Dennis v. City and County of Denver , 419 P.3d 997 ( 2016 )

COLORADO COURT OF APPEALS 2016COA140
Court of Appeals No. 15CA1572
City and County of Denver District Court No. 14CV33332
Honorable Elizabeth A. Starrs, Judge
Sean Dennis, as conservator and on behalf of
Doreen Heyboer,
Plaintiff-Appellant,
v.
City and County of Denver, Colorado,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE FREYRE
Taubman and Plank*, JJ., concur
Announced September 22, 2016
Bachus & Schanker, LLC, David Krivit, Scot C. Kreider, Denver, Colorado, for
Plaintiff-Appellant
Cristal Torres DeHerrera, Interim City Attorney, Wendy J. Shea, Assistant City
Attorney, Jamesy C. Owen, Assistant City Attorney, Denver, Colorado, for
Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this case, we address whether the defendant, the City and
County of Denver,1 waived its immunity for injuries Doreen Heyboer
sustained as a passenger on a motorcycle that could not timely
brake when a car unexpectedly turned left in front of it. The
answer depends on whether a deteriorated roadway is an
“unreasonable risk to the health or safety of the public” under
§ 24-10-103(1.3) C.R.S. 2016 of Colorado’s Governmental Immunity
Act (CGIA), a precursor to establishing a “dangerous condition”
under § 24-10-106(1)(d)(I), C.R.S. 2016. This is a novel question.
Plaintiff Sean Dennis, as conservator and guardian for Heyboer,
brought this negligence and premises liability action against the
City.
¶2 The complaint alleged that the City had a duty to maintain the
roadway free from dangerous conditions that physically interfered
with the movement of traffic, that it breached this duty by allowing
the roadway to fall into disrepair, that it knew of the deteriorated
1The complaint also named the motorcycle driver, Michael Veres,
as a defendant, however, the allegations against Veres were settled
before the hearing. Heyboer also settled with the driver of the car
without litigation.
1
state of the road from prior complaints, and that Heyboer’s injuries
resulted from the City’s breach of its duty of care.
¶3 In response, the City moved to dismiss under C.R.C.P.
12(b)(1). It asserted immunity and denied Heyboer’s allegations.
The district court conducted a hearing under Trinity Broadcasting of
Denver, Inc., v. City of Westminster, 848 P.2d 916 (Colo. 1993) and
issued a judgment granting the City’s motion. It concluded that the
City was immune from suit because “[t]he Plaintiff produced no
evidence, either through a witness or an exhibit, that this
dangerous condition posed “an unreasonable risk to the health and
safety of the public” as required by § 24-10-103(1.3).” (Emphasis
added.) It further concluded that Heyboer failed to sustain her
burden of proof.
¶4 We conclude that the 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 because the record contradicts
that finding.2 Indeed, both the record and the court’s factual
2 We note that Heyboer contends the court failed to make any
“factual findings” in its written judgment. We disagree and
construe the court’s “Discussion” section of the judgment, which
2
findings show the City’s knowledge of the road’s poor conditions,
the City’s admission that road surface conditions raised a public
safety risk, and the City’s determination that the road was
dangerous but not dangerous enough to fix. These facts
demonstrate that the City failed to maintain the road as required
under § 24-10-103(2.5), thereby creating an unreasonable risk to
the health or safety of the public. In reaching this conclusion, we
necessarily find that Heyboer satisfied her burden of proof.
¶5 We further conclude that because the record contains evidence
of an unreasonable risk to the health or safety of the public, the
court erred as a matter of law in finding no waiver of immunity
under § 24-10-106(1)(d)(I). Accordingly, we reverse the court’s
judgment and remand the case for reinstatement of the complaint.
I. Court’s Findings
¶6 The facts of the accident are not disputed. On September 20,
2013, while riding as a passenger on the back of a motorcycle
driven by Veres, Heyboer was thrown from the motorcycle when
Veres suddenly braked to avoid a collision. Veres was traveling
specifically details the hearing evidence and the facts the City
conceded, as the court’s factual findings.
3
eastbound on Mississippi Avenue, and as he neared the intersection
with Broadway, a car suddenly turned left across traffic in front of
him. He applied the brakes, but he was unable to avoid the
accident and hit the right rear panel of the car. Heyboer suffered
permanent brain injuries from the accident.
¶7 At the hearing, the City conceded knowledge of the road’s
deteriorated condition, conceded that Heyboer was injured at the
intersection, and conceded that it had a duty to maintain the road
at that intersection. However, it denied that the condition of the
road posed an unreasonable risk to the health or safety of the
public, a requisite showing under § 24-10-103(1.3), which defines
“dangerous condition.”
¶8 In its judgment, the court found that Veres examined the
pavement after the crash and determined that it had played a role
in his inability to stop. Veres described more than fifteen years of
experience as a motorcycle driver and said he regularly maintained
his motorcycle.
¶9 The court found Heyboer’s accident reconstruction and vehicle
dynamics expert, David Bilek, reliable, and he opined that the
collision would not have occurred if the road surface had been
4
smooth, that the road’s condition interfered with the movement of
traffic, and that the road’s uneven surface interfered with Veres’
braking ability.
¶ 10 The court’s judgment extensively recited the testimony of
William Kennedy, the City’s Pavement Engineer. Kennedy admitted
that road surface condition was a factor in determining public
safety risk, that the intersection where the accident occurred was
well worn and in very poor condition, and that he was never fiscally
constrained in repairing potholes.
¶ 11 Kennedy described a Pavement Condition Index (PCI) the City
used to rate road conditions from excellent to very poor. Kennedy
used this index to prioritize his repair work and said the PCI of this
intersection was “very poor.” He clarified that the PCI was not a
measure of dangerousness, but he said that it provided an objective
and rational basis for determining maintenance and repair needs
and priorities. He admitted that this intersection was dangerous at
the time of the accident but opined that it was not dangerous
enough to fix. He said he had never found an intersection in
Denver to be dangerous.
5
¶ 12 The court’s judgment recited testimony from the City’s two
witnesses. The officer who investigated the crash, Stephanie
Linkus, did not find that the road conditions played a role in this
accident. Similarly, the City’s accident reconstruction and
mechanical engineering expert, Guy Barbera, opined that the road’s
surface did not interfere with braking and that the collision would
still have occurred if the road conditions had been smooth. No
witness opined on whether the road condition posed an
“unreasonable risk.”
II. CGIA Jurisdiction
¶ 13 Governmental immunity is an issue of subject matter
jurisdiction. City of Colorado Springs v. Powell, 48 P.3d 561, 563
(Colo. 2002); Springer v. City & Cty. of Denver, 13 P.3d 794, 798
(Colo. 2000). The General Assembly enacted the CGIA in response
to three cases abrogating Colorado’s common law of governmental
immunity. Padilla in Interest of Padilla v. Sch. Dist. No. 1, 25 P.3d
1176, 1180 (Colo. 2001) (listing cases and statutory response);
§ 24-10-102, C.R.S 2016. The CGIA establishes governmental
immunity from suit in tort actions, but it waives immunity under
specific circumstances, including, as relevant here, when there
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exists “[a] dangerous condition of a public highway, road, or street
which physically interferes with the movement of traffic.”
§ 24-10-106(1)(d)(I).
¶ 14 The CGIA’s purpose is twofold: (1) to protect the public from
unlimited liability and excessive fiscal burdens; and (2) to allow the
common law of negligence to operate against governmental entities,
subject to the exceptions barring specific suits. See State v.
Moldovan, 842 P.2d 220, 222 (Colo. 1992) (The purposes of CGIA
include “permit[ting] a person to seek redress for personal injuries
caused by a public entity.”). Because the CGIA derogates
Colorado’s common law, we strictly construe the statute’s immunity
provisions. Springer, 13 P.3d at 798. Conversely, we broadly
construe the CGIA’s waiver provisions in favor of victims injured by
the negligence of governmental agents. Id.; Walton v. State, 968
P.2d 636, 643 (Colo. 1998).
A. Standard of Review
¶ 15 If governmental immunity is raised before trial, “the issue is
properly addressed pursuant to a C.R.C.P. 12(b)(1) motion to
dismiss.” Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo. 2000).
Under C.R.C.P. 12(b)(1), the injured plaintiff bears the burden of
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proving the court’s subject matter jurisdiction under the CGIA and
that immunity has been waived. Tidwell ex rel. Tidwell v. City &
Cty. of Denver, 83 P.3d 75, 85 (Colo. 2003); Powell, 48 P.3d at 563.
Any factual dispute upon which the existence of jurisdiction may
turn is for the district court to resolve after weighing the evidence,
finding facts, and entering conclusions of law. Swieckowski v. City
of Fort Collins, 934 P.2d 1380, 1384 (Colo. 1997); see also Walton,
968 P.2d at 641.
¶ 16 On review, we defer to the district court’s factual findings
unless they are clearly erroneous and unsupported by evidence in
the record. See Walton, 968 P.2d at 645. A finding is clearly
erroneous if there is no support for it in the record. See Cont’l W.
Ins. Co. v. Jim’s Hardwood Floor Co., 12 P.3d 824, 828 (Colo. App.
2000), as modified on denial of reh’g (May 18, 2000).
¶ 17 Once questions of historical fact are resolved, the question of
whether a governmental entity is entitled to immunity is one of law,
which we review de novo. Jordan v. Panorama Orthopedics & Spine
Ctr., PC, 2013 COA 87, ¶ 11, aff’d, 2015 CO 24; Douglas v. City &
Cty. of Denver, 203 P.3d 615, 618 (Colo. App. 2008).
8
¶ 18 Similarly, the interpretation of statutory definitions is a
question of law that we review de novo. Douglas, 203 P.3d at 618.
Therefore, in reviewing a district court’s determination of whether a
dangerous condition exists under the CGIA, we review the court’s
findings of historical fact for clear error, deciding only whether there
is any evidence in the record to support those findings. Jordan, ¶
11. We review the court’s ultimate legal conclusion de novo,
applying principles of statutory interpretation. Id. at ¶ 13.
B. Burden of Proof in Establishing Immunity Waiver
¶ 19 Heyboer raises two issues on appeal. First, she contends the
court factually erred in finding there was no evidence in the record
of an “unreasonable risk” and that in doing so, it erred as a matter
of law in refusing to find a waiver of immunity. Second, she
contends that she satisfied her burden of proving an “unreasonable
risk to the health or safety of the public” under the standard set
forth in Tidwell. Because the parties dispute the appropriate
standard that applies to the plaintiff’s burden of proof in
establishing a waiver of immunity, we address this issue first and
then review the facts developed at the hearing and found by the
court under that standard.
9
¶ 20 Relying on Tidwell, Heyboer contends that we should apply
C.R.C.P. 12(b)(5) and the summary judgment standard of
C.R.C.P. 56 because the court conducted a Trinity hearing and
considered evidence outside the pleadings. In contrast, the City
contends that Tidwell does not apply because it involved a different
section of the immunity statute (emergency vehicle exception) and
because the court “inappropriately intermixed a summary judgment
inquiry with the immunity inquiry.” Instead, the City asks us to
apply the preponderance of the evidence standard and argues that
Heyboer failed to prove, by a preponderance of the evidence, that
her injuries resulted from the dangerous road conditions, rather
than from the illegal actions of the car’s driver.
¶ 21 In Trinity, the supreme court held that the issue of state
immunity under the CGIA is a question of subject matter
jurisdiction that must be determined according to C.R.C.P. 12(b)(1)
and that the plaintiff bears the burden of proving jurisdiction.
Trinity Broad., 848 P.2d at 924-25. The court further held that
when jurisdictional facts are disputed, the district court should
allow the parties latitude in discovering or introducing evidence at a
10
hearing tending to prove or disprove jurisdiction. Id. at 924. It did
not, however, specify how a plaintiff could meet this burden.
¶ 22 The court in Tidwell addressed this unanswered question. It
reaffirmed Trinity’s holding that C.R.C.P. 12(b)(1) governs the issue
of immunity and that the plaintiff bears the burden of proof. It
further concluded that because statutes granting immunity must be
narrowly construed (and those waiving immunity must be broadly
construed), the plaintiff should be afforded the reasonable
inferences from his or her evidence. Tidwell, 83 P.3d at 85. It
described this burden as “a relatively lenient one.” Id. at 86.
¶ 23 Similar to this case, the facts related to jurisdiction in Tidwell
were intertwined with the merits of the case (causation element),
making the application of the standard more difficult for the district
court. Citing the requirement that waiver of immunity be construed
broadly, and applying inferences favorably to the plaintiff, the court
concluded that a plaintiff need only prove a “minimal causal
connection” between the injuries and the specified conduct to
satisfy his or her burden. Id. Implicit in this finding is that proof of
causation under the preponderance of the evidence standard is
reserved for the trial on the merits. Accordingly, we reject the City’s
11
argument that the preponderance standard applies in a Trinity
hearing.
¶ 24 Following Tidwell, the court, in Finnie v. Jefferson County
School District R-1, 79 P.3d 1253 (Colo. 2003), rejected the
argument Heyboer makes here that Rule 12(b)(5) applies and
requires a court to covert a motion to dismiss into a motion for
summary judgment. Id. at 1259. It ruled that the text of
§ 24-10-108, C.R.S. 2016, requires courts to resolve jurisdictional
issues before trial, and that “[b]ecause summary judgment
procedures sometimes fail to definitely resolve issues of fact before
trial, . . . summary judgment procedures pursuant to C.R.C.P.
12(b)(5) are inconsistent with the requirements” of the statute. Id.
at 1258-59. The court therefore, expanded the Trinity hearing
procedures under C.R.C.P. 12(b)(1) to include all issues of
immunity, including facts not directly disputed by the parties. Id.
at 1260; see also Martinez v. Estate of Bleck, 2016 CO 58, ¶ 27
(“trial courts must resolve all issues pertaining to sovereign
immunity prior to trial, including factual issues, regardless of
whether those issues pertain to jurisdiction”). It reaffirmed that
although the plaintiff must prove jurisdiction, this burden is
12
“relatively lenient,” and the plaintiff must be afforded the
reasonable inferences from his or her evidence. Finnie, 79 P.3d at
1261. Therefore, we reject Heyboer’s argument that the standards
of C.R.C.P. 12(b)(5) and C.R.C.P. 56 should be applied in Trinity
hearings.
¶ 25 In sum, we conclude that when a plaintiff sues a governmental
entity and that entity moves to dismiss for lack of jurisdiction, the
plaintiff has the burden of proving jurisdiction under
C.R.C.P. 12(b)(1). The court may conduct a Trinity hearing at which
the parties may present evidence related to all issues of immunity,
including facts not in dispute. Finnie, 79 P.3d at 1260. After the
hearing, the court must “weigh the evidence and decide the facts” to
satisfy itself of its power to hear the case. Trinity Broad., 848 P.2d
at 925 (quoting Boyle v. Governor’s Veterans Outreach & Assistance
Ctr., 925 F.2d 71, 74 (3d Cir. 1991)). In doing so, it must afford the
plaintiff the reasonable inferences from his or her evidence.
Tidwell, 83 P.3d at 86. This same lenient standard applies to facts
related to both the jurisdictional issue and the merits of the case.
Id.
¶ 26
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C. Unreasonable Risk
¶ 27 Heyboer contends that the district court erred in finding that
she produced no evidence of an unreasonable risk and that the
record demonstrates the City failed to maintain the road in its
original condition, thereby creating an unreasonable risk to the
public. Alternatively, she asks this court to remand for further
factual development if necessary.
¶ 28 The City, relying on the absence of evidence of an
unreasonable risk or an opinion of unreasonableness, contends
that the court’s order is supported by the record and that no
evidence of an unreasonable risk exists. It further contends that
the accident resulted from the other car’s traffic violation rather
than the road’s surface condition, and asks us to affirm the court’s
dismissal. Thus, our resolution of the immunity question under
§ 24-10-106(1)(d)(I) requires us to interpret the meaning of
“unreasonable risk to the health or safety of the public” in
§ 24-10-103(1.3).
¶ 29 As noted above, a public entity is generally “immune from
liability in all claims for injury which lie in tort or could lie in tort.”
§ 24-10-106(1). As relevant here, governmental immunity is
14
explicitly waived for “[a] dangerous condition of a public highway,
road, or street which physically interferes with the movement of
traffic.” § 24-10-106(1)(d)(I). The phrase “interferes with the
movement of traffic” modifies “[a] dangerous condition” in that
section. Thus, immunity is waived only when a dangerous
condition both exists and interferes with the movement of traffic.
See Bloomer v. Bd. of Cty. Comm’rs, 799 P.2d 942, 946 (Colo. 1990)
(holding that “of a public highway, road, or street which physically
interferes with the movement of traffic” “merely modifies”
“dangerous condition”), overruled on other grounds by Bertrand v.
Bd. of Cty. Comm’rs, 872 P.2d 223 (Colo. 1994)), superseded by
statute, Ch. 262, sec. 1, § 24-10-103(2.7), 2007 Colo. Sess. Laws
1025.
¶ 30 To establish that a dangerous condition exists under
§ 24-10-103(1.3), an injured party must show that an injury
resulted from (1) a physical condition of a public facility or the use
thereof; (2) which constituted an unreasonable risk to the health or
safety of the public; (3) which was known to exist or should have
been known to exist in the exercise of reasonable care; and (4)
which was proximately caused by the negligent act or omission of
15
the public entity in constructing or maintaining such facility.
Medina v. State, 35 P.3d 443, 454 (Colo. 2001); Springer, 13 P.3d at
799; Walton, 968 P.2d at 644.
¶ 31 This, in turn, requires us to define the phrase “unreasonable
risk to the health or safety of the public,” which is not defined in
the CGIA. Accordingly, we apply the rules of statutory
interpretation to determine its meaning. We must give effect to the
General Assembly’s intent, recognizing that provisions that waive
immunity should be broadly construed. Tidwell, 83 P.3d at 81. We
look first to the plain language of the statute and give words and
phrases their ordinary meanings. Id. If the plain language of the
statute demonstrates a clear legislative intent, we look no further in
conducting our analysis. See Jones v. Cox, 828 P.2d 218, 221
(Colo. 1992); see also Springer, 13 P.3d at 799.
¶ 32 The term “unreasonable,” as it appears in the statute, is an
adjective that modifies “risk.” Unreasonable means “[n]ot guided by
reason; irrational or capricious.” Black’s Law Dictionary 1772 (10th
ed. 2014). In the context of tort law, reasonableness is defined as
acting in accordance with the duty of care owed to another.
Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412, 417 (Colo.
16
App. 2011); see also CJI-Civ. 4th 9:8 (2016) (“Reasonable care is
that degree of care which a reasonably careful person would use
under the same or similar circumstances.”). Thus,
unreasonableness is the failure to act reasonably with regard to a
particular risk or duty of care.
¶ 33 To determine what constitutes an unreasonable risk, we must
identify what constitutes a risk. “Risk” is defined as “the existence
and extent of the possibility of harm” or “the chance of injury,
damage, or loss.” Black’s Law Dictionary 1524 (10th ed. 2014).
Section 24-10-103(1.3) narrows the class of applicable risks to
those “known to exist” and those caused by the failure to
“construct[] or maintain[] [a] facility.” A risk that exists only
because “the design of any facility is inadequate” is explicitly
excluded. Id.¶ 34 The statute defines “maintenance” as “the act or omission of a
public entity . . . in keeping a facility in the same general state of
repair or efficiency as initially constructed or in preserving a facility
from decline or failure.” § 24-10-103(2.5). Thus, “maintain” means
a duty to restore a facility to the “same general state of being,
repair, or efficiency as initially constructed.” Swieckowski, 934
17
P.2d at 1385; see Martinez v. Weld Cty. Sch. Dist. RE-1, 60 P.3d
736, 739 (Colo. App. 2002) (school liable for failure to maintain
sidewalks free from ice and snow); see also Moldovan, 842 P.2d at
224-25 (government liable for failure to repair damaged fence that
allowed cow to enter roadway); Wheeler in Interest of Wheeler v. Cty.
of Eagle, 666 P.2d 559, 561 (Colo. 1983) (government liable for
failure to clear trees and bushes that had obstructed road); Stephen
v. City & Cty. of Denver, 659 P.2d 666, 668 (Colo. 1983)
(government liable for failure to repair stop sign that had been
turned to face wrong direction); Hallam v. City of Colorado Springs,
914 P.2d 479, 482-83 (Colo. App. 1995) (government liable for
failure to replace barriers that someone had removed); Schlitters v.
State, 787 P.2d 656, 657-58 (Colo. App. 1989) (government liable
for failure to secure loose boulders above road).
¶ 35 The duty to maintain, however, “does not include any duty to
upgrade, modernize, modify, or improve the design or construction
of a facility.” § 24-10-103(2.5); Walton, 968 P.2d at 645; see also
Estate of Grant v. State, 181 P.3d 1202, 1206-07 (Colo. App. 2008)
(government not liable for failure of design on temporary road to
provide for median barrier); Lyons v. City of Aurora, 987 P.2d 900,
18
903 (Colo. App. 1999) (government not liable for failure of traffic
signal design to provide sufficient time for pedestrians to cross
intersection); Karr v. City & Cty. of Denver, 677 P.2d 1384,1385
(Colo. App. 1984) (holding that an increase in vehicle-pedestrian
accidents, after an increase in pedestrian traffic where the City had
not installed a stoplight at an intersection, was not a dangerous
condition because the public entity was not required to improve the
intersection based upon its changed use).
¶ 36 The failure to keep a road in the same general state of repair
or efficiency as it was initially constructed, therefore, constitutes an
unreasonable risk because it could “increase the risk of injury
above that deemed to be acceptable during the design stage.”
Medina, 35 P.3d at 448-49, 457. As our supreme court has
explained, the reasoning behind a waiver of immunity in this
context is “not because [the City] necessarily causes a dangerous
condition, but because it is in a position to discover and correct the
condition.” Springer, 13 P.3d at 801. Accordingly, reading the plain
language of the immunity statute and interpreting it broadly as we
must, we conclude that a plaintiff satisfies his or her burden of
proving an “unreasonable risk to the health or safety of the public”
19
under § 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.” This showing alone,
however, is insufficient to establish jurisdiction. A plaintiff must
still prove that the governmental entity knew of the condition, that
the road is a public facility, and that the road’s condition interfered
with the movement of traffic. Springer, 13 P.3d at 799; see also
§ 24-10-106(1)(d)(I).
D. Application
¶ 37 We reject the City’s argument and the district court’s
conclusion that Heyboer presented no evidence of an unreasonable
risk. The City conceded that the road’s surface condition was a
factor in determining the safety risk to the public, that the road was
in poor condition, and that it knew of the road’s deteriorated
condition. Moreover, the City failed to produce any evidence of
repairs (beyond pothole repairs not at issue here) that it had
conducted to restore the road’s uneven surface to “its same general
state of repair or efficiency as initially constructed” and instead
admitted, through its City Engineer, that the road was dangerous,
but not dangerous enough to fix. Indeed, photographs taken after
20
the accident and relied on by the expert witnesses show the
deteriorated state of the road and its uneven surface.
¶ 38 Additionally, though not recited in the court’s judgment, the
hearing evidence included:
 Veres’ testimony that numerous ruts and cracks caused
his motorcycle to “skip” and lose contact with the
ground;
 Bilek’s statement that the non-uniformity of the tire
marks led him to conclude that the motorcycle’s tires
were not in full contact with the pavement when Veres
applied the brakes, thereby impacting Veres’ ability to
decelerate and handle the motorcycle;
 Kennedy’s description of numerous 3113 calls concerning
the condition of this intersection in the months before the
accident and citizens’ reports that the road was cracked,
worn, rutted, and potholed; and
 Barbera’s opinion that the last eleven feet of the road
before the motorcycle struck the car created “some
3 311 is a citizen hotline used to report road conditions to the City.
21
influence” in the accident, and that for at least fifty
percent of this distance, the motorcycle’s rear tire was
not in contact with the road.
¶ 39 Accordingly, we conclude that Heyboer presented competent
evidence of the City’s failure to maintain the road in the same state
of repair or efficiency as initially constructed under
§ 24-10-103(2.5) and that this failure established an unreasonable
risk to the health or safety of the public under § 24-10-103(1.3).
Thus, we conclude that Heyboer established the existence of a
“dangerous condition.”
¶ 40 Because the court’s factual findings demonstrate that the road
conditions physically interfered with the movement of traffic on a
road designed for public travel, and because that finding is not
contested on appeal, we further conclude that Heyboer established
that the road constituted a “dangerous condition” for purposes of
waiving the City’s immunity under §24-10-106(1)(d)(I) of the CGIA.
Thus, the court erred as a matter of law in finding no waiver of
immunity. Whether the road’s conditions, the car’s traffic
violations, or a combination of these factors caused the accident are
questions to be determined on remand. Accordingly, we reverse the
22
court’s order granting the City’s motion to dismiss and conclude
that Heyboer established a waiver of immunity under the CGIA.
III. III. Conclusion
¶ 41 We reverse the district court’s judgment granting the City’s
motion to dismiss and remand the case for reinstatement of
Heyboer’s complaint.
JUDGE TAUBMAN and JUDGE PLANK concur.
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