St. Vrain Valley School District RE-1J, Petitioner
Alexa Rae Loveland, a minor, by and through her parents and next friends, Randy Loveland and Mary Nicole Loveland;andRandy Loveland and Mary Nicole Loveland, individually. Respondents
to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Senter Goldfarb & Rice, LLC
Thomas S. Rice Courtney B. Kramer Denver, Colorado
Attorneys for Respondents: Purvis Gray Thomson, LLP Michael
J. Thomson Boulder, Colorado
This is the latest chapter in the legal saga of a young girl
who was seriously injured on her elementary school playground
in late 2008. Alexa Rae Loveland, then nine years old, fell
while using the playground's zip line apparatus and
severely fractured her wrist and forearm. Alexa and her
parents filed a tort action against the school district,
seeking damages for Alexa's injuries. Because the
Colorado legislature has limited when public entities such as
the school district may be sued, we are asked to determine
whether the Lovelands' lawsuit falls within one of the
limited exceptions to sovereign immunity under the Colorado
Governmental Immunity Act ("CGIA, " or "the
Act"), §§ 24-10-101 to -120, C.R.S. (2016).
Specifically, Alexa and her parents invoke the
recreation-area waiver, which deprives a public entity of
immunity in an action for injuries resulting from a dangerous
condition of a public facility located in a recreation area.
We hold that a non-negligently constructed and maintained
piece of playground equipment cannot be a "dangerous
condition" under the CGIA's recreation-area waiver.
Because the facts the Lovelands allege cannot satisfy the
dangerous-condition requirement, the recreation-area waiver
does not apply, and the District's immunity under the
CGIA remains intact. The trial court was correct to conclude
that it lacked jurisdiction over the Lovelands' tort
action and to grant the District's motion to dismiss.
Accordingly, we reverse the judgment of the court of appeals,
and we remand to that court to reinstate the trial
court's order dismissing the complaint in this case.
Facts and Procedural History
In 2008, then-nine-year-old Alexa Rae Loveland fell while
using the zip line apparatus on her school playground and
fractured her wrist and right forearm. The zip line was a
piece of inclined pipe that ran between two sets of vertical
poles secured in the ground. The inclined pipe had a handle
attached to an interior track, and to use the zip line, a
child would climb up a short ladder, stand on an elevated
platform to grab the handle, and propel him- or herself
forward down the zip line track, releasing the handle and
jumping to the ground at the end of the track. There was also
a sign that warned "Adult Supervision Required."
This is not the first time we have considered issues related
to this case. After Alexa's injury, she and her parents
("the Lovelands") filed a tort action against the
St. Vrain Valley School District ("the District").
The District moved to dismiss the action, arguing the trial
court lacked subject matter jurisdiction because public
school districts are immune from tort liability under the
CGIA. The District acknowledged that section 24-10-106(1)(e),
referred to as the recreation-area waiver, deprives a
government entity of immunity if an injury results from a
"dangerous condition of any . . . public facility
located in any park or recreation area maintained by a public
entity." But the District argued that the Lovelands
could not establish the elements of the recreation-area
waiver in this case for a number of reasons, one of which was
that the zip line was not a public facility. The Lovelands
countered that the zip line was in fact a public facility and
a dangerous condition of a public facility. The trial court
agreed with the District. It found that the zip line was not
a public facility, and therefore that the recreation-area
waiver did not apply. The court granted the District's
motion to dismiss.
The Lovelands filed an interlocutory appeal. The court of
appeals reversed the trial court's ruling and held that
the zip line was a public facility. See Loveland ex rel.
Loveland v. St. Vrain Valley Sch. Dist. RE-1J, 2012 COA
112, ¶¶ 19, 22, 27, 328 P.3d 228, 232-33.
The District sought this court's review of the court of
appeals' decision. We granted certiorari and affirmed on
different grounds. St. Vrain Valley Sch. Dist. RE-1J v.
A.R.L. ex rel. Loveland ("St. Vrain
I"), 2014 CO 33, ¶ 26, 325 P.3d 1014, 1023. We
held that "an individual zip line apparatus on a public
playground does not qualify as a 'public
facility.'" Id. at ¶ 18, 325 P.3d at
1020. Rather, the entire playground, considered as a whole,
can qualify as a public facility. Id. We also
concluded that the public facility (the playground) was
located in a recreation area, as required for the waiver to
apply. Id. at ¶ 34, 325 P.3d at 1024. We
remanded to the trial court for additional fact-finding on
the remaining requirements of the recreation-area waiver,
including whether there was a dangerous condition.
Id. at ¶ 37; see also id. at ¶ 18
n.8, 325 P.3d at 1020 n.8 ("Because the trial court made
no findings of fact regarding the dangerous condition
requirement, this Court cannot determine whether a dangerous
On remand, the District again moved to dismiss, arguing that
the recreation-area waiver did not apply because the
Lovelands failed to establish a dangerous condition on the
zip line. Applying the CGIA's definition of
"dangerous condition, " the trial court granted the
District's motion. The court explained that the Lovelands
failed to assert what specific physical or structural
condition made the zip line a "dangerous condition"
as that term is defined in the statute and as distinguished
from their general assertion that a zip line is inherently
dangerous. The trial court concluded that the Lovelands
failed to state a claim sufficient to overcome the
District's sovereign immunity.
The Lovelands appealed, and the court of appeals again
reversed. The court of appeals concluded that an individual
playground apparatus, such as the zip line in this case, is a
physical condition for purposes of the dangerous-condition
test. Loveland v. St. Vrain Valley Sch. Dist. RE-1J
("Loveland II"), 2015 COA 138, ¶ 17,
P.3d . The ...