Maphis v. City of Boulder

• Citation: 2022 CO 10
• Decision Date: 22 February 2022
• Docket Number: 20SC646
• Court: Supreme Court of Colorado
• Parties: Joy Maphis, Petitioner v. City of Boulder, Colorado, Respondent

2022 CO 10

Joy Maphis, Petitioner v. City of Boulder, Colorado, Respondent

No. 20SC646

Supreme Court of Colorado

February 22, 2022

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 19CA203

Attorneys for Petitioner: Randall J. Paulsen &amp Associates, P.C. Randall J. Paulsen, O'Brien Law Firm LLC, Shauna O'Brien.

Attorneys for Respondent: Office of the City Attorney Sandra M. Llanes Luis A. Toro.

Attorney for Amicus Curiae Colorado Intergovernmental Risk Sharing Agency: Samuel J. Light

Attorneys for Amicus Curiae Colorado Municipal League: David W. Broadwell Laurel Witt.

Attorney for Amicus Curiae Colorado Trial Lawyers Association: Just Law Group, LLC John F. Poor.

JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, and JUSTICE BERKENKOTTER joined. JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL and JUSTICE SAMOUR, dissented.

OPINION

HART, JUSTICE.

¶1 After tripping over a deviation in a sidewalk in the City of Boulder ("City"), Joy Maphis sued the City for her injuries under the Colorado Governmental Immunity Act ("CGIA"). The City moved to dismiss for lack of subject matter jurisdiction, arguing that it was immune from suit as the sidewalk did not constitute a "dangerous condition" under section 24-10-106(1)(d)(1), C.R.S. (2021), of the CGIA. The district court denied the City's motion based on its finding that the deviation was "difficult to detect" and was larger than what the City classified as a "hazard" warranting repair. The City appealed, and the court of appeals reversed, concluding that the undisputed evidence failed to establish that the sidewalk presented the type of dangerous condition for which the City had waived its immunity from suit.^[1] ¶2 We agree with the court of appeals that Maphis failed to establish a waiver of immunity. Reviewing de novo the legal question of whether the sidewalk constituted a dangerous condition under the CGIA, we hold that Maphis's evidence did not establish that the sidewalk deviation presented a risk that "exceeded the bounds of reason." City & Cty. of Denver v. Dennis, 2018 CO 37, ¶ 23, 418 P.3d 489, 497. Accordingly, we affirm the court of appeals and hold that the City retained its immunity from suit under the CGIA.

I. Facts and Procedural History

¶3 On April 8, 2017, Maphis tripped over a two-and-a-half-inch deviation in a concrete sidewalk in the City and fell, fracturing both elbows and injuring her face. The City had identified the sidewalk as needing repair just weeks earlier and was only a few days away from making those repairs at the time of her fall.

¶4 Maphis filed suit against the City to recover for her injuries, alleging that the City was liable because it knew of the dangerous condition of the sidewalk yet failed to correct the condition or warn pedestrians of its existence.^[2] The City moved to dismiss Maphis's claim for lack of subject matter jurisdiction under section 24-10-106(1)(d)(1), which waives governmental immunity for a "dangerous condition." It alleged, in part, immunity from suit because the deviation in the sidewalk was not "unreasonably dangerous" under the standard for what constitutes a "dangerous condition," as articulated by this court in Dennis, ¶ 23, 418 P.3d at 497.

¶5 To determine whether the City had waived its immunity, the district court held an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). Both Maphis and the City's Principal Transportation Projects Engineer, Gerrit Slatter, testified. Maphis testified to the extent of her injuries and to the fact that the deviation "was invisible. You couldn't see it when you were walking." She further testified that, in her opinion, the deviation was unreasonably dangerous.

¶6 Slatter testified about the City's sidewalk repair program and the condition of the sidewalk. He first explained that the City runs both a proactive and a reactive repair program. Through the proactive program, the City independently identifies and repairs damaged sidewalks as it works through geographic zones; while through the reactive program, the City receives a complaint or concern about a particular sidewalk and fixes it. Under the proactive program, Slatter explained, the City (1) "consults with an engineering consultant [who] goes through the zone to identify areas that are in need of repair . . . and . . . develop[s] an exhibit and a cost estimate"; (2) "use[s] that to work with a contractor to develop a scope of work and get a construction estimate"; (3) has "a public engagement effort" to "notify the neighborhood . . . that there will be sidewalk repair work happening over the coming year or two"; (4) "send[s] individual letters . . . indicating whether a repair will be implemented in front of their property"; and (5) has an "engineering technician[ ] . . . field visit and field edit the recommendations from the consultant to make sure that there is concurrence with the recommendations" and, "if they identify other repairs that may be needed within the zone, they . . . mark those locations and then notify the adjacent property owners." Here, Slatter testified, the sidewalk deviation was not identified in the initial review of the geographic zone in 2015. It was identified and "marked . . . for repair" during the field visit by the City's engineering technician shortly before the previously scheduled repairs for the zone were going to take place.

¶7 Slatter further agreed to the fact that "a deviation greater than three quarters of an inch constitutes a hazard" under the City's sidewalk repair program and that such a deviation indicates the sidewalk is unsafe as "a potential tripping hazard." He also explained that when the sidewalk repair program was "conceived in 2010, the thought was that there would be sufficient funding to . . . address all the sidewalk repair needs within a geographic zone on a yearly basis." However, "budget limitations and being able to address the repairs that are needed" mean that the City needs "a couple of years" to work through each zone.

¶8 After the Trinity hearing, the district court issued a minute order concluding that the City waived its immunity because the sidewalk deviation "constituted a 'dangerous condition.'" It specifically found that:

• "a sidewalk deviation greater than [three quarters] of an inch constitutes a 'hazard' by the City's own definition";

• the deviation of the sidewalk was approximately two-and-a-half inches in height at the time of Maphis's fall; and

• the deviation was "largely imperceptible." On these facts, the district court reasoned that because "the coloring of the sidewalk ma[de] the deviation difficult to detect, increase[d] the degree of the tripping hazard, and thus the risk to the walking public," it constituted an "unreasonable risk of harm to the health and safety of the public, such that [Maphis] . . . over[came] her burden to prove that the City . . . waived its immunity."

¶9 The City appealed the district court's order, and, in a divided opinion, a division of the court of appeals reversed. Maphis v. City of Boulder, No. 19CA0203 (June 25, 2020). Reviewing de novo the question of whether the deviation in the sidewalk constituted a "dangerous condition," the division majority concluded that while "there is little doubt that the sidewalk's condition created some risk" as a tripping hazard, that risk was not one that "exceeded the bounds of reason" under the standard set forth by this court in Dennis. Maphis at ¶ 26. In particular, the division noted that the undisputed facts showed (1) the City had received no citizen complaints about this sidewalk deviation; (2) the deviation had not been identified as needing repair during the City engineer's assessment of the zone in 2015 but had instead been identified during a routine area inspection just weeks before the accident; and (3) undisputed testimony and exhibits at the Trinity hearing demonstrated that uneven sidewalks are commonplace in Boulder. Id. at ¶ 26. Given these facts, the division majority concluded that the sidewalk deviation did not constitute a "dangerous condition" for purposes of waiving the City's immunity under the CGIA. This conclusion, the division explained, aligns with the "General Assembly's intent to lessen potential burdens on taxpayers, and to permit municipalities to prioritize repairs." Id. at ¶ 32.

¶10 Judge Richman, dissenting, reasoned that the City "created a dangerous condition and its failure to act [was] unreasonable" because it had identified the sidewalk for repair but had not yet repaired it at the time of Maphis's fall. Id. at ¶ 44. ¶11 Maphis petitioned this court for certiorari, and we granted review.

II. Analysis

¶12 We begin by explaining that questions of sovereign immunity under the CGIA present mixed questions of fact and law, with jurisdictional facts reviewed for clear error and the question of whether those facts constitute a "dangerous condition" for purposes of the CGIA reviewed de novo. We then review de novo whether the sidewalk deviation in this case constituted a dangerous condition under the standard for "unreasonable risk" announced in Dennis. We conclude that it did not.

A. Standard of Review

¶13 Whether the CGIA applies to protect the government from suit is a question of subject matter jurisdiction governed by the standard for dismissal pursuant to C.R.C.P. 12(b)(1). Dennis, ¶¶ 9-10, 418 P.3d at 494; St Vrain Valley Sch. Dist. RE-1J v. Loveland, 2017 CO 54, ¶ 10, 395 P.3d 751, 754. As such, the plaintiff carries the burden of proof to show that the government waived its immunity. Dennis, ¶ 11, 418 P.3d at 494; see also City & Cty of Denver v. Crandall, 161 P.3d...