“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.
Tag Archives: Public Facility
Sara L. Burnett v. Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation, 2015CO19 (March 23, 2015)
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.”
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.
In the movie Philadelphia, Tom Hank’s character first meets his lawyer, Denzel Washington, as Denzel is on the phone with a potential client who wants to sue after stepping into a clearly marked hole in a city street; Denzel suggested he had a case. But, holes in streets are not the same as holes in parking lots. In this case, the trial court concluded the plaintiff could sue for an injury caused by a hole in a public parking lot. The court of appeals disagreed and held a city is immune from suit for injuries occurring in a public parking lot that services a public golf course. Colorado waives governmental immunity for personal injuries, and thus subjects cities to lawsuits for injuries caused by dangerous conditions in any park or recreation area, public streets, or public buildings. A parking lot is none of these, so the city was immune from suit. Plaintiff’s case was dismissed.
A nine year old elementary school student suffered a compound fracture of her arm when she fell off a “zip-line” that was part of the public school’s playground equipment. The child and her parents sued. The school claimed, and the trial court agreed, that it was immune from the claim as a governmental entity. However, public entities can be sued if injuries result from a dangerous condition of a “public facility” maintained by a public entity. The court of appeals concluded, apparently for the first time, that public school playground equipment was a “public facility.” It was “public” because it was visible to all and not secluded. It was a “facility” because it was man-made, a mechanical device, and installed for children to play upon. The school, therefore, was not immune to a “public facility” claim. The school was, however, immune from the negligent supervision claim.