Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA1572
Attorneys for Petitioner: Denver City Attorney's Office
Wendy J. Shea, Assistant City Attorney Jamesy C. Owen,
Assistant City Attorney Denver, Colorado
Attorneys for Respondent: Bachus & Schanker, LLC David
Krivit Scot C. Kreider Denver, Colorado
Attorneys for Amici Curiae Colorado Intergovernmental Risk
Sharing Agency and Colorado Municipal League: Senter Goldfarb
& Rice, LLC Eric M. Ziporin Denver, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: James M. Croshal Mickey W. Smith Pueblo,
Attorneys for Amicus Curiae State of Colorado: Office of the
Colorado Attorney General Kathleen L. Spalding William V.
Allen Denver, Colorado
¶1 As a passenger on a motorcycle, Doreen Heyboer was
involved in an accident with an automobile in Denver and
suffered catastrophic injuries. As a result of her injuries,
her conservator sued the City and County of Denver, alleging
that the street's deteriorated condition contributed to
the accident. Denver responded by asserting its immunity
under the Colorado Governmental Immunity Act
("CGIA"). Heyboer argues that Denver waived its
immunity because the road was a dangerous condition that
physically interfered with the movement of traffic, and thus,
her suit fits an express exception found in the CGIA. §
24-10-106(1)(d)(I), C.R.S. (2017). Here, we review the court
of appeals' determination that Heyboer established a
waiver of immunity.
We hold that Heyboer's evidence did not establish a
waiver of immunity. Specifically, we hold that her evidence
did not establish that the road constituted an unreasonable
risk of harm to the health and safety of the public, nor did
her evidence establish that the road physically interfered
with the movement of traffic. § 24-10-106(1)(d)(I);
§ 24-10-103(1.3), C.R.S. (2017). Accordingly, Denver
retained its immunity under the CGIA, and we reverse the
judgment of the court of appeals.
Facts and Procedural History
On September 20, 2013, Heyboer was a passenger on a
motorcycle driven by Michael Veres. As they traveled
eastbound on Mississippi Avenue, toward its intersection with
Broadway, a westbound driver suddenly and unexpectedly turned
left onto southbound Broadway, effectively cutting off Veres
and Heyboer as they entered the intersection. Veres attempted
to brake, but was unable to stop in time and collided with
the rear panel of the turning car. Heyboer was flung from the
motorcycle, landed on the pavement, and suffered permanent
brain injuries. The driver of the car was cited for careless
driving and failure to yield the right-of-way.
Through her conservator, Heyboer timely sued the City and
County of Denver, alleging one count of negligence and one
count of premise liability under section 13-21-115, C.R.S.
(2017). Denver asserted that it was immune from
suit under the CGIA and filed a motion to dismiss pursuant to
Pursuant to Trinity Broad. Corp. v City of
Westminster, 848 P.2d 916 (Colo. 1993), the district
court held a hearing to decide the immunity question. At the
hearing, Heyboer called William Kennedy, Denver's
Pavement Engineer, to the stand. He testified that Denver
would immediately repair a road if there was a condition on
the road-such as a pothole, sinkhole, or lip-that might cause
damage to a driver's car or force a driver to make an
unnatural movement of their vehicle to avoid the obstacle. In
order to determine when roads need repair, Denver uses a
Pavement Condition Index (PCI). The PCI is a complex system
which rates roads as "excellent, " "good,
" "fair, " "poor, " or "very
poor." These ratings are not related to how safe or
dangerous a road is, but rather assist Denver in determining
maintenance-and-repair needs and priorities. While
Denver's internal analysis rated the Mississippi-Broadway
intersection as "very poor, " Kennedy testified
that eight days before the accident, in response to a 311
complaint,  he inspected the road and determined that
while it was "indeed cracked, worn, and somewhat rutted,
it did not require immediate repair." Kennedy further
testified that the intersection was "dangerous, "
but not "dangerous enough" to warrant immediate
The district court, in a written order, found that Denver was
immune from suit and dismissed the case. Specifically, the
district court found that Heyboer "produced no evidence,
either through a witness or an exhibit, that this dangerous
condition posed 'an unreasonable risk to the health or
safety of the public' as required by section
In a unanimous opinion, the court of appeals reversed.
Dennis ex rel. Heyboer v. City & Cty. of
Denver, 2016 COA 140, ¶ 5, __P.3d__. The court of
appeals held that the district court "clearly erred in
its factual finding that the record contained no evidence of
an unreasonable risk to the health or safety of the
public." Id. at ¶ 4. The court of appeals
determined that "a plaintiff satisfies his or her burden
of proving an 'unreasonable risk to the health or safety
of the public' under section 24-10-103(1.3) when he or
she shows that a governmental entity failed to restore a
damaged road to its 'same state of efficiency or repair
as initially constructed.'" Id. at ¶
36. Here, because the evidence showed the road was not
maintained in the same state of repair or efficiency as
initially constructed, the court of appeals held that the
road constituted an unreasonable risk to the health or safety
of the public. Id. at ¶¶ 39-40. Further,
the court concluded that Heyboer's evidence established
that the road constituted a dangerous condition that
interfered with the movement of traffic, meaning Denver
waived its immunity under the CGIA. Id.
We granted certiorari and now reverse.
Standard of Review
This case was dismissed on a C.R.C.P. 12(b)(1) motion for
lack of subject matter jurisdiction. Heyboer argues that
immunity questions which implicate tort concepts should be
judged by a more lenient standard, such as a C.R.C.P.
12(b)(5) standard or a summary judgment
standard. We disagree. C.R.C.P. 12(b)(1) is the
correct standard of review because whether the government is
immune from suit is a jurisdictional question, and our case
law requires that the district court make factual findings
about its ability to hear the case.
The CGIA requires that once a public entity raises the
defense of sovereign immunity, the court must immediately
suspend discovery unrelated to sovereign immunity and decide
that issue. § 24-10-108, C.R.S. (2017). Sovereign
immunity must be dealt with at the earliest possible stage
because "[t]he sovereign cannot be forced to trial if a
jurisdictional prerequisite has not been met."
Trinity, 848 P.2d at 924. Because the CGIA protects
the government from suit, the district court must necessarily
make factual findings to ensure that the court has
jurisdiction to hear the case. Trinity, 848 P.2d at
924. Accordingly, a C.R.C.P. 12(b)(1) standard of review is
The burden of proof is on the plaintiff to prove the
government has waived its immunity, but this burden is
relatively lenient, as the plaintiff is afforded the
reasonable inferences from her undisputed evidence.
Tidwell ex rel. Tidwell v. City & Cty. of
Denver, 83 P.3d 75, 85-86 (Colo. 2003). When the facts
are disputed, the court must begin by making a factual
finding. Id. If the court determines that the
plaintiff's allegations are true, then it should award
the plaintiff the reasonable inferences from her evidence.
Id. at 85. However, because Trinity
hearings are limited in nature, and because tort concepts are
naturally subjective, the district court should not fully
resolve the issue of whether the government has
committed negligence; rather, the court should only satisfy
itself that it has the ability to hear the case. Id.
at 86; see also Swieckowski by Swieckowski v. City of
Fort Collins, 934 P.2d 1380, 1384 (Colo. 1997)
("[W]e emphasize that we do not address issues of
negligence or causation, which are matters properly resolved
by the trier of fact.").
We will uphold the factual determinations of the district
court unless those determinations are clearly erroneous.
Medina v. State, 35 P.3d 443, 452 (Colo. 2001). Once
the questions of fact are resolved, we review questions of
governmental immunity de novo. Id. at 452-53. When
interpreting the statute, our focus is on legislative intent,
and we construe the statute as a whole, giving consistent,
harmonious, and sensible effect to all of its parts. St.
Vrain Valley Sch. Dist. RE-1J v. Loveland, 2017 CO 54,
¶ 11, 395 P.3d 751, 754. We do not add or subtract words
from the statute, and if the language is unambiguous, we
"give effect to its plain and ordinary meaning and look
no further." Smokebrush Found. v. City of Colo.
Springs, 2018 CO 10, ¶ 18, 410 P.3d 1236, 1240.
Our analysis proceeds in the following way: First, we examine
the "dangerous condition" prong of section
24-10-106(1)(d)(I), focusing on whether the road constituted
an unreasonable risk to the health and safety of the public.
We explain why we cannot affirm the court of appeals'
definition of "unreasonable risk, " and then define
"unreasonable risk." Applying that definition, we
conclude that the road in this case did not constitute an
unreasonable risk. Second, we examine the "physical
interference with traffic" prong of section
24-10-106(1)(d)(I) and hold that the road did not physically
interfere with the movement of traffic.
The General Assembly enacted the CGIA in response to a trio
of 1971 cases in which we held that common law sovereign
immunity no longer applied in Colorado. Springer v. City
& Cty. of Denver, 13 P.3d 794, 798 (Colo. 2000). The
CGIA gives public entities immunity for injuries that lie in
tort or could lie in tort. § 24-10-108, C.R.S. (2017).
However, the CGIA waives immunity in certain circumstances.
E.g., §§ 24-10-104 to -106.3, C.R.S.
(2017). Because the CGIA derogates common law, we construe
its waivers of immunity broadly. Corsentino v.
Cordova, 4 P.3d 1082, 1086 (Colo. 2000).
The CGIA waives a governmental entity's immunity when
"a dangerous condition of a . . . road, or street . . .
physically interferes with the movement of traffic."
§ 24-10-106(1)(d)(I). Thus, in order to overcome
Denver's motion to dismiss, Heyboer has the burden of
proving to the district court that the road itself was
"a dangerous condition." The CGIA defines
"dangerous condition" as:
a physical condition of a facility or the use thereof that
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 or public employee in
constructing or maintaining such facility.
§ 24-10-103(1.3). So, Heyboer must prove (1) the
physical condition of the street, (2) constituted an
unreasonable risk to the health or safety of the public, (3)
Denver knew or should have known of the risk, and (4)
Heyboer's injury was proximately caused by Denver's
negligent omission in maintaining the street. See St.
Vrain, ¶ 16, 395 P.3d at 755 (enumerating the four
factors that a plaintiff must generally prove to show a
dangerous condition). Additionally, ...