Burnett v. State, Dep't of Natural Res., Div. of Park & Outdoor Recreation, 11 CA2141

Docket NºNo. 11 CA2141
Citation350 P.3d 853, 2013 COA 42
Case DateMarch 28, 2013
CourtCourt of Appeals of Colorado

350 P.3d 853
2013 COA 42

Sara L. BURNETT, Plaintiff–Appellant

No. 11 CA2141

Colorado Court of Appeals, Div. V.

Announced March 28, 2013

Law Firm of Alan G. Molk, Alan G. Molk, Englewood, Colorado; The Fowler Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado, for Plaintiff–Appellant.

John W. Suthers, Attorney General, Kathleen L. Spaulding, Senior Assistant Attorney General, Denver, Colorado, for Defendant–Appellee.

Keating Wagner Polidori Free, P.C., John F. Poor, Denver, Colorado, for Amicus Curiae The Colorado Trial Lawyers Association.


Opinion by JUDGE FOX.

¶ 1 Sara L. Burnett appeals the trial court's judgment dismissing her negligence claim against the Colorado Department of Natural Resources (CDNR). She contends that the trial court erred in determining that the CDNR did not waive immunity for her injuries under the Colorado Governmental Immunity Act (CGIA), section 24–10–106(1)(e), C.R.S.2012. Because we conclude that there is no waiver of immunity under the CGIA for dangerous conditions in an unimproved area within a state park, we affirm the trial court's dismissal.

I. Background

¶ 2 The facts recited here are not in dispute. Burnett was injured while camping in a designated campground in Cherry Creek State Park, which is operated by the CDNR. Burnett was sleeping in her tent in Campsite No. 14 when she was struck by a falling tree branch. The branch likely came from a stand of trees adjacent to and overhanging Campsite No. 14. These mature cottonwood trees likely existed before the park was established in 1959.1 Some other campsites had no adjacent trees.

¶ 3 Burnett brought a negligence claim against the CDNR for her injuries. The trial court dismissed her claim for lack of subject matter jurisdiction because the state is immune from all tort claims under the CGIA, except where immunity is expressly waived, and no waiver applied. § 24–10–106(1), C.R.S.2012. This appeal followed.

350 P.3d 855

II. Standard of Review

¶ 4 Because the parties stipulated to the relevant facts, the trial court did not conduct an evidentiary hearing. The trial court held, as a matter of law, that there was no waiver of immunity under the CGIA here. We review a trial court decision based on statutory interpretation de novo. Medina v. State, 35 P.3d 443, 452 (Colo.2001).

III. Analysis

¶ 5 The trial court held that while the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from falling branches. See § 24–10–106(1)(e). Burnett contends that the trial court erred in dismissing her claim because the trees adjacent to Campsite No. 14 were part of a public facility, and the tree branches hanging over the campsite constituted a “dangerous condition of a public facility.” See id.

¶ 6 Under the CGIA, the state 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.” § 24–10–106(1)(e). The act further states, “[n]othing in this paragraph ... shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area.” Id.

¶ 7 The CGIA weakened the common law of negligence by immunizing the government from tort liability, except where immunity is expressly waived. See § 24–10–106 ; Medina, 35 P.3d at 453 ; Herrera v. City & County of Denver, 221 P.3d 423, 425 (Colo.App.2009). We thus strictly construe its grant of immunity and interpret its waiver provisions broadly. Medina, 35 P.3d at 453 ; Herrera, 221 P.3d at 425. Nonetheless, we interpret a statute to give words and phrases their plain meaning in order to give effect to the intent of the legislature. Medina, 35 P.3d at 453 ; Herrera, 221 P.3d at 425.

A. The Pre–Existing Tree Is Not a Public Facility

¶ 8 In determining that the tree from which the branch fell was not a public facility under the CGIA, the trial court followed Rosales v. City & County of Denver, 89 P.3d 507 (Colo.App.2004). In Rosales, a division of this court held that under the CGIA, a tree in a park or recreation area is not a public facility because a tree is not manmade or constructed. Id. at 510. The Rosales division concluded that the General Assembly intended the phrase “public facility” to mean something built or constructed by a public entity for a specific purpose.2 Id. at 509 ; see also Loveland v. St. Vrain Valley Sch. Dist. RE 1J, 2012 COA 112, ¶ 26, 328 P.3d 228 (cert. granted Feb. 25, 2013) (holding that under the CGIA, artificial playground equipment at a public school was a public facility because it was physically constructed). The Rosales division further concluded that a tree would be part of a public facility—and the state liable for injuries from it—only if it were “an integral part of the facility” and “essential for the intended use of the facility.” 89 P.3d at 510.

¶ 9 We agree with the trial court's application of the Rosales test, and its determination that the tree adjacent to Campsite No. 14 is not a public facility. Trees are not integral to the use and enjoyment of a campsite merely because they provide shade, protection, and aesthetic values, and trees are not essential to the use of a campsite because campers do not need to use trees for camping. Indeed, the record reflects that some campsites in Cherry Creek State Park do not have adjacent trees.

B. No Waiver for Conditions in Unimproved Areas

¶ 10 According to Burnett, the campsite and surrounding trees are a “functional

350 P.3d 856

system” and collectively constitute a public facility for purposes of a CGIA waiver. We disagree.

¶ 11 By its plain language, the CGIA expressly retains immunity for “an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area.” § 24–10–106(1)(e). While the campground and Campsite No. 14 were in improved areas of Cherry Creek State Park, the trees adjacent to Campsite No. 14 were in an unimproved part of the park. If the General Assembly intended to waive immunity for all dangerous conditions in public parks, it would not have limited that waiver to public facilities in parks or expressly retained immunity for natural conditions in unimproved areas. See § 24–10–106(1)(e) ; Rosales, 89 P.3d at 509.

¶ 12 This interpretation is fully consistent with Colorado cases holding that a condition is “dangerous”3 for purposes of the CGIA's waiver of immunity only if it relates to the structural or physical condition of a facility or building. Padilla v. School Dist. No. 1, 25 P.3d 1176, 1183 (Colo.2001) ; Walton v. State, 968 P.2d 636, 645 (Colo.1998) ; Jenks v. Sullivan, 826 P.2d 825, 827 (Colo.1992), overruled in part on other grounds by Bertrand v. Board of County Comm'rs, 872 P.2d 223 (Colo.1994) ; Douglas v. City & County of Denver, 203 P.3d 615, 618–19 (Colo.App.2008) (“The supreme court has indicated that, in order for a public entity's immunity to be waived under section 24–10–106(1)(c), the dangerous condition must be associated with the construction or maintenance of the building and stem from the use of a dangerous or defective physical condition of the building itself.”).

¶ 13 In Jenks, the supreme court explained that in the CGIA's definition of “dangerous condition,” the term “or the use thereof,” means the use of a physical condition of a facility. 826 P.2d at 827. The Jenks court held that waiver only exists when injury is caused by a dangerous condition stemming from a physical or structural defect in a public building, not when it is caused merely by activities in a public building. Id. at 830 (holding that no waiver exists when plaintiff's injury was caused by a shooter on the steps of a courthouse because there was no physical or structural defect in the building).

¶ 14 In Walton, the supreme court stated, “Liability attaches for injury stemming from the public's use of a dangerous or defective physical condition of the building.” 968 P.2d at 645 (holding that the state waived immunity for a student's injury when she fell off a ladder as a result of the university's negligent maintenance of a classroom).

¶ 15 In Padilla, the supreme court further clarified that waiver only exists when there is a defect in the physical structure itself, not when an injury is a result of the negligent use of a public facility. 25 P.3d at 1183 (holding that a plaintiff must “demonstrate a sufficient connection between use of the [building] and a construction or maintenance activity or omission for which the School District is responsible”).

¶ 16 Two federal cases interpreting section 24–10–106(1)(e) hold that immunity is waived only when the alleged dangerous condition of a public facility is of a physical improvement to the park or recreation area. DeAnzona v. City & County of Denver, 222 F.3d 1229, 1237 (10th Cir.2000) (holding that the natural condition of land, even within a park, cannot lead to waiver of immunity); King v. United...

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