2019 COA 91
Colo. Ct. App.2019Background
- Martinez, a resident of Casa Loma (a DHA low-income housing complex), slipped on an icy walkway and sued CSG Redevelopment Partners LLLP (CSGR) for premises liability/neglect, seeking >$400,000.
- CSGR moved to dismiss asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA), claiming it is an "instrumentality" of the Denver Housing Authority (DHA).
- DHA created DHC and CSG Housing (both DHA instrumentalities); CSGR was formed to renovate/operate Casa Loma and initially consisted entirely of DHA instrumentalities.
- A private investor later joined CSGR as a limited partner and acquired ~99.99% ownership to qualify for Low-Income Housing Tax Credits; DHA (through CSG Housing) retained management control and provided loans and other financing.
- The district court held, after a Trinity hearing, that CSGR is an instrumentality of DHA (thus a public entity entitled to immunity) and that Casa Loma is not a "public building open for public business," so the snow-and-ice waiver did not apply.
- The Court of Appeals affirmed: it found DHA’s control plus CSGR’s public purpose made CSGR an instrumentality, and the public-building and recreation-area exceptions did not apply on the record.
Issues
| Issue | Martinez's Argument | CSGR's Argument | Held |
|---|---|---|---|
| Whether CSGR is an "instrumentality" of a public entity under the CGIA | CSGR is a private partnership with a dominant private investor; private funding and investor approval rights preclude instrumentality status | CSGR is effectively controlled by DHA/its instrumentalities and serves the public purpose of low-income housing, so it is an instrumentality (thus immune) | CSGR is an instrumentality: DHA (via CSG Housing and management agreements) exercises extensive control and CSGR serves a governmental purpose; immunity applies |
| Whether the snow-and-ice waiver for a "public building open for public business" applies to Casa Loma | Casa Loma is owned/operated by DHA instrumentalities and therefore should be treated as a public building open for public business | Casa Loma functions as private residences (access restricted to residents/staff); not open to the public | Waiver does not apply: Casa Loma is not a public building open for public business (entry is restricted; no public business/events) |
| Whether the recreation-area waiver (§ 24-10-106(1)(e)) applies | The walkway/amenities (picnic tables/grills) make the site a public facility in a recreation area, so immunity is waived | Casa Loma is a residential property, not a park or public recreation area; amenities are for residents only | Waiver does not apply: plaintiff produced no evidence Casa Loma is a public facility located in a park or recreation area |
Key Cases Cited
- Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (procedural framework for entitlement-to-immunity hearings)
- Robinson v. Colorado State Lottery Division, 155 P.3d 409 (Colo. App. 2006) (instrumentalities must be governmental in nature)
- Moran v. Standard Insurance Co., 187 P.3d 1162 (Colo. App. 2008) (private corporations contracting with public entities are not automatically instrumentalities)
- Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000) (de novo review of legal questions on immunity)
- Maskery v. Bd. of Regents of the Univ. of Mich., 664 N.W.2d 165 (Mich. 2003) (dormitory not open for public business; test assessing whether building is open to public)
- Acevedo v. Musterfield Place, LLC, 98 N.E.3d 673 (Mass. 2018) (LIHTC partnership not immune under Massachusetts law; distinguished on statutory grounds)