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Ackerman v. City and County of Denver

Court of Appeals of Colorado, Seventh Division

July 16, 2015

Jennifer Ackerman, David Scheuermann, Forrest Hudspeth, and Adam Kinnard, Plaintiffs-Appellees,
City and County of Denver, Colorado, Defendant-Appellant.

Jefferson County District Court No. 12CV3705 Honorable Christopher C. Zenisek, Judge

Gerash Steiner, PC, Daniel P. Gerash, Denver, Colorado; Law Office of Samuel Ventola, Samuel Ventola, Denver, Colorado, for Plaintiffs-Appellees Jennifer Ackerman and David Scheuermann

Bachus & Schanker, L.L.C., Adrienne M. Tranel, Denver, Colorado, for Plaintiffs-Appellees Forrest Hudspeth and Adam Kinnard

D. Scott Martinez, City Attorney, Barry A. Schwartz, Assistant City Attorney, Jamesy C. Owen, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant



¶ 1 In this personal injury action, defendant, the City and County of Denver (Denver), brings this interlocutory appeal seeking review of the trial court's order denying its motion to dismiss the consolidated tort actions brought by plaintiffs, Jennifer Ackerman, Forrest Hudspeth, Adam Kinnard, and David Scheuermann. The trial court denied Denver's motion seeking dismissal for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to -120, C.R.S. 2014. We conclude that our supreme court's decision in Burnett v. State Department of Natural Resources, 2015 CO 19 (Burnett II), requires the dismissal of these tort actions against Denver. Therefore, we reverse and remand with directions.

I. Factual and Procedural Background

¶ 2 While attending a concert in the amphitheater at Denver's Red Rocks Park, plaintiffs were struck and injured by rocks that fell from "Creation Rock, " a rock formation that abuts one side of the amphitheater. Plaintiffs filed separate actions against Denver and others alleging, as pertinent here, that Denver negligently allowed trespassers to cause the rock fall, Denver negligently maintained the amphitheater such that rocks could be kicked loose by trespassers or otherwise fall into the amphitheater, and Denver knew or should have known of the risk of such rock fall.

¶ 3 Denver moved to dismiss plaintiffs' complaints pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the CGIA. Denver argued that natural conditions such as rocks were not "public facilities" for which its immunity under the CGIA had been waived. Consequently, Denver argued that Creation Rock was a "natural condition of . . . unimproved property" for which there was no waiver of immunity under section 24-10-106(1)(e), C.R.S. 2014.

¶ 4 Plaintiffs argued that their injuries resulted from a dangerous condition of the amphitheater, a public facility, which was caused by improper maintenance of the facility. Plaintiffs argued that the amphitheater was "improved property" and that its physical location in the park caused their injuries.

¶ 5 After the parties had engaged in substantial discovery, Denver submitted as supplemental authority a recent decision by a division of this court in Burnett v. State Department of Natural Resources, 2013 COA 42 (Burnett I), aff'd, Burnett II. In Burnett I, ¶ 2, the plaintiff was injured when she was struck by a tree branch while sleeping in her tent in a designated campsite at a state park. The tree branch fell from a tree that was adjacent to the campsite and was located on unimproved property. Id. at ¶¶ 2, 11. The division held that the tree was not a "public facility" and that trees were not integral to the use and enjoyment of the campsite. Id. at ¶¶ 9, 17. The division noted that, while the campsite where the plaintiff was injured was within the improved area of the park, the trees adjacent to the campsite were in an unimproved area. Id. at ¶ 11. After observing that the General Assembly had expressly retained immunity for natural conditions in unimproved areas, the division ultimately concluded that the State retained immunity for injuries from branches falling from trees in unimproved parts of a state park. Id. at ¶¶ 11, 25.

¶ 6 The trial court held an evidentiary hearing as contemplated by the decision in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo. 1993). See also Medina v. State, 35 P.3d 443, 452 (Colo. 2001) (trial court must resolve any factual dispute upon which the existence of its jurisdiction under the CGIA may turn). The court then issued a written decision finding that Denver's immunity had been waived.

¶ 7 As pertinent here, the trial court found that Creation Rock and other large rock formations surrounding the amphitheater were an integral component of the public facility and were essential for the intended use of the facility. The court also found that a contractor hired by Denver to inspect and maintain the large rock formations had altered the conditions of the formations by taking actions to stabilize or remove any loose rocks.

¶ 8 Applying the rationale of Rosales v. City & County of Denver, 89 P.3d 507 (Colo.App. 2004), overruled by Burnett II, the trial court concluded that Creation Rock was an integral and essential component of the amphitheater.[1] The court also concluded that Creation Rock, despite maintaining a natural appearance, was "improved" property for purposes of section 24-10-106(1)(e) due to the contractor's actions in stabilizing and removing loose rocks. Based on such improvement and the integration of Creation Rock as an essential component of the amphitheater, the court

¶ 9 distinguished the decision in Burnett I and decided that Creation Rock was not a "natural condition of unimproved property."[2]

¶ 10 Consequently, the trial court determined that Denver's immunity from suit had been waived under section 24-10-106(1)(e) and that the court had jurisdiction to hear the case.

Denver now brings this interlocutory appeal pursuant to section 24-10-108, C.R.S. 2014.

II. Legal Standards

ΒΆ 11 Section 24-10-106(1)(e) waives a public entity's immunity in an action for ...

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