20CA1322 Palmer v Berthoud 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1322
Larimer County District Court No. 20CV30191
Honorable Daniel M. McDonald, Judge
Kina Palmer,
Plaintiff-Appellant,
v.
Town of Berthoud, Colorado, a public municipal entity organized under the
laws of the State of Colorado,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE RICHMAN
Harris and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Wilcox Law Firm, LLC, Ronald L. Wilcox, Denver, Colorado; Law Office of
Michael P. Fossenier, LLC, Michael P. Fossenier, Denver, Colorado, for Plaintiff-
Appellant
Tucker Holmes, P.C., Bradley D. Tucker, Winslow R. Taylor, III, Centennial,
Colorado, for Defendant-Appellee
1
¶ 1 Plaintiff, Kina Palmer, appeals the district court’s dismissal of
her personal injury action against defendant, the Town of Berthoud
(Berthoud). We affirm.
I. Background
¶ 2 Palmer brought this action against Berthoud after she slipped
and fell on a patch of snow-covered ice on a public sidewalk
adjacent to the Berthoud Parks and Recreation Department
building.
¶ 3 She alleged, and Berthoud conceded, that the sidewalk was
constructed and maintained by Berthoud. She further alleged that
“[b]uilt into this subject public sidewalk when constructed by
Defendant was a ‘depression’ or ‘sloping’ in the sidewalk which
resulted in drainage problems which caused snow and ice melt to
accumulate and pool in the depression, where pooled water would
freeze when temperatures were below 32 degrees Fahrenheit.” She
also alleged that the depression or sloping was, at least in part, a
maintenance defect because approximately twenty years had
elapsed since construction of the sidewalk, allowing the slabs to
settle further. In addition, she alleged that Berthoud had failed to
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timely remove the snow and ice pursuant to its own snow and ice
removal plan.
¶ 4 According to Palmer, Berthoud’s conduct created a “dangerous
condition,” and it therefore waived its governmental immunity
pursuant to section 24-10-106(1)(d)(I), C.R.S. 2021, of the Colorado
Governmental Immunity Act (CGIA). She did not allege, nor does
she argue on appeal, that liability was waived under section
24-10-106(1)(d)(I) due to a “particular dangerous accumulation” of
snow or ice.
¶ 5 Berthoud moved to dismiss Palmer’s complaint for lack of
subject matter jurisdiction under C.R.C.P. 12(b)(1), contending,
among other things, that the snow and ice on the sidewalk were not
a dangerous condition because the “mere existence” of snow and ice
is not, by itself, a dangerous condition as that term is defined in
section 24-10-103(1.3), C.R.S. 2021, and incorporated in section
24-10-106(1)(d)(I). Thus, Berthoud asserted that it did not waive its
governmental immunity.
¶ 6 The district court held an evidentiary hearing pursuant to
Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916 (Colo. 1993). At the hearing, Berthoud also argued that,
3
according to the testimony, any depression in the sidewalk was due
solely to inadequate design, a flaw that does not constitute a
dangerous condition under section 24-10-103(1.3).
¶ 7 In a thorough written order, the district court concluded that
(1) Palmer was injured due to the “mere existence” of snow and ice,
precluding a finding that Berthoud had created a dangerous
condition; (2) even if the snow and ice might have otherwise
constituted a dangerous condition, the ice patch was present solely
due to inadequate design; and (3) even if a dangerous condition was
present due to a “particular dangerous accumulation” of snow and
ice, Berthoud had no actual notice of the accumulation and did not
have a reasonable time to remove or mitigate the snow and ice,
precluding waiver under section 24-10-106(1)(d)(I). Thus, the court
concluded Berthoud did not waive its governmental immunity.
¶ 8 Palmer appeals the district court’s dismissal, contending that
the court erroneously (1) concluded that the snow and ice were
present because the sidewalk was inadequately designed; and (2)
applied the “particular dangerous accumulation” standard to her
claim instead of the broader “dangerous condition” standard.
See § 24-10-106(1)(d)(I).
4
II. Standard of Review
¶ 9 When a public entity moves to dismiss a personal injury case
on grounds that it has not waived its immunity under the CGIA, the
entity raises a question of subject matter jurisdiction that must be
resolved pursuant to Rule 12(b)(1). Trinity, 848 P.2d at 923. Under
Rule 12(b)(1), a plaintiff has the burden of proving that the court
has subject matter jurisdiction, and the court may make all factual
findings necessary for that determination. Medina v. State, 35 P.3d
443, 452 (Colo. 2001). The court need not treat a plaintiff’s factual
allegations as true as it would under C.R.C.P. 12(b)(5). Medina,
35 P.3d at 452.
¶ 10 We will not disturb a district court’s findings of jurisdictional
fact unless they are clearly erroneous. Id. A finding of fact is
clearly erroneous only where it is not supported by competent and
adequate evidence in the record. Shandy v. Lunceford, 886 P.2d
319, 322 (Colo. App. 1994). To the extent that relevant facts are
undisputed, a plaintiff is entitled to the reasonable inferences raised
by those facts. City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 11.
Once questions of fact are resolved, we review de novo legal
questions of governmental immunity. Id. at ¶ 12.
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III. The CGIA
¶ 11 Under the CGIA, public entities are generally immune from
liability in “all claims for injury which lie in tort or could lie in tort.”
§ 24-10-106(1). However, the General Assembly has waived
sovereign immunity in actions for injuries that resulted from “[a]
dangerous condition . . . which physically interferes with the
movement of traffic on . . . any public highway, road, street, or
sidewalk within the corporate limits of any municipality . . . .”
§ 24-10-106(1)(d)(I); City of Aspen v. Meserole, 803 P.2d 950, 957
(Colo. 1990). A dangerous condition is
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). As noted, the “mere existence” of snow and ice
does not, by itself, constitute a dangerous condition. Id. And the
statute provides that a dangerous condition “shall not exist solely
because the design of any facility is inadequate.” Id. Thus, as a
threshold jurisdictional matter, a plaintiff must show that the
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dangerous condition arose due to government conduct, or lack
thereof, in maintaining or constructing the condition, and not due
to the government’s design. Swieckowski v. City of Fort Collins, 934
P.2d 1380, 1384 (Colo. 1997); see also Medina, 35 P.3d at 448.
IV. Inadequate Design
¶ 12 We first address Palmer’s contention that the district court
erred by concluding that any “dangerous condition was a result of
inadequate design as opposed to negligent construction or
maintenance.”
A. Factual Findings
¶ 13 In drawing this conclusion, the court made factual findings
that “there was almost no evidence that negligent construction or
maintenance caused the depression resulting in ice on the
sidewalk” and “the design was such that ice accumulated.” The
district court relied on the following evidence, or lack thereof, to
support its findings:
• The director of the Parks and Recreation Department,
Jeremy Olinger, submitted an affidavit stating, “The
sidewalk where Plaintiff fell is the original sidewalk built
approximately in 1998. The sidewalk is adjacent to a hill
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and water runs down the hill, across the sidewalk, and
into the gutter by design.”
• Based on Olinger’s affidavit, her own observation of the
scene, and photos of the sidewalk taken after the fall,
Palmer’s expert witness, Anne Stodola, testified that the
sidewalk was “designed . . . as conduit . . . for fluid to go
across the sidewalk.”
• She opined this system is “lax in engineering principles,
because it’s not taking into account the failure mode that
can occur when water . . . is destructive for the system”
and it shows Berthoud “was not taking into account all
the engineering principles.”
• Stodola did not review original plans for the sidewalk or
historical photographs of the area.
• There was no evidence that the sidewalk had sunk over
time or that the landscaping around it had been further
elevated, creating a low spot.
• Stodola “did not testify to, nor was she qualified to opine
on, any failures in construction or maintenance of the
sidewalk.”
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¶ 14 The court’s factual findings are not clearly erroneous because
they are supported by competent and adequate evidence in the
record. Olinger stated that water ran off the hill and onto the
sidewalk by design, and Stodola explicitly based her opinion on
Olinger’s view that the sidewalk was designed as a “conduit” after
stating that part of her job was to analyze “accidents that involve
sidewalk design.” She also called the sidewalk a “design hazard,”
opined that a “chase drain” should be installed to route water under
the sidewalk, and stated, “I’m sure that there would be more ways
that one can design it.”
¶ 15 She conceded that her expert report did not include an opinion
on, or an assessment of, the precise cause of any potential
post-construction settling and that she “didn’t see the design, the
as-built drawings.” She further conceded that her opinion that the
sidewalk had settled was drawn from the fact that it “deviates from
the other 200 feet” of sidewalk around it, not from any specific
evidence of settling.
¶ 16 As noted, the burden was on plaintiff to demonstrate her
theory that, rather than a design issue, negligent maintenance by
Berthoud proximately caused the condition. Although Palmer’s
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expert also testified that her opinion that the sidewalk constituted a
dangerous condition was based on “a maintenance standard, a
construction standpoint” and that “through the maintenance,
[Berthoud] had failed to keep water from running across this area,”
the district court was not required to credit her characterization of
the condition as a maintenance or a construction flaw.
1
See
Medina, 35 P.3d at 459 n.7 (noting that a court is not bound by an
expert’s conclusory categorization of a hazard because an expert
may not understand the legal distinctions between “maintenance”
and “design” as they are used in the CGIA). Therefore, we perceive
no clear error in the district court’s findings of fact.
1
As the district court noted, there was virtually no evidence of the
manner in which the sidewalk was constructed, although Stodola
occasionally referred to her opinion as coming from a “construction
standpoint.” Moreover, Palmer’s briefs do not adequately explain
her theory that negligent construction was an issue. We therefore
decline to further consider whether the district court erred by
concluding that negligent construction was not a cause of Palmer’s
injuries. See In re Estate of Hope, 223 P.3d 119, 121 (Colo. App.
2007) (declining to address arguments that were “perfunctorily
asserted”).
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B. Legal Conclusion
¶ 17 As noted in Medina, the question of whether a dangerous
condition arose due to inadequate design rather than maintenance
conclusion was based upon the legal determination that, if the ice
and snow created a dangerous condition, the condition arose solely
from inadequate design, we perceive no error.
¶ 18 In Swieckowski, the supreme court explained the legal
difference between maintenance hazards and design hazards. 934
P.2d at 1384-87. It defined maintenance as “keeping a constructed
edifice, structure, or improvement in the same general state of
being, repair, or efficiency as initially constructed.”
2
Id. at 1385
(quoting Webster’s Third New International Dictionary 1362 (1986)).
Section 24-10-103(2.5) of the CGIA further explains that
maintenance does not include any duty to “modernize, modify, or
improve the design or construction of [the] facility.” By contrast, to
design is “to conceive or plan out in the mind.” Swieckowski, 934
2
This definition was later substantially incorporated into the CGIA
in section 24-10-103(2.5), C.R.S. 2021.
11
P.2d at 1386 (citing Webster’s Third New International Dictionary
611 (1986)).
¶ 19 Based on these definitions, the supreme court has stated that
an injury is the result of negligent maintenance when a dangerous
condition “is allowed to develop subsequent to the initial design and
construction,” whereas an injury is the result of negligent design
when the dangerous condition is “inherent in the design itself and
is allowed to persist to the time of the injury.” Medina, 35 P.3d at
456. The scope of the public entity’s duty, and the associated
waiver, must therefore be measured by comparing the original
condition of the facility to the condition of the facility when the
injury occurred. Id. at 448-49. “Only after making this
determination can the trial court ascertain whether the dangerous
condition . . . developed through a lack of maintenance subsequent
to the initial design and construction of the [facility], and thus,
whether immunity has been waived.” Id. at 449.
¶ 20 Although Palmer had the burden of proof on this issue, the
only evidence she presented at the hearing regarding the original
state of the sidewalk was Olinger’s statement that “water runs down
the hill, across the sidewalk, and into the gutter by design”; his
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testimony that, as far as he knew, nobody had altered the sidewalk
since it was constructed; and Stodola’s speculative testimony that
the sidewalk had settled because it was designed to have water run
across it throughout the year and the spot where Palmer fell
“deviated” from the rest of the sidewalk. The court noted that this
evidence was insufficient to support a finding that “the sidewalk
and landscaping was not designed this way or that this low spot did
not exist in the past.” Based on the contrary evidence that
Berthoud planned for excess water to run down the hill and onto
the sidewalk — evidence credited by the court in its factual findings
— the court did not err in concluding that, if the ice and snow
created a dangerous condition, it arose solely due to inadequate
design.
¶ 21 Because Palmer has not prevailed on this threshold issue, we
need not address her additional contention that the district court
applied the wrong legal standard to the remaining elements of her
claim. Under either standard articulated in section
24-10-106(1)(d)(I), Palmer cannot prevail if her injuries were caused
solely by a design flaw.
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V. Conclusion
¶ 22 We affirm the judgment.
JUDGE HARRIS and JUDGE GOMEZ concur.
