Springer v. City and County of Denver, No. 98CA0545.

• Docket Nº: No. 98CA0545.
• Citation: 990 P.2d 1092
• Case Date: May 13, 1999
• Court: Court of Appeals of Colorado

990 P.2d 1092

Karen SPRINGER, Plaintiff-Appellee,
v.
CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellant

No. 98CA0545.

Colorado Court of Appeals, Division III.

May 13, 1999.

Rehearing Denied June 24, 1999.

Certiorari Granted December 20, 1999.

990 P.2d 1094

Rossi, Cox, Kiker & Inderwish, P.C., John J. Rossi, John H. Inderwish, Janet S. Drake, Aurora, Colorado, for Plaintiff-Appellee

Daniel E. Muse, City Attorney, Stan M. Sharoff, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant

Opinion by Judge ROY.

In this premises liability action, defendant, the City and County of Denver (City), brings this interlocutory appeal from a trial court order denying its motion to dismiss the complaint of plaintiff, Karen Springer, pursuant to § 24-10-108, C.R.S.1998, on the basis that the action is barred by governmental immunity. We reverse and remand with directions.

Plaintiff brought this action seeking compensation for injuries she allegedly sustained when she fell from her wheelchair while attempting to enter the Temple Buell Theater (Theater), a facility owned, maintained, and operated by the City. Plaintiff alleged that her wheelchair stopped abruptly when it struck a threshold cover plate that was protruding approximately one inch above the immediate surrounding surface, causing her to fall forward out of the chair. Plaintiff alleged that the threshold was a dangerous condition in a public facility.

Following some initial discovery, the City filed a motion to dismiss under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (the Act), § 24-10-101, et seq., C.R.S. 1998.

The trial court denied the City's motion, finding that its failure properly to construct and maintain the protruding threshold cover plate created a "dangerous condition" within the meaning of § 24-10-106(1)(c), C.R.S. 1998, of the Act. The City brings this interlocutory appeal solely from the trial court's determination of a waiver of sovereign immunity under the Act.

I.

The City contends that it was error to deny it immunity under the Act based on the negligence of its independent general contractor and subcontractor with respect to the installation of the threshold and its failure to detect the dangerous condition on inspection during construction. We agree.

Public entities and their employees are immune from liability in all claims for injury which lie in tort or could lie in tort except to the extent waived by the Act. Section 24-10-106(1), C.R.S.1998 (public entity); § 24-10-118(2), C.R.S.1998 (public employee). Immunity is waived for a dangerous condition in a public building. Section 24-10-106(1)(c).

A "dangerous condition" is defined in § 24-10-103(1), C.R.S.1998, as follows:

'Dangerous condition' means a physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility.... A dangerous condition shall not exist solely because the design of any facility is inadequate. (emphasis added)

Whether immunity has been waived under the Act is an issue of subject matter jurisdiction, may be raised pursuant to C.R.C.P. 12(b)(1), and the trial court's determination will not be reversed unless it is clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). A plaintiff has the burden of proving jurisdiction. Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993). Because governmental immunity is in derogation of Colorado's common law, the grant of immunity is to be strictly construed and the waiver is to be liberally or deferentially construed. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994)(strictly construed); Walton v. State, 968 P.2d 636 (Colo.1998)(deferentially construed); Cordova v. Pueblo

990 P.2d 1095

West Metropolitan District, 986 P.2d 976 (Colo.App.1998) (deferentially construed)

If all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, the issue of waiver may be decided as a matter of law. Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995).

Here, although we conclude ultimately that the trial court did not apply the appropriate standard and resolve the factual disputes, we may nevertheless review the City's sovereign immunity assertions without remanding for an evidentiary hearing, except as to the issue discussed below in part II.

A.

The City first asserts that the trial court erred in concluding that it could be held vicariously liable for the alleged negligent acts or omissions of its independent general contractor and a subcontractor during a substantial remodeling of the Theater. We agree.

Plaintiff's second amended complaint alleges that

7. Defendant, City and County of Denver, had the duty to use reasonable care to construct ... its buildings in a reasonably safe condition for ordinary use.

....

8. Defendant, City and County of Denver, is vicariously liable for the negligence and carelessness of PCL Construction Services, Inc. and A-1 Glass with the respect to the installation of the subject threshold plate.

As such, the amended complaint indicates that plaintiff seeks to hold the City vicariously liable for the alleged negligent acts of the independent contractors. Thus, the jurisdictional question turns on whether, under the Act, an independent contractor can be a public employee.

Here, the trial court rejected the City's argument, holding that:

[To hold otherwise] [w]ould also render the

...