Walton v. State, No. 97SC534

Docket NºNo. 97SC534
Citation968 P.2d 636
Case DateNovember 23, 1998
CourtSupreme Court of Colorado

Page 636

968 P.2d 636
131 Ed. Law Rep. 272, 98 CJ C.A.R. 5847
Katherine S. WALTON, Petitioner,
v.
The STATE of Colorado; its agency, the State Board of
Agriculture; and its agent-employee, Dennis
Dalton, Respondents.
No. 97SC534.
Supreme Court of Colorado,
En Banc.
Nov. 23, 1998.

Page 637

Kenneth Dresner, Colorado Springs, Walter H. Sargent, Colorado Springs, for Petitioner.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Garth C. Lucero, Timothy R. Arnold, Deputy Attorneys General, Jane R. Christman, First Assistant Attorney General, Thomas C. Sullivan, Assistant Attorney General, Civil Litigation Section, Tort Litigation Unit, Denver, for Respondents.

Justice HOBBS delivered the Opinion of the Court.

We exercised our certiorari jurisdiction to review the court of appeals decision in Walton v. State, No. 96CA1032 (Colo.App. May 1, 1997) (not selected for publication). We accepted four issues related to whether Katherine S. Walton (Walton) can maintain her negligence action against the State in light of Colorado's Governmental Immunity Act

Page 638

(CGIA). 1 Walton suffered injuries while responding to the request of her art class teacher, Dennis Dalton (Dalton), 2 for students to clean a space used for storage located high above the floor of a sculpture shop at the University of Southern Colorado. A portable extension ladder she was climbing slipped out from under her.

Walton brought a negligence action against Dalton, the State Board of Agriculture, 3 and the State of Colorado (the State). Upon renewal of the State's initial motion to dismiss on the basis of governmental immunity, the trial court made factual findings that a dangerous condition of a public facility existed in conjunction with the university's request for students to clean the storage space. Consequently, the trial court concluded that Walton could proceed with her suit under the waiver provided by section 24-10-106(1)(c), 7 C.R.S. (1998). The court of appeals reversed the trial court, holding that Walton's injuries occurred from an activity within the building, specifically Walton's use of a ladder, and not from a dangerous condition of a public building within the meaning of the CGIA. See Walton, No. 96CA1032, slip op. at 6-7.

We defer to the trial court's findings of fact under a clearly erroneous standard of review and agree with its conclusion of law. Accordingly, we reverse the judgment of the court of appeals, with directions to reinstate Walton's negligence action against the State.

I.

Walton and other art class students answered Dalton's request to clean a space used for storage high above the floor of the sculpture shop. This space consisted of an open area formed by the distance between two ceilings, a lower ceiling above an office constructed within the shop area and a higher ceiling that extended over the entire shop area that included the sculpture classroom and the office.

Juxtaposition of the two ceilings created a four to five foot vertical space between them. The parties refer to this space as "the loft." Sculpture teachers prior to Dalton used the loft to store art supplies and waste materials.

Dalton was new to the University of Southern Colorado. At the outset of the fall term, a safety officer of the university asked him to remove all of the items from the loft because of concern about damaged tiles in the higher ceiling. In turn, Dalton called upon his students to clean the loft.

No stairway or fixed ladder to the loft existed. The university supplied Dalton with a portable extension ladder. Walton ascended the ladder to hand a broom to a fellow student for sweeping the loft following removal of the materials. The building's custodian had recently stripped and sealed the floor with a finish that made it "hard to walk on but easy to sweep." The ladder slipped on the floor beneath Walton and she fell,

Page 639

fracturing her right leg, ankle, foot, and right arm.

Earlier, Dalton helped some students move a three-hundred-pound desk against the ladder to brace it. Dalton left the room as the cleaning effort neared its completion. Nothing secured the ladder at the time Walton ascended with the broom in hand.

Walton filed her negligence action against the State. The State responded with a motion to dismiss on the pleadings under C.R.C.P. 12(b)(1), seeking to invoke governmental immunity from suit under the CGIA. At that time, neither the State nor Walton requested an evidentiary hearing. The trial court denied the motion to dismiss, and the parties proceeded with trial preparation.

Slightly over two years after denial of the motion to dismiss, the State sought reconsideration of the trial court's order and requested an evidentiary hearing on the jurisdictional issue of governmental immunity. Noting that the time for reconsideration of its previous order had long since passed, the trial court nevertheless convened the evidentiary hearing because "subject matter jurisdiction can be ... [raised] at any stage of the proceedings."

Following the evidentiary hearing, the trial court found that "the physical condition of the building ... combined with the use of it ... created a dangerous condition of a public facility." Consequently, the court concluded that Walton's tort action was within the waiver of governmental immunity contained in CGIA section 24-10-106(1)(c).

The State then took an interlocutory appeal under CGIA section 24-10-108, 7 C.R.S. (1998). The court of appeals reversed and directed dismissal of Walton's complaint. It concluded that Walton's injuries resulted from an "activity" within a public facility--climbing a ladder--not from a dangerous condition of the building. See Walton, No. 96CA1032, slip op. at 6. The court of appeals reasoned that "it is undisputed that the ladder was not a part of the building itself, and plaintiff's injuries arose from her use of the ladder ... [P]laintiff's injuries resulted from an activity conducted within the building and not from a physical or structural defect of the building." Id. at 6-7.

In support of the court of appeals judgment, the State argues to us that governmental immunity exists to bar this suit under the "activity" exception to the immunity waiver of section 24-10-106(c) enunciated in Jenks v. Sullivan, 826 P.2d 825, 827 (Colo.1992), because Walton's injuries resulted "from the use of an extension ladder in a public building and not as a result of the condition of the building itself." In the alternative, the State contends that Walton's lawsuit rests on the theory of "no access to the loft area except through the use of a ladder, an issue of design." Thereby, the State seeks to invoke another exception to the immunity waiver that a dangerous condition of a building shall not exist solely because the design of the facility is inadequate. See § 24-10-103(1), 7 C.R.S. (1998).

As a threshold matter, Walton asserts that we lack jurisdiction over this case because (1) the State did not take an interlocutory appeal from the trial court's initial order denying its CGIA motion to dismiss on the pleadings and (2) the State is now foreclosed from seeking appellate review of its immunity claim. We reject this contention, exercise jurisdiction, and reverse the judgment of the court of appeals with directions to reinstate Walton's complaint.

II.

We exercise appellate jurisdiction over this case because the State timely took its interlocutory appeal after the trial court held an evidentiary hearing on the CGIA jurisdictional issue and denied the State's motion to dismiss based thereon. On the merits, we defer to the trial court's jurisdictional findings under a clearly erroneous standard of review. On the basis of those findings, we agree with the trial court's conclusion of law that Walton may proceed under the CGIA waiver of section 24-10-106(1)(c) for her negligence action against the State. Walton suffered injury as a result of the State asking students to engage in the building maintenance activity of cleaning a high storage space using a portable extension ladder. This created a known or reasonably foreseeable

Page 640

risk through a dangerous condition of a public building within the meaning of sections 24-10-103(1) and 24-10-106(1)(c).

A.

Jurisdiction over this CGIA Interlocutory Appeal

Twice the State attempted under the CGIA to obtain dismissal of Walton's negligence action, first on the pleadings prior to answering the complaint and two years later when it requested an evidentiary hearing on the jurisdictional issue of governmental immunity from suit. Walton contends that the State is pursuing an untimely interlocutory appeal because it failed to appeal the denial of its initial C.R.C.P. 12(b)(1) motion to dismiss within forty-five days as required under C.A.R. 4(a), pursuant to sections 24-10-108 4 and 24-10-118(2.5), 5 7 C.R.S. (1998) (providing that trial court's order denying the State's immunity motion "shall be a final judgment and shall be subject to interlocutory appeal"). Walton raises this issue for the first time in this court; consequently, the State argues that we should refuse to entertain it.

Because this question raises an important matter of appellate court and trial court jurisdiction, we proceed to resolve it. We hold that the trial court properly held an evidentiary hearing at the State's request; because the State then took a timely interlocutory appeal after the trial court made findings of fact and ruled against dismissal, we have jurisdiction over the case.

First, we reiterate our previous holdings that the legislature has authorized interlocutory appeals from pre-trial governmental immunity rulings. Sections 24-10-108 and 24-10-118(2.5) provide that orders refusing to dismiss a complaint on sovereign immunity grounds are final judgments for purposes of taking an interlocutory appeal. See §§ 24-10-108, -118(2.5), 7 C.R.S....

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86 practice notes
  • Neiberger v. Hawkins, No. Civ.A. 99-B-1120.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • November 12, 1999
    ...injured by the negligence of governmental agents, while the immunity provisions are subject to strict construction." Walton v. State, 968 P.2d 636, 643 (Colo.1998); see also Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34 The CMHI-P's specific statutory purpose is to provide for ......
  • State v. Nieto, No. 97SC876.
    • United States
    • Colorado Supreme Court of Colorado
    • February 14, 2000
    ...injured by the negligence of governmental agents, while immunity provisions are subject to strict construction." Walton v. Colorado, 968 P.2d 636, 643 Section 24-10-106 provides, in relevant part: (2) Nothing in this section or in section 24-10-104 shall be construed to constitute a waiver ......
  • Aspen Orthopaedics v. Aspen Valley Hosp., No. 02-1022.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 22, 2003
    ...by including claims for injunctive relief. Id. That rationale applies equally here. Finally, the Plaintiffs argue that Walton v. State, 968 P.2d 636 (Colo.1998), establishes that the Hospital may fully vindicate its immunity rights on appeal after a final order. Contrary to the Plaintiffs' ......
  • Medina v. State, No. 00SC747.
    • United States
    • Colorado Supreme Court of Colorado
    • November 27, 2001
    ...court to hold an evidentiary hearing to resolve any factual dispute upon which the existence of jurisdiction may turn. Walton v. State, 968 P.2d 636, 641 ("When disputed facts exist regarding application of the CGIA's immunity bar, the trial court on its own motion may hold an evidentiary h......
  • Request a trial to view additional results
86 cases
  • Neiberger v. Hawkins, No. Civ.A. 99-B-1120.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • November 12, 1999
    ...injured by the negligence of governmental agents, while the immunity provisions are subject to strict construction." Walton v. State, 968 P.2d 636, 643 (Colo.1998); see also Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34 The CMHI-P's specific statutory purpose is to provide......
  • State v. Nieto, No. 97SC876.
    • United States
    • Colorado Supreme Court of Colorado
    • February 14, 2000
    ...injured by the negligence of governmental agents, while immunity provisions are subject to strict construction." Walton v. Colorado, 968 P.2d 636, 643 Section 24-10-106 provides, in relevant part: (2) Nothing in this section or in section 24-10-104 shall be construed to constitute a wa......
  • Aspen Orthopaedics v. Aspen Valley Hosp., No. 02-1022.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 22, 2003
    ...by including claims for injunctive relief. Id. That rationale applies equally here. Finally, the Plaintiffs argue that Walton v. State, 968 P.2d 636 (Colo.1998), establishes that the Hospital may fully vindicate its immunity rights on appeal after a final order. Contrary to the Plaintiffs' ......
  • Medina v. State, No. 00SC747.
    • United States
    • Colorado Supreme Court of Colorado
    • November 27, 2001
    ...court to hold an evidentiary hearing to resolve any factual dispute upon which the existence of jurisdiction may turn. Walton v. State, 968 P.2d 636, 641 ("When disputed facts exist regarding application of the CGIA's immunity bar, the trial court on its own motion may hold an evidenti......
  • Request a trial to view additional results

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