Loveland v. St. Vrain Valley Sch. Dist. Re-1J, Court of Appeals No. 14CA1888

Citation410 P.3d 619
Decision Date24 September 2015
Docket NumberCourt of Appeals No. 14CA1888
Parties Randy LOVELAND, individually and as father and next friend to Alexa Rae Loveland, a minor child; Mary Nicole Loveland, individually and as mother and next friend to Alexa Rae Loveland, a minor child; Plaintiffs–Appellants, v. ST. VRAIN VALLEY SCHOOL DISTRICT RE–1J and Cathy O'Donnell, Defendants–Appellees.
CourtColorado Court of Appeals

Purvis Gray, LLP, Michael J. Thomson, Boulder, Colorado, for PlaintiffsAppellants.

Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Courtney B. Kramer, Denver Colorado, for DefendantsAppellees.

Opinion by Judge STERNBERG*

¶ 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 their action against defendants, St. Vrain Valley School District RE–1J and Cathy O'Donnell. As it relates to defendant O'Donnell, the judgment is affirmed. The judgment is otherwise reversed, and the case remanded for further proceedings consistent with this opinion.

I. Background

¶ 2 In 2008, nine-year-old Alexa Rae Loveland was playing in her public elementary school's playground. While using the playground's zip line,1 Alexa fell and fractured her wrist and right forearm.

¶ 3 Alexa and her parents (collectively, the Lovelands) filed a tort action against the school's principal, Cathy O'Donnell, and St. Vrain Valley School District RE–1J (District).

¶ 4 Pursuant to C.R.C.P. 12(b)(1), the District moved to dismiss the action, asserting that the trial court lacked subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands responded claiming that the District's immunity was waived under section 24–10–106(1)(e), C.R.S. 2015, which waives governmental immunity if an injury arises from a "dangerous condition" of a "public facility located in any park or recreation area maintained by a public entity" (the recreation area waiver). The Lovelands asserted that the zip line qualified as a public facility and a dangerous condition of a public facility. They also contended that a public school playground is a recreation area.

¶ 5 The trial court granted the District's motion, concluding that the asserted waiver did not apply because "playground equipment is not a public facility." Having so concluded, the trial court did not make findings of fact on the other factors relevant to the recreation area waiver.

¶ 6 The Lovelands filed an interlocutory appeal pursuant to section 24–10–108, C.R.S. 2015. A division of this court reversed the trial court's order granting the District's motion, holding that the zip line constituted a "public facility" located in a recreation area. Loveland v. St. Vrain Valley Sch. Dist. RE–1J, 2012 COA 112, ¶¶ 19, 22, 328 P.3d 228 ( St. Vrain I ), aff'd on other grounds sub nom. St. Vrain Valley Sch. Dist. RE–1J v. A.R.L., 2014 CO 33, ¶ 4 n.2, 325 P.3d 1014 ( St. Vrain II ).

¶ 7 The supreme court, however, granted certiorari and held that "an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground." St. Vrain II, ¶ 18. Rather, "the condition of an individual zip line on a playground might qualify as a dangerous condition but not as a ‘facility.’ " Id. at ¶ 21. The supreme court further reasoned that the public facility where Alexa was injured—that is, the collection of playground equipment considered as a whole—was located in a recreation area. Id. at ¶¶ 26, 33. Because the trial court made no findings of fact regarding "the remaining requirements of the recreation area waiver," however, the supreme court remanded the case. Id. at ¶ 3.

¶ 8 On remand, the District again moved to dismiss the complaint. Based on the pleadings, the trial court concluded that the District's immunity was not waived. Among other things, the court found that the Lovelands failed to assert "what specific physical or structural condition existed to cause the zip line to be a dangerous condition, as opposed to a broad assertion that its mere presence [was] a dangerous condition." Therefore, the court granted the District's motion. The Lovelands again appeal.

II. Governing Standards

¶ 9 With some exceptions, public entities are immune from tort liability under the CGIA. § 24–10–106(1). Waiver of immunity under the CGIA is an issue of subject matter jurisdiction and, as such, is properly addressed under C.R.C.P. 12(b)(1). Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000).

¶ 10 A trial court may resolve issues of immunity without a hearing if there is no evidentiary dispute. Finnie v. Jefferson Cnty. Sch. Dist. R–1, 79 P.3d 1253, 1260 (Colo. 2003). On the other hand, if the facts relating to immunity are in dispute, a trial court must hold an evidentiary hearing. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924–27 (Colo. 1993) ; see also Finnie, 79 P.3d at 1260. The plaintiff has the burden of proving subject matter jurisdiction. Smith v. Town of Snowmass Vill., 919 P.2d 868, 871 (Colo. App. 1996).

¶ 11 In reviewing a trial court's determination of the issue of immunity, we review the trial court's resolution of factual disputes for clear error, but review de novo issues of law where the relevant facts are not disputed. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo. 2003). The CGIA's immunity waiver provisions are construed in favor of plaintiffs, and its immunity provisions are strictly construed. Walton v. State, 968 P.2d 636, 643 (Colo. 1998).

III. The Dangerous Condition Test

¶ 12 As noted, a public entity waives immunity if an injury arises from a "dangerous condition" of a "public facility located in any park or recreation area maintained by a public entity." § 24–10106(1)(e). To establish a "dangerous condition," a plaintiff must demonstrate that his or her injuries occurred as a result of (1) the physical condition of the public facility or its use; (2) which constitutes an unreasonable risk to the health or safety of the public; (3) which is known to exist or should have been known to exist in the exercise of reasonable care; and (4) which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. § 24–10103(1.3), C.R.S. 2015.

A. Physical Condition or Use Thereof

¶ 13 Among other things, the Lovelands contend that the trial court erred in concluding that they had not satisfied the first prong of the dangerous condition test. We agree.

¶ 14 The Lovelands do not contend that the alleged dangerous condition was caused by negligent maintenance of the playground equipment. Rather, they argue that, no matter how well-designed, maintained, or constructed, the zip line at issue here is inherently dangerous. Thus, in their view, the decision to add this particular piece of equipment to the playground created a dangerous condition at a public facility. That is, the Lovelands allege that the zip line itself was the physical condition of the playground, the use of which created the dangerous condition which caused Alexa's injuries. See Hendricks v. Weld Cnty. Sch. Dist. No. 6, 895 P.2d 1120, 1123 (Colo. App. 1995).

¶ 15 The trial court interpreted a footnote in St. Vrain II as requiring the Lovelands to assert a physical or structural defect in the zip line, such as a rusty or obstructed track, in order to establish the first prong of the dangerous condition test. While the supreme court pointed out that a rusty or obstructed track might make the zip line a dangerous condition, it did not rule that only by showing a physical or structural defect in the zip line itself could the first prong be satisfied. Moreover, it did not hold that the zip line itself was not a physical or structural condition of the playground. Id. at ¶ 21. Rather, St. Vrain II merely rejected the notion that the zip line itself was a public facility, instead concluding that the playground as a whole constituted the public facility. Id. at ¶ 18.

¶ 16 In Hendricks, a division of this court concluded that the district court did not err in determining that governmental immunity was waived where a plaintiff's injury resulted from the use of an unpadded wall in a public building. Hendricks, 895 P.2d at 1123. In so holding, the division concluded that the unpadded wall was a physical condition of the building. Id.

¶ 17 We agree with the reasoning in the Hendricks case and see no material difference between the allegation in Hendricks and that made here. If an unpadded wall may constitute a physical condition of a building, an individual playground apparatus is a physical condition of a playground. Thus, we conclude that the trial court erred in finding that the Lovelands "failed to satisfy th[e] first factor" of the dangerous condition test. See id. ; see also Longbottom v. State Bd. of Cmty. Colls. & Occupational Educ., 872 P.2d 1253, 1255 (Colo. App. 1993) (college student, who partially amputated one hand in a gunsmithing class while operating a jointer machine, was not barred by the CGIA from suing the public college); cf. Jenks v. Sullivan, 826 P.2d 825, 827 (Colo. 1992) (the term "or the use thereof" in the dangerous condition definition refers to the use of a physical condition of a public building or facility), overruled in part on other grounds by Bertrand v. Bd. of Cnty. Comm'rs, 872 P.2d 223 (Colo. 1994).

B. Unreasonable Risk to Public Health or Safety

¶ 18 Our conclusion that the zip line itself constitutes a physical condition of a public facility does not end our inquiry. The trial court also concluded that the second prong of the dangerous condition test—namely that the particular zip line at issue here constituted an unreasonable risk to public health or safety—had not been met....

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  • Foster v. Plock
    • United States
    • Colorado Court of Appeals
    • March 10, 2016
    ...also entitled to recover reasonable attorney fees incurred on appeal. Loveland v. St. Vrain Valley Sch. Dist. RE–1J, 2015 COA 138, ¶ 27, 410 P.3d 619. Because we affirm the trial court's order of dismissal under C.R.C.P. 12(b)(5), Plock is entitled to his reasonable attorney fees incurred o......

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