St. Vrain Valley School District RE-1J v. Loveland Ex Rel. Loveland , 2017 Colo. LEXIS 414 ( 2017 )

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.
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6 ADVANCE SHEET HEADNOTE
7 May 22, 2017
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9 2017 CO 54
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1 No. 15SC933, St. Vrain Valley Sch. Dist. RE-1J v. Loveland—Governmental
2 Immunity—Waiver of Governmental Immunity—Dangerous Condition.
3 In this case, the supreme court considers the Colorado Governmental Immunity
4 Act’s “recreation-area waiver,” which deprives a public entity of immunity in an action
5 for injuries resulting from a dangerous condition of a public facility located in a
6 recreation area. Specifically, the supreme court examines the meaning of “dangerous
7 condition” under the recreation-area waiver. The supreme court holds that a non-
8 negligently constructed and maintained piece of playground equipment cannot be a
9 “dangerous condition” under the waiver. Given this holding, the facts respondents
0 allege cannot show that a “dangerous condition” existed in this case. The supreme
1 court therefore concludes that the recreation-area waiver does not apply and the
2 petitioner retains its immunity from suit. The supreme court reverses the judgment of
3 the court of appeals and remands to that court to reinstate the trial court’s order.
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2 The Supreme Court of the State of Colorado
3 2 East 14th Avenue • Denver, Colorado 80203
4 2017 CO 54
5 Supreme Court Case No. 15SC933
6 Certiorari to the Colorado Court of Appeals
7 Court of Appeals Case No. 14CA1888
8 Petitioner:
9 St. Vrain Valley School District RE-1J,
0 v.
1 Respondents:
2 Alexa Rae Loveland, a minor, by and through her parents and next friends, Randy
3 Loveland and Mary Nicole Loveland; and Randy Loveland and Mary Nicole Loveland,
4 individually.
5 Judgment Reversed
6 en banc
7 May 22, 2017
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0 Attorneys for Petitioner:
1 Senter Goldfarb & Rice, LLC
2 Thomas S. Rice
3 Courtney B. Kramer
4 Denver, Colorado
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6 Attorneys for Respondents:
7 Purvis Gray Thomson, LLP
8 Michael J. Thomson
9 Boulder, Colorado
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7 JUSTICE HOOD delivered the Opinion of the Court.
¶1 This is the latest chapter in the legal saga of a young girl who was seriously
injured on her elementary school playground in late 2008. Alexa Rae Loveland, then
nine years old, fell while using the playground’s zip line apparatus and severely
fractured her wrist and forearm. Alexa and her parents filed a tort action against the
school district, seeking damages for Alexa’s injuries. Because the Colorado legislature
has limited when public entities such as the school district may be sued, we are asked to
determine whether the Lovelands’ lawsuit falls within one of the limited exceptions to
sovereign immunity under the Colorado Governmental Immunity Act (“CGIA,” or “the
Act”), §§ 24-10-101 to -120, C.R.S. (2016). Specifically, Alexa and her parents invoke the
recreation-area waiver, which deprives a public entity of immunity in an action for
injuries resulting from a dangerous condition of a public facility located in a recreation
area.
¶2 We hold that a non-negligently constructed and maintained piece of playground
equipment cannot be a “dangerous condition” under the CGIA’s recreation-area
waiver. Because the facts the Lovelands allege cannot satisfy the dangerous-condition
requirement, the recreation-area waiver does not apply, and the District’s immunity
under the CGIA remains intact. The trial court was correct to conclude that it lacked
jurisdiction over the Lovelands’ tort action and to grant the District’s motion to dismiss.
Accordingly, we reverse the judgment of the court of appeals, and we remand to that
court to reinstate the trial court’s order dismissing the complaint in this case.
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I. Facts and Procedural History
¶3 In 2008, then-nine-year-old Alexa Rae Loveland fell while using the zip line
apparatus on her school playground and fractured her wrist and right forearm. The zip
line was a piece of inclined pipe that ran between two sets of vertical poles secured in
the ground. The inclined pipe had a handle attached to an interior track, and to use the
zip line, a child would climb up a short ladder, stand on an elevated platform to grab
the handle, and propel him- or herself forward down the zip line track, releasing the
handle and jumping to the ground at the end of the track. There was also a sign that
warned “Adult Supervision Required.”
¶4 This is not the first time we have considered issues related to this case. After
Alexa’s injury, she and her parents (“the Lovelands”) filed a tort action against the St.
Vrain Valley School District (“the District”). The District moved to dismiss the action,
arguing the trial court lacked subject matter jurisdiction because public school districts
are immune from tort liability under the CGIA. The District acknowledged that section
24-10-106(1)(e), referred to as the recreation-area waiver, deprives a government entity
of immunity if an injury results from a “dangerous condition of any . . . public facility
located in any park or recreation area maintained by a public entity.” But the District
argued that the Lovelands could not establish the elements of the recreation-area waiver
in this case for a number of reasons, one of which was that the zip line was not a public
facility. The Lovelands countered that the zip line was in fact a public facility and a
dangerous condition of a public facility. The trial court agreed with the District. It
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found that the zip line was not a public facility, and therefore that the recreation-area
waiver did not apply. The court granted the District’s motion to dismiss.
¶5 The Lovelands filed an interlocutory appeal. The court of appeals reversed the
trial court’s ruling and held that the zip line was a public facility. See Loveland ex rel.
Loveland v. St. Vrain Valley Sch. Dist. RE-1J, 2012 COA 112, ¶¶ 19, 22, 27, 328 P.3d 228,
232–33.
¶6 The District sought this court’s review of the court of appeals’ decision. We
granted certiorari and affirmed on different grounds. St. Vrain Valley Sch. Dist. RE-1J
v. A.R.L. ex rel. Loveland (“St. Vrain I”), 2014 CO 33, ¶ 26, 325 P.3d 1014, 1023. We held
that “an individual zip line apparatus on a public playground does not qualify as a
‘public facility.’” Id. at ¶ 18, 325 P.3d at 1020. Rather, the entire playground,
considered as a whole, can qualify as a public facility. Id. We also concluded that the
public facility (the playground) was located in a recreation area, as required for the
waiver to apply. Id. at ¶ 34, 325 P.3d at 1024. We remanded to the trial court for
additional fact-finding on the remaining requirements of the recreation-area waiver,
including whether there was a dangerous condition. Id. at ¶ 37; see also id. at ¶ 18 n.8,
325 P.3d at 1020 n.8 (“Because the trial court made no findings of fact regarding the
dangerous condition requirement, this Court cannot determine whether a dangerous
condition existed.”).
¶7 On remand, the District again moved to dismiss, arguing that the recreation-area
waiver did not apply because the Lovelands failed to establish a dangerous condition
on the zip line. Applying the CGIA’s definition of “dangerous condition,” the trial
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court granted the District’s motion. The court explained that the Lovelands failed to
assert what specific physical or structural condition made the zip line a “dangerous
condition” as that term is defined in the statute and as distinguished from their general
assertion that a zip line is inherently dangerous. The trial court concluded that the
Lovelands failed to state a claim sufficient to overcome the District’s sovereign
immunity.
¶8 The Lovelands appealed, and the court of appeals again reversed. The court of
appeals concluded that an individual playground apparatus, such as the zip line in this
case, is a physical condition for purposes of the dangerous-condition test. Loveland v.
St. Vrain Valley Sch. Dist. RE-1J (“Loveland II”), 2015 COA 138, ¶ 17, __ P.3d __. The
court of appeals remanded the case to the trial court for further proceedings. Id. at ¶ 29.
¶9 We granted the District’s petition for certiorari review.1
II. Standard of Review and Rules of Statutory Interpretation
¶10 Questions of governmental immunity implicate subject matter jurisdiction and
are determined in accordance with C.R.C.P. 12(b)(1). St. Vrain I, ¶ 9, 325 P.3d at 1018.
1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in broadly defining “dangerous
condition” within section 24-10-103(1.3), C.R.S. (2015), of the Colorado
Governmental Immunity Act (“CGIA”), to include a playground
apparatus with no physical condition, thereby waiving governmental
immunity for all playground equipment.
2. Whether the court of appeals erred in holding that the existence of a
warning sign from the manufacturer on a piece of playground
equipment, in and of itself, renders the equipment an unreasonable
risk to the health or safety of the public for purposes of establishing
that element of a “dangerous condition” within the CGIA.
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Where the facts are undisputed and the only issue is one of statutory interpretation, as
is the case here, we review the trial court’s ruling de novo. Id.
¶11 Because the CGIA derogates the common law, we must strictly construe its
immunity provisions, but broadly construe its provisions waiving that immunity.
Springer v. City & Cty. of Denver, 13 P.3d 794, 798 (Colo. 2000). Nevertheless, as with
any exercise in statutory interpretation, the focus of our analysis is legislative intent. St.
Vrain I, ¶ 10, 325 P.3d at 1019. To determine legislative intent, we must construe the
statute as a whole, giving consistent, harmonious, and sensible effect to all of its parts.
Daniel v. City of Colo. Springs, 2014 CO 34, ¶ 11, 327 P.3d 891, 894. When the statutory
language is unambiguous, we give effect to the statute’s plain and ordinary meaning
and look no further. Id. at ¶ 12. But if the statutory language is ambiguous, we may
resort to aids to statutory construction to determine legislative intent. St. Vrain I, ¶ 11,
325 P.3d at 1019.
III. Analysis
¶12 We first examine the CGIA provisions governing our analysis. We then assess
whether the Lovelands have alleged facts sufficient to establish that the zip line was a
dangerous condition, thereby depriving the District of immunity from suit here. The
Lovelands argue that the zip line was inherently dangerous; they do not present
evidence that the zip line contained a physical defect caused by the District’s negligent
construction or maintenance. Because such evidence is required to establish the
existence of a dangerous condition, we conclude that the Lovelands’ claim is insufficient
to defeat the District’s sovereign immunity.
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A. The CGIA and “Dangerous Condition” Under the
Recreation-Area Waiver
¶13 The CGIA establishes that a public entity shall be immune from any action for
injury which lies in tort or could lie in tort, except as specifically provided elsewhere in
the Act. § 24-10-108. The Lovelands seek to invoke the recreation-area waiver, which
eliminates governmental immunity for injuries resulting from a “dangerous condition
of any . . . public facility located in any park or recreation area maintained by a public
entity.” § 24-10-106(1)(e) (emphasis added).
¶14 In St. Vrain I, ¶¶ 35–36, 325 P.3d at 1024, this court established that the collection
of playground equipment on which Alexa Loveland was injured was a public facility
located in a recreation area. But the question remains whether the zip line was a
dangerous condition of that public facility.
¶15 The CGIA provides the following definition of “dangerous condition”:
“Dangerous condition” means 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. For the
purposes of this subsection (1.3), a dangerous condition should have been
known to exist if it is established that the condition had existed for such a
period and was of such a nature that, in the exercise of reasonable care,
such condition and its dangerous character should have been discovered.
A dangerous condition shall not exist solely because the design of any
facility is inadequate. The mere existence of wind, water, snow, ice, or
temperature shall not, by itself, constitute a dangerous condition.
§ 24-10-103(1.3).
¶16 This court has segregated the CGIA’s definition of “dangerous condition” into a
four-factor test. The waiver applies if the injuries occurred as a result of: (1) the
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physical condition of the public facility or the use thereof; (2) which constitutes an
unreasonable risk to the health or safety of the public; (3) which is known to exist or
should have been known to exist in the exercise of reasonable care; and (4) which
condition is “proximately caused by the negligent act or omission of the public entity in
constructing or maintaining the facility.” See Springer, 13 P.3d at 799 (examining the
term “dangerous condition” as used in the public building waiver in CGIA subsection
106(1)(c)). Additionally, “[a] dangerous condition shall not exist solely because the
design of any facility is inadequate.” § 24-10-103(1.3).
¶17 With this general framework in mind, we turn to the Lovelands’ proposed
application of the term “physical condition.”
B. “Dangerous Condition” Requires a Physical Defect in the
Construction or Maintenance of the Apparatus
¶18 To show that the zip line was a dangerous condition under the foregoing test, the
Lovelands focus on the meaning of “physical condition,” arguing that there is nothing
in the statute or case law that prevents the zip line itself—rather than some condition of
the zip line—from being the relevant “physical condition” here. The court of appeals
took a similar approach, concluding that “an individual playground apparatus is a
physical condition of a playground.” Loveland II, ¶ 17. But the Lovelands and the
division’s interpretation fails for at least two reasons. First, it does not square with
existing precedent. Second, it fails to recognize that the second through fourth factors
of the dangerous-condition test modify the first, such that whether something is a
“physical condition” cannot be determined without reference to the other factors; if any
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one of those other factors is not satisfied, there can be no “physical condition” for
purposes of the dangerous-condition test. We address these two points in turn.
¶19 First, this court’s previous cases interpreting section 24-10-103(1.3) have
suggested that in order to be a “dangerous condition” within the meaning of that
section, a “physical condition” must be a physical or structural defect. See Jenks v.
Sullivan, 826 P.2d 825, 830 (Colo. 1992) (“The dangerous condition must stem from a
physical or structural defect in the building.”), overruled on other grounds by Bertrand
v. Bd. of Cty. Comm’rs, 872 P.2d 223 (Colo. 1994); see also Springer, 13 P.3d at 799
(considering the first factor satisfied where a “threshold plate [at the building entrance]
protruded from the floor at a height approximately twice that called for in the building
plans”). Indeed, in St. Vrain I, after concluding that an individual zip line apparatus on
a playground does not qualify as a “public facility,” we did not suggest that the zip line
could nevertheless be a dangerous condition of the public facility, but rather that “a
condition on such an apparatus might qualify as a dangerous condition.” ¶ 18, 325 P.3d
at 1020 (first emphasis added); see also id. at ¶ 18 n.8, 325 P.3d at 1020 n.8 (“For
example, the zip line could contain a ‘dangerous condition’ if it had a rusty or
obstructed track due to being negligently constructed or maintained by the District.”). 2
2 Longbottom v. State Board of Community Colleges & Occupational Education,
872 P.2d 1253 (Colo. App. 1993), and Hendricks ex rel. Martens v. Weld County School
District No. 6, 895 P.2d 1120 (Colo. App. 1995), decisions not binding on this court, do
not require a different result. Neither case directly examined whether the
injury-causing apparatus or structure at issue was in fact a “physical condition”
consistent with the statute. But to the extent that either case is inconsistent with the
result we reach today, we hold that it is no longer good law.
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¶20 Second, the other factors in the dangerous-condition test further limit what can
be a “physical condition” for purposes of the test. Most important for our analysis, the
physical condition must be caused by some negligent act or omission of the public
entity in constructing or maintaining the facility. For example, in Padilla ex rel. Padilla
v. School District No. 1, 25 P.3d 1176, 1178 (Colo. 2001), a developmentally disabled
child, Padilla, sought to sue her school district for negligence after she was left alone in
a stroller propped against the door of a storage closet as a “time out.” Padilla became
agitated, the stroller fell backward, and Padilla struck her head against the floor and
fractured her skull. Id. Padilla alleged that the placement of the stroller combined with
the use of the storage room as a “time out” area created a dangerous condition in a
public building. Id. at 1179. We concluded that “[w]hile Padilla may have sufficiently
alleged an act of negligence . . . she did not demonstrate a sufficient connection between
use of the state of the building and a construction or maintenance activity or omission
for which the School District is responsible.” Id. at 1183. We held that Padilla’s
complaint lacked sufficient facts to support a waiver of immunity. Id. The Lovelands’
complaint is similarly lacking here. It offers no facts to suggest that the zip line was
negligently constructed or maintained. Therefore, like the plaintiffs in Padilla, the
Lovelands cannot satisfy the dangerous-condition test.
¶21 In sum, the statutory language at issue and our precedent support the notion that
the Lovelands must prove a defect in the condition of the zip line. But they do not even
allege such a defect. Instead, they make what amounts to a design argument, which we
address next.
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C. The Playground Design Argument Fails
¶22 The Lovelands claim that they have indeed alleged a negligent act related to
construction: they submit that the District’s negligent act was its decision to construct
the zip line on the school playground. They argue that a District employee made the
decision to purchase and install the zip line and that the employee knew or should have
known that a zip line is dangerous. Even so, this is an argument about the design of the
playground, which section 24-10-103(1.3) clearly prohibits. § 24-10-103(1.3) (“A
dangerous condition shall not exist solely because the design of any facility is
inadequate.”); see also, e.g., Estate of Grant v. State, 181 P.3d 1202, 1205 (Colo. App.
2008) (“Design means ‘to conceive or plan out in the mind,’ and conditions attributable
‘solely to inadequate, or risky, design’ that are intrinsic to the general state of the road
as initially constructed may not be considered a dangerous condition and do not waive
immunity.” (Citation omitted.)).
¶23 The Lovelands argue that the zip line satisfies the dangerous-condition test
because the zip line was inherently dangerous and that the District was negligent in
placing something inherently dangerous on the playground. But the recreation-area
waiver does not recognize such blanket claims of danger based on the design of a public
facility. On the contrary, it explicitly precludes such claims.
IV. Conclusion
¶24 A non-negligently constructed and maintained piece of playground equipment
cannot be a “dangerous condition” under the CGIA’s recreation-area waiver. Because
the facts the Lovelands allege cannot satisfy the dangerous-condition requirement, the
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recreation-area waiver does not apply, and the District’s immunity under the CGIA
remains intact. The trial court was correct to conclude that it lacked jurisdiction over
the Lovelands’ tort action and to grant the District’s motion to dismiss. Accordingly,
we reverse the judgment of the court of appeals, and we remand to that court to
reinstate the trial court’s order dismissing the complaint in this case. 3
3Because we conclude that the Lovelands’ claim is insufficient for the reasons stated
above, we do not reach the second question on which we granted certiorari review,
which asks us to interpret the second factor of the dangerous-condition test.
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