Mostellar v. Manitou Springs

24CA0626 Mostellar v Manitou Springs 02-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0626
El Paso County District Court No. 23CV31616
Honorable Eric Bentley, Judge

Jaimi J. Mostellar,

Plaintiff-Appellant,

v.

City of Manitou Springs,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 27, 2025

Kane Law Firm, P.C., Mark H. Kane, Colorado Springs, Colorado, for Plaintiff-
Appellant

Tucker Holmes, P.C., Bradley D. Tucker, Michael T. Sullivan, Centennial,
Colorado, for Defendant-Appellee
¶1 Plaintiff, Jaimi J. Mostellar, appeals the district court’s entry

of judgment dismissing her lawsuit against defendant, the City of

Manitou Springs (Manitou), because Manitou is immune from suit

under the Colorado Governmental Immunity Act (CGIA) and thus

the court lacked subject matter jurisdiction. Mostellar urges us to

reverse the court’s judgment and reinstate her complaint. We

affirm.

I. Background

¶2 Mostellar was injured in Manitou after she tripped over a bus

stop sign remnant (the sign base) on a sidewalk.

¶3 Mostellar filed a complaint asserting claims of premises

liability and negligence against Manitou and others. Mostellar

alleged that she was injured because of a dangerous condition of

which Manitou knew or should have known on property that

Manitou was responsible for maintaining. Manitou filed a C.R.C.P.

12(b)(1) motion to dismiss for lack of subject matter jurisdiction (the

motion to dismiss), asserting that it was a public entity immune

from suit under the CGIA, sections 24-10-101 to -120, C.R.S. 2024,

and that it had not waived immunity.

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¶4 Mostellar and Manitou filed a joint status report after the

motion to dismiss was fully briefed. In the status report, Manitou

requested that the court rule on the motion to dismiss based on the

pleadings if the court believed it had the necessary information.

Mostellar indicated she did not object to proceeding in that manner.

¶5 The court granted the motion to dismiss. The court found that

the parties didn’t dispute the basic facts and that neither party had

requested an evidentiary hearing. The court concluded that

Mostellar failed to meet her burden of proving that (1) the sign base

constituted an unreasonable risk to the public; (2) Manitou knew or

should’ve known of the risk posed by the sign base; and

(3) Manitou’s negligence caused “the trip hazard” posed by the sign

base. Accordingly, the court concluded that Mostellar hadn’t

demonstrated that Manitou waived immunity and dismissed

Manitou from the case.

¶6 Mostellar appeals, asserting that the court erroneously relied

on evidence outside the pleadings, which consequently converted

the motion to dismiss to a motion for summary judgment under

C.R.C.P. 56. She asserts that, because the court misapplied the

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law governing summary judgment motions, the judgment must be

reversed.

¶7 We first discuss the legal principles underlying the CGIA and

the standard district courts must use to resolve a public entity’s

motion to dismiss on grounds that the entity is immune from suit

under the CGIA. We then discuss our standard for reviewing a

district court’s determination that it lacks subject matter

jurisdiction over a public entity because the CGIA applies. Finally,

applying these principles, we conclude that the court didn’t err by

determining Manitou was immune from suit under the CGIA and

dismissing Manitou from these proceedings.

II. Legal Principles

A. The CGIA

¶8 The CGIA generally bars actions “against a public entity for

[an] injury which lies in tort or could lie in tort.” § 24-10-108,

C.R.S. 2024; see Trinity Broad. of Denver, Inc. v. City of Westminster,

848 P.2d 916, 924 (Colo. 1993) (“Unless a plaintiff complies with

the statutory requirements, . . . sovereign immunity bars suit

against a public entity for injury which lies or could lie in tort.”).

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¶9 “Questions of governmental immunity implicate subject matter

jurisdiction and are determined in accordance with C.R.C.P.

12(b)(1).” St. Vrain Valley Sch. Dist. RE-1J v. Loveland, 2017 CO 54,

¶ 10. “[C]ourts lack subject matter jurisdiction over claims barred

by sovereign immunity.” Grand Junction Peace Officers’ Ass’n v.

City of Grand Junction, 2024 COA 89, ¶ 1. Under C.R.C.P. 12(b)(1),

when a public entity seeks to dismiss the plaintiff’s complaint on

the grounds of immunity under the CGIA, the plaintiff has the

burden of proving that the entity waived immunity and the court

therefore has subject matter jurisdiction. Tidwell v. City & Cnty. of

Denver, 83 P.3d 75, 85 (Colo. 2003).

¶ 10 While the CGIA generally immunizes public entities from tort

liability, it contains exceptions that “waive[] this immunity under

certain limited circumstances.” Medina v. State, 35 P.3d 443, 453

(Colo. 2001); see §§ 24-10-104, -106, C.R.S. 2024. Because the

CGIA derogates common law, we strictly construe its provisions

granting immunity and broadly construe its provisions waiving

immunity to determine whether a plaintiff satisfied their burden.

Smokebrush Found. v. City of Colorado Springs, 2018 CO 10, ¶ 22.

“Sovereign immunity is waived by a public entity in an action for

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injuries resulting from . . . [a] dangerous condition of a public . . .

sidewalk which was designed and intended for public travel . . . .”

§ 24-10-106(1)(d)(I).

¶ 11 “[P]ublic entities are liable for dangerous conditions on

sidewalks . . . .” City of Aspen v. Meserole, 803 P.2d 950, 955 (Colo.

1990). Section 24-10-103(1.3), C.R.S. 2024, defines “dangerous

condition” as

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.

In Walton v. State, 968 P.2d 636, 644 (Colo. 1998), the supreme

court held that immunity is waived under section 24-10-106(1)(d)(I)

for a “dangerous condition” if the plaintiff’s injuries occurred as a

result of

(1) the physical condition of the public facility or the use

thereof;

(2) which constitutes an unreasonable risk to the health or

safety of the public;

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(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 such facility.

A court must consider the four Walton factors in deciding whether a

plaintiff met their burden to rebut a public entity’s assertion of

sovereign immunity in a C.R.C.P. 12(b)(1) motion. Furthermore, to

prove that the condition of a sidewalk presents an “unreasonable

risk,” a plaintiff must prove that the condition “created a chance of

injury, damage, or loss which exceeded the bounds of reason.” City

& Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 23. In making its

factual findings, the court must afford a plaintiff the reasonable

inferences from their undisputed evidence. Id. at ¶ 11.

B. The Standard for Determining a Public Entity’s Motion to
Dismiss Based on the CGIA

¶ 12 In Trinity, the supreme court considered whether a court

should apply a C.R.C.P. 12(b)(1) or a C.R.C.P. 56 standard when a

public entity asserts immunity under the CGIA and seeks dismissal

of the plaintiff’s claims against it. See Trinity, 848 P.2d at 924-27.

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¶ 13 Relying on parallels between Rule 12(b)(1) of the Federal Rules

of Civil Procedure and C.R.C.P. 12(b)(1), Trinity held that, “[i]f the

motion [to dismiss] is a factual attack on the jurisdictional

allegations of the complaint . . . , the trial court may receive any

competent evidence pertaining to the motion” without converting it

to a summary judgment motion. Id. at 924.

III. Standard of Review

¶ 14 Questions of immunity under the CGIA present mixed

questions of fact and law. Maphis v. City of Boulder, 2022 CO 10,

¶ 12. In deciding a C.R.C.P. 12(b)(1) motion to dismiss based on

immunity under the CGIA, the court must make factual findings

about its ability to hear the case. Dennis, ¶ 9.

¶ 15 We review a court’s factual findings for clear error, but we

review de novo the legal determination of whether those facts

demonstrate that the public entity waived sovereign immunity

under the CGIA. See Maphis, ¶ 12 (noting that whether

jurisdictional facts constitute a “dangerous condition” under the

CGIA is reviewed de novo).

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IV. Application

¶ 16 Manitou contends that Mostellar didn’t preserve her argument

that the court converted the motion to dismiss to a motion for

summary judgment. We disagree.

¶ 17 Manitou moved for an award of attorney fees after the court

granted the motion to dismiss. Mostellar responded that Manitou

wasn’t entitled to attorney fees because the motion to dismiss was

“treated as a motion for summary judgment.”

¶ 18 Furthermore, in its order granting Manitou’s motion for

attorney fees, the court said it “did not convert [Manitou]’s motion

into a motion for summary judgment; rather it considered the facts

and dismissed the claims pursuant to the CGIA, [C.R.C.P.] 12(b)(1),

and Trinity.”

¶ 19 Thus, the record demonstrates that Mostellar adequately

preserved this issue. See Berra v. Springer & Steinberg, P.C., 251

P.3d 567, 570 (Colo. App. 2010) (“[T]o preserve [an] issue for

appeal[,] all that [is] needed [is] that the issue be brought to the

attention of the trial court and that the court be given an

opportunity to rule on it.”).

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A. The Court Correctly Applied the Standards of C.R.C.P. 12(b)(1)
to the Motion to Dismiss

¶ 20 Mostellar contends that, by considering matters outside the

motion to dismiss — specifically, the accompanying exhibits — the

court converted the motion to dismiss to a motion for summary

judgment under C.R.C.P. 56. Mostellar also asserts that the court

should not have made factual findings without holding an

evidentiary hearing and that she “was entitled to inferences in her

favor in law under C.R.C.P. 12(b)(1) and in fact under C.R.C.P. 56

but was given neither.” We address and reject these contentions in

turn.

1. The Court Appropriately Considered Evidence Outside the
Complaint to Determine the Motion to Dismiss

¶ 21 Mostellar asserts that, “[u]nder C.R.C.P. 12(b)(1), the court

should not have considered anything outside [her] complaint.” We

disagree.

¶ 22 A public entity’s assertion of immunity under the CGIA raises

a jurisdictional question that the court is empowered to resolve as

the fact finder under C.R.C.P. 12(b)(1). See Trinity, 848 P.2d at

924-25; Medina, 35 P.3d at 454; see also Fogg v. Macaluso, 892

P.2d 271, 277 (Colo. 1995) (“Whether a claim falls within an

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exception to the [C]GIA’s waiver of sovereign immunity is a question

of subject matter jurisdiction and, if raised before trial, it

appropriately is addressed under C.R.C.P. 12(b)(1).”); Corsentino v.

Cordova, 4 P.3d 1082, 1087 (Colo. 2000) (noting that whether a

public entity qualifies for immunity is a question of subject matter

jurisdiction and, if the issue is raised before trial, it is properly

addressed pursuant to a C.R.C.P. 12(b)(1) motion to dismiss);

accord Tidwell, 83 P.3d at 81; City of Aspen v. Burlingame Ranch II

Condo. Owners Ass’n, 2024 CO 46, ¶ 23. Likewise, a court may

consider all competent evidence to determine whether a plaintiff has

met their burden to demonstrate a waiver of sovereign immunity,

and doing so does not convert a motion to dismiss into a motion for

summary judgment. Trinity, 848 P.2d at 924; accord Lee v. Banner

Health, 214 P.3d 589, 593 (Colo. App. 2009).

¶ 23 Despite recognizing this authority in her response to the

motion to dismiss, Mostellar’s appellate arguments are contrary to

these cases. Further, she does not identify legal authority to

support her assertion that the court was restricted to the four

corners of her complaint in deciding the motion to dismiss. “It is

the task of counsel to inform us . . . both as to the specific errors

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relied on and the grounds and supporting facts and authorities.”

Mauldin v. Lowery, 255 P.2d 976, 977 (Colo. 1953). Mostellar has

failed to advise us of alternative controlling legal authority, and we

are bound by the standards set forth in the supreme court’s Trinity

opinion. See Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo.

App. 2009) (noting that a division of the Colorado Court of Appeals

is not at liberty to disregard a rule announced in a prior supreme

court case absent “some clear indication” that the supreme court

overruled its prior case). Thus, the court was entitled to consider

any competent evidence to resolve the motion to dismiss, and we

reject Mostellar’s contention otherwise.

2. The Court Acted Within Its Discretion to Rule on the Pleadings

¶ 24 Mostellar alternatively argues that the court didn’t have “all

relevant evidence” it needed to rule on the motion to dismiss. But

she doesn’t identify what relevant evidence she believes the court

was missing; rather, she takes issue with the court’s reliance on

Manitou’s evidence — instead of holding an evidentiary hearing —

to make the factual findings supporting the judgment. We discern

no error.

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¶ 25 A court isn’t required to hold an evidentiary hearing to decide

a defendant’s motion to dismiss under the CGIA if the court has

been presented with all relevant evidence. See Trinity, 848 P.2d at

925. Mostellar doesn’t point us to, nor have we found, any place in

the record where she denied the facts that Manitou presented in the

motion to dismiss or the supporting exhibits. Instead, Mostellar

asserted that Manitou “allowed a significant trip hazard to exist on

its sidewalks.” The extent of the hazard, if any, that the sign base

created was a legal question for the court to decide and not a

disputed fact.

¶ 26 Mostellar didn’t present any opposing evidence in her response

to the motion to dismiss or request that the court hold an

evidentiary hearing. Indeed, she agreed that the court could decide

the motion to dismiss based on the pleadings, unless the court

determined, in its discretion, that it needed additional information.

And, as discussed infra Part IV.B.1, the parties presented sufficient

evidence in their pleadings from which the court could determine

the undisputed facts supporting its conclusion that Manitou had

not waived its sovereign immunity. Accordingly, we also reject this

contention.

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3. The Court Appropriately Considered Any Reasonable
Inferences to Which Mostellar Was Entitled

¶ 27 We disagree with Mostellar’s assertion that she was not given

the benefit of inferences to which she was entitled for two reasons.

First, she was not entitled to an inference under C.R.C.P. 56

because the court did not convert the motion to dismiss to a motion

for summary judgment. Second, the court did afford her the

reasonable inferences from her undisputed evidence. Mostellar

alleged in her complaint that she was injured after she tripped and

fell on a public sidewalk in Manitou and that the sign base

protruding above the sidewalk caused her fall. Manitou didn’t

dispute these facts in the motion to dismiss, and the court

appropriately incorporated these undisputed facts in the judgment.

¶ 28 Despite her contention otherwise, Mostellar didn’t dispute

most of the facts upon which the court relied to decide the motion

to dismiss. Rather, she disputed the legal significance of those

facts and whether they supported her burden to show that Manitou

had waived immunity from a suit seeking damages for the type of

injuries that she incurred. Accordingly, we turn to whether

13
Mostellar met her burden to show that Manitou waived its sovereign

immunity.

B. Mostellar Failed to Meet Her Burden to Demonstrate that
Manitou Waived Immunity

¶ 29 Mostellar had the burden of demonstrating that Manitou

waived its immunity under the CGIA because her injuries resulted

from a dangerous condition of which Manitou knew or should have

known. See Trinity, 848 P.2d at 925; see also Medina, 35 P.3d at

454. To do so, she needed to demonstrate that the Walton factors

were satisfied.

¶ 30 Manitou didn’t dispute that Mostellar’s injuries resulted from

a physical condition of a public sidewalk. Thus, Mostellar needed

to establish, and the court considered, the three remaining factors.

As discussed next, the record supports the court’s factual findings.

We agree with the court’s conclusion that Mostellar failed to

demonstrate that the sign base constituted an unreasonable risk to

the public based on the undisputed facts.

1. The Record Supports the Court’s Determination of the
Undisputed Facts

¶ 31 The exhibits that Manitou submitted in support of the motion

to dismiss included Mostellar’s notice to Manitou of her claim,

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which included photos of the sign base taken from different angles;

an affidavit from Manitou’s deputy city manager, who attested to

his supervisory role over the department responsible for overseeing

sidewalks within Manitou and his investigation into the status of

the sign base after Mostellar notified Manitou of her claim; and

photos of the sign base and the surrounding area, including a photo

of the sign base before the post was removed and a photo showing

the sign base covered by a traffic cone.

¶ 32 After reviewing the pleadings and the supporting

documentation, the court found the following relevant undisputed

facts:

• The sign base over which Mostellar tripped protruded

about three inches above the sidewalk.

• The sign base was located in a narrow, off-white portion

of pavement that was differentiated from the salmon pink

color of the “throughway” portion of the sidewalk where

pedestrians typically walk.

• The signpost appeared intact one month before

Mostellar’s trip and fall and, three months later, it had

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been removed and a traffic cone placed at the sign’s

former location.

• Manitou maintains a “See-Click-Fix” function on its city

website where people can report city maintenance issues

or concerns, and Manitou’s records did not contain any

complaints or reports about the sign base.

¶ 33 Because the court’s factual findings are supported by the

record, we won’t disturb them. See Trinity, 848 P.2d at 925.

2. The Sign Base Did Not Constitute an Unreasonable Risk

¶ 34 The court relied on the supreme court’s reasoning in Maphis to

conclude that Mostellar had not met her burden to show that the

sign base presented an unreasonable risk to the public. In Maphis,

¶ 3, the plaintiff was injured after she tripped over a

two-and-a-half-inch deviation in a Boulder sidewalk. Boulder

moved to dismiss the plaintiff’s complaint for lack of subject matter

jurisdiction, arguing it was immune from suit under the CGIA

because the sidewalk deviation didn’t constitute a “dangerous

condition.” Id. at ¶ 1.

¶ 35 On review, the supreme court reiterated its holding in Dennis

and further held that, to assess whether a plaintiff has met their

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burden to prove the “dangerous condition” element of a CGIA

immunity waiver, a court must “examin[e] the totality of the

circumstances presented by the undisputed evidence as to whether

that particular condition presented an unreasonable risk.” Maphis,

¶ 22. The supreme court noted that what may constitute a

“dangerous condition” in one set of circumstances may not in

another, and may include consideration of things like whether the

condition occurred 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 whether the

condition had been the subject of frequent reporting by members of

the public. Id. at ¶ 28. The supreme court concluded that, under

the circumstances presented in Maphis, the plaintiff hadn’t

demonstrated that the deviation created a chance of injury,

damage, or loss that exceeded the bounds of reason. Id. at ¶ 30.

¶ 36 After making its factual findings, the court concluded that

(1) the sign base wasn’t in an area with “heightened safety

concerns”; (2) pedestrians were likely to see the sign base as it

“st[u]ck[] straight up from the pavement and thus [was] much more

visible to the naked eye than the ‘largely imperceptible’ slab

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deviation” in Maphis; and (3) the sign was “located on a narrow,

off-white strip of pavement next to the curb” in a space provided for

street signs that was “differentiated by color from the salmon pink

‘throughway’ portion of the sidewalk” designated for pedestrians.

¶ 37 Although Mostellar argued that the sign base was located in a

“high foot-traffic business area,” the court rejected that contention

as Mostellar didn’t provide any supporting evidence; rather, she

only provided argument of counsel.

¶ 38 Our own review of the record compels us to reach the same

conclusion as did the court regarding whether Mostellar met her

burden.

¶ 39 The sign base — which was irregularly shaped and protruded

out of the ground close to the curb — was located in a portion of the

sidewalk outside the “throughway” where pedestrians traveled and

was differentiated by color from the “throughway.” The sign base

was not located in an area with heightened safety concerns, and

Mostellar didn’t present evidence that anyone had contacted

Manitou to inform the city of the potential hazard. We acknowledge

that the sign base posed some level of risk as it was protruding

from the sidewalk. But we cannot conclude that, under the totality

18
of the circumstances, the sign base created a chance of injury,

damage, or loss that exceeded the bounds of reason. Thus, we

conclude that the court didn’t err by determining that Mostellar

hadn’t met her burden to demonstrate that the sign base created an

unreasonable risk.

¶ 40 Because Mostellar didn’t meet this burden, we need not

address the remaining Walton factors, and her allegation that the

sign base constituted a dangerous condition for which Manitou’s

immunity from suit was waived necessarily fails.

V. Requests for Attorney Fees

¶ 41 Both parties request that we grant their respective attorney

fees related to this appeal.

¶ 42 Mostellar requests attorney fees in her primary brief but fails

to cite a basis for that request. C.A.R. 39.1 (“If attorney fees are

recoverable for the appeal, the principal brief of the party claiming

attorney fees must include a specific request . . . and must explain

the legal and factual basis, for an award of attorney fees.”)

(emphasis added); see Cikraji v. Snowberger, 2015 COA 66, ¶ 22

(declining to address unsupported request for attorney fees).

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¶ 43 Manitou requests an award of its reasonable attorney fees as

required by section 13-17-201, C.R.S. 2024. “Section

13-17-201 . . . requires a court to award reasonable attorney fees to

the defendant when a court dismisses a plaintiff’s tort action before

trial under C.R.C.P. 12(b),” and “a party that successfully defends

an appeal of an action that was dismissed on a pretrial motion to

dismiss under the CGIA is entitled to recover its reasonable

appellate attorney fees under section 13-17-201.” Henderson v.

City & Cnty. of Denver, 2012 COA 152, ¶ 47; see Smith v. Town of

Snowmass Village, 919 P.2d 868, 873 (Colo. App. 1996) (“[A]n

award of attorney fees is mandatory when a trial court dismisses an

action under the [C]GIA for lack of subject matter jurisdiction.”).

Accordingly, we grant Manitou’s request. Because the district court

is in a better position than we are to determine the reasonable

attorney fees Manitou has incurred, we remand the case for further

proceedings on that issue. See Stauffer v. Stegemann, 165 P.3d

713, 719 (Colo. App. 2006).

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VI. Disposition

¶ 44 The judgment is affirmed. The case is remanded to the district

court with directions to award Manitou its reasonable appellate

attorney fees, consistent with this opinion.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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