Palmer v. Berthoud

20CA1322 Palmer v Berthoud 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1322

Larimer County District Court No. 20CV30191

Honorable Daniel M. McDonald, Judge

Kina Palmer,

Plaintiff-Appellant,

v.

Town of Berthoud, Colorado, a public municipal entity organized under the

laws of the State of Colorado,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE RICHMAN

Harris and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Wilcox Law Firm, LLC, Ronald L. Wilcox, Denver, Colorado; Law Office of

Michael P. Fossenier, LLC, Michael P. Fossenier, Denver, Colorado, for Plaintiff-

Appellant

Tucker Holmes, P.C., Bradley D. Tucker, Winslow R. Taylor, III, Centennial,

Colorado, for Defendant-Appellee

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¶ 1 Plaintiff, Kina Palmer, appeals the district court’s dismissal of

her personal injury action against defendant, the Town of Berthoud

(Berthoud). We affirm.

I. Background

¶ 2 Palmer brought this action against Berthoud after she slipped

and fell on a patch of snow-covered ice on a public sidewalk

adjacent to the Berthoud Parks and Recreation Department

building.

¶ 3 She alleged, and Berthoud conceded, that the sidewalk was

constructed and maintained by Berthoud. She further alleged that

“[b]uilt into this subject public sidewalk when constructed by

Defendant was a ‘depression’ or ‘sloping’ in the sidewalk which

resulted in drainage problems which caused snow and ice melt to

accumulate and pool in the depression, where pooled water would

freeze when temperatures were below 32 degrees Fahrenheit.” She

also alleged that the depression or sloping was, at least in part, a

maintenance defect because approximately twenty years had

elapsed since construction of the sidewalk, allowing the slabs to

settle further. In addition, she alleged that Berthoud had failed to

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timely remove the snow and ice pursuant to its own snow and ice

removal plan.

¶ 4 According to Palmer, Berthoud’s conduct created a “dangerous

condition,” and it therefore waived its governmental immunity

pursuant to section 24-10-106(1)(d)(I), C.R.S. 2021, of the Colorado

Governmental Immunity Act (CGIA). She did not allege, nor does

she argue on appeal, that liability was waived under section

24-10-106(1)(d)(I) due to a “particular dangerous accumulation” of

snow or ice.

¶ 5 Berthoud moved to dismiss Palmer’s complaint for lack of

subject matter jurisdiction under C.R.C.P. 12(b)(1), contending,

among other things, that the snow and ice on the sidewalk were not

a dangerous condition because the “mere existence” of snow and ice

is not, by itself, a dangerous condition as that term is defined in

section 24-10-103(1.3), C.R.S. 2021, and incorporated in section

24-10-106(1)(d)(I). Thus, Berthoud asserted that it did not waive its

governmental immunity.

¶ 6 The district court held an evidentiary hearing pursuant to

Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d

916 (Colo. 1993). At the hearing, Berthoud also argued that,

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according to the testimony, any depression in the sidewalk was due

solely to inadequate design, a flaw that does not constitute a

dangerous condition under section 24-10-103(1.3).

¶ 7 In a thorough written order, the district court concluded that

(1) Palmer was injured due to the “mere existence” of snow and ice,

precluding a finding that Berthoud had created a dangerous

condition; (2) even if the snow and ice might have otherwise

constituted a dangerous condition, the ice patch was present solely

due to inadequate design; and (3) even if a dangerous condition was

present due to a “particular dangerous accumulation” of snow and

ice, Berthoud had no actual notice of the accumulation and did not

have a reasonable time to remove or mitigate the snow and ice,

precluding waiver under section 24-10-106(1)(d)(I). Thus, the court

concluded Berthoud did not waive its governmental immunity.

¶ 8 Palmer appeals the district court’s dismissal, contending that

the court erroneously (1) concluded that the snow and ice were

present because the sidewalk was inadequately designed; and (2)

applied the “particular dangerous accumulation” standard to her

claim instead of the broader “dangerous condition” standard.

See § 24-10-106(1)(d)(I).

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II. Standard of Review

¶ 9 When a public entity moves to dismiss a personal injury case

on grounds that it has not waived its immunity under the CGIA, the

entity raises a question of subject matter jurisdiction that must be

resolved pursuant to Rule 12(b)(1). Trinity, 848 P.2d at 923. Under

Rule 12(b)(1), a plaintiff has the burden of proving that the court

has subject matter jurisdiction, and the court may make all factual

findings necessary for that determination. Medina v. State, 35 P.3d

443, 452 (Colo. 2001). The court need not treat a plaintiff’s factual

allegations as true as it would under C.R.C.P. 12(b)(5). Medina,

35 P.3d at 452.

¶ 10 We will not disturb a district court’s findings of jurisdictional

fact unless they are clearly erroneous. Id. A finding of fact is

clearly erroneous only where it is not supported by competent and

adequate evidence in the record. Shandy v. Lunceford, 886 P.2d

319, 322 (Colo. App. 1994). To the extent that relevant facts are

undisputed, a plaintiff is entitled to the reasonable inferences raised

by those facts. City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 11.

Once questions of fact are resolved, we review de novo legal

questions of governmental immunity. Id. at ¶ 12.

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III. The CGIA

¶ 11 Under the CGIA, public entities are generally immune from

liability in “all claims for injury which lie in tort or could lie in tort.”

§ 24-10-106(1). However, the General Assembly has waived

sovereign immunity in actions for injuries that resulted from “[a]

dangerous condition . . . which physically interferes with the

movement of traffic on . . . any public highway, road, street, or

sidewalk within the corporate limits of any municipality . . . .”

§ 24-10-106(1)(d)(I); City of Aspen v. Meserole, 803 P.2d 950, 957

(Colo. 1990). A dangerous condition is

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.

§ 24-10-103(1.3). As noted, the “mere existence” of snow and ice

does not, by itself, constitute a dangerous condition. Id. And the

statute provides that a dangerous condition “shall not exist solely

because the design of any facility is inadequate.” Id. Thus, as a

threshold jurisdictional matter, a plaintiff must show that the

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dangerous condition arose due to government conduct, or lack

thereof, in maintaining or constructing the condition, and not due

to the government’s design. Swieckowski v. City of Fort Collins, 934

P.2d 1380, 1384 (Colo. 1997); see also Medina, 35 P.3d at 448.

IV. Inadequate Design

¶ 12 We first address Palmer’s contention that the district court

erred by concluding that any “dangerous condition was a result of

inadequate design as opposed to negligent construction or

maintenance.”

A. Factual Findings

¶ 13 In drawing this conclusion, the court made factual findings

that “there was almost no evidence that negligent construction or

maintenance caused the depression resulting in ice on the

sidewalk” and “the design was such that ice accumulated.” The

district court relied on the following evidence, or lack thereof, to

support its findings:

• The director of the Parks and Recreation Department,

Jeremy Olinger, submitted an affidavit stating, “The

sidewalk where Plaintiff fell is the original sidewalk built

approximately in 1998. The sidewalk is adjacent to a hill

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and water runs down the hill, across the sidewalk, and

into the gutter by design.”

• Based on Olinger’s affidavit, her own observation of the

scene, and photos of the sidewalk taken after the fall,

Palmer’s expert witness, Anne Stodola, testified that the

sidewalk was “designed . . . as conduit . . . for fluid to go

across the sidewalk.”

• She opined this system is “lax in engineering principles,

because it’s not taking into account the failure mode that

can occur when water . . . is destructive for the system”

and it shows Berthoud “was not taking into account all

the engineering principles.”

• Stodola did not review original plans for the sidewalk or

historical photographs of the area.

• There was no evidence that the sidewalk had sunk over

time or that the landscaping around it had been further

elevated, creating a low spot.

• Stodola “did not testify to, nor was she qualified to opine

on, any failures in construction or maintenance of the

sidewalk.”

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¶ 14 The court’s factual findings are not clearly erroneous because

they are supported by competent and adequate evidence in the

record. Olinger stated that water ran off the hill and onto the

sidewalk by design, and Stodola explicitly based her opinion on

Olinger’s view that the sidewalk was designed as a “conduit” after

stating that part of her job was to analyze “accidents that involve

sidewalk design.” She also called the sidewalk a “design hazard,”

opined that a “chase drain” should be installed to route water under

the sidewalk, and stated, “I’m sure that there would be more ways

that one can design it.”

¶ 15 She conceded that her expert report did not include an opinion

on, or an assessment of, the precise cause of any potential

post-construction settling and that she “didn’t see the design, the

as-built drawings.” She further conceded that her opinion that the

sidewalk had settled was drawn from the fact that it “deviates from

the other 200 feet” of sidewalk around it, not from any specific

evidence of settling.

¶ 16 As noted, the burden was on plaintiff to demonstrate her

theory that, rather than a design issue, negligent maintenance by

Berthoud proximately caused the condition. Although Palmer’s

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expert also testified that her opinion that the sidewalk constituted a

dangerous condition was based on “a maintenance standard, a

construction standpoint” and that “through the maintenance,

[Berthoud] had failed to keep water from running across this area,”

the district court was not required to credit her characterization of

the condition as a maintenance or a construction flaw.

1

See

Medina, 35 P.3d at 459 n.7 (noting that a court is not bound by an

expert’s conclusory categorization of a hazard because an expert

may not understand the legal distinctions between “maintenance”

and “design” as they are used in the CGIA). Therefore, we perceive

no clear error in the district court’s findings of fact.

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As the district court noted, there was virtually no evidence of the

manner in which the sidewalk was constructed, although Stodola

occasionally referred to her opinion as coming from a “construction

standpoint.” Moreover, Palmer’s briefs do not adequately explain

her theory that negligent construction was an issue. We therefore

decline to further consider whether the district court erred by

concluding that negligent construction was not a cause of Palmer’s

injuries. See In re Estate of Hope, 223 P.3d 119, 121 (Colo. App.

2007) (declining to address arguments that were “perfunctorily

asserted”).

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B. Legal Conclusion

¶ 17 As noted in Medina, the question of whether a dangerous

condition arose due to inadequate design rather than maintenance

is “arguably a legal determination.” Id. Insofar as the court’s

conclusion was based upon the legal determination that, if the ice

and snow created a dangerous condition, the condition arose solely

from inadequate design, we perceive no error.

¶ 18 In Swieckowski, the supreme court explained the legal

difference between maintenance hazards and design hazards. 934

P.2d at 1384-87. It defined maintenance as “keeping a constructed

edifice, structure, or improvement in the same general state of

being, repair, or efficiency as initially constructed.”

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Id. at 1385

(quoting Webster’s Third New International Dictionary 1362 (1986)).

Section 24-10-103(2.5) of the CGIA further explains that

maintenance does not include any duty to “modernize, modify, or

improve the design or construction of [the] facility.” By contrast, to

design is “to conceive or plan out in the mind.” Swieckowski, 934

2

This definition was later substantially incorporated into the CGIA

in section 24-10-103(2.5), C.R.S. 2021.

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P.2d at 1386 (citing Webster’s Third New International Dictionary

611 (1986)).

¶ 19 Based on these definitions, the supreme court has stated that

an injury is the result of negligent maintenance when a dangerous

condition “is allowed to develop subsequent to the initial design and

construction,” whereas an injury is the result of negligent design

when the dangerous condition is “inherent in the design itself and

is allowed to persist to the time of the injury.” Medina, 35 P.3d at

456. The scope of the public entity’s duty, and the associated

waiver, must therefore be measured by comparing the original

condition of the facility to the condition of the facility when the

injury occurred. Id. at 448-49. “Only after making this

determination can the trial court ascertain whether the dangerous

condition . . . developed through a lack of maintenance subsequent

to the initial design and construction of the [facility], and thus,

whether immunity has been waived.” Id. at 449.

¶ 20 Although Palmer had the burden of proof on this issue, the

only evidence she presented at the hearing regarding the original

state of the sidewalk was Olinger’s statement that “water runs down

the hill, across the sidewalk, and into the gutter by design”; his

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testimony that, as far as he knew, nobody had altered the sidewalk

since it was constructed; and Stodola’s speculative testimony that

the sidewalk had settled because it was designed to have water run

across it throughout the year and the spot where Palmer fell

“deviated” from the rest of the sidewalk. The court noted that this

evidence was insufficient to support a finding that “the sidewalk

and landscaping was not designed this way or that this low spot did

not exist in the past.” Based on the contrary evidence that

Berthoud planned for excess water to run down the hill and onto

the sidewalk — evidence credited by the court in its factual findings

— the court did not err in concluding that, if the ice and snow

created a dangerous condition, it arose solely due to inadequate

design.

¶ 21 Because Palmer has not prevailed on this threshold issue, we

need not address her additional contention that the district court

applied the wrong legal standard to the remaining elements of her

claim. Under either standard articulated in section

24-10-106(1)(d)(I), Palmer cannot prevail if her injuries were caused

solely by a design flaw.

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V. Conclusion

¶ 22 We affirm the judgment.

JUDGE HARRIS and JUDGE GOMEZ concur.