Goodman v. South Suburban

24CA1946 Goodman v South Suburban 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1946
Douglas County District Court No. 24CV30595
Honorable Ben L. Leutwyler III, Judge

Mark Goodman, as an individual and as Trustee of the Mark Goodman
Revocable Trust, Richard Campbell, Donna Campbell, William B. Fornia, and
Matthew Troyer,

Plaintiffs-Appellees,

v.

South Suburban Park and Recreation District d/b/a South Suburban Parks
and Recreation, a quasi-municipal corporation,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MOULTRIE
Tow and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 30, 2025

Husch Blackwell, LLP, Tessa F. Carberry, Denver, Colorado for Plaintiffs-
Appellees

Nathan Dumm & Mayer P.C., Nicholas C. Poppe, Timothy M. Walsh, Denver,
Colorado, for Defendant-Appellant
¶1 Defendant, South Suburban Park and Recreation District (the

District), appeals the trial court’s order denying its motion to

dismiss the complaint of plaintiffs, Mark Goodman, as an individual

and as Trustee of the Mark Goodman Revocable Trust, Richard

Campbell, Donna Campbell, William B. Fornia, and Matthew Troyer

(collectively, the homeowners), under the Colorado Governmental

Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2025. We

reverse and remand with directions.

I. Background

¶2 The District operates and maintains pickleball courts at the

Lone Tree Recreation Center. The homeowners — all of whom live

adjacent to the pickleball courts — filed a complaint against the

District asserting claims of private and public nuisance. The

homeowners allege that the pickleball courts constitute a private

nuisance under the City of Lone Tree’s municipal code because they

are unreasonably noisy, thereby depriving the homeowners of the

enjoyment of their property. The homeowners allege that they have

sustained “general damages” that include “diminution in market

value and loss of entire portions of their properties.”

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¶3 The homeowners allege that the pickleball courts also

constitute a public nuisance under section 25-12-103, C.R.S. 2025

(the noise abatement statute), and the municipal code because the

noise levels from the courts exceed the limits set in the noise

abatement statute and the city’s code.

¶4 In their general prayer for relief, the homeowners requested

(1) a declaration that the pickleball courts constitute a private and

public nuisance and (2) an injunction prohibiting the District from

operating the courts without enclosing the courts within a

soundproof structure.

¶5 The District filed a C.R.C.P. 12(b)(1) motion to dismiss the

complaint for lack of subject matter jurisdiction, asserting that the

homeowners’ claims were barred by the CGIA because the

homeowners’ private and public nuisance claims lie in tort or could

lie in tort and no CGIA waiver related to a dangerous condition

applied. The District also noted in a footnote to the motion that the

homeowners had failed to comply with the CGIA’s notice

requirements before filing their complaint.

¶6 After briefing was completed on the motion to dismiss, but

before the court had ruled on the motion, the District filed a

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supplement to the motion reasserting its argument that the court

also lacked subject matter jurisdiction because the homeowners

had failed to comply with the CGIA’s notice requirements.

¶7 The court denied the District’s motion to dismiss, finding that

“[w]hile the actionable harm . . . is essentially tortious in nature,”

the CGIA didn’t apply to either of the homeowners’ claims because

the homeowners sought only injunctive relief and not monetary

compensation. Because it concluded that the CGIA was

inapplicable, the court determined that the District’s dangerous

condition waiver argument was moot. Likewise, referencing the

footnote in the District’s motion — but not the supplement — the

court found that the District’s notice argument was moot because

the CGIA was inapplicable.

¶8 The District then filed this interlocutory appeal, asserting that

the court erred by concluding that the CGIA doesn’t apply to bar

the homeowners’ claims.

II. Applicable Law and Standard of Review

¶9 “Questions of governmental immunity implicate the court’s

subject matter jurisdiction and are determined in accordance with

C.R.C.P. 12(b)(1).” Smokebrush Found. v. City of Colorado Springs,

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2018 CO 10, ¶ 17. A trial court’s decision on a party’s motion to

dismiss under the CGIA is subject to interlocutory appellate review

under section 24-10-108, C.R.S. 2025. Under C.R.C.P. 12(b)(1), a

plaintiff has the burden of proving that the court has subject matter

jurisdiction by demonstrating that governmental immunity has

been waived if the defendant is a governmental entity. Tidwell v.

City & County of Denver, 83 P.3d 75, 85 (Colo. 2003). To determine

whether a plaintiff has satisfied this burden, we strictly construe

the CGIA’s provisions granting immunity and broadly construe its

provisions waiving immunity. Smokebrush Found., ¶ 22. But see

Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 33 n.12 (noting that

this rule only applies when a broad construction is consistent with

the CGIA’s legislative intent).

¶ 10 Under the CGIA, absent a waiver of immunity, public entities

are “immune from liability in all claims for injury that lie in tort or

could lie in tort, regardless of whether that may be the type of

action or the form of relief chosen by the claimant.” § 24-10-106(1),

C.R.S. 2025; see also Colo. Dep’t of Transp. v. Brown Grp. Retail,

Inc., 182 P.3d 687, 691 (Colo. 2008) (noting that the CGIA “broadly

encompasses all claims against a public entity arising from the

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breach of a general duty of care”). Thus, “[e]ven if a duty is imposed

upon the [s]tate pursuant to a statute or the common law, the

[s]tate is liable for a breach of that duty ‘only if first it is determined

that sovereign immunity is waived for the activity in question.’”

Grand Junction Peace Officers’ Ass’n v. City of Grand Junction, 2024

COA 89, ¶ 56 (citation omitted).

¶ 11 In considering whether a claim lies in tort or could lie in tort

for purposes of the CGIA, a court “is less concerned with what the

plaintiff is arguing and more concerned with what the plaintiff could

argue.” Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1005

(Colo. 2008) (emphasis added). The form of the complaint is not

determinative; instead, whether an action could lie in tort “depends

on the factual basis underlying the claim.” City of Aspen v.

Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46, ¶ 30.

¶ 12 Thus, to determine whether a claim falls within the scope of

the CGIA, courts must consider (1) the nature of the injury and

(2) the relief sought. Id. at ¶ 31. “We assess the nature of the

injury and the relief requested on a case-by-case basis through a

close examination of the pleadings and undisputed evidence.”

Robinson, 179 P.3d at 1004.

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¶ 13 The CGIA’s definition of an “injury” includes “damage to or

loss of property, of whatsoever kind, which, if inflicted by a private

person, would lie in tort or could lie in tort regardless of whether

that may be the type of action or the form of relief chosen by a

claimant.” § 24-10-103(2), C.R.S. 2025. When a plaintiff’s alleged

property damage or loss arises either out of tortious conduct or the

breach of a duty recognized by tort law, and when the plaintiff

seeks compensatory relief, “the claim likely lies in tort or could lie in

tort for purposes of the CGIA.” Robinson, 179 P.3d at 1003.

¶ 14 The nature of a plaintiff’s requested relief isn’t dispositive of

whether a claim lies in tort. Elder v. Williams, 2020 CO 88, ¶ 23.

But it may inform our understanding of the nature of the injury and

the duty allegedly breached, especially if the plaintiff’s claim arises

from a statute without origins in common law. Id.

¶ 15 Because the material facts are undisputed, and the issue is

one of statutory construction, we review the trial court’s

jurisdictional ruling de novo. See Smokebrush Found., ¶ 17.

III. Analysis

¶ 16 As a preliminary matter, both the homeowners and the

District seemingly rely on Board of County Commissioners v.

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Colorado Department of Public Health & Environment, 2021 CO 43

(La Plata) — the only published Colorado case to examine a public

nuisance claim implicating the CGIA — as determinative of when a

public nuisance claim lies in tort or could lie in tort.

¶ 17 In La Plata, the supreme court considered whether the

Colorado Department of Public Health and Environment’s (CDPHE)

statutory enforcement action against a county was barred by the

CGIA. Id. at ¶ 2. In that case, La Plata County argued that the

CGIA barred the CDPHE’s efforts to bring an enforcement action

against the county for alleged violations of the Solid Wastes

Disposal Sites and Enforcement Act, sections 30-20-100.5 to -122,

C.R.S. 2020. Id. at ¶ 1.

¶ 18 Ultimately, the supreme court concluded that the CDPHE’s

enforcement action against the county wasn’t barred by the CGIA

for three reasons: (1) the CDPHE was acting solely in its regulatory

capacity to protect a public right and thus wasn’t asserting a claim

for an “injury” as that term is defined under the CGIA; (2) the

CDPHE’s enforcement action didn’t or couldn’t lie in tort because

the county didn’t breach any duty it owed to the CDPHE under tort

law; and (3) the nature of the relief the CDPHE sought was a

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regulatory proceeding to force the county to comply with its

statutory obligations. Id. at ¶¶ 41, 43-44.

¶ 19 The District argues that La Plata “established three factors to

consider when evaluating whether a public nuisance claim lies in

tort and thus is subject to the CGIA,” one of which is “whether the

duty and related cause of action arose out of tort law or whether the

cause of action originated solely with a legislative enactment.” And

the District argues that under these so-called La Plata factors, the

homeowners’ public nuisance claim lies in tort.

¶ 20 Conversely, the homeowners argue that, under the supreme

court’s analysis in La Plata, their public nuisance claim doesn’t lie

in tort because “like the plaintiffs in La Plata, [the homeowners]

seek only to protect the public at large and to prevent future

potential injury to the public.” The homeowners also argue that

their public nuisance claim derives “explicitly” from the noise

abatement statute and the municipal code, which they assert is

“much like the statutory dut[y] discussed in La Plata” that the

supreme court held wasn’t barred by the CGIA.

¶ 21 To the extent the parties suggest La Plata announced a new

test to determine whether a public nuisance claim is subject to the

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CGIA, we reject their suggestion. The supreme court didn’t create a

new test in La Plata — it applied existing legal principles for

determining whether a claim lies in tort or could lie in tort. Id. at

¶¶ 37-40 (applying Elder and Robinson).

¶ 22 With those existing principles in mind, we turn to our

consideration of whether the homeowners’ claims lie in tort or could

lie in tort for purposes of the CGIA.

A. Private Nuisance

¶ 23 The District argues that the trial court erred by “relying solely

on the homeowners’ chosen remedy to determine application of the

CGIA.” We agree.

¶ 24 A claim for private nuisance is a tort “predicated upon a

substantial invasion of an individual’s interest in the use and

enjoyment of [their] property.” Hoery v. United States, 64 P.3d 214,

218 (Colo. 2003); see also Restatement (Second) of Torts § 822

cmt. a (A.L.I. 1979) (“Private nuisance is solely a matter of tort

liability.”).

¶ 25 Here, the homeowners allege that the noise from the pickleball

courts unreasonably infringes on their ability to use and enjoy their

private properties by preventing them from using “entire portions”

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of their properties and diminishing the value of their respective

properties. Thus, the homeowners’ bare factual allegations

demonstrate that their private nuisance claim lies in tort. See

Burlingame Ranch, ¶ 30; Hoery, 64 P.3d at 218.

¶ 26 This is so even considering that the homeowners’ complaint

doesn’t outright request monetary compensation for their alleged

damages and instead purports to only seek declaratory and

injunctive relief. See Elder, ¶ 23; see also City of Colorado Springs

v. Conners, 993 P.2d 1167, 1176 (Colo. 2000) (noting that some

torts, including nuisance, may involve equitable forms of relief);

Brown Grp. Retail, Inc., 182 P.3d at 688 (holding that a claim for

declaratory relief based on injuries that lie in tort or could lie in tort

must meet the requirements of the CGIA); see also Allison v. Smith,

695 P.2d 791, 793 (Colo. App. 1984) (affirming on appeal the trial

court’s award of damages and injunctive relief for the plaintiff’s

private nuisance claim); Seigle v. Bromley, 124 P. 191, 193-94

(Colo. App. 1912) (recognizing both damages and injunctions as

forms of relief available in an action for private nuisance).

¶ 27 Moreover, the homeowners don’t contest that their private

nuisance claim lies in tort. Indeed, in their answer brief, they state

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that they “do not argue that their private nuisance does not or

could not lie in tort.” Instead, they assert that a dangerous

condition waiver of immunity applies. Likewise, in their response to

the District’s motion to dismiss, the homeowners didn’t argue that

their private nuisance claim doesn’t lie in tort; rather they argued

that the “physical condition and use [of the pickleball courts] are

dangerous conditions not subject to the restrictions of the CGIA.”

The homeowners haven’t identified, nor have we found, any legal

authority supporting the notion that a private nuisance claim

doesn’t (or couldn’t) lie in tort. See, e.g., Glover v. Serratoga Falls

LLC, 2021 CO 77, ¶ 5 (recognizing private nuisance as a tort claim

as defined in Hoery).

¶ 28 Thus, we conclude that the homeowners’ private nuisance

claim clearly lies in tort despite their request for declaratory and

injunctive relief. Accordingly, we reverse the trial court’s

determination that the homeowners’ private nuisance claim doesn’t

lie in tort and therefore isn’t subject to the CGIA.

B. Public Nuisance

¶ 29 The District also contends that the homeowners’ public

nuisance claim lies in tort or could lie in tort. We agree.

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1. Common Law Public Nuisance Legal Principles

¶ 30 A common law public nuisance involves the invasion of rights

common to members of the public, Hoery, 64 P.3d at 218 n.5,

resulting from actions or inactions “that injuriously affect[] the

safety, health[,] or morals of the public,” or that cause “some

substantial annoyance, inconvenience, or injury to the public.”

Docheff v. City of Broomfield, 623 P.2d 69, 71 (Colo. App. 1980)

(citation omitted); see also Restatement (Second) of Torts § 821B(1)

(“A public nuisance is an unreasonable interference with a right

common to the general public.”).

¶ 31 The general public’s right to be free from loud and disturbing

noises is recognized under the common law. See Restatement

(Second) of Torts § 821B. To succeed in an action that seeks to

enjoin a public nuisance, a plaintiff — rather than merely showing

that they have suffered the same harm affecting the general public,

but to a greater degree — must prove that they have experienced

harm that is of a different kind than that suffered by the public as a

result of the violation of the common right at issue. See

Restatement (Second) of Torts § 821C cmt. b.

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¶ 32 And while the common law tort of public nuisance still exists,

see Restatement (Second) of Torts § 821B cmt. b, our supreme

court has held that public nuisance claims are not necessarily torts

within the meaning of the CGIA. La Plata, ¶ 46.

¶ 33 With these principles in mind, we turn to whether the

homeowners’ public nuisance claim lies in tort or could lie in tort.

2. The Homeowners’ Public Nuisance Claim Lies in Tort

¶ 34 Under the circumstances presented here, we conclude that the

homeowners’ claim for public nuisance lies in tort for two reasons.1

¶ 35 First, consistent with the elements necessary to establish a

common law public nuisance tort claim, the homeowners allege

they are experiencing harms from the pickleball court noise that are

different in kind from those experienced by the public. The

homeowners’ complaint also alleges in part that the pickleball

courts constitute a nuisance under common law. They further say

1 The homeowners’ counsel argued for the first time during oral

argument that a public nuisance action filed under section 25-12-
104, C.R.S. 2025, doesn’t lie in tort because that section delegates
to the public the state’s inherent authority to redress public
nuisances that violate the noise abatement statute. We don’t
consider arguments that are raised for the first time during oral
argument. McGihon v. Cave, 2016 COA 78, ¶ 10 n.1.

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that the purpose of their lawsuit is to “protect the public’s right to

live free of unlawful nuisances [and] to prevent injury to the public

at large” resulting from the noise from the pickleball courts, which

they assert is “harmful to the public’s health, safety, and welfare.”

In addition to these public harms, the homeowners assert that they

have each suffered “unique” injuries.

¶ 36 For example, the homeowners assert that they have each

experienced “stress” due to their proximity to the pickleball courts

and that the noise has devalued their property. And, regarding the

individual plaintiffs, the complaint alleges the following harms:

• The Campbells, who purchased their home for the sunset

views from their patio, can’t use their outdoor space due to the

pickleball court noise and have incurred costs in attempting to

remediate the noise by installing a fountain and speakers on

their deck.

• Troyer can’t use his back porch due to the noise.

• Fornia — who also bought his property to enjoy the views from

his deck and patio — can’t use those outdoor spaces due to

the noise. The noise also interferes with his ability to work at

home.

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• Goodman can’t use the outdoor spaces of his home to enjoy its

scenic views, despite paying a premium price for his property

after being assured that the open space to the west of his

home would not be developed.

These alleged losses, if inflicted by a private person, would most

certainly sound in tort. See Hoery, 64 P.3d at 218.

¶ 37 Second, the requested relief to redress the homeowners’ public

nuisance claim — as pleaded and as potentially available based on

the substance of the homeowners’ allegations — lies or could lie in

tort.

¶ 38 In Conners, our supreme court noted that a claim for

nuisance, which is usually a tort, may support a request for

injunctive relief. 993 P.2d at 1176; see Seigle, 124 P. at 193-94.

Similarly, in Brown Group Retail, Inc., the supreme court held that

the CGIA’s provisions apply to requests for declaratory relief based

on claims for injuries that lie in tort or could lie in tort. 182 P.3d at

688. And, as pleaded, the homeowners request injunctive relief,

which is a form of relief available to redress a common law public

nuisance that also causes special harm to individual plaintiffs. See

Restatement (Second) of Torts § 821C cmt. b.

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¶ 39 Likewise, the homeowners’ public nuisance claim could

support an award of monetary damages regardless of whether the

homeowners are explicitly asking for such an award. We thus

aren’t persuaded by the homeowners’ argument that their public

nuisance claim “does not and cannot lie in tort” because they

brought it in part under the noise abatement statute, which doesn’t

authorize recovery for damages and instead only authorizes

equitable relief. See § 25-12-104, C.R.S. 2025 (authorizing any

resident of the state to “maintain an action in equity . . . to abate

and prevent . . . and to perpetually enjoin” a nuisance as defined

under the noise abatement statute).

¶ 40 While the homeowners only specifically allege that the market

value of their homes has diminished with respect to their private

nuisance claim, the facts supporting that claim mirror the facts

supporting their public nuisance claim. Thus, the homeowners

could have alleged — and indeed do allege — that their property

values are diminished by the noise from the pickleball courts in

support of their public nuisance claim. And diminution in market

value is a measure of damages for injuries to real property. See

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Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 827 (Colo.

2008).

¶ 41 Therefore we conclude that the homeowners’ public nuisance

claim is subject to the CGIA because it lies in tort or could lie in

tort, as evidenced by the nature of the homeowners’ claimed

injuries and the substance of their requested relief. Accordingly, we

reverse the trial court’s order concluding otherwise.

C. Notice and Waiver

¶ 42 As noted, the court found the parties’ notice and waiver

arguments presented in the motion to dismiss briefing were moot

because it found that the CGIA didn’t apply. Because we have

concluded that the homeowners’ nuisance claims are each subject

to the CGIA, we remand the case to the trial court to determine (1)

whether the homeowners complied with the CGIA’s notice

requirements under section 24-10-109(1), C.R.S. 2025, and (2)

whether the District waived its immunity under section

24-10-106(1). The trial court may hold a hearing as necessary,

consistent with Trinity Broadcasting of Denver, Inc. v. City of

Westminster, 848 P.2d 916 (Colo. 1993), to accept and weigh

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evidence to decide these issues. See Medina v. State, 35 P.3d 443,

463 (Colo. 2001).

IV. Disposition

¶ 43 The trial court’s order denying the District’s motion to dismiss

is reversed, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE TOW and JUDGE LUM concur.

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