Rosales v. City and County of Denver, 02CA2432.

Citation89 P.3d 507
Decision Date26 February 2004
Docket NumberNo. 02CA2432.,02CA2432.
PartiesSilvia ROSALES, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Silvern Law Offices, P.C., Thomas A. Bulger, Denver, Colorado, for Plaintiff-Appellee.

Helen Eckardt Raabe, City Attorney, John Eckhardt, Assistant City Attorney, Efrain M. Padro, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO.

Defendant, the City and County of Denver, appeals the trial court's order denying its motion to dismiss, on governmental immunity grounds, the complaint brought by plaintiff, Silvia Rosales. We reverse in part and remand with directions.

Plaintiff was injured when a tree branch fell on her while she was picnicking at a City park. Plaintiff alleged that the City had not exercised reasonable care in maintaining the picnic area by failing to inspect and properly prune the tree and by placing picnic tables, benches, and other similar structures underneath the tree. Plaintiff asserted that the City's immunity was waived under § 24-10-106(1)(e), C.R.S.2003, of the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2003, for injuries resulting from a dangerous condition of a public facility located in a park or recreation area maintained by a public entity.

The City moved to dismiss plaintiff's complaint under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the GIA. The City argued that a tree or tree branch did not constitute a public facility for purposes of § 24-10-106(1)(e). In particular, the City argued that grouping the term "public facility" with "water facility," "gas facility," "sanitation facility," and "electrical facility" in § 24-10-106(1)(e) suggests that "public facility" refers only to man-made facilities.

In response, plaintiff argued that the tree constituted a part of the picnic area, and therefore, the tree was part of the public facility to be used by the general public for picnics and recreation.

The court found that a tree located in a park is a part of the overall use and enjoyment of the park. The court stated:

A tree located in a park or recreation area serves a purpose to the general public as well as an aesthetic value to the overall appearance of the park. A tree provides shade to a weary pedestrian, a cool place to enjoy a book, and an area to enjoy a picnic. It is reasonable to expect that one's safety is not at risk by partaking in such activity under a tree in a park, just as one would expect they (sic) are not at risk by using a restroom facility located in a park.

The trial court therefore concluded that the tree constituted a public facility and that the City's immunity had been waived under § 24-10-106(1)(e). The City then brought this appeal pursuant to § 24-10-108, C.R.S. 2003.

The City contends that the trial court erred in holding that the tree was a public facility located in the park. We agree.

The GIA provides that a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort. Section 24-10-105, C.R.S.2003. The GIA then lists six types of actions that may result in a waiver of the public entity's immunity. Section 24-10-106(1), C.R.S.2003. As pertinent here, § 24-10-106(1)(e) waives immunity in an action for injuries resulting from "a dangerous condition of any ... public facility located in any park or recreation area maintained by a public entity."

Because governmental immunity under the GIA derogates Colorado's common law, we strictly construe the grant of immunity. See Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000). Consequently, we broadly construe the provisions waiving immunity in the interest of compensating victims of governmental negligence. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001).

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. See Springer v. City & County of Denver, supra. That intent is determined by first construing the statutory language in accordance with its plain and ordinary meaning. See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995)

. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002).

The phrase "public facility" is not defined in the GIA. However, the plain meaning of the term "public" is "a place accessible or visible to all members of the community." Webster's Third New International Dictionary 1836 (1986); see also Farina v. City & County of Denver, 940 P.2d 1004, 1008 (Colo. App.1996)

(in determining whether airport medical clinic was a "public" hospital, the division noted that "so long as the facility is owned and operated by the public entity, is devoted to a public purpose, and is beneficial to a substantial segment of the public, it is a public facility or hospital under the GIA"). The common meaning of "facility" is "something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end." Webster's, supra, 812-13. Thus, these definitions imply that a public facility is something that is built or constructed to serve some public purpose. See City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996)(holding that the determinative factor in defining a public facility is whether the facility was operated for the benefit of the public).

This interpretation of "public facility" is supported by the provision in § 24-10-106(1)(e) concerning "the natural condition of any unimproved property":

Nothing in this paragraph ... shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way.

This provision makes clear that the General Assembly did not intend to waive immunity unless a public facility is...

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7 cases
  • Burnett v. State, Dep't of Natural Res., Div. of Park & Outdoor Recreation
    • United States
    • Colorado Court of Appeals
    • 28 mars 2013
    ...that the tree from which the branch fell was not a public facility under the CGIA, the trial court followed Rosales v. City & County of Denver, 89 P.3d 507 (Colo.App.2004). In Rosales, a division of this court held that under the CGIA, a tree in a park or recreation area is not a public fac......
  • Burnett v. State Dep't of Natural Res.
    • United States
    • Colorado Supreme Court
    • 23 mars 2015
    ...to assess whether a pre-existing natural object, such as the tree, could be part of a “public facility.” See Rosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.App.2004) (holding that a tree is part of a public facility “if a public entity incorporates [it] into a facility in such a ......
  • Henisse v. First Transit, Inc.
    • United States
    • Colorado Court of Appeals
    • 11 juin 2009
    ...a public employee. Our primary task in construing the CGIA is to give effect to the General Assembly's intent. Rosales v. City & County of Denver, 89 P.3d 507, 509 (Colo.App.2004). We determine that intent by reviewing the statutory language in accordance with its plain and ordinary meaning......
  • Martinez v. CSG Redevelopment Partners LLLP
    • United States
    • Colorado Court of Appeals
    • 20 juin 2019
    ...construe "public" in that context as "a place accessible or visible to all members of the community," Rosales v. City & Cty. of Denver , 89 P.3d 507, 509 (Colo. App. 2004) (quoting Webster's Third New International Dictionary 1836 (1986)), overruled on other grounds by Burnett v. State Dep'......
  • Request a trial to view additional results

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