Loveland v. St. Vrain Valley Sch. Dist. Re-1J & Cathy O'Donnell, No. 11CA1019.

• Docket Nº: No. 11CA1019.
• Citation: 328 P.3d 228
• Case Date: July 05, 2012
• Court: Court of Appeals of Colorado

328 P.3d 228

Alexa Rae LOVELAND, a minor, by and through her parents and next friends, Randy LOVELAND and Mary Nicole Loveland; Randy Loveland, individually; and Mary Nicole Loveland, individually, Plaintiffs–Appellants,
v.
ST. VRAIN VALLEY SCHOOL DISTRICT RE–1J and Cathy O'Donnell, Defendants–Appellees.

No. 11CA1019.

Colorado Court of Appeals,
Div. III.

July 5, 2012.

[328 P.3d 229]

Purvis Gray, LLP, Michael J. Thomson, Boulder, Colorado, for Plaintiffs–Appellants.

Senter Goldfarb & Rice, L.L.C., Sonja S. McKenzie, Gillian M. Fahlsing, Cody M. Barela, Denver, Colorado, for Defendants–Appellees.

Opinion by Judge ROY.

¶ 1 In this governmental immunity case, plaintiffs, Randy Loveland and Mary Nicole Loveland, individually and as parents and next friends of Alexa Rae Loveland, a minor, appeal the trial court's order dismissing all claims against defendants, St. Vrain Valley

[328 P.3d 230]

School District RE–1J (school district) and Cathy O'Donnell under C.R.C.P. 12(b)(1). We affirm in part, reverse in part, and remand with directions.

I. Background

¶ 2 During lunch recess on November 21, 2008, the minor, then a nine-year-old elementary student, suffered a compound fracture of her left arm when she fell from a playground apparatus installed on the grounds of her elementary school. The minor, through her parents and next friends, brought suit against defendants, alleging claims of premises liability and negligent supervision.

¶ 3 The common law doctrine of sovereign immunity no longer pertains as it was abrogated by our supreme court in a 1971 trilogy of cases. See Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. School Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). In Evans, the court recognized that the General Assembly could reestablish governmental immunity by statute and provided that the holding would apply to the parties but would be prospective only as to others and apply to causes of action arising after June 30, 1972. Evans, 174 Colo. at 105, 482 P.2d at 972.

¶ 4 The General Assembly responded to Evans by enacting the Colorado Governmental Immunity Act (the Act), §§ 24–10–101 to –120, C.R.S.2011, which provides immunity for public entities for any actions that lie, or could lie, in tort—but then waives immunity in certain specific instances, effective July 1, 1972. See§ 24–10–106, C.R.S.2011; Ch. 323, sec. 20, 1971 Colo. Sess. Laws 1218. Among those waivers is the public facility waiver at issue here which states, in pertinent part:

Sovereign immunity is waived by a public entity in an action for injuries resulting from ... [a] dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility.

Section 24–10–106(1)(e), C.R.S.2011 (emphasis added).

¶ 5 Whether a public entity is immune from suit under the Act is a question of subject matter jurisdiction that must be determined pursuant to C.R.C.P. 12(b)(1). Fogg v. Macaluso, 892 P.2d 271, 280 (Colo.1995); Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924–25 (Colo.1993).

¶ 6 Defendants filed a C.R.C.P. 12(b)(1) motion arguing that the court lacked subject matter jurisdiction on the basis that all defendants were immune from liability under the Act. The trial court granted the motion concluding that the playground apparatus did not constitute a “public facility” under the Act. The trial court further concluded that plaintiffs' claim of negligent supervision was barred by the Act. This appeal followed.

II. Preliminary Matters

¶ 7 At the outset, it is undisputed that: (1) the school district is a public entity within the meaning of the Act, see§ 24–10–103(5), C.R.S.2011; (2) the school district owns, operates, and maintains the building and grounds of a school known as Black Rock Elementary School where the minor was injured; (3) the school playground is a “recreation area”; and (4) the minor was a student at the school and was injured while playing on an apparatus installed on the school grounds for the use of children known as a “track rider” or “zip line” (the apparatus).¹

¶ 8 The apparatus is a freestanding device, consisting of an inclined, inverted “U” shaped pipe with a handle attached to an interior cable or track protruding through a slot on the underside of the pipe. A child grabs the handle, lifts his or her feet from the ground, slides down the incline, and then releases his or her grip. If the child loses his or her grip enroute, he or she can fall to the ground—which is apparently what happened here.

[328 P.3d 231]

III. Public Facility

¶ 9 Plaintiffs contend that the trial court erred in concluding that the apparatus is not a “public facility” under section 24–10–106(1)(e). We agree.

A. Standard of Review

¶ 10 Normally, immunity determinations raised pursuant to C.R.C.P. 12(b)(1) are reviewed under the clear error standard as they are essentially factual. See Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo.2000); Ramos v. City of Pueblo, 28 P.3d 979, 980 ( Colo.App.2001). In this case, however, we review the trial court's ruling de novo because it presents an issue of statutory construction. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007) (stating that statutory interpretation is a question of law which is reviewed de novo); Corsentino, 4 P.3d at 1087 (holding that the trial court's immunity determination pursuant to C.R.C.P. 12(b)(1) is reviewed de novo when the court's ruling involves statutory interpretation).

¶ 11 Because it is in abrogation of the common law, the grant of immunity is to be strictly construed. Springer v. City & Cnty. of Denver, 13 P.3d 794, 798 (Colo.2000). As a logical corollary, the waiver provisions are to be interpreted deferentially in favor of injured persons. Walton v. State, 968 P.2d 636, 643 (Colo.1998); Farina v. City & Cnty. of Denver, 940 P.2d 1004, 1006 (Colo.App.1996).

B. Analysis

¶ 12 As pertinent here, the Act's general grant of immunity is waived for injuries resulting from “[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 term “public facility” is not defined in the Act, nor is there existing authority considering whether playground equipment located on the grounds of a public school is a “public facility.”

¶ 13 The trial court reasoned that because the Act waives immunity in specific instances and

group[s] the operation of motor vehicles under subsection (1)(a); the operation of public hospitals, correctional facilities and jails under subsection (1)(b); dangerous conditions in public buildings under subsection (1)(c); dangerous conditions on highways, roads, and streets under subsection (1)(d); and the operation of public utility facilities and swimming facilities under subsection (1)(f); the court cannot find that playground equipment was intended to be included in the group of dangerous conditions in public hospitals, jails, or public utility facilities and swimming facilities and other public facilities located in a park or recreation area set forth under [section 24–10–106(1)(e) ]. Had the General Assembly intended to include recreational equipment in any of its category groupings, it would have done so.... Had the General Assembly intended to include recreational equipment in the category of public facilities, it would have done so.... The court finds that the playground equipment is not a public facility.

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