5 Early the next morning, while Burnett and Brady remained asleep inside their tent, a tree limb dropped from one of the cottonwoods and struck both of them. The blow fractured Burnett's skull and a vertebra and caused other acute injuries, including a concussion and multiple lacerations to her scalp and face. Brady suffered only minor injuries and was able to drive Burnett to the hospital, where Burnett spent three days. Due to the density of the canopy, Park employees who subsequently investigated the campsite were unable to determine the source of the fallen tree limb.

¶ 6 Burnett brought a premises liability action against the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation (“the State”) seeking compensation for her injuries. She relied on section 24–10–106(1)(e) of the CGIA, §§ 24–10–101 to –120, C.R.S. (2014), to argue that the Park was a “public facility” and the branches overhanging the campsite constituted a “dangerous condition” of it. See § 24–10–106(1)(e) (stating that a public entity waives immunity for injuries caused by a “dangerous condition of any ... public facility located in any park or recreation area maintained by a public entity”); see also § 24–10–103(5) (defining “public entity” to include “the state” and “every other kind of ... agency [or] instrumentality ... thereof”).

¶ 7 The State moved to dismiss, asserting sovereign immunity under a separate provision of section 24–10–106(1)(e), by which a public entity retains immunity for “an injury caused by the natural condition of any unimproved property” (“the natural condition provision”). The parties subsequently stipulated that the improved campsite was a “public facility” but the trees adjacent to it originated on unimproved property.

¶ 8 The trial court determined that the “sole issue” was whether the trees adjacent to Burnett's campsite constituted a “public facility.” In granting the State's motion to dismiss, the trial court conducted a two-part analysis to assess whether a pre-existing natural object, such as the tree, could be part of a “public facility.” See Rosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.App.2004) (holding that a tree is part of a public facility “if a public entity incorporates [it] into a facility in such a manner that it [1] becomes an integral part of the facility and [2] is essential for the intended use of the facility”). The trial court held that the trees bordering Campsite No. 14 were not integral or essential to the campsite and thus could not constitute part of a “public facility” under section 24–10–106(1)(e).

¶ 9 In a split decision, the court of appeals affirmed the trial court's application of the two-part Rosales test, holding that the trees adjacent to the campsite (i.e. the public facility) were not integral to the facility or essential to its intended use. Burnett v. State Dep't of Natural Res., 2013 COA 42, ¶ 9, ––– P.3d ––––. The court also held that because the trees were a “natural condition of ... unimproved property,” section 24–10–106(1)(e) precluded Burnett's suit. Id. at ¶ 11.

¶ 10 We granted certiorari and now affirm in part the judgment of the court of appeals.²

346 P.3d 1008

II. Standard of Review and Statutory Construction

¶ 11 Whether a governmental entity waives immunity under the CGIA is an issue of subject matter jurisdiction resolved under C.R.C.P. 12(b)(1). Medina v. State, 35 P.3d 443, 451–52 (Colo.2001). Where the facts are undisputed, as they are here, appellate review is de novo. Id. at 452–53. Because the CGIA derogates the common law, we strictly construe its grants of immunity and, in turn, broadly construe its waivers of immunity. Id. at 453 (citing Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000) ).

¶ 12 To resolve the case at hand, we must analyze section 24–10–106(1)(e)'s natural condition provision. The primary task in statutory interpretation is to determine and effectuate legislative intent by construing the statute as a whole, “giving consistent, harmonious, and sensible effect to all of the statute's parts.” St. Vrain Valley Sch. Dist. RE–1J v. A.R.L., 2014 CO 33, ¶ 10, 325 P.3d 1014, 1019. Where the statutory language is unambiguous, we give effect to the language's plain and ordinary meaning. Id. Where the statutory language is susceptible to more than one reasonable interpretation, it is ambiguous; in such cases, we may examine statements of legislative policy to determine legislative intent. See id. at 325 P.3d at 1019 (citing § 2–4–203(1), C.R.S. (2013) (noting that when statutory ambiguity exists, a reviewing court may consider, among other things, the object sought to be attained by the statute, the legislative history, the consequences of a particular construction, and the legislative declaration)).

III. Analysis

¶ 13 The CGIA generally immunizes governmental entities and employees from tort liability but waives this immunity under limited circumstances. See § 24–10–106. The Act recognizes that governmental immunity is sometimes inequitable, but it also recognizes that governmental entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive. See § 24–10–102. The balance between these two competing interests “is for the legislature alone to reach.” Medina, 35 P.3d at 453.

¶ 14 Under section 24–10–106(1)(e), a public entity waives its immunity in an action for an injury arising from a “dangerous condition of any ... public facility located in any park” it maintains. But a public entity retains immunity for injuries “caused by the natural condition of any unimproved property, whether or not such property is located in a park....” Id.³ Therefore, irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.

¶ 15 The CGIA does not define “natural condition of any unimproved property,” and none of Colorado's appellate courts has interpreted this statutory language. The parties submit divergent interpretations of the provision and essentially debate where the improved property ends and the unimproved property begins.

¶ 16 Burnett broadly interprets the natural condition provision. Under her view, the trees were in their “natural condition” until the State altered the trees' condition through incidental maintenance. She also reads the...