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

Docket NºNo. 02CA2432.
Citation89 P.3d 507
Case DateFebruary 26, 2004
CourtCourt of Appeals of Colorado

89 P.3d 507

Silvia ROSALES, Plaintiff-Appellee,
CITY AND COUNTY OF DENVER, Defendant-Appellant

No. 02CA2432.

Colorado Court of Appeals, Div. II.

February 26, 2004.

89 P.3d 508
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...

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8 cases
  • Burnett v. State Dep't of Natural Res., Supreme Court Case No. 13SC306
    • United States
    • Colorado Supreme Court of Colorado
    • March 23, 2015
    ...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 manner tha......
  • Henisse v. First Transit, Inc., 08CA0962.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 11, 2009
    ...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. Springe......
  • Martinez v. CSG Redevelopment Partners LLLP
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 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'......
  • Burnett v. State, Dep't of Natural Res., Div. of Park & Outdoor Recreation
    • United States
    • Colorado Court of Appeals of Colorado
    • March 28, 2013
    ...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 facility......
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