Opinion in pro se Plaintiff’s appeal published; parent was engaging in the unauthorized practice of law. The Colorado High School Activities Association’s bylaws allows athletes to compete on “any other team, in any non-school activity or event in that sport during that sports season with the express written permission of the principal.” Plaintiff’s son, a Durango HS athlete won a 10k cross country race in Ohio but did not get permission to compete and was suspended from one meet. Plaintiff, apparently an Ohio lawyer, sued on behalf of his son. The court of appeals affirmed the trial court’s dismissal. It noted many failures to comply with the CAR. And, Plaintiff engaged in the unauthorized practice of law by bringing claims on behalf of his son. Plaintiff’s case was dismissed because he failed to comply with CGIA notice requirements, depriving the court of jurisdiction.
Tag Archives: Colorado Governmental Immunity Act
Sara L. Burnett v. Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation, 2015CO19 (March 23, 2015)
“A fool sees not the same tree that a wise man sees.” – William Blake. A plurality of the Court held that a tree located in the Cherry Creek State Park that existed before the State built camping facilities, but which is located next to, and whose branches hang over a campsite, is a “natural condition of unimproved property.” Relying extensively on a legislative report written about the CGIA, it held that if a tree is native pre-improvement, as in this case, the State has no duty to make it safe and prevent a branch from falling. Thus, the State is immune, without regard to the location of the tree. That approach, the Court held, balances the cost of maintenance and access to public land. Rosales v. Denver, which analyzed whether trees were public facilities, was overruled. The concurrence would focus on the text: the State is immune if a branch originating from “unimproved property” falls.
Erin A. Young, individually and on behalf of and as next friend of C.Y.; and C.Y., a minor, through his parent Erin A. Young, v. Brighton School District 27J, 2014CO 32 (May 19, 2014)
“When sidewalks are not available, pedestrians are forced to share the street with motorists, access to public transportation is restricted, and children might not have safe play areas.” – US DOT. Here, a child slipped on a puddle in a walkway running between a public school and its playground. Examining the CGIA, the Court rejected the argument that the “icy walkway waiver” was mutually exclusive of the “recreation waiver.” Rather, each waiver provides a potential avenue for waiver of tort liability, any one of which might suffice. Next it held that, unlike a playground or a parking lot, the walkway is not a “public facility” because: 1) it lacked an intrinsic recreational connection with the playground; 2) it did not broadly promote the purpose of the playground; and 3) excluding walkways like this one was consistent with the legislature’s intent. The school was immune from suit.
“My dream is to have the park system privatized, and run entirely for profit by corporations. Like Chuck E. Cheese.” – Ron Swanson, Parks and Recreation. People can sue governments for injuries occurring at a 1) “public” 2) “facility” 3) “located in” a 4) “recreation area.” The Court defined those 4 terms as follows: 1) accessible and benefiting the public; 2) includes parking lots; 3) promotes recreation; and 4) an area whose primary purpose is recreation. Here, a parking lot next to a public golf course met the criteria. The parking lot was accessible to the public, allowed golfers to conveniently access the course, and golfing was the primary recreational purpose promoted by the lot. The city was not immune from plaintiff’s suit arising from her injury in the parking lot. Two justices would arrive at the same conclusion, but by allowing the city’s designation to drive the analysis.
St. Vrain Valley School District RE-1J and Cathy O’Donnell v. A.R.L. a minor; Randy Loveland; and Mary Nicole Loveland, 2014CO33 (May 19, 2014)
A playground through a lawyers eye: “Although the individual pieces of equipment each promote specific play activities (e.g., swinging or playing in the sand), they nevertheless collectively promote the common purpose of play and together make a playground a ‘facility’ by virtue of the strong relationship between the individual components.” – Opinion. In this case, applying and expanding on the analysis set forth in Daniel v. Colorado Springs, the Court concluded that a public school playground and its collection of equipment is a “public facility” “located in” a “recreation area.” The case focused on what a “public facility” is: 1) relatively permanent or affixed to land; 2) man-made; 3) accessible to the public; and 4) maintained by a public entity for a common public purpose. The zip line that injured the plaintiff was merely a “dangerous condition,” not itself a “facility.”
In Re: Michael Young and Amy Larson et. al. v. Jefferson County Sherriff and Deputy John E. Hodges and Cristian Robinson, 2014CO1 (January 13, 2014)
“Click it or ticket” does not apply to law enforcement when a deputy is transporting a juvenile and does not secure the juvenile’s seat belt. This case’s first interlocutory appeal involved the County’s unsuccessful claim for immunity under the CGIA. On remand, the County then sought immunity under CRS 19-2-508, which provides for immunity for law enforcement officers who, in good faith, transport a juvenile under the direction of the court. The statute creates a presumption of good faith. After a hearing, the trial court determined that by failing to secure the juvenile’s seat belt, the officers acted in bad faith. On review, pursuant to CAR 21, the Court disagreed and held that allegations of negligence alone are not sufficient to overcome the presumption of good faith, and thus the granting of immunity. The case was sent back to the trial court, again.
United States Taekwondo Committee and U.S. Kukkiwon, Inc., v. Kukkiwon, a Republic of Korea special corporation, 2013COA105 (July 3, 2013)
The most difficult part of [taekwondo] is … taking the first step across the threshold of the dojang door.” ― Doug Cook. This case is about the threshold issue of appellate court jurisdiction over an interlocutory appeal from a denial of a motion to dismiss claiming Foreign Sovereign Immunities Act (FSIA) immunity and asserting the Act of State Doctrine. Denial of FISA immunity is immediately appealable in federal court. CRS 13-4-102 only permits appeals from final judgments. The court of appeals held it had jurisdiction over the FISA order and affirmed, citing federal law, principles of neutrality between state and federal courts and sound appellate practice. But, it lacked jurisdiction over the Act of State Doctrine appeal because the Doctrine is a form of preclusion based on facts. Finally, it held that Colorado courts of appeals do not have pendent appellate jurisdiction.
The Colorado Supreme Court granted certiorari in one case today involving the governmental immunity act : Marilyn Daniel v. City of Colorado Springs, 2012COA171. As noted in the comments to the CLR summary of the court of appeals’ opinion, this case is related to other cases pending before the Court addressing what constitutes a “public facility.”
JUSTICE COATS and JUSTICE EID would have granted Sonitrol Corporation v. Core-Mark Midcontinent, Inc.; et. al. Court of Appeals Case Nos. 10CA2289 & 11CA369 (April 29, 2013) to address two issues concerning a cause of action for willful and wanton breach of contract, one of which was framed in terms of whether the court of appeals erred in applying its “own notions of public policy … contrary to Colorado’s public policy of protecting freedom of contract and allocation of risk.”
Sara L. Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation, 2013COA42 (March 28, 2013)
If a tree falls in the forest, will a court hear a claim in court? In this case, no. A tree branch falls on a camper; the tree was next to the official campsite. Here, the issue was whether the tree was a “public facility” and part of the campground. The Colorado Governmental Immunity Act grants immunity for injuries caused by natural conditions not on a public facility. The trial court, and the court of appeals held that a tree is not a public facility because it is not integral to the use and enjoyment of the campground “merely because they provide shade, protection, and aesthetic values…” Also, the tree, next to the campsite, was still in an “unimproved” area and was a natural condition; so, the state had no duty to maintain the tree. The dissent would have found the tree incorporated into the facility, and a dangerous condition for which the state was responsible. The state was immune.
NOTE: The Colorado Supreme Court granted Certiorari on November 12, 2103.
Marc Giuliani, Footprints Health and Wellness, Inc., et. al., v. Jefferson County Board of County Commissioners, 2012COA190 (November 1, 2012)
A medical marijuana dispensary/center is not a medical office or clinic, retail sales or services establishment, drug store, medical supply distributor or seller of medical equipment and services. Here, the court upheld a zoning violation notice to a dispensary located in a retail shopping center zoned for only the above purposes. Specifically, the court found that: 1) neither Amendment 20 nor the regulatory statutes barred the zoning restriction, 2) Jefferson County was immune to equitable estoppel claims, and 3) the record supported the zoning violation citation. It also found that a ban on all medical marijuana centers in unincorporated areas, issued after the center opened, mooted certain claims because zoning compliance would be impossible. The remaining constitutional challenges were not preserved for appeal and the dispensary’s challenge was dismissed in full.