*1 256 be entered favor of the vehicle example, injured when a child is
able. For parent's an accident not insurer. automobile, involving compensation may an Judge through
not be available Judge Chief HUME and insurance. The remedy. child is therefore left with no See KAPELKE concur. Reaves, 149,
Horton v. 186 Colo.
(Colo.1974). The result is nevertheless not public policy
deemed absurd because of the recognition qual-
considerations that led to parental
ified See Trevarton
Trevarton, 418, (1963); P.2d 640 Colo. Co., Roter, Mining
see also Terror Inc. v. (Colo.1994). P.2d 929
Shayne PADILLA, Through legal guardians friends, and next Mariano fashiоn, In a similar the General As Padilla, PADILLA and Michelle Plain- has, sembly implicitly, recognized at least tiff-Appellant, goal some cireumstances the of avoid ing inadequate compensation to victims of outweighed by automobile accidents can be SCHOOL DISTRICT NO. IN the CITY competing goals, social even if a victim is left DENVER, Colorado; AND COUNTY OF remedy. with no other It has done so the Denver School District Board of Ed- permitting on limitations and exclusions from ucation, Defendants-Appellees. coverage, including insurance the exclusion No. 98CA0783. set forth in 10-4-721. Appeals, Colorado Court of sum, it is for the General Assem II. Div. bly competing goals. to balance social How may appear ever unfortunate the result Sept. 1999. circumstances, some supply we cannot May Certiorari Granted right remedy Assembly the General has provide. generally chosen not H. Sacks, Legal
Hart & A. The Process: Basic Making
Problems in the Application eds.1994). (Eskridge Frickey Law &
We conclude that unambigu- 10-4-721
ously authorizes the exclusion of PIP
coverage otherwise available to a resident injured
relative when the relative is person coverage.
named excluded from We
further conclude that our construc- legislative purpose neither defeats the
the No-Fault Act nor leads absurd
result. issue, light of our resolution of this it is
unnecessary to address argu- the additional appeal by
ments raised on the vehicle insur-
er. summary judgment entered in favor of
the medical insurer is reversed. The cause summary
is remanded with directions that *2 P.C., Mullen, Kath- of Kathleen
Law Office Davison, Denver, Mullen, Linda M. Col- leen orado, Plaintiff-Appellant. P.C., Mooney, Patrick B.
Semple, &Miller Hyatt, Colora- Mоoney, Elizabeth J. do, Defendants-Appellees. Opinionby Judge VOGT. Padilla,
Plaintiff,
through
legal
Shayne
her
friends,
and Mi-
guardians and next
Mariano
Padilla,
judgment dismiss-
appeals the
chelle
defendants,
against
her
action
County
No. 1
School District
Denver, Colorado,
the Denver School
affirm.
of Education. We
District Board
child,
Plaintiff,
ini-
ten-year-old
disabled
damages
action to recover
tiated this
fall at her
from a
she sustained
plaintiff's complaint
and dismissed
without a
elementary
According
Denver
school.
to the
complaint, on an occasion
hearing.
when the child was
Plaintiffs motion for reconsidera-
agitated
upset,
put
a classroom aide
her
appeal
tion was denied. This
followed.
stroller,
in a
removed her from the othеr
children,
in a
I.
open.
the door
with
back of the stroller
*3
matter,
reject plaintiffs
As an initial
we
door,
propped against
open
was
closet
contention that
trial
court abused its
sight
out of the line of
of the school staff.
by failing
hearing
discretion
hold
before
child
agitated,
When the
became more
granting defendants' motion.
backward,
tipped
causing
strоller
over
her to
sustain a skull fracture when her head hit the
public entity's
immunity
Whether a
tile floor.
has been waived under the CGIA involves an
Defendants moved
to dismiss
under
subject
jurisdiction
issue of
matter
as to
12(b)(1)
C.R.C.P.
for lack
which,
12(b)(1),
matter
plaintiff
under C.R.C.P.
jurisdiction based on the Colorado Govern-
proof.
bears the burden of
Swieckowski v.
(CGIA),
Immunity
2410-101,
§
Act
(Colo.
Collins,
City
Fort
unclear physi- as to how staff DPS used the accepted plaintiff's version of the facts but door, wall, cal open condition of the doorway, concluded these facts did not establish a storage room to create a wаiver of defendants' dition
Stating
accepted
plaintiff's version
Where the evidence relevant
to the
purposes
of the facts for
court,
of its order on
defense is before the
motion,
defendants'
the trial court
hearing
required.
Capra
Tucker,
concluded
is
support
noted,
these facts did not
finding
as
request for
plaintiff's injuries
were caused
a danger-
а hearing
simply presented
was
to the court
ous
of public building.
Accord-
as an alternative if the
questions
court had
ingly,
granted
the court
defendants' motion
to how the staff
used the
room and
(8)
safety
public,
or
the health
dan-
building to create a
parts of the
other
have been known
or should
known to exist
abuse of
not an
It was
gerous condition.
care,
exist in the exercise
conclude that
the trial court
discretion
(4)
proximately caused
which condition
further evidence
hear
need to
not
it did
issues,
negligent act or omission
especially
to these
argument as
maintaining
constructing or
fac-
disputing plaintiffs
entity
~
(Colo.
State,
Here, plaintiff's complaint allege does not negligent meaning maintenance within the I. Walton, but, instead, Swieckowski and alleg- Here, plaintiff filed her alleging *5 improper es part actions on the of school negligence against defendants and asserted placing staff in the child out of their line of governmental that immunity had been sight. Accepting argument pursuant $ waived C.R.S. brings this the case within provides for govern- waiver of would mean that time a school is child mental whеn an is by injured because she had inappropriately been a condition of building. a her, where the staff could not see Defendants filed motion to dismiss under immunity would be waived un- 12(b)(1). C.R.C.P. responded, rais- "dangerous der exception. condition" which, believed, factual allegations if plain Neither language of the statute nor dismiss, would overcome the along motion to supрorts the case law such a construction. documentary with support evidence in there- Because the plaintiff evidence which the of. claims the court failed to consider did not To the extent that defendants asserted in establish a condition of a that, their motion to dismiss based on the facility, the trial court did not err itself, complaint by allegations considering making findings of fact as to therein, jurisdiction tained no in resided this evidence. matter, court to hear the the motion should TIL also having be considered as been filed under 12(b)(5). CRCP. A motion filed under Finally, plaintiff contends that the tri 12(b)(5) C.R.C.P. is to be considered a motion al court erred in stating that waivers to summary for judgment under if C.R.C.P. 56 sovereign immunity strictly must be con matter pleadings presented outside the аre agree strued. We that the court's statement not excluded the court. In such is incorrect in light supreme court's cireumstances, parties "all given shall be rea- holding in Wailton-announced after the trial opportunity present sonable all material court's decisionhere-that "the CGIAwaiver pertinent made to such a motion provisions are entitled to deferential con 12(b); 56." [C.R.C.P.] CRCP. C.R.C.P. 56. in struction of favor victims." Walton v. State, supra, Nevertheless, 968 P.2d at Regardless of how the court denominated motion, because we conclude however, even under a def granted should have construction, erential govern an evidentiary hearing requested by plain- set forth in 24-10- tiff. hearing Such a permitted "would have 106(1)(c) case, apply does not development this the full of a factual record and
261 other students from such students late involved]." [issues determination pre If this case were Denver, from their teachers. City Inc. v. Broadcasting Trinity the closet (Colo. of the use of in the context sented Westminster, P.2d resolving the im as a 1993). designed, it was for what procedure This immunity probably proper, as waiver be held to has been munity issue C.R.S.1999, v. 24-10-108, even Swieckowski considered. See §by could not be mandated (Colo. P.2d 1880 in the form of City raised the issue 1997). here, v. Cline But use of summary judgment. motion (Colo. App.1993). room constitutes Rabson, P.2d 1085 the closet is defective condition because subject court's proving burden use, proper for other uses. if even non-moving is on the jurisdiction matter any com window enabled had nо may consider The closet party, and the necessary and relevant and moni- to be observed petent evidence "time out" student Also, employees jurisdiction. school teacher. by a matter determining tored Inc. Broadcasting and wall of open door used the improperly Westminster, supra. the stroller "backstop" for the closet in, in an here was seated student their filed at the time preventing a method of attempt jerryrig filed, had been motion, only the The floor of toppling over. from the stroller conducted. discovery had been though school unpadded even closet was necessity of Therefore, light of the could the stroller personnel were aware sub the court's to show carry the burden activitiеs the student's topple because over dictates jurisdiction, fairness ject matter that the strol- awareness Their the stroller. hearing, as granted a have been she should cause them to topple did not over ler could Rabson, by Trinity. See Cline encouraged preventing the stroller system for construct over, padding the floor nor for toppling *6 injury. to avert IL. 24-10-108(1), phrаse "the the §in As used Furthermore, before the record even when physical "the use of means use thereof" considered, absent court is
this facility under circumstances this condition view, court erred my hearing, immunity." governmental to waive as complaint. dismissing Dis County School Weld Hendricks v. C.R.S.1999, pro- Section P.2d No. trict governmental for waiver of vides (Colo. App.1995)(Hendricks). condition by "dangerous injuries caused held Hendricks, this court a division In condi- "Dangerous any public into an that, had to slide students 24-10-108(1), C.R.S. is defined tion" playing wall while gymnasium 1999,as: unpadded during that ball, injured was dodge and one facility or the [A] awas unpadded wall activity, the an unreason- constitutes which use thereof which, combined building the safety of the and the health risk to able condi- use, constituted with its or which to exist which is known public, facts in Hen- facility. The should care the exercise to the circumstances analogous are dricks exist, and which been known here applies here, holding there the and negligent acts caused proximately equally. entity in con- of the or omissions facility.... maintaining such structing or State, 968 P.2d I also view (Colo.1998) here. being applicable dеmonstrates us record before respond- Walton, injured was while a student had converted personnel public school loft clean a request ing to a teacher's into a building school storage closet the floor high above located storage space It was used room. seclusion shop. Because seulpture university's out," used to iso- and was in "time studеnts loft, steps ladder or Thus, led to the the student I law, would hold as a matter of portable ladder, had to use a extension supports the record :a conclusion that she ascended with a broom. The ladder condition associated with the use slipped on the floor that recently building had been of the upon plaintiff, forced and her stripped injuries, and sealed with a proximately finish that made was neg- easy "hard to walk sweep." ligent on but act The or omission public entity injuries. student fell and using suffered here in maintaining and facility. Hence, I would hold that this action is not Supreme Court held student's by governmental barred negligence action within Accordingly, I would reverse the governmental immunity for a dan and remand the cause for reinstatement gеrous condition of a building. The proceedings. further opined governmental first that because immunity derogates law, Colorado's common
provisions for waiver of immu
nity are entitled deferential construction in injured
favor of victims negligence agents, while are to strict construction. provisions See Bertrand v. County Board Commis sioners, (Colo.1994). The court PEREZ, Erma Plaintiff-Appellant "(e)ach then went on to determine that Cross-Appellee, elеments for waiver of immunity based on a public facility condition of a exists in connection with Walton's cause WITHAM, personal representa- Rebecca State, of action." Walton v. supra, 968 P.2d Sidney tive Nowick, of the estate of De- at 645. fendant-Appellee Cross-Appellant, view, my such is the as to the case plaintiff's negligence action Through here. Emрire Clinic, Inc:, Health a Colorado teachers, its the school foreed a student corporation, Defendant-Appellee. participate in a use of connected with the educational mission of the building No. 98CA1225. without a safe means for doing so. The Colorado Appeals, Court of personnel aware, school's or should *7 Div. been, V. spacе used was a storage closet, not a safe providing separa- 9,Dec. 1999. student; calming aof that the closet As Modifiedon Denial of Rehearing did not have a windowfor observation of the April student; that the stroller the student was in overturn, could especially in cireumstances
under which the student was agi- active and
tated; unpadded the floor was and that
the student would contact a hard floor should topple; they stroller were aware that door.to the closet was not de-
signed for "backstop" use aas for a stroller.
Thus, while not necessarily duty under a
redesign the school was
under an obligation space to use the in way pose
that did not an unreasonable risk of public. to members of the See Walton State,