City & Cty. of Denver v. Dennis ex. rel. Heyboer , 418 P.3d 489 ( 2018 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 May 21, 2018
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9 2018 CO 370
1 No. 16SC851, City & Cty. of Denver v. Dennis ex. rel. Heyboer—Colorado
2 Governmental Immunity Act—Sovereign Immunity.
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4 In this case, the supreme court reviews whether the City and County of Denver
5 waived its immunity under the Colorado Governmental Immunity Act (“CGIA”). After
6 a motorcycle accident, the plaintiff sued the City and County of Denver, and alleged
7 that Denver had waived its immunity under the CGIA because the road on which the
8 plaintiff was traveling constituted a dangerous condition that physically interfered with
9 the movement of traffic. To prove a dangerous condition, a plaintiff must prove four
0 elements, one of which is that the road constituted an unreasonable risk to the health
1 and safety of the public.
2 The supreme court defines “unreasonable risk” in this context as a road
3 condition that creates a chance of injury, damage, or loss which exceeds the bounds of
4 reason. This determination will be fact specific, and in this case, the road did not create
5 an unreasonable risk to the health and safety of the public. Nor did the condition of the
6 road physically interfere with the movement of traffic. Accordingly, the supreme court
7 reverses the court of appeals judgment to the contrary.
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3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203
5 2018 CO 376 Supreme Court Case No. 16SC851
7 Certiorari to the Colorado Court of Appeals
8 Court of Appeals Case No. 15CA1572
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0 Petitioner:
1 The City and County of Denver,
2 v.
3 Respondent:
4 Sean Dennis, as conservator and on behalf of Doreen Heyboer.
5 Judgment Reversed
6 en banc
7 May 21, 2018
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9 Attorneys for Petitioner:
0 Denver City Attorney’s Office
1 Wendy J. Shea, Assistant City Attorney
2 Jamesy C. Owen, Assistant City Attorney
3 Denver, Colorado
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5 Attorneys for Respondent:
6 Bachus & Schanker, LLC
7 David Krivit
8 Scot C. Kreider
9 Denver, Colorado
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1 Attorneys for Amici Curiae Colorado Intergovernmental Risk Sharing Agency and
2 Colorado Municipal League:
3 Senter Goldfarb & Rice, LLC
4 Eric M. Ziporin
5 Denver, Colorado
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1 Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
2 James M. Croshal
3 Mickey W. Smith
4 Pueblo, Colorado
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6 Attorneys for Amicus Curiae State of Colorado:
7 Office of the Colorado Attorney General
8 Kathleen L. Spalding
9 William V. Allen
0 Denver, Colorado
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1 CHIEF JUSTICE RICE delivered the Opinion of the Court.
2 JUSTICE GABRIEL dissents, and JUSTICE HOOD and JUSTICE HART join in the
3 dissent.
2
4
¶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
1 We granted certiorari on the following three issues:
1. Whether the court of appeals’ holding that a public road constitutes an
“unreasonable risk to the health or safety of the public” simply because it is not
in the same state of repair or efficiency as initially constructed improperly
removes respondent’s burden of proving the unreasonable risk and causation
elements contained within the definition of a “dangerous condition” under the
CGIA.
2. Whether the court of appeals erred by failing to require respondent to prove that
the alleged state of disrepair of the road, itself, constituted a dangerous condition
that physically interfered with the movement of traffic pursuant to section
24-10-106(1)(d)(I), C.R.S. (2016).
3. Whether the court of appeals erred by holding as a matter of law that a
municipality’s failure to maintain a public road in its “same state of repair or
efficiency as initially constructed” constitutes an “unreasonable risk to the health
or safety of the public” pursuant to the definition of a “dangerous condition” set
forth in section 24-10-103(1.3), C.R.S. (2016), of the Colorado Governmental
Immunity Act (“CGIA”).
3
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
2Heyboer also sued Veres, but the parties settled out of court. Heyboer settled with the
driver of the other car without litigation.
4
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
3 311 is the non-emergency contact number which citizens can use to contact Denver
regarding municipal facilities and services.
5
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) standard4 or a
summary judgment standard.5 We disagree. C.R.C.P. 12(b)(1) is the correct standard of
4 Under this standard, the court would accept every factual allegation in Heyboer’s
complaint as true, and view the facts “in the light most favorable to [Heyboer].” Norton
v. Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334.
5 Under this standard, the court would grant Heyboer “the benefit of all favorable
inferences that may reasonably be drawn from the undisputed facts and resolve all
doubts against [Denver].” Hardegger v. Clark, 2017 CO 96, ¶ 13, 403 P.3d 176, 180.
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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
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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.
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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, ¶ 16,
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395 P.3d at 755 (enumerating the four factors that a plaintiff must generally prove to
show a dangerous condition). Additionally, Heyboer had to demonstrate that the
dangerous condition interfered with the movement of traffic. § 24-10-106(1)(d)(I).
¶16 Denver argues that Heyboer failed to demonstrate either element of
section 24-10-106(1)(d)(I). First, Denver argues that the road did not present an
unreasonable risk to the health and safety of the public, so the road did not present a
dangerous condition. Second, Denver argues that the road’s condition did not
physically interfere with the movement of traffic. However, before we address these
arguments, we first examine the court of appeals decision.
B. The Court of Appeals Erred
¶17 The court of appeals held that “[t]he failure to keep a road in the same general
state of repair or efficiency as it was initially constructed . . . constitutes an unreasonable
risk” and 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.’” Dennis, ¶ 36. The court applied its
definition and concluded that Denver had, indeed, failed to maintain the road in the
same condition as initially constructed, meaning Heyboer had established that the road
was an “unreasonable risk” to the public. Id. at ¶ 39.
¶18 The court of appeals’ definition of “unreasonable risk” is incorrect for two
reasons. First, the court of appeals misread the law. The government’s duty to
maintain a road is triggered only after the road becomes unreasonably dangerous.
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Swieckowski, 934 P.2d at 1385 (“[W]hile the government has no duty to improve a
roadway, it does have a duty to repair a roadway where the roadway has changed from
its original condition and this change poses a danger.”). It is only once the road
becomes unreasonably risky that the government has a duty to “take the steps
necessary to return the road to the same general state of being, repair, or efficiency as
initially constructed, but nothing more.” Medina, 35 P.3d at 457. Just because a road is
not “like new” does not mean it automatically constitutes an unreasonable risk to the
health and safety of the public. Many perfectly safe roads are not in the same condition
as they were on the day of construction. A road does not automatically constitute an
unreasonable risk to the health and safety of the public merely because the government
has failed to “keep a road in the same general state of repair or efficiency as it was
initially constructed.” Dennis, ¶ 36. To the contrary, the CGIA and our prior case law
make clear that the government’s duty to maintain the road is triggered only once the
road has degraded to such an extent that it presents an unreasonable risk to the public.
Medina, 35 P.3d at 457; Swieckowski, 934 P.2d at 1385.
¶19 Second, when engaging in statutory construction, we construe statutes to
“further the legislative intent represented by the entire statutory scheme” and avoid
absurd results. State v. Nieto, 993 P.2d 493, 501 (Colo. 2000). Here, the court of appeals’
reading of the statute is at odds with the policy behind the CGIA itself. The CGIA was
enacted, in part, to “protect the taxpayers against excessive fiscal burdens” which could
arise from “unlimited liability” that the state could incur under tort lawsuits.
§ 24-10-102, C.R.S. (2017); see also Ceja v. Lemire, 154 P.3d 1064, 1067 (Colo. 2007) (“One
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of the General Assembly’s stated purposes in enacting the CGIA was to limit the
liability of public entities and employees . . . .”). However, the court of appeals’ reading
expands taxpayers’ fiscal burdens by creating an impossibly high standard. The court
of appeals’ reading of the statute would require state and local governments to keep
roads like new at all times, or face potential liability in a tort lawsuit because the road
constitutes an unreasonable risk to the health and safety of the public. Statewide, the
Colorado Department of Transportation (“CDOT”) estimates that maintaining mainline
roads at this level would cost one billion dollars per year. Brief for Colorado
Intergovernmental Risk Sharing Agency et al. as Amicus Curiae Supporting Petitioner,
at 6. Further, “restoring Colorado’s bridges to ‘as constructed’ condition would cost an
additional seven billion, with $360 million yearly for maintenance.” Id. CDOT’s yearly
budget for fiscal year 2017 is $1.4 billion. Id. Of course, the state could not
simultaneously fix every road; some roads would be prioritized and renovated before
others. And when a motorist was injured on one of the non-prioritized roads that were
awaiting renovation, the government would be potentially liable for not fixing the road.
Thus, the taxpayers would be footing both the costs of making roads like new and the
costs of potential lawsuits. The CGIA intends to lessen potential burdens on taxpayers;
because the court of appeals ignored this policy declaration and expanded the potential
burdens on taxpayers, the court of appeals erred. We now turn to the question of what
“unreasonable risk” means for purpose of the CGIA.
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C. Unreasonable Risk
¶20 Heyboer urges us to analyze “unreasonable risk” the same way that a court
would analyze whether, in the tort context, a party owes a duty of care to another party.
She argues that the legislature intended for the “essence of the court’s inquiry” to be the
same as the inquiry a court would undertake for a negligence claim that did not involve
governmental immunity. Thus, Heyboer argues that a district court should only
dismiss a complaint when “the foreseeability of the risk is so remote in comparison to
the magnitude of the burden in guarding against the risk . . . that the defendant had no
duty to guard against it as a matter of law.”
¶21 We disagree. While one of the purposes of the CGIA is “to permit a person to
seek redress for personal injuries caused by a public entity,” State v. Moldovan,
842 P.2d 220, 222 (Colo. 1992), the General Assembly did not intend suits against the
government to be the same as normal negligence suits, because the CGIA explicitly
limits governmental liability: “[Governmental entities] should be liable for their actions
and those of their agents only to such an extent and subject to such conditions as are
provided by this article.” § 24-10-102 (emphasis added). And the CGIA expressly states
that after “sovereign immunity has been waived . . . nothing shall be deemed to
foreclose the assumption of a duty of care by a public entity or public employee.”
§ 24-10-106.5(1). Thus, the court must decide the sovereign immunity question separate
and apart from the duty of care question.
¶22 Further, when we construe statutes, we do not subtract words from the statute.
Smokebrush, ¶ 18, 410 P.3d at 1240. Heyboer’s reading of the statute excises the word
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“unreasonable” from the statute. If a plaintiff needed to prove only that the risk was
foreseeable, she would not also need to prove that the risk was unreasonable. There are
situations when there is a chance the road could cause an injury, or it is foreseeable that
the road could cause an injury, but that risk is inherent in driving on a road that has
deteriorated from its original condition through use. Put differently, there is a
foreseeable risk that the road could cause an injury, but that risk is reasonable. The
CGIA requires more than a foreseeable risk of harm; it requires an unreasonable risk of
harm. § 24-10-103(1.3).
¶23 Instead, to construe the statute, we look to the plain and ordinary meaning of the
words in the statute. Smokebrush, ¶ 18, 410 P.3d at 1240. The CGIA defines
“dangerous condition” as a condition that constitutes an “unreasonable risk to the
health or safety of the public.” § 24-10-103(1.3). To determine the plain and ordinary
meaning of words, we may look to the dictionary for assistance. People v. Voth, 2013
CO 61, ¶ 23, 312 P.3d 144, 149. “Unreasonable” in this context means “exceeding the
bounds of reason or moderation.” Unreasonable, Webster’s Third New International
Dictionary (unabr. ed. 2002). A risk is “the chance of injury, damage, or loss.” Risk,
Black’s Law Dictionary (10th ed. 2014). The term “unreasonable” modifies the term
“risk.” Therefore, to prove this element, the plaintiff must prove that the road condition
created a chance of injury, damage, or loss which exceeded the bounds of reason.
Determining if the road presents an unreasonable risk will necessarily be a fact-specific
inquiry; there is no one-size-fits-all rule that encapsulates when a condition will
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constitute an unreasonable risk to the health and safety of the public. So, we now turn
to the facts of this case.
D. Application
¶24 As the district court stated, the following is undisputed:
• [Heyboer] was injured in the motor vehicle crash which occurred at an
intersection in Denver on September 20, 2013;
• Denver is responsible to maintain the road at this intersection; and
• Denver had notice of the condition of the roadway . . . .
At the Trinity hearing, Heyboer and Denver called accident reconstruction experts to
testify. The experts disagreed about whether the condition of the road caused the
accident. Heyboer called the motorcycle driver to the stand, and he testified that the
road may have played some role in his inability to avoid the accident. Denver called
the investigating police officer, who testified that the road did not play a role in causing
the accident. Thus, there was conflicting testimony on these points, and the district
court did not make findings of fact resolving the conflicting testimony. Instead, the
district court found that the road did not constitute an unreasonable risk to the health
and safety of the public.
¶25 We agree. In this case, it may well be that driving on the road carried some
risk—some chance of injury, damage or loss—however, we are not persuaded that the
risk was unreasonable. In order for Denver to waive its immunity, the road must have
degraded to such an extent that it was unreasonably risky, at which point in time
Denver would be under a duty to fix the road by restoring the road to its design stage.
Medina, 35 P.3d at 457; Swieckowski, 934 P.2d at 1385. Important to this determination
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is Kennedy’s unrebutted testimony. He testified that when determining if a road posed
a risk to the health and safety of the public, he would look for “deep, wide potholes that
could catch a tire, or ruts that would cause a vehicle to be redirected” and that those
features were not present on this road. True, Kennedy testified that the road was “well
worn” and in “very poor condition” at the time of the accident according to the PCI, but
one week before this accident, Kennedy inspected the road and found that while it was
cracked and rutted, it did not require immediate repair.
¶26 Here, the evidence did not show that the road posed a chance of injury, damage,
or loss that exceeded the bounds of reason. The road, while cracked and rutted, did not
contain potholes or sinkholes. The road did not contain features which would force a
driver to make an emergency maneuver, or any other road characteristics such as a
raised pavement lip that could damage a vehicle and lead to an accident. While
Heyboer is afforded the inferences of her undisputed evidence, she nevertheless bore
the burden of proving that the road constituted an unreasonable risk to the health and
safety of the public; she failed to do so. Her evidence showed a deteriorated road, but
not a road which was unreasonably risky on which to drive. Thus, Heyboer failed to
establish that the road constituted a dangerous condition such that Denver waived its
immunity under the CGIA.
¶27 We next examine whether the road’s condition physically interfered with the
movement of traffic. § 24-10-106(1)(d)(I). In determining that Denver had waived its
immunity, the court of appeals held the district court’s “factual findings demonstrate[d]
that the road conditions physically interfered with the movement of traffic on a road
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designed for public travel.” Heyboer, ¶ 40. We disagree. “Interfere” means “to
interpose in a way that hinders or impedes.” Interfere, Merriam-Webster Online
Dictionary https://perma.cc/2DUH-HZAD. “Physical” means “pertaining to real,
tangible objects.” Physical, Black's Law Dictionary (10th ed. 2014). The condition may
arise on the road itself, or from the government’s failure to maintain a safety device.
Moldovan, 842 P.2d at 225-28 (holding that the plaintiff proved a dangerous condition
interfered with the movement of traffic when the state failed to repair a fence, a cow ran
through the broken fence onto the road, and a motorcyclist collided with the cow).
Thus, for this element to be satisfied, a dangerous condition of the road—or a defective
safety device related to the road—must hinder or impede the flow of traffic.
¶28 Here, neither the road nor any defective safety device hindered or impeded the
movement of traffic. Rather, the third-party driver impeded Veres and Heyboer by
cutting them off. Before the third-party driver entered the intersection, there is no proof
that the road itself caused the motorcycle to act erratically, or that the motorcycle was
unable to drive safely on the road. There is no evidence that any safety device
malfunctioned, nor any evidence that the road’s surface, prior to the third-party driver’s
actions, prevented the motorcycle driver from preforming as expected. So, the road did
not physically interfere with the movement of traffic.
IV. Conclusion
¶29 We reverse the judgment of the court of appeals, and we remand the case to that
court for further proceedings consistent with this opinion.
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JUSTICE GABRIEL dissents, and JUSTICE HOOD and JUSTICE HART join in the
dissent.
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JUSTICE GABRIEL, dissenting.
¶30 I agree with the majority that the division below erred in concluding that (1) the
failure to keep a road in the same general state of repair or efficiency as it was initially
constructed constitutes an unreasonable risk within the meaning of the Colorado
Governmental Immunity Act (“CGIA”); and (2) a plaintiff satisfies his or her burden of
proving an unreasonable risk to the health or safety of the public, within the meaning of
section 24-10-103(1.3), C.R.S. (2017), 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. Maj. op., ¶¶ 17–19. I further agree with the majority that an unreasonable
risk for purposes of the CGIA cannot be defined solely in terms of foreseeability, as
Heyboer asserts, because such a reading would effectively render the term
“unreasonable” meaningless. Id. at ¶¶ 20–22. And I agree with the majority’s
determination that to establish an unreasonable risk in a case like this, a plaintiff must
prove that the road condition created a chance of injury, damage, or loss that exceeds
the bounds of reason. Id. at ¶ 23.
¶31 Nonetheless, unlike the majority, I believe that Heyboer has sufficiently
established a waiver of the City’s immunity because she has shown that her injuries
resulted from a dangerous condition of a public highway, road, or street that physically
interfered with the movement of traffic.
¶32 Accordingly, like the court of appeals division, I would reverse the district
court’s judgment dismissing Heyboer’s claims, but I would do so on other grounds. I
therefore respectfully dissent.
1
I. Factual Background
¶33 The majority has set forth most of the pertinent facts of this case, and I need not
repeat its factual recitation here. I note, however, several additional facts that are
important to my analysis.
¶34 First, Veres testified, without contradiction, that the severe ruts in the road
caused his motorcycle to jump and interfered with his ability to stop safely. He further
testified that had the roadway been smooth, he would have been able to stop in time to
avoid the collision.
¶35 Second, Heyboer’s accident reconstruction expert opined that (1) the road’s
uneven surface limited Veres’ ability to stop and to control his motorcycle; (2) the
collision at issue would not have occurred had the road surface been smooth; and
(3) the road’s condition therefore physically interfered with the movement of traffic.
¶36 Third, the City’s pavement engineer, Kennedy, conceded that (1) a road surface’s
condition is a factor in determining whether an intersection is dangerous and interferes
with the movement of traffic; (2) the intersection at issue was in “very poor” condition
and was “dangerous” at the time of the accident; and (3) the City knew of the
intersection’s condition before the accident, and, in fact, in the years and months
leading to this accident, a number of citizens had advised the City that the intersection
was dangerous.
¶37 Finally, the City conceded that it had a duty to maintain the road.
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II. Analysis
¶38 I begin by addressing our standard of review and the principles governing our
interpretation of the CGIA. I then discuss the pertinent provisions of the CGIA and
apply the plain meanings of those provisions to the facts of this case.
A. Standard of Review and Pertinent Interpretive Principles
¶39 Whether governmental immunity applies to bar a lawsuit is a matter of the
district court’s jurisdiction. Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75,
81 (Colo. 2003). Accordingly, if raised before trial, the issue is properly addressed in a
C.R.C.P. 12(b)(1) motion to dismiss. Id. When the jurisdictional issue involves factual
disputes, an appellate court reviews the district court’s findings under the clearly
erroneous standard. Id. When, however, the facts are undisputed and the issue is one
of law, an appellate court reviews the district court’s jurisdictional ruling de novo. Id.¶40 We have often observed that the CGIA’s immunity derogates Colorado’s
common law. See, e.g., id. As a result, we construe the CGIA’s waiver provisions
broadly and its exceptions to these waiver provisions strictly. Id.¶41 In light of the foregoing, when a plaintiff sues a governmental entity and that
entity moves to dismiss on immunity grounds, we afford the plaintiff the reasonable
inferences from his or her evidence. Id. at 85. And although the plaintiff bears the
burden of establishing the court’s jurisdiction, “the burden is a relatively lenient one.”
Id. at 86.
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B. CGIA
¶42 Section 24-10-106(1), C.R.S. (2017), provides in pertinent part:
Sovereign immunity is waived by a public entity in an action for injuries
resulting from:
....
(d)(I) [a] dangerous condition of a public highway, road, or street which
physically interferes with the movement of traffic on the paved portion, if
paved, . . . of any public highway, road, street, or sidewalk within the
corporate limits of any municipality.
¶43 A “dangerous condition, “ in turn, is defined as
either 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).
¶44 And as noted above, I agree with the majority’s determination that in a case like
this, a physical condition of a road constitutes an unreasonable risk to the health or
safety of the public when the road’s condition created a chance of injury, damage, or
loss that exceeds the bounds of reason. See maj. op., ¶ 23.
¶45 Thus, in order to establish a waiver of sovereign immunity in a case like this, a
plaintiff must show, under the relatively lenient standard described above, that his or
her injuries resulted from a physical condition of the road that (1) created a chance of
injury, damage, or loss exceeding the bounds of reason; (2) was known to the City;
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(3) was caused by the City’s negligence in constructing or maintaining the road; and
(4) physically interfered with the movement of traffic.
¶46 Unlike the majority, I believe that Heyboer has carried her lenient burden of
establishing each of these elements, and I address each element in turn.
¶47 First, in my view, Heyboer’s injuries resulted from a physical condition of the
road that created a chance of injury, damage, or loss exceeding the bounds of reason.
City pavement engineer Kennedy conceded that the intersection was in “very poor”
condition and that it was “dangerous” at the time of the collision, thus establishing that
the physical condition of the road created a chance of injury, damage, or loss. In
addition, Heyboer introduced evidence that this accident occurred because the road’s
condition prevented Veres from being able to stop his motorcycle. Specifically, Veres
testified that the ruts in the road caused his motorcycle to jump, thereby interfering
with his ability to stop safely. Moreover, Heyboer’s accident reconstruction expert
testified that the road’s uneven surface limited Veres’ ability to stop and to control his
motorcycle and that the collision at issue would not have occurred had the road surface
been smooth. In my view, this evidence sufficiently established that Heyboer’s injury
resulted from the road’s condition. And given the City’s admitted knowledge of the
“very poor” and “dangerous” condition of this intersection, I believe that the risk of
injury, damage, or loss posed by the road’s condition exceeded the bounds of reason, at
least for purposes of the lenient burden of proof necessary to defeat a motion to dismiss
on immunity grounds.
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¶48 Second, it is undisputed that the risk posed by the road’s condition was well
known to the City before the accident at issue occurred. Kennedy admitted that he had
evaluated the intersection at issue and found its condition “very poor” and
“dangerous.”
¶49 Third, in my view, Heyboer sufficiently showed, for purposes of overcoming the
City’s motion to dismiss, that the risk of injury was caused by the City’s negligence in
maintaining the road. As the majority correctly observes, the government’s duty to
maintain a road is triggered only after the road becomes unreasonably dangerous. See
maj. op., ¶ 18. At that point, the government has a duty to take the steps necessary to
return the road to the same general state of being, repair, or efficiency as initially
constructed. See id. Here, the City indisputably knew that the intersection at issue had
become dangerous. City pavement engineer Kennedy conceded that. And for the
reasons set forth above, I believe that the road’s condition was unreasonably dangerous.
Accordingly, the City had a duty to take steps to repair the road (indeed, the City
conceded that it had a duty to maintain the road), and the City’s failure to do so
constitutes negligence.
¶50 Finally, as Heyboer’s expert testified, the condition of the road at issue physically
interfered with the movement of traffic. Specifically, the expert opined that the road’s
condition limited Veres’ ability to stop and to control his motorcycle, and Veres’
testimony that he could not stop because the ruts in the road caused his motorcycle to
jump fully supports the expert’s opinion. In my view, a road condition that impedes a
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vehicle’s ability to stop when necessary is a physical interference with the movement of
traffic.
¶51 Accordingly, I believe that Heyboer has sufficiently established each of the
elements necessary to support a waiver of sovereign immunity, particularly given our
acknowledgment that her burden of proof in this regard was “relatively lenient.”
Tidwell, 83 P.3d at 86.
III. Conclusion
¶52 For these reasons, I would conclude that the district court erred in dismissing
Heyboer’s claim on sovereign immunity grounds. I would therefore affirm the
division’s judgment, albeit on grounds different from those on which the division
relied, and allow Heyboer’s claim to proceed on the merits.
¶53 Accordingly, I respectfully dissent.
I am authorized to state that JUSTICE HOOD and JUSTICE HART join in this dissent.
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