2012 COA 112
Colo. Ct. App.2012Background
- In 2008, a nine-year-old girl injured her arm on a playground apparatus at Black Rock Elementary School during recess.
- Plaintiffs Randy and Mary Loveland sue the school district (public entity) alleging premises liability and negligent supervision.
- The trial court granted a 12(b)(1) dismissal, ruling no waiver of immunity for the playground apparatus or negligent supervision.
- The court held the playground apparatus was not a “public facility” under the Governmental Immunity Act and that negligent supervision was not an express waiver.
- The appellate court reverses on the public facility issue, but affirms dismissal of negligent supervision, and remands for further proceedings on the public facility issue.
- The apparatus was owned, operated, and maintained by the school district and located in a public recreation area; the question is whether it falls within the Act’s public facility waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the playground apparatus is a public facility under the Act | Loveland: apparatus is a public facility. | District: not a public facility. | Yes; apparatus is a public facility under the Act. |
| Whether negligent supervision is waivable under the Act | Negligent supervision creates a waiver via dangerous condition. | No express waiver for negligent supervision. | No waiver; negligent supervision barred. |
Key Cases Cited
- Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (Colo. 1971) (recognizes potential statutory reestablishment of immunity and prospective application)
- Flournoy v. School Dist. No. 1, 174 Colo. 110, 482 P.2d 966 (Colo. 1971) (part of the immunity trilogy abrogating common law immunity)
- Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (Colo. 1971) (part of the immunity trilogy)
- Rosales v. City & Cnty. of Denver, 89 P.3d 507 (Colo. App. 2004) (natural features not public facilities; public facility meaning depends on public ownership and function)
- City & County of Denver v. Gallegos, 916 P.2d 509 (Colo. 1996) (public facility determination based on public benefit)
- Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988) (origin of negligent supervision doctrine and employer duty)
- Lopez v. Regional Transp. Dist., 899 P.2d 254 (Colo. App. 1994) (restricts implied waivers; requires express language)
- Mountain States Tel. & Telegraph Co. v. Department of Highways, 869 P.2d 1289 (Colo. 1994) (statutory waiver confines immunity to express exceptions)