St. Varian Valley School District RE-1J v. Alexa Rae Loveland

¶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.

¶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

3 Because 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.