Galef v. Univ. of Colo.
| Decision Date | 04 August 2022 |
| Docket Number | Court of Appeals No. 21CA0322 |
| Citation | 520 P.3d 184,2022 COA 91 |
| Parties | Jordan GALEF, Plaintiff-Appellant, v. UNIVERSITY OF COLORADO, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Law Offices of Ross Ziev, P.C., Ross Ziev, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Hermine Kallman, Special Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
Opinion by JUDGE KUHN
¶ 1 In this slip-and-fall personal injury case, plaintiff, Jordan Galef, appeals the trial court's dismissal of his complaint against defendant, the University of Colorado, under C.R.C.P. 12(b)(1). The court ruled that the University had not waived its immunity for Galef's Premises Liability Act (PLA) claim under the Colorado Governmental Immunity Act (CGIA). We reverse and remand for further proceedings.
¶ 2 According to Galef's complaint and other submissions to the court, he was walking down a recently mopped staircase in his dormitory hall when he slipped and fell down the stairs, dislocating his shoulder. The injury required surgery to repair.
¶ 3 Galef alleged that the black coloring of the flooring made it difficult to see that the stairs were wet and that, when he fell, the University employee mopping the staircase had not displayed a "wet floor" sign or provided any other warning that the stairs were wet. He also alleged this staircase saw "high traffic" and that he had been using it at least twice per day while a resident of his dormitory.
¶ 5 In response, the University moved to dismiss under Rule 12(b)(1), arguing that it had not waived its CGIA immunity to Galef's claim under the "dangerous condition of any public building" provision of section 24-10-106(1)(c), C.R.S. 2021. In the ensuing briefing, the University did not dispute any of Galef's factual allegations, and neither side affirmatively requested an evidentiary hearing to determine disputed facts pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster , 848 P.2d 916 (Colo. 1993).1 Instead, the University argued that, based on the allegations in Galef's complaint and submissions to the court, its immunity under section 24-10-106(1)(c) was not waived as a matter of law. The court agreed with the University and dismissed Galef's complaint.
¶ 6 As relevant here, the court found the following undisputed facts: (1) Galef fell and dislocated his shoulder while descending recently mopped steps that, because of their black coloring, he could not see were wet; (2) there was no wet-floor sign displayed towards individuals approaching the stairs from his location; and (3) mopping the stairs is part of the University's maintenance plan for the dormitory.
¶ 7 Based on these facts, the court ruled that the wet, black stairs—and the University's alleged failure to warn they were wet—did not amount to a "dangerous condition" within the meaning of the CGIA. In so ruling, the court agreed with the University on the same two issues that Galef appeals here.
¶ 8 First, the court noted that the "negligent act or omission" Galef alleged was the failure to warn him of the wet stairs by not placing a wet-floor sign or some other notification regarding the stairs being mopped. The court then concluded that a public entity does not waive its immunity for a premises liability claim based on a negligent failure to warn because such a failure—without any other alleged negligent act or omission—cannot constitute a "dangerous condition" within the meaning of the CGIA.
¶ 9 Second, the court concluded that—separate and apart from the University's failure to warn him of the hazard—Galef failed to demonstrate that the mere difficult-to-detect wetness of the black flooring otherwise constituted a "dangerous condition." The court reasoned that Galef failed to plead facts and presented no evidence in his briefing showing either that (1) the wet, black, slippery staircase presented an unreasonable risk to the health or safety of the public; or (2) the University committed any other negligent act or omission in constructing or maintaining the building other than the University's alleged failure to post a warning near the wet staircase.
¶ 10 Galef contends the trial court erred on both points. We agree and conclude that, based on the unchallenged allegations in Galef's complaint, his submissions to the court, and the reasonable inferences from the trial court's undisputed factual findings, the University's immunity has been waived under section 24-10-106(1)(c) as a matter of law. We reverse the trial court's dismissal accordingly.
¶ 11 A Rule 12(b)(1) motion to dismiss on grounds of immunity under the CGIA raises an issue of the court's subject matter jurisdiction. Padilla v. Sch. Dist. No. 1 , 25 P.3d 1176, 1180 (Colo. 2001). The plaintiff has the burden of proving that the court has jurisdiction. City of Longmont v. Henry-Hobbs , 50 P.3d 906, 908 (Colo. 2002). But "this burden is relatively lenient, as the plaintiff is afforded the reasonable inferences from [his] undisputed evidence." City & Cnty. of Denver v. Dennis , 2018 CO 37, ¶ 11, 418 P.3d 489.
¶ 12 Rule 12(b)(1) "permits the trial court to hold an evidentiary hearing to resolve any factual dispute upon which the existence of jurisdiction may turn." Medina v. State , 35 P.3d 443, 452 (Colo. 2001). Here, however, in its motion to dismiss, the University did not challenge any facts Galef alleged. The trial court thus relied on the undisputed facts that the parties presented and determined, as a matter of law, whether those facts constituted a waiver of immunity under the CGIA. See id. We review the resolution of this question of law, along with the associated statutory interpretation it involves, de novo. Id. at 452-53.
¶ 13 Our goal in interpreting the CGIA is to give effect to legislative intent. Maphis v. City of Boulder , 2022 CO 10, ¶ 15, 504 P.3d 287. "In doing so, we look at the statute ‘as a whole, giving consistent, harmonious, and sensible effect to all of its parts.’ " Id. (quoting Dennis , ¶ 12 ). We construe waivers of CGIA immunity broadly because "the immunity created by the [CGIA] is in derogation of the common law and must [itself] be strictly construed." Bertrand v. Bd. of Cnty. Comm'rs , 872 P.2d 223, 225 (Colo. 1994) ; Springer v. City & Cnty. of Denver , 13 P.3d 794, 798 (Colo. 2000) ().
¶ 14 Section 24-10-106(1) of the CGIA provides as follows:
Walton , 968 P.2d at 644 ; see Jenks v. Sullivan , 826 P.2d 825, 827 (Colo. 1992) (), overruled by Bertrand , 872 P.2d 223.
¶ 15 Further, while a "dangerous condition" may be a hazard that the public entity itself creates, that dangerous condition must be one that is "associated with construction or maintenance, not solely design." Springer , 13 P.3d at 799, 801 ; § 24-10-103(1.3) ().
¶ 16 The supreme court has further interpreted this immunity waiver in the context of the PLA, section 13-21-115, C.R.S. 2021, which "governs civil actions against landowners for injuries occurring on the property." Springer , 13 P.3d at 803 (citing § 13-21-115(2), C.R.S. 2021 ). As relevant here, the PLA provides that "an invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers the landowner actually knew about or should have known about." § 13-21-115(4)(c)(I) ; see also Gallegos v. Phipps , 779 P.2d 856, 862 n.11 (Colo. 1989) ().
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