v. CSG Redevelopment , 2019 COA 91 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 20, 2019
2019COA91
No. 18CA0534, Martinez v. CSG Redevelopment — Government
— Colorado Governmental Immunity Act — Immunity and
Partial Waiver — Public Entity — Instrumentality
A division of the court of appeals addresses whether an entity
— CSG Redevelopment Partners, LLLP (CSGR) — is an
“instrumentality” of a public entity entitled to immunity under the
Colorado Governmental Immunity Act, §§ 24-10-103, -106, C.R.S.
2018. In holding that it is, the division determines that, despite its
inclusion of a private entity and partial reliance on funding from a
private investor, CSGR’s public purpose and the Denver Housing
Authority’s extensive control over it renders it an instrumentality of
a public entity. The division also addresses the limits of the waiver
of immunity for “[a] dangerous condition caused by an
accumulation of snow and ice which physically interferes with
public access on walks leading to a public building open for public
business,” § 24-10-106(1)(d)(III), and concludes that a low-income
housing facility is not a “public building open for public business”
because it is not generally accessible to members of the public.
COLORADO COURT OF APPEALS 2019COA91
Court of Appeals No. 18CA0534
City and County of Denver District Court No. 16CV31344
Honorable Jay S. Grant, Judge
Guadalupe P. Martinez,
Plaintiff-Appellant,
v.
CSG Redevelopment Partners LLLP, a Colorado limited liability limited
partnership,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur
Announced June 20, 2019
DiGiacomo, Jaggers & Perko, LLP, Douglas J. Perko, Arvada, Colorado, for
Plaintiff-Appellant
Harris, Karstaedt, Jamison & Powers, P.C., Susan M. Stamm, Englewood,
Colorado, for Defendant-Appellee
¶1 Guadalupe P. Martinez, a resident of the low-income housing
facility Casa Loma Apartments, slipped and fell on a walkway
leading to the apartment building. Seeking to recover for his
injuries, Mr. Martinez sued CSG Redevelopment Partners, LLLP
(CSGR), Casa Loma’s management company and the building’s
owner, under the Premises Liability Act, § 13-21-115, C.R.S. 2018,
and (alternatively) for negligence, alleging that CSGR had allowed
snow and ice to accumulate on the walkway.
¶2 CSGR moved to dismiss the complaint, arguing that, as an
“instrumentality” of a public entity — the Denver Housing Authority
(DHA) — it is immune from tort liability under the Colorado
Governmental Immunity Act (CGIA), § 24-10-106, C.R.S. 2018. It
also argued that the exception to governmental immunity in section
24-10-106(1)(d)(III) for a dangerous condition on a walkway “leading
to a public building open for public business” doesn’t apply because
Casa Loma isn’t such a building. Mr. Martinez opposed the motion.
After a Trinity Broadcasting of Denver, Inc. v. City of Westminster,
848 P.2d 916 (Colo. 1993), hearing, the district court granted
CSGR’s motion, ruling that CSGR is an instrumentality of the DHA
and that the public building exception doesn’t apply.
1
¶3 We conclude that, because of both DHA’s extensive control
over CSGR and CSGR’s public purpose, CSGR is an instrumentality
of a public entity within the meaning of the CGIA, and therefore a
public entity itself entitled to governmental immunity. We also
conclude that the record supports the district court’s finding that
Casa Loma isn’t a public building open for public business, and
that Mr. Martinez’s alternative contention that immunity doesn’t
apply because the walkway is part of a “public facility located in [a]
recreation area maintained by a public entity,” see § 24-10-
106(1)(e), is, on this record, unavailing. The upshot is we affirm the
district court’s judgment.
I. Background
¶4 The following facts were found by the district court with record
support or are otherwise undisputed.
¶5 In 1987, DHA created the Denver Housing Corporation (DHC),
a nonprofit entity that DHA completely owns and controls. For
nearly thirty years, DHC (and, by extension, DHA), has owned and
operated the Casa Loma Apartments. In 2013, to finance the
renovation of Casa Loma and two other low-income housing
properties, DHA created CSGR and CSG Housing, Inc. CSG
2
Housing served as CSGR’s general partner, and another of DHA’s
instrumentalities, DHA Limited Partner, served as CSGR’s limited
partner. At that point, CSGR was made up of, and controlled
entirely by, DHA instrumentalities.1
¶6 But in 2014, as part of CSGR’s effort to secure more funding
for the renovations, Wincopin Circle LLLP joined CSGR as a limited
partner. 2 It functions mainly as an investor, having contributed
approximately $12.5 million in equity financing. CSG Housing and
DHA Limited Partner each contributed $90 and $10, respectively.
As a result, CSG Housing, as the general partner, retained a 0.01%
ownership interest in CSGR; DHA Limited Partner, a special limited
partner, retained a 0.001% ownership interest in CSGR; and the
investor, the limited partner, received a 99.989% ownership interest
in CSGR and qualified for tax credits through the Low-Income
Housing Tax Credit (LIHTC) program — a federal program that
1 The parties stipulated that DHA is a public entity and that DHC
and CSG Housing are instrumentalities of DHA within the meaning
of the CGIA.
2 American Express - West Equity Fund Limited Partnership later
replaced Wincopin. For simplicity’s sake, we’ll refer to them
collectively as “the investor.”
3
offers federal tax credits to private investors as an incentive to
invest in low-income housing projects. See 26 U.S.C. § 42 (2018).
The partnership is governed by a restated partnership agreement
(more about which we’ll discuss below).
¶7 Around the same time the investor joined CSGR, DHC leased
the land under Casa Loma to CSGR for sixty-five years; DHC
transferred its ownership of the structural improvements on the
property to CSGR (this was also so the investor could qualify for
LIHTC); and DHA lent CSGR approximately $45.3 million, $21
million of which was a construction loan that DHA funded by
issuing private activity bonds (about $15 million was cash directly
from DHA). CSG Housing, acting in its capacity as the general
partner, hired DHA as the manager of the property under a written
management agreement (another agreement about which we’ll talk
more below).
¶8 Several years later, Mr. Martinez slipped and fell on an
allegedly icy walkway leading to the building. He sued CSGR,
claiming over $400,000 in medical expenses. As noted, the district
court dismissed his complaint based on governmental immunity.
4
II. Discussion
¶9 Mr. Martinez contends that the district court erred by (1)
concluding that CSGR is an instrumentality of DHA; (2) ruling that
the “public building” exception doesn’t apply; and (3) failing to
address his argument that the “recreation area” waiver in section
24-10-106(1)(e) applies.
A. Standard of Review
¶ 10 To the extent historical facts relevant to the issues Mr.
Martinez raises on appeal were disputed, we review the district
court’s findings of fact for clear error, Medina v. State, 35 P.3d 443,
452 (Colo. 2001); such a finding is clearly erroneous only if there’s
no support for it in the record, M.D.C./Wood, Inc. v. Mortimer, 866
P.2d 1380, 1384 (Colo. 1994). But to the extent all such facts
relevant to a particular issue weren’t disputed, we review the issue
de novo. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 10. And
to the extent that CSGR’s claim to immunity implicates questions of
law, including statutory interpretation or application of a proper
legal standard, we review the district court’s conclusions de novo.
See Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo. 2000).
5
B. Analysis
1. CSGR is an Instrumentality of a Public Entity
¶ 11 First, Mr. Martinez contends that his claim isn’t barred by the
CGIA because CSGR’s status as a private partnership precludes its
treatment as a “public entity.” He points to the investor’s
significant capital contributions, the investor’s approval power over
some of CSGR’s operations, and that much of DHA’s investment
came from the sale of private activity bonds. While these facts have
some force, we ultimately conclude that they don’t carry the day.
a. Applicable Law
¶ 12 The CGIA gives public entities immunity from claims “which lie
in tort or could lie in tort,” subject to certain express exceptions.
See § 24-10-106(1). It defines “public entity” as
the state, the judicial department of the state,
any county, city and county, municipality,
school district, special improvement district,
and every other kind of district, agency,
instrumentality, or political subdivision thereof
organized pursuant to law and any separate
entity created by intergovernmental contract or
cooperation only between or among the state,
county, city and county, municipality, school
district, special improvement district, and
every other kind of district, agency,
instrumentality, or political subdivision
thereof.
6
§ 24-10-103(5), C.R.S. 2018.
¶ 13 Though no statute defines the term “instrumentality,” several
cases shed light on its meaning. In Robinson v. Colorado State
Lottery Division, a division of this court held that by including the
term “instrumentality” with other entities that are public in nature,
the General Assembly intended that covered instrumentalities be
“governmental in nature.” 155 P.3d 409, 414 (Colo. App. 2006),
aff’d in part, rev’d in part on other grounds, 179 P.3d 998 (Colo.
2008). The division concluded that Texaco, a private corporation
that was licensed by the State of Colorado to sell lottery tickets,
wasn’t an instrumentality since there was “no indication that the
General Assembly intended to expand the scope of the [C]GIA to
include any private person or corporation that entered into some
type of agreement with a public entity.” Id.
¶ 14 Similarly, in Moran v. Standard Insurance Co., 187 P.3d 1162
(Colo. App. 2008), another division of this court, relying heavily on
the division’s decision in Robinson, held that Standard Insurance
Company, a private company, wasn’t an instrumentality merely
because a public entity, the Public Employees’ Retirement
Association (PERA), was statutorily required to contract with a
7
private insurance company (and it chose Standard). “Standard’s
status as a private corporation,” the division wrote, “even one that
has entered a contract with a public entity, precludes its treatment
as a public entity under the CGIA.” Id. at 1166.
¶ 15 Several years later, in Colorado Special Districts Property &
Liability Pool v. Lyons, 2012 COA 18, another division leaned on
Robinson and Moran in holding that County Technical Services, Inc.
(CTSI) was an instrumentality, for four reasons: (1) CTSI was a
nonprofit corporation formed by Colorado counties “exclusively for
the purpose of lessening the burden on Colorado county
governments”; (2) it was founded and maintained by public entities;
(3) those public entities were involved in CTSI’s management or
control; and (4) the supreme court had said in another case that
public corporations like CTSI “are created as subdivisions of the
state as an expedient device to carry out the functions of
government.” Id. at ¶¶ 40-43 (quoting Colo. Ass’n of Pub. Emps. v.
Bd. of Regents of Univ. of Colo., 804 P.2d 138, 143 (Colo. 1990)).
¶ 16 Each of these cases also drew on the CGIA’s “central legislative
purpose” of limiting liability to lessen the burden on taxpayers.
See, e.g., Robinson, 155 P.3d at 414.
8
b. Analysis
¶ 17 It appears to be undisputed that CSGR is a private
partnership. But we conclude that fact isn’t dispositive. What is
dispositive, as Robinson tells us, is that the entity must be
“governmental in nature.” Id. And Lyons shows us that an entity
can be governmental in nature if a governmental entity controls it
and it serves a public purpose. See Lyons, ¶¶ 40-43; accord Walker
v. Bd. of Trs., 69 F. App’x 953, 957 (10th Cir. 2003) (board of
trustees of a pension plan wasn’t an instrumentality of the Denver
Regional Transportation District (RTD) where it was independent
from RTD, RTD had no authority over it, and it didn’t have any
obligation to act in RTD’s interests); Plancher v. UCF Athletics Ass’n,
175 So. 3d 724, 728 (Fla. 2015) (the UCF Athletics Association was
entitled to governmental immunity because the University of
Central Florida, a state agency, created the association and
controlled its board of directors, operations, activities, and
“continued existence”); Daughton v. Md. Auto. Ins. Fund, 18 A.3d
152, 163-65 (Md. Ct. Spec. App. 2011) (insurance fund controlled
by public entities and which provided for the public’s welfare was
9
an instrumentality of the state despite having a private financial
and corporate identity). Those elements are present here.
¶ 18 Notwithstanding the investor’s high ownership percentage,
DHA controls most of CSGR’s operations. Pursuant to CSGR’s
amended partnership agreement, DHA’s instrumentality, CSG
Housing (as the sole general partner and manager), has “full and
exclusive power and right to manage and control the business and
affairs of the partnership.” And DHA itself acts as CSGR’s property
manager for Casa Loma. The management agreement requires it to
maintain, repair, and operate the property — in short, to run Casa
Loma on a day-to-day basis. It was DHA that oversaw and carried
out the renovation project, selecting the architect and general
contractor, supervising the renovation work, monitoring compliance
with the construction documents, and sponsoring the work.
¶ 19 The partnership agreement also provides that the investor, as
a limited partner, “shall not take part in the management or control
of the business of the partnership[.]” Nonetheless, we acknowledge
that that doesn’t mean the investor has no authority at all. The
investor has approval power over a number of subjects, including
CSGR’s budget, quarterly financial reports, annual financial
10
statements, and renovation plans. It also has the right to remove
the general partner — CSG Housing — for any one of twelve stated
reasons. And CSG Housing must seek the investor’s consent before
withdrawing as general partner.
¶ 20 CSGR downplays these provisions, arguing that “such
purported limitations are meaningless” and that the investor has
“never technically approved any of the budgets” or “questioned any
expenditures contained in the proposed budgets.” We reject the
notion that we should disregard the investor’s contractual power to
disapprove certain matters merely because the investor hasn’t
exercised it.
¶ 21 All that said, however, considering that the investor’s
authority is mostly limited to certain approval rights, CSG Housing
manages CSGR, and DHA makes all of the day-to-day operational
decisions, we conclude that public entities essentially control
CSGR.3
3It also appears undisputed that taxing authorities treat CSGR as a
governmental entity.
11
¶ 22 And CSGR serves a public purpose: providing low-income
housing. This is a function typically carried out by governmental
entities, and the use of some private funding doesn’t negate that.
See Griffin v. City of Detroit, 443 N.W.2d 406, 407 (Mich. Ct. App.
1989) (ownership and operation of a low-income housing project
was a “governmental function”).
¶ 23 Until CSGR brought in the investor as a limited partner, it was
entirely made up of, and controlled by, DHA and its
instrumentalities. The investor only became involved because DHA
wanted to limit its debt and needed more money to renovate and
operate its properties. One way to do so was to attract private
investors using the incentive of low-income housing tax credits. We
decline to hold that any public entity that receives private funds
through LIHTC, in addition to public funds, thereby loses its status
as a public entity, particularly when the private investor exercises
minimal control over the entity’s operations. 4
4We note that CSGR’s structure appears to be typical for entities
seeking to take advantage of LIHTC: a project sponsor (generally a
housing authority or other governmental entity) partners with a
private investor in a limited partnership. The housing authority
acts as a general partner, maintaining authority over the project,
12
¶ 24 Our conclusion that CSRG is an instrumentality doesn’t
conflict with Robinson or Moran. The division in Robinson said that
instrumentalities must be “governmental in nature,” but it did so in
the context of holding that Texaco, a purely private corporation,
wasn’t an instrumentality. See Robinson, 155 P.3d at 414. Moran
involved similar reasoning. See Moran, 187 P.3d at 1166.
¶ 25 CSGR has never been “private” in the same sense — as noted,
it was made up entirely of public entities when founded, and it only
became a “private” partnership when the investor joined as a
limited partner. That’s very different from Texaco, whose only
relationship with a public entity was a license to sell lottery tickets,
or Standard Insurance Company, which only provided services to
state employees because of a contract with PERA. And, of course,
no public entity controlled Texaco or Standard Insurance Company.
¶ 26 We would be remiss, however, if we failed to address Acevedo
v. Musterfield Place, LLC, 98 N.E.3d 673 (Mass. 2018), on which Mr.
while the investor steps in as a limited partner and has a “passive
role” despite its high ownership percentage. Mark P. Keightley,
Cong. Research Serv., RS22389, An Introduction to the Low-Income
Housing Tax Credit 4 (2019).
13
Martinez relies. Acevedo addressed a question similar to the one we
consider today — whether an entity created to take advantage of
LIHTC, made of (1) a managing member controlled by a housing
authority and (2) a private investor with over a 99% ownership
interest but little management power, is entitled to governmental
immunity. The court ultimately concluded that the entity in that
case, Musterfield Place, wasn’t a “public employer” under
Massachusetts’ Tort Claims Act, and therefore wasn’t entitled to
immunity. Id. at 677.
¶ 27 Acevedo is distinguishable. The Massachusetts Tort Claims
Act differs from the CGIA in a few key ways. Unlike the CGIA, the
Massachusetts Tort Claims Act doesn’t grant immunity to “public
entities.” Instead, it limits immunity to “public employers.” Mass.
Gen. Laws Ann. ch. 258, § 2 (West 2009). And while
instrumentalities are included in the CGIA’s definition of “public
entity,” they aren’t included in the Massachusetts statute’s
definition of “public employer.”
¶ 28 The Massachusetts Supreme Judicial Court relied on the
Massachusetts statute’s language, including the absence of the
term “controlled affiliate” (a term used in the LIHTC statute) in
14
concluding that Musterfield Place and its managing entity,
Musterfield Manager, weren’t entitled to immunity. See id. at
676-77. The CGIA’s definition of “public entity,” however, is
broader, and, as discussed, contemplates entities controlled by
other public entities. In addition, the managing member of the
limited liability company — Musterfield Manager — wasn’t itself a
public employer, but was instead a private contractor. In contrast,
the entities with management authority over CSGR — DHA and
CSG Housing — are public entities.
¶ 29 We also reject Mr. Martinez’s contention that since some of
DHA’s loans to CSGR were funded by issuing private activity bonds,
CSGR can’t be a public entity under the CGIA. Under the Internal
Revenue Code (IRC), a certain percentage of the proceeds from these
types of bonds must be for “private business use” or must be to
“persons other than governmental units.” 26 U.S.C. § 141(a), (b), (c)
(2018). Private business use is defined as “use (directly or
indirectly) in a trade or business carried on by a person other than
a governmental unit.” § 141(b)(6)(A).
¶ 30 But a “governmental unit” under the IRC and a “public entity”
or “instrumentality” under the CGIA aren’t the same thing. The
15
Code of Federal Regulations defines a governmental unit as “a
State, territory, a possession of the United States, the District of
Columbia, or any political subdivision thereof[.]” 26 C.F.R.
§ 1.103-1(a) (2018). The term “political subdivision” is further
defined as “any division of any State or local governmental unit
which is a municipal corporation or which has been delegated the
right to exercise part of the sovereign power of the unit.” Id. This is
much more specific than the term “instrumentality,” which, while
not defined under the CGIA, encompasses more than states and
their political subdivisions. See, e.g., Lyons, ¶ 45 (concluding that
CTSI, a corporation, was an instrumentality).
¶ 31 We also acknowledge that another relevant consideration is
whether the taxpayers would bear the burden of any liability
imposed on the entity. See, e.g., Robinson, 155 P.3d at 414. But
the record before us is devoid of evidence as to who would bear the
burden of any liability imposed on CSGR. Mr. Martinez argues on
appeal that any liability would be covered by CSGR’s insurance
policy, so no burden would reach the taxpayers; CSGR contends
that DHA would ultimately be responsible for any liability. The
district court made no findings on this issue. Given that it was Mr.
16
Martinez’s burden to show subject matter jurisdiction, see Medina,
35 P.3d at 452, we can’t conclude that this consideration weighs in
his favor. 5
¶ 32 In sum, we conclude that CSGR is an instrumentality of a
public entity because of DHA’s extensive control over its operations
and because of its public purpose. It is therefore itself a public
entity entitled to governmental immunity, unless some statutory
exception applies. We now turn to two such exceptions invoked by
Mr. Martinez.
2. Public Building Open for Public Business
¶ 33 Next, Mr. Martinez contends that even if CSGR is a public
entity under the CGIA, we should deem its immunity waived
because Casa Loma is a “public building open for public business.”
See § 24-10-106(1)(d)(III) (immunity is waived in an action for
injuries resulting from “[a] dangerous condition caused by an
accumulation of snow and ice which physically interferes with
5Mr. Martinez argues that CSGR should have the burden of proving
governmental immunity applies. But that position seems to be
contrary to controlling authority.
17
public access on walks leading to a public building open for public
business”). We aren’t persuaded.
¶ 34 The term “public building open for public business” isn’t
defined in the CGIA, nor have any Colorado cases directly
addressed this term as it is used in this exception. CSGR urges us
to apply the plain and ordinary meaning of the term, as the district
court did. See Young, ¶ 11 (“We look first to the language of the
statute, giving words their plain and ordinary meaning[s].”).
Looking to dictionary definitions, the district court found that Casa
Loma can’t be considered a “public building open for public
business” since only residents and staff have key cards to enter the
building, no public events take place on the premises, and no
public business is conducted there. 6 We agree, based on these
findings, that Casa Loma isn’t a public building open for public
business. Though it’s owned and operated by DHA
instrumentalities, it functions as private residences, not a public
building.
6In fact, residents are prohibited by their lease agreements from
allowing anyone they don’t know into the building.
18
¶ 35 Other states’ case law on the same issue informs our
conclusion. For example, the Michigan Supreme Court held, in
addressing a claim by a student’s mother who had fallen outside a
University of Michigan dormitory while visiting her daughter, that
the dormitory wasn’t “open for business by members of the public”
under the state’s public building exception to governmental
immunity. Maskery v. Bd. of Regents of the Univ. of Mich., 664
N.W.2d 165, 166 (Mich. 2003). In so holding, the court articulated
the following test:
To determine whether a building is open for
use by members of the public, the nature of
the building and its use must be
evaluated. . . . If the government has
restricted entry to the building to those
persons who are qualified on the basis of some
individualized, limiting criteria of the
government’s creation, the building is not open
to the public.
Id. at 169 (footnote omitted).
¶ 36 Other cases, taking a similar approach, have held that
low-income housing facilities don’t qualify under the exception.
See, e.g., White v. City of Detroit, 473 N.W.2d 702, 704 (Mich. Ct.
App. 1991) (the plaintiff fell on a publicly accessible patio outside a
low-income housing facility; that facility wasn’t a “public building”
19
under the governmental immunity exception); Griffin, 443 N.W.2d at
407-08 (unit in low-income housing facility wasn’t “open for use by
members of the public” under the immunity exception because it
wasn’t used for public offices or for a public purpose). But see
Moore v. Wilmington Hous. Auth., 916 A.2d 1166, 1174-75 (Del.
1993) (public housing authority apartment building was a “public
building” for purposes of public building exception to governmental
immunity). 7
¶ 37 The reasoning of these cases is persuasive, and so we
conclude that Casa Loma isn’t a public building open for public
business.
¶ 38 The parties cite cases addressing the meaning of “public
facility” and “public water facility,” parts of two other exceptions to
governmental immunity. § 24-10-106(1)(e), (f). These cases
variously construe “public” in that context as “a place accessible or
7 The court in Moore relied in part on the Michigan Supreme Court’s
decision in Green v. State Corrections Department, 192 N.W.2d 491
(Mich. 1971), which it thought conflicted with the Michigan Court of
Appeals’ later decisions in White and Griffin. But the Michigan
Supreme Court subsequently approved of both White and Griffin in
Maskery, without even mentioning Green, in adopting the test we
recite above.
20
visible to all members of the community,” Rosales v. City & Cty. of
Denver, 89 P.3d 507, 509 (Colo. App. 2004) (quoting Webster’s
Third New International Dictionary 1836 (1986)), overruled on other
grounds by Burnett v. State Dep’t of Nat. Res., 2015 CO 19;
“something that is built or constructed to serve some public
purpose,” id.; “being accessible and beneficial to members of the
general public,” City & Cty. of Denver v. Gallegos, 916 P.2d 509, 511
(Colo. 1996), disapproved of on other grounds by Corsentino, 4 P.3d
1082; or “for the benefit of the general public,” id. They appear to
share in common a requirement of public access, and, to that
extent, though not directly on point, they support our conclusion.8
In any event, the “public building” exception, unlike the public
8 The parties cite two other cases dealing with the public building
exception. In Smokebrush Foundation v. City of Colorado Springs,
2015 COA 80, ¶ 32, aff’d in part, rev’d in part on other grounds,
2018 CO 10, the parties conceded that a building housing the
administrative operations of a city’s gas department was a public
building, and the division concluded that the record supported the
district court’s finding that the building was public. Springer v. City
& Cty. of Denver, 13 P.3d 794, 797 (Colo. 2000), involved a
city-owned theater; its status as a public building wasn’t at issue.
Both cases, unlike this case, involved buildings open to the public.
21
facility exception, is limited to such buildings “open for public
business.” As discussed, Casa Loma isn’t open for public business.
3. Recreation Area Waiver
¶ 39 Lastly, Mr. Martinez contends that the district court erred by
failing to address his argument that the “recreation area” waiver to
CGIA immunity applies in this case. See § 24-10-106(1)(e)
(immunity is waived in cases claiming injury resulting from a
dangerous condition of a “public facility located in any park or
recreation area maintained by a public entity”). We don’t see any
reversible error.
¶ 40 Mr. Martinez didn’t present any evidence showing that Casa
Loma is a “public facility located in a park or recreation area[.]”
Casa Loma is a low-income housing facility; it’s not in a park, and,
although it includes an area with picnic tables and grills, those
amenities are for private use by Casa Loma residents and their
guests only. Those amenities don’t turn this into a facility “located
in a recreation area.” Accordingly, we discern no reversible error in
the district court’s failure to address this argument.
III. Conclusion
¶ 41 The district court’s judgment is affirmed.
22
JUDGE TERRY and JUDGE GROVE concur.
23