Jaffe v. City and County of Denver

• Citation: 15 P.3d 806
• Decision Date: 22 June 2000
• Docket Number: No. 98CA1960.,98CA1960.
• Parties: Pamela JAFFE, an Incapacitated Person, by Peter A. Jaffe and Joan F. Jaffe, her legal guardians; Peter A. Jaffe and Joan F. Jaffe, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER and Denver Parks & Recreation District and John Does (1-99), Defendants-Appellees.
• Court: Court of Appeals of Colorado

15 P.3d 806

Pamela JAFFE, an Incapacitated Person, by Peter A. Jaffe and Joan F. Jaffe, her legal guardians; Peter A. Jaffe and Joan F. Jaffe, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER and Denver Parks & Recreation District and John Does (1-99), Defendants-Appellees.

No. 98CA1960.

Colorado Court of Appeals, Div. V.

June 22, 2000.

Certiorari Denied January 16, 2001.

Law Offices of Peter A. Jaffe, Peter A. Jaffe, Douglas Jaffe, McCoy, Colorado, for Plaintiffs-Appellants.

Daniel E. Muse, City Attorney, Efrain M. Padro, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge ROTHENBERG.

Plaintiffs, Pamela Jaffe, an incapacitated person, through Peter A. Jaffe and Joan Jaffe, her parents and legal guardians, and Peter A. Jaffe and Joan Jaffe, individually, appeal the judgment in favor of defendants, the City and County of Denver, the Denver Parks and Recreation District, and John Does 1-99 (collectively, the City). Plaintiffs also appeal the trial court's order awarding attorney fees to the City. We affirm the judgment, but reverse the order awarding fees.

Pamela Jaffe was severely injured when she was struck by lightning while playing golf on a course owned and operated by the City. Plaintiffs brought this action against the City asserting claims for: (1) negligence; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) respondeat superior; (5) loss of consortium, and (6) violation of Pamela Jaffe's due process rights under 42 U.S.C. § 1983 (1994).

The City moved to dismiss plaintiffs' state law tort claims under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.1999, moved for summary judgment on plaintiffs' § 1983 claim, and also moved for dismissal of the parents' loss of consortium claim, asserting that such a claim was not cognizable in Colorado.

The City also moved to strike the equal protection claim, contending that it was not included in the complaint and was not properly before the court. Plaintiffs maintained that the complaint set forth a legally sufficient equal protection claim or, if it did not, that they should be granted leave to amend their pleading to add such a claim with specificity.

The trial court granted the City's motion to dismiss, stating that the undisputed facts failed "to show that the physical condition of the golf course was unsafe for public use on the day Pamela Jaffe was injured," and that her injuries arose "from an intervening act of nature."

It also rejected the § 1983 claim, concluding the City did not have an obligation under the Due Process Clause to protect Pamela Jaffe against an act of nature. The court did not rule on the equal protection claim, which was based on the City's alleged failure to provide timely emergency medical services, or on the City's motion to strike.

Plaintiffs appealed, and the City then cross-appealed based on the court's failure to award it attorney fees. After the cross-appeal was dismissed based on a "lack of ruling on fees," the City sought a ruling on attorney fees in the trial court, and requested $4,125 in fees pursuant to § 13-17-201, C.R.S.1999. The trial court awarded the City the fees requested, and following the denial of plaintiffs' motion for reconsideration, plaintiffs appealed from that order. The appeal regarding attorney fees was consolidated into this appeal.

I. State Tort Law Claims

Plaintiffs first contend the failure of the City to protect Pamela Jaffe from lightning on the golf course constituted a "dangerous condition" within the meaning of the GIA. We disagree.

Public entities are immune from liability in all claims for injury which lie in tort or could lie in tort except to the extent waived by the GIA. Section 24-10-106(1), C.R.S.1999. As pertinent here, a public entity's immunity is waived for a "dangerous condition located in any ... public facility located in any park or recreation area maintained by a public entity ...." Section 24-10-106(1)(e), C.R.S.1999.

A "dangerous condition" is defined in § 24-10-103(1), C.R.S.1999, as:

a physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. Maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.... A dangerous condition shall not exist solely because the design of any facility is inadequate....

In interpreting a statute, our primary task is to determine and give effect to the intent, or purpose of the General Assembly. City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996). That intent is first determined by looking at the statutory language itself, giving words and phrases their commonly understood meaning. See Mason v. Adams, 961 P.2d 540 (Colo.App.1997)

.

Because the GIA is in derogation of Colorado's common law, the grant of immunity is to be strictly construed against the public entity and the waiver provisions are to be deferentially construed in favor of victims. See Walton v. State, 968 P.2d 636 (Colo. 1998)

; but see City & County of Denver v. Gallegos, supra, 916 P.2d at 515 ("[T]he GIA requires that exceptions to governmental immunity be interpreted narrowly in order to avoid imposing liability not specifically provided for in the statute.").

Whether immunity has been waived under the GIA is an issue of subject matter jurisdiction to be determined by the trial court pursuant to C.R.C.P. 12(b)(1). Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). If all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, the issue of waiver may be decided as a matter of law. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997); Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995).

Here, it is undisputed that: (1) the golf course is a public facility located in a park or recreation area; and (2) it did not have a formal medical assistance system, an automatic lightning system, a foul weather detection system, or an evacuation plan.

At issue is whether the absence of such protections created a "dangerous condition" for purposes of the GIA. We conclude that it did not.

Under the GIA, the dangerous condition must be proximately caused by the "negligent act or omission of the public entity in constructing or maintaining" a public facility. Section 24-10-103(1), C.R.S.1999. See Springer v. City of Denver, 990 P.2d 1092 (Colo.App.1999)

(City was not vicariously liable under the GIA for the negligent construction of a public building by an independent general contractor). And, under § 24-10-103(1), "[a] dangerous condition shall not exist solely because the design of any facility is inadequate." See Swieckowski v. City of Fort Collins, supra.

As quoted above, § 24-10-103(1) further states that "maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility." See Lyons v. City of Aurora, 987 P.2d 900 (Colo.App.1999)

(the definition of "dangerous condition" in the GIA does not require the City to modify a facility because of changing safety standards or use).

We acknowledge, as does the City, that improvements can be made for the safety of players, and that other golf courses have installed formal medical assistance systems, automatic lightning and foul weather detection systems, or have at least implemented warning and evacuation plans. While these protections may be highly desirable, we nevertheless conclude that, based on the clear language of the statute, the City's failure to take such steps did not create a "dangerous condition" on the golf course for purposes of the GIA.

Accordingly, the trial court did not err in dismissing plaintiffs' state law tort claims. See Hames v. State, 808 S.W.2d 41 (Tenn. 1991)

(the absence of lightning proof shelters or devices to warn golfers of thunderstorms on a golf course owned and operated by the state did not constitute a negligently created or maintained dangerous condition).

II. § 1983 Claims

Plaintiffs next contend the trial court erred in granting summary judgment in favor of the City on the § 1983 claims. We disagree.

Summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. Once the moving party has met the initial burden of production, the burden shifts to the non-moving party to establish that there is a triable issue of fact. Civil Service Commission v. Pinder, 812 P.2d 645 (Colo.1991).

In order to prevail under § 1983, a plaintiff must show that the defendant, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. See Uberoi v. University of Colorado, 713 P.2d 894 (Colo.1986)

; Duong v. County of Arapahoe, 837 P.2d 226 (Colo.App.1992).

A local governmental entity's liability for damages under § 1983 is limited to situations involving the implementation or enforcement of a local ordinance, policy, or custom. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)

; County of Adams v. Hibbard, 918 P.2d 212 (Colo.1996). The policy need not be codified and may be evidenced by a widespread practice so permanent and well settled as to constitute a custom or usage having the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Walter v. City &...