Medina v. State, 98CA2424.

CourtCourt of Appeals of Colorado
Citation17 P.3d 178
Docket NumberNo. 98CA2424.,98CA2424.
PartiesJerry MEDINA, Mary Medina, and Terri Hawkins, Plaintiffs-Appellees, v. The STATE of Colorado, Colorado State Highway Patrol, and State of Colorado Department of Transportation, Defendants-Appellants.
Decision Date20 July 2000

17 P.3d 178

Jerry MEDINA, Mary Medina, and Terri Hawkins, Plaintiffs-Appellees,
v.
The STATE of Colorado, Colorado State Highway Patrol, and State of Colorado Department of Transportation, Defendants-Appellants

No. 98CA2424.

Colorado Court of Appeals, Div. IV.

July 20, 2000.

Rehearing Denied August 17, 2000.

Certiorari Granted January 29, 2001.


17 P.3d 179
Miranda & Alonzi, P.C., Christopher A. Miranda, Denver, Colorado; Ronald A. Podboy, Denver, Colorado, for Plaintiffs-Appellees Jerry Medina and Mary Medina

Harding & Associates, P.C., Phil Harding, Jeffrey Pederson, Englewood, Colorado, for Plaintiff-Appellee Terri Hawkins.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Elizabeth A. Weishaupl, First Assistant Attorney General, Denver, Colorado, for Defendants-Appellants.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Paul S. Sanzo, First Assistant Attorney General, Denver, Colorado, for Defendants-Appellants (On the Briefs).

Opinion by Judge ROY.

In this consolidated negligence action implicating the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S.1999 (the Act), defendants, the State of Colorado, Colorado State Highway Patrol, and the State of Colorado Department of Transportation (collectively the state), bring this interlocutory appeal from a trial court order denying their motion to dismiss the complaints filed by plaintiffs, Jerry and Mary Medina (the Medinas) in one action and Terri Hawkins (Hawkins) in the other action. We affirm in part, reverse in part, and remand for further proceedings consistent with the views expressed in this opinion.

Plaintiffs were passengers in a chartered bus transporting them to Blackhawk, Colorado,

17 P.3d 180
by way of U.S. Highway 6 and Clear Creek Canyon. At the time of the accident, it was, and had been for some time, raining. Plaintiffs allege that there had been flooding, rock slides, and/or other hazardous conditions on the highway rendering it unsafe for travel. A large boulder fell from the top of a "cut slope" of the highway through the roof of the charter bus into the passenger compartment, seriously injuring plaintiffs Jerry Medina and Hawkins

The evidence is uncontroverted that: (1) the highway was built in a narrow canyon adjacent to a stream and was designed with "very steep highway clearance rock cuts" and without shoulders or ditches; (2) the stretch of highway on which the accident occurred was prone to falling rocks and, indeed, a rock had fallen on the highway at a different location approximately a mile and a half away earlier in the day; and (3) had the state installed a ditch catchment at the base of the slope, shoulders, rock bolting, wire mesh, or some combination of these facilities, the chances that the boulder would have reached the traveled portion of the roadway would have been substantially reduced.

In her amended complaint, Hawkins claims that the state negligently failed to maintain the highway by: (1) not maintaining the highway free from a dangerous condition, and (2) not installing devices to prevent boulders from falling on the highway. The state filed a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1) and requested an evidentiary hearing.

In their original complaint, the Medinas alleged that the state failed to: (1) close the highway, (2) direct traffic to alternate routes, and (3) warn the public that the highway was unsafe for travel. While the state's motion to dismiss is not a part of this record, it appears from the response filed by the Medinas that, as in the Hawkins' case, the state filed a motion to dismiss on jurisdictional grounds pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction and requested an evidentiary hearing.

In response to the state's motion to dismiss, the Medinas filed an amended complaint together with a motion to amend their complaint. The amended complaint added a general allegation that the state had negligently failed to maintain the highway and to keep it free from dangerous conditions.

The trial court, in an omnibus order entered in both actions, inter alia, consolidated the cases, denied the state's motions to dismiss, and found that the state's failure properly to construct and maintain the highway created a "dangerous condition" within the meaning of § 24-10-106, C.R.S.1999. Further, the court found that all relevant evidence necessary to determine subject matter jurisdiction had been presented, that the underlying facts were undisputed, and that, therefore, the issues presented could be determined as a matter of law.

At the same time, but by separate action, the trial court granted the Medinas' motion to amend their complaint.

I.

At the outset, the parties disagree on the standard of review. Plaintiffs argue that the clearly erroneous standard, which gives great deference to the trial court's findings of fact, applies. The state argues that our review is de novo. We agree with the state.

The question of whether immunity has been waived under the Act is an issue of subject matter jurisdiction for the trial court's determination pursuant to C.R.C.P. 12(b)(1). See Fogg v....

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1 cases
  • Medina v. State, No. 00SC747.
    • United States
    • Supreme Court of Colorado
    • November 27, 2001
    ...7 C.R.S. (2001). The court of appeals held that the CGIA precluded all but Plaintiffs' failure to maintain claim. Medina v. State, 17 P.3d 178, 182-83 (Colo.App.2000). The CGIA waives governmental immunity in actions for injuries resulting from a failure to maintain a public highway, but no......

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