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City and County of Denver v. Dennis

Supreme Court of Colorado, En Banc

May 21, 2018

The City and County of Denver, Petitioner
Sean Dennis, as conservator and on behalf of Doreen Heyboer, Respondent

          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, Colorado

          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.[1]

         ¶2 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.

         I. Facts and Procedural History

         ¶3 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.

         ¶4 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).[2] Denver asserted that it was immune from suit under the CGIA and filed a motion to dismiss pursuant to C.R.C.P. 12(b)(1).

         ¶5 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, [3] 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 repairs.

         ¶6 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 24-10-103(1.3)."

         ¶7 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.

         ¶8 We granted certiorari and now reverse.

         II. Standard of Review

         ¶9 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[4] or a summary judgment standard.[5] 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.

         ¶10 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 appropriate.

         ¶11 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.").

         ¶12 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.

         III. Analysis

         ¶13 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.

         A. CGIA Background

         ¶14 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).

         ¶15 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, ΒΆ 16, 395 P.3d at 755 (enumerating the four factors that a plaintiff must generally prove to show a dangerous condition). Additionally, ...

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