Joy Maphis, Petitioner v. City of Boulder, Colorado, Respondent
No. 20SC646
Supreme Court of Colorado
February 22, 2022
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 19CA203
Attorneys for Petitioner: Randall J. Paulsen & Associates, P.C. Randall J. Paulsen, O'Brien Law Firm, LLC, Shauna O'Brien.
Attorneys for Respondent: Office of the City Attorney Sandra M. Llanes Luis A. Toro.
Attorneys for Amicus Curiae Colorado Municipal League: David W. Broadwell Laurel Witt.
Attorney for Amicus Curiae Colorado Trial Lawyers Association: Just Law Group, LLC John F. Poor.
JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, and JUSTICE BERKENKOTTER joined. JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL and JUSTICE SAMOUR, dissented.
OPINION
HART, JUSTICE.
¶1
After tripping over a deviation in a sidewalk in the City of
Boulder ("City"), Joy Maphis sued the City for her
injuries under the Colorado Governmental Immunity Act
("CGIA"). The City moved to dismiss for lack of
subject matter jurisdiction, arguing that it was immune from
suit as the sidewalk did not constitute a "dangerous
condition" under section 24-10-106(1)(d)(1), C.R.S. (2021), of the CGIA. The district court denied the City's
motion based on its finding that the deviation was
"difficult to detect" and was larger than what the
City classified as a "hazard" warranting repair. The City appealed, and the court of appeals reversed,
concluding that the undisputed evidence failed to establish
that the sidewalk presented the type of dangerous condition
for which the City had waived its immunity from
suit.[1]
¶2 We agree with the court of appeals that Maphis failed to
establish a waiver of immunity. Reviewing de novo the legal
question of whether the sidewalk constituted a dangerous
condition under the CGIA, we hold that Maphis's evidence
did not establish that the sidewalk deviation presented a
risk that "exceeded the bounds of reason." City
& Cty. of Denver v. Dennis,
¶3 On April 8, 2017, Maphis tripped over a two-and-a-half-inch deviation in a concrete sidewalk in the City and fell, fracturing both elbows and injuring her face. The City had identified the sidewalk as needing repair just weeks earlier and was only a few days away from making those repairs at the time of her fall.
¶4
Maphis filed suit against the City to recover for her
injuries, alleging that the City was liable because it knew
of the dangerous condition of the sidewalk yet failed to
correct the condition or warn pedestrians of its
existence.[2] The City moved to dismiss Maphis's
claim for lack of subject matter jurisdiction under section 24-10-106(1)(d)(1), which waives governmental
immunity for a "dangerous condition." It alleged,
in part, immunity from suit because the deviation in the
sidewalk was not "unreasonably dangerous" under the
standard for what constitutes a "dangerous
condition," as articulated by this court in
Dennis, ¶ 23,
¶5
To determine whether the City had waived its immunity, the
district court held an evidentiary hearing pursuant to
Trinity Broadcasting of Denver, Inc. v. City of
Westminster,
¶6 Slatter testified about the City's sidewalk repair program and the condition of the sidewalk. He first explained that the City runs both a proactive and a reactive repair program. Through the proactive program, the City independently identifies and repairs damaged sidewalks as it works through geographic zones; while through the reactive program, the City receives a complaint or concern about a particular sidewalk and fixes it. Under the proactive program, Slatter explained, the City (1) "consults with an engineering consultant [who] goes through the zone to identify areas that are in need of repair . . . and . . . develop[s] an exhibit and a cost estimate"; (2) "use[s] that to work with a contractor to develop a scope of work and get a construction estimate"; (3) has "a public engagement effort" to "notify the neighborhood . . . that there will be sidewalk repair work happening over the coming year or two"; (4) "send[s] individual letters . . . indicating whether a repair will be implemented in front of their property"; and (5) has an "engineering technician[ ] . . . field visit and field edit the recommendations from the consultant to make sure that there is concurrence with the recommendations" and, "if they identify other repairs that may be needed within the zone, they . . . mark those locations and then notify the adjacent property owners." Here, Slatter testified, the sidewalk deviation was not identified in the initial review of the geographic zone in 2015. It was identified and "marked . . . for repair" during the field visit by the City's engineering technician shortly before the previously scheduled repairs for the zone were going to take place.
¶7 Slatter further agreed to the fact that "a deviation greater than three quarters of an inch constitutes a hazard" under the City's sidewalk repair program and that such a deviation indicates the sidewalk is unsafe as "a potential tripping hazard." He also explained that when the sidewalk repair program was "conceived in 2010, the thought was that there would be sufficient funding to . . . address all the sidewalk repair needs within a geographic zone on a yearly basis." However, "budget limitations and being able to address the repairs that are needed" mean that the City needs "a couple of years" to work through each zone.
¶8 After the Trinity hearing, the district court issued a minute order concluding that the City waived its immunity because the sidewalk deviation "constituted a 'dangerous condition.'" It specifically found that:
• "a sidewalk deviation greater than [three quarters] of an inch constitutes a 'hazard' by the City's own definition";
• the deviation of the sidewalk was approximately two-and-a-half inches in height at the time of Maphis's fall; and
• the deviation was "largely imperceptible." On these facts, the district court reasoned that because "the coloring of the sidewalk ma[de] the deviation difficult to detect, increase[d] the degree of the tripping hazard, and thus the risk to the walking public," it constituted an "unreasonable risk of harm to the health and safety of the public, such that [Maphis] . . . over[came] her burden to prove that the City . . . waived its immunity."
¶9 The City appealed the district court's order, and, in a divided opinion, a division of the court of appeals reversed. Maphis v. City of Boulder, No. 19CA0203 (June 25, 2020). Reviewing de novo the question of whether the deviation in the sidewalk constituted a "dangerous condition," the division majority concluded that while "there is little doubt that the sidewalk's condition created some risk" as a tripping hazard, that risk was not one that "exceeded the bounds of reason" under the standard set forth by this court in Dennis. Maphis at ¶ 26. In particular, the division noted that the undisputed facts showed (1) the City had received no citizen complaints about this sidewalk deviation; (2) the deviation had not been identified as needing repair during the City engineer's assessment of the zone in 2015 but had instead been identified during a routine area inspection just weeks before the accident; and (3) undisputed testimony and exhibits at the Trinity hearing demonstrated that uneven sidewalks are commonplace in Boulder. Id. at ¶ 26. Given these facts, the division majority concluded that the sidewalk deviation did not constitute a "dangerous condition" for purposes of waiving the City's immunity under the CGIA. This conclusion, the division explained, aligns with the "General Assembly's intent to lessen potential burdens on taxpayers, and to permit municipalities to prioritize repairs." Id. at ¶ 32.
¶10 Judge Richman, dissenting, reasoned that the City "created a dangerous condition and its failure to act [was] unreasonable" because it had identified the sidewalk for repair but had not yet repaired it at the time of Maphis's fall. Id. at ¶ 44. ¶11 Maphis petitioned this court for certiorari, and we granted review.
¶12 We begin by explaining that questions of sovereign immunity under the CGIA present mixed questions of fact and law, with jurisdictional facts reviewed for clear error and the question of whether those facts constitute a "dangerous condition" for purposes of the CGIA reviewed de novo. We then review de novo whether the sidewalk deviation in this case constituted a dangerous condition under the standard for "unreasonable risk" announced in Dennis. We conclude that it did not.
¶13
Whether the CGIA applies to protect the government from suit
is a question of subject matter jurisdiction governed by the
standard for dismissal pursuant to C.R.C.P. 12(b)(1). Dennis, ¶¶ 9-10,
¶14
It is well-established that the application of sovereign
immunity presents a mixed question of fact and law. See id. at ¶ 12,
¶15 "Once the questions of fact are resolved, we review
questions of governmental immunity de novo," id., as the only remaining question "is one of
statutory interpretation," St. Vrain Valley Sch.
Dist. RE-1J, ¶ 10,
¶16 Applying these principles, we now review de novo whether the condition of the sidewalk on which Maphis tripped constitutes a "dangerous condition"-and whether the City thus waived its governmental immunity under section 24-10-106(1)(d)(1) of the CGIA.
¶17 The CGIA provides immunity to public entities in claims for injuries that lie in or could lie in tort but waives this immunity in certain limited circumstances. § 24-10-106. Responding to this court's prior abrogation of sovereign immunity, the General Assembly enacted the CGIA with the purposes of (1) protecting governments from unlimited liability that could "disrupt or make prohibitively expensive the provision of . . . essential public services," § 24-10-102, C.R.S. (2021); (2) protecting taxpayers "against excessive fiscal burdens" as they would "ultimately bear the fiscal burdens of unlimited liability," id.; and (3) "permit[ting] a person to seek redress for personal injuries caused by a public entity" in circumstances identified in the statute, State v. Moldovan, 842 P.2d 220, 222 (Colo. 1992). Because the CGIA derogates the common law, we construe its immunity provisions strictly but waiver provisions broadly. Elder, ¶ 20, 477 P.3d at 698.
¶18 At issue in this case is the provision that waives immunity in an action for injuries resulting from the "dangerous condition of a . . . sidewalk." § 24-10-106(1)(d)(1). The CGIA expressly defines a "dangerous condition" as "a physical condition . . . that constitutes an unreasonable risk to the health or safety of the public." § 24-10-103(1.3), C.R.S. (2021) (emphasis added).
¶19
In Dennis, we held that "'unreasonable'
in this context means 'exceeding the bounds of reason or
moderation.'" ¶ 23,
¶20 Applying this standard in Dennis, we held that the condition of a road, though somewhat deteriorated, was not unreasonable. There, a passenger on a motorcycle was injured at an intersection in Denver when the driver of a car turned in front of the motorcycle and "effectively [cut] off" the motorcycle. Id. at ¶ 3, 418 P.3d at 493. The driver of the motorcycle attempted to stop before hitting the car but was unable to, and the passenger was flung from the motorcycle and suffered severe injury. Id. The passenger sued the City and County of Denver ("Denver") alleging that the condition of the road at the intersection prevented the driver from effectively stopping the motorcycle. Id. at ¶ 4, 418 P.3d at 493.
¶21
Reviewing whether the condition of the road constituted a
"dangerous condition," we found that the plaintiff
presented evidence showing a "deteriorated
road"-i.e., "cracked and rutted"-"but not
a road which was unreasonably risky on which to
drive." Id. at ¶ 26,
¶22 We reiterate today that to prove the "dangerous
condition" element of the immunity waiver, a plaintiff
must show that the "condition created a chance of
injury, damage, or loss which exceeded the bounds of
reason." Id. at ¶ 23,
¶23 Turning to the present case, we now consider whether Maphis met her burden to show that the sidewalk condition created a chance of injury, damage, or loss which exceeded the bounds of reason, such that the City could be liable for her injuries.
¶24 Maphis contends that the sidewalk condition constituted an unreasonable risk because the two-and-a-half-inch deviation exceeded the City's criteria for a tripping hazard by three fold and its coloration made it hard to see. On the undisputed facts at the Trinity hearing, we agree with the division that these factors alone do not outweigh the evidence demonstrating that this sidewalk condition-while undeniably significant for Maphis-did not constitute the type of "dangerous condition" for which the CGIA waives governmental immunity.
¶25
First, we note that the condition was not unreasonable merely
because the deviation exceeded the City's criteria for a
"hazard" needing repair and the City had therefore
marked it for repair. "Hazard" is synonymous with
"risk." Hazard, Merriam-Webster Online,
https:/ /www.merriam- webster.com/dictionary/hazard
[https://perma.cc/6QRY-M39T]. And, as we observed in
Dennis, the term "unreasonable" modifies
the word "risk" in the CGIA. ¶ 23,
¶26
Further, the fact that the City had identified the deviation
as needing repair does not make the risk it presents an
unreasonable one. Certainly, once the City
had identified the deviation for repair-just weeks before the
accident-the risk was foreseeable. But, as we explained in
Dennis, a waiver of immunity requires more than
foreseeable risk. ¶ 22,
¶27 Giving Maphis the benefit of all reasonable inferences from the undisputed evidence, the coloration of the sidewalk here did make the two-and-a-half-inch deviation "difficult to detect." And the fact that the deviation was three times the height of the City's "hazard" criteria might also have increased the risk it presented. But the degree of risk still did not exceed the bounds of reason as (1) deviations in slab sidewalks are commonplace throughout Colorado due to the harsh climate and other environmental factors; (2) the deviation was located in a residential area without any heightened safety concerns; and (3) the City had not received any citizen reports through its reactive program about the sidewalk.[3]
¶28 Of course, in examining the totality of the circumstances shown by the undisputed facts in a different case, there certainly could be instances where a two-and-a-half-inch sidewalk deviation would constitute a dangerous condition. For example, the location of such a deviation in a high foot-traffic area or an area of heightened public safety concern-such as at the entrance of an assisted-living facility, hospital, school, or daycare-or frequent citizen reporting of the condition would be additional evidence that might help a plaintiff meet the burden of proof. But none of these facts is present here. The City did not receive any complaints about this sidewalk deviation and only identified it independently for proactive repair on a second review of the neighborhood sidewalks just weeks before it was repaired.
¶29
Maphis argues that the relative frequency of sidewalk
deviations should not influence our reasonableness analysis
as it lets municipalities off the hook for dangerous
conditions just because those conditions are widespread. But
the purposes of the CGIA suggest that the frequency with
which a particular condition occurs is an appropriate
consideration when evaluating whether governmental immunity
has been waived. As the amicus brief submitted by the
Colorado Municipal League explained, "no municipal
sidewalk system is perfectly hazard-free at all times,"
and local governments seeking to maintain their sidewalks are
constrained not only by budgetary limitations, but also by
the availability of contractors who can do the needed
repairs. See Brief Amici Curiae, the Colorado Municipal
League and the Colorado Intergovernmental Risk Sharing
Agency, in Support of the City of Boulder, at
2. We cannot ignore the realities that
Colorado's local governments face in trying to maintain
roads and sidewalks. As we explained in Dennis, doing so would impose an "impossibly
high standard" whereby "state and local governments
[must] keep [sidewalks] like new at all times." ¶
19,
The [City] could not simultaneously fix every [sidewalk]; some [sidewalks] would be prioritized and renovated before others. And when a [pedestrian] was injured on one of the non-prioritized [sidewalks] that were awaiting renovation, the government would be potentially liable for not fixing the [sidewalk]. Thus, the taxpayers would be footing both the costs of making [sidewalks] like new and the costs of potential lawsuits.
¶30 Thus, based on the totality of the circumstances presented by the undisputed evidence in this case, we hold that Maphis failed to establish that the sidewalk deviation created a chance of injury, damage, or loss which exceeded the bounds of reason.
¶31 Reviewing de novo whether Maphis established that the sidewalk deviation created an unreasonable risk to the health and safety of the public, we agree with the court of appeals that she did not. Therefore, we affirm that the City's governmental immunity has not been waived under the "dangerous condition" provision of the CGIA.
JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL and JUSTICE SAMOUR, dissented.
¶32 The General Assembly has expressly waived governmental immunity for injuries resulting from a "dangerous condition" of a sidewalk. § 24-10-106(1)(d)(I), C.R.S. (2021). For that waiver to be given a meaningful effect, it must apply to conditions as severe as the sidewalk deviation at issue here: a nearly imperceptible, two-and-a-half-inch vertical deviation that was known to the City of Boulder, deemed an unsafe "hazard" under its own standards, and was scheduled for repair. I disagree with the majority's conclusion that the sidewalk deviation here did not, as a matter of law, constitute a "dangerous condition" as contemplated by the Colorado Governmental Immunity Act ("CGIA"). Because the majority opinion effectively narrows the scope of the CGIA's waiver of immunity and creates an unjust result under the circumstances of this case, I respectfully dissent.
¶33 Joy Maphis was seriously injured when she tripped over a deviation in a residential sidewalk a few blocks from a commercial area in Boulder, Colorado. She fell, landing on her elbows and her face. Her left elbow was broken, and her right elbow was shattered. Maphis required sutures to repair her lip, and she underwent two surgeries to regain a meaningful range of motion in her right elbow. At the time of the Trinity hearing in this case, Maphis testified that she still could not straighten her left arm and was in constant pain.
¶34 The City was aware of the specific sidewalk deviation that caused Maphis's fall because workers had identified it during a routine inspection a month prior to Maphis's injury. Under the City's guidelines, a deviation greater than three quarters of an inch is considered a "hazard." The City's engineer acknowledged at the Trinity hearing that such deviations make the sidewalk "unsafe." The two-and-a-half-inch deviation here was more than three times that size. City workers had marked the sidewalk and scheduled it for repair. Unfortunately, the City did not complete those repairs until two days after Maphis tripped and fell.
¶35 The deviation here was not only serious, but the district court also found that it was "largely imperceptible." Maphis testified that she could not see the deviation because the coloring of the concrete on the vertical face of the slab blended in with the coloring of its top surface. Photographs of the sidewalk admitted into evidence at the Trinity hearing confirmed her testimony. Although the City had identified the deviation and scheduled it for repair, it did not mark the area (with orange paint or cones, for example) to make the hazard more visible to pedestrians.
¶36 The CGIA expressly waives a public entity's immunity from suit in an action seeking compensation for injuries resulting from a "dangerous condition" of any public sidewalk within the corporate limits of a municipality. § 24-10-106(1)(d)(I). The CGIA defines a "dangerous condition" as
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), C.R.S. (2021).
¶37
To establish a "dangerous condition"-and thus, a
waiver of immunity under section 24-10-106(1)(d)(I)-a plaintiff must show that her injury resulted from (1) the
physical condition of a facility or the use thereof; (2)
which constituted an unreasonable risk to the health or
safety of the public; (3) which was known to exist or should
have been known to exist in the exercise of reasonable care;
and (4) which was proximately caused by the negligent act or
omission of the public entity in constructing or maintaining
the facility. Medina v. State,
¶38
To prove that a condition poses an "unreasonable
risk," the plaintiff must show that the condition
"created a chance of injury, damage, or loss which
exceeded the bounds of reason." City & Cty. of
Denver v. Dennis,
¶39 The facts here show that Maphis carried her burden of establishing that the sidewalk deviation presented an unreasonable risk. The two-and-a-half-inch vertical deviation that caused Maphis to trip was more than three times the size of a deviation the City itself considered to render a sidewalk unsafe. While not every deviation exceeding the City's three-quarter-inch standard automatically constitutes a dangerous condition, the deviation here far exceeded what the City itself deemed to require repair given the risk of injury it created. Moreover, the City had actually flagged and scheduled this particular sidewalk deviation for repair. In addition, the deviation here was also largely imperceptible, even during daylight hours, because the coloring of the slab's vertical plane matched the slab's top surface-yet the City did not visibly mark the deviation or otherwise take action to reduce pedestrians' risk of injury while repairs were pending.[1] In short, the known hazard in this case created a chance of injury that exceeded the bounds of reason.
¶40
Our reasoning in Dennis actually supports the trial
court's conclusion here. We held in Dennis that
the deteriorated condition of the road there carried
"some risk," but that the risk was not
unreasonable. Id. at ¶ 25,
¶41
First, there was conflicting testimony in Dennis as
to whether the condition of the road caused the collision (by
preventing the motorcycle from stopping quickly enough to
avoid the car that had turned in front of it). Id.
at ¶ 24,
¶42
Second, in Dennis, the city's pavement engineer
testified that he had inspected the road at that intersection
a week before the accident and determined that it did not
require immediate repair. Id. at ¶ 25, 418 P.3d
at 498. Moreover, although the intersection was rated as
"very poor" under the city's internal analysis,
the city's rating system was "not related to how
safe or dangerous a road is" but served only to assist
the city in determining maintenance needs and priorities. Id. at ¶ 5,
¶43
Third, we emphasized in Dennis that the road, while
cracked and rutted, did not contain potholes or sinkholes
"or any other road characteristics such as a raised
pavement lip that could damage a vehicle and lead to an
accident." Id. at ¶ 26,
¶44 In sum, the analysis in Dennis should lead us to affirm the district court's conclusion here that the sidewalk deviation was a "dangerous condition" for purposes of the CGIA. In holding otherwise, the majority misapplies Dennis.
¶45
The majority concedes that "there certainly could be
instances where a two- and-a-half-inch sidewalk deviation
would constitute a dangerous condition"
sufficient to waive immunity. Maj. op. ¶ 28. However,
the majority apparently would limit such circumstances to
"high foot-traffic area[s]," "area[s] of
heightened public safety concern," and sidewalk
conditions that citizens have frequently reported. Id. Although such circumstances are certainly
relevant to determining whether a sidewalk deviation
constitutes a dangerous condition, they cannot serve to
restrict the CGIA's waiver of immunity. See
Dennis, ¶ 14,
¶46
I fear the majority's ruling today effectively precludes
any tort claim against a municipality for the dangerous
condition of a sidewalk-even a known hazardous condition that
poses an unreasonable risk of injury-unless the condition
occurs in a "high foot-traffic area" or "an
area of heightened public safety concern." Nothing in
the CGIA suggests that we must construe the waiver of
immunity for the dangerous condition of a public sidewalk so
narrowly. A known, physical condition capable of causing the
serious injuries sustained here
cannot be deemed within the bounds of reason simply
because it was located in an area of the city with lighter
pedestrian traffic. As the facts of this case demonstrate,
tripping over a sidewalk deviation (regardless of its
location within a municipality) can result in serious,
long-term injuries. True, the CGIA is aimed, in part, at
preventing unlimited liability of the government, but its
waivers of sovereign immunity are intended to allow
individuals to seek redress for injuries caused by the
government. Indeed, this is "one of the basic but often
overlooked" purposes of the CGIA. Daniel v. City of
Colo. Springs,
¶47 A finding that immunity has been waived does not mean that Maphis wins; it means only that she may bring her case to trial, where she would still have to prove the City's negligence to prevail. But the majority's opinion today precludes her from even having that opportunity.
¶48 The CGIA clearly waives immunity for claims seeking compensation for injuries resulting from the dangerous condition of a public sidewalk. Because I believe Maphis established that the sidewalk deviation here constituted a "dangerous condition" sufficient to establish the waiver of immunity under section 24-10-106(1)(d)(I), I respectfully dissent. ---------
Notes:
[1] We granted certiorari to review the following issues:
1. Whether the court of appeals erred by reviewing the trial court's findings of fact for clear error and its legal conclusion-that the sidewalk did not constitute such a dangerous condition as to waive Boulder's immunity-de novo.
2. Whether the court of appeals erred by holding that the sidewalk did not constitute a dangerous condition for purposes of waiving Boulder's immunity pursuant to the Colorado [Governmental] Immunity Act, section 24-10-106(1)(d)(1), C.R.S. (2020).
[2] Maphis also brought a negligence per se claim against a private party, Moreland Family LTD Partnership, for failure to maintain the sidewalk adjacent to their property pursuant to Boulder Municipal Code § 8-2-6. That claim is not at issue on appeal.
[3] The City might have done well to more
clearly mark this deviation while it was awaiting repair. However, "[n]egligent failure to warn" does not
"trigger[] a waiver of immunity under the CGIA." Medina v. State,
[1] While I acknowledge that a claim under
the CGIA cannot be predicated solely on a failure to warn,
see Medina,
---------