Heeren v. Arvada

24CA0681 Heeren v Arvada 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0681
Jefferson County District Court No. 24CV30123
Honorable Ryan P. Loewer, Judge

Rachel Heeren,

Plaintiff-Appellee,

v.

City of Arvada,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE SULLIVAN
Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Keating Wagner Polidori Free, P.C., Melissa J. Sullivan, Denver, Colorado; John
Astuno Jr., Denver, Colorado, for Plaintiff-Appellee

Rachel A. Morris, City Attorney, Arvada, Colorado, for Defendant-Appellant
¶1 Defendant, the City of Arvada (Arvada), appeals the district

court’s order denying its motion to dismiss plaintiff, Rachel

Heeren’s, complaint under the Colorado Governmental Immunity

Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2024. We reverse and

remand with directions.

I. Background

¶2 Heeren alleged in her complaint that she suffered injuries

caused by a public restroom’s door swinging open and hitting the

back side of her body. According to her complaint, the restroom

was a “permanent, steel, stand-alone public restroom” that was

owned, operated, and maintained by Arvada. Heeren asserted that

a kickplate that Arvada had installed on the bottom edge of the

restroom’s door lacerated her Achilles tendon as someone exited the

restroom. As a result, she brought claims for negligence and

premises liability against Arvada.

¶3 Heeren relied on three of the CGIA’s waiver provisions to argue

that Arvada had waived its sovereign immunity. She asserted that

(1) the kickplate constituted a dangerous condition of a public

building, § 24-10-106(1)(c), C.R.S. 2024; (2) the kickplate

constituted a dangerous condition of a public sanitation facility,

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§ 24-10-106(1)(e); and (3) Arvada added the kickplate to the

restroom in the course of its operation and maintenance of a public

sanitation facility, § 24-10-106(1)(f).

¶4 Arvada moved to dismiss under C.R.C.P. 12(b)(1) and 12(b)(5).

As relevant to this appeal, Arvada argued under C.R.C.P. 12(b)(1)

that it hadn’t waived its sovereign immunity, depriving the court of

subject matter jurisdiction. Arvada also requested a Trinity hearing

if the court determined that factual disputes impacted its ability to

determine whether Arvada had waived its sovereign immunity. See

Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916

(Colo. 1993).

¶5 Rather than hold a Trinity hearing, however, the court

accepted Heeren’s factual allegations as true and determined, based

on those allegations, that Arvada had waived its sovereign

immunity. Specifically, the court agreed with Heeren’s allegation

that the kickplate constituted a dangerous condition of a public

building. See § 24-10-106(1)(c). The court therefore denied

Arvada’s motion to dismiss.

¶6 Arvada now appeals the court’s denial of its motion to dismiss,

bringing this interlocutory appeal under section 24-10-108, C.R.S.

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2024. Arvada contends that the court erred by (1) taking Heeren’s

allegations as true when analyzing whether it had waived its

sovereign immunity; (2) declining to hold a Trinity hearing;

(3) determining that it had waived its sovereign immunity under

section 24-10-106(1)(c); and (4) electing to not address whether it

had waived its sovereign immunity under the remaining two waiver

provisions invoked by Heeren, section 24-10-106(1)(e) and (1)(f).

¶7 We agree with Arvada that the court erred by accepting

Heeren’s allegations as true when ruling on its C.R.C.P. 12(b)(1)

motion to dismiss and that the court should have held an

evidentiary hearing to resolve the parties’ factual disputes related to

Arvada’s sovereign immunity. Because we reverse and remand

based on Arvada’s first two contentions, we need not address its

third or fourth contentions.

II. Discussion

A. Standard of Review and Applicable Law

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

liability for “all claims for injury that lie in tort or could lie in

tort.” § 24-10-106(1). The General Assembly has waived sovereign

immunity, however, for injuries resulting from certain conditions

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and operations, including “a dangerous condition of any public

building.” § 24-10-106(1)(c); see also § 24-10-103(1.3), C.R.S. 2024

(defining “dangerous condition”).

¶9 “Questions of sovereign immunity — including whether it has

been waived — implicate a district court’s subject matter

jurisdiction under C.R.C.P. 12(b)(1).” Bilderback v. McNabb, 2020

COA 133, ¶ 6. When a public entity seeks dismissal under C.R.C.P.

12(b)(1) for lack of subject matter jurisdiction under the CGIA, the

district court is “free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case.” Trinity, 848 P.2d at 925

(citation omitted). When the alleged jurisdictional facts are in

dispute, the district court should conduct a Trinity hearing and

enter findings of fact resolving those disputes. Tidwell v. City &

Cnty. of Denver, 83 P.3d 75, 85-86 (Colo. 2003). In contrast, when

the public entity seeks dismissal under C.R.C.P. 12(b)(5) for failure

to state a claim, the plaintiff is afforded the safeguard of having

their allegations taken as true. Trinity, 848 P.2d at 925. Whether

the court applied the correct legal standard is a question of law that

we review de novo. Roane v. Elizabeth Sch. Dist., 2024 COA 59,

¶ 15.

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¶ 10 “[T]he plaintiff has the burden of establishing that the public

entity is not immune and, thus, the trial court has jurisdiction over

his or her tort claim.” Henderson v. City & Cnty. of Denver, 2012

COA 152, ¶ 21.

B. The Court Erred by Denying Arvada’s Motion to Dismiss
Without Making Factual Findings

¶ 11 Arvada first contends that the court erred by taking Heeren’s

factual allegations as true when ruling on its C.R.C.P. 12(b)(1)

motion to dismiss, rather than making factual findings based on

the parties’ evidence.

¶ 12 In its motion to dismiss, Arvada raised several defenses that

turned on factual matters. For example, Arvada argued that

Heeren’s injuries were caused by the restroom door, not the

kickplate as alleged by Heeren, and that the door was part of the

restroom’s design. See § 24-10-103(1.3) (“A dangerous condition

shall not exist solely because the design of any facility is

inadequate.”). Arvada also argued that the restroom wasn’t a

“building” for purposes of the “dangerous condition of any public

building” waiver provision, § 24-10-106(1)(c), pointing out that it

was “purposefully not enclosed” to minimize crime, had no HVAC or

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fire suppression systems, and was constructed from prefabricated

modular materials to allow for quick removal during floods. See

Cnty. of Jefferson v. Stickle, 2024 CO 7, ¶¶ 14-15 (discussing the

characteristics of a “building” as used in the CGIA, including that

it’s designed for “permanent use” and is “fixed”) (citations omitted).

Arvada similarly disputed whether (1) the kickplate constituted a

dangerous condition, either of a public building or a public

sanitation facility; (2) the restroom constituted a public sanitation

facility; and (3) the kickplate was related to the maintenance or

operation of a public sanitation facility.

¶ 13 The court didn’t make factual findings to resolve these

disputes; instead, it accepted Heeren’s factual allegations as true

and ruled based on her pleadings alone. In its written dismissal

order, for example, the court cited almost exclusively to Heeren’s

complaint and her response to the motion to dismiss and its

attachments for the relevant facts, repeatedly saying that “plaintiff

asserts” and “plaintiff claims” such facts to be true. Similarly, when

concluding that Heeren had established subject matter jurisdiction,

the court said that her “factual assertions, taken as true, establish

that the [restroom’s] kickplate is a dangerous condition.”

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¶ 14 Given these statements in the court’s order, and the disputed

jurisdictional facts that Arvada presented in its motion to dismiss,

we agree with Arvada that the court applied an incorrect legal

standard in denying its motion. By accepting Heeren’s factual

allegations as true, the court prevented Arvada from contesting the

alleged jurisdictional facts that Heeren relied on to argue that

Arvada had waived its sovereign immunity. The court, instead,

should have made findings of fact resolving those disputed

jurisdictional facts and all other issues related to Arvada’s sovereign

immunity. See Tidwell, 83 P.3d at 85-86; see also Martinez v. Est.

of Bleck, 2016 CO 58, ¶¶ 27-28 (holding the trial court erred by

concluding that the plaintiff had “sufficiently pled” facts

establishing that a public employee wasn’t entitled to sovereign

immunity, rather than “determin[ing] whether immunity applies”).

¶ 15 We aren’t persuaded otherwise by Padilla v. School District

No. 1, 25 P.3d 1176 (Colo. 2001), a case cited by the court in its

dismissal order and relied on by Heeren. In Padilla, the trial court

accepted all the plaintiff’s allegations as true but still ruled against

the plaintiff when deciding the public entity’s C.R.C.P. 12(b)(1)

dismissal motion, determining that the plaintiff hadn’t alleged

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sufficient facts showing that the public entity had waived its

sovereign immunity, even assuming she could prove her allegations

as true. Padilla, 25 P.3d at 1179-80. But that isn’t what happened

here. The court ruled in favor of Heeren while also giving her the

benefit of accepting all her factual allegations as true. Because

Arvada disputed the jurisdictional facts alleged in Heeren’s

complaint, Heeren bore the burden of proving her version of those

facts to the court. See id. at 1180 (“[T]he plaintiff has the burden of

demonstrating jurisdiction,” and when “the alleged jurisdictional

facts are in dispute, the trial court should conduct an evidentiary

hearing before ruling on the jurisdictional issue.”). By applying an

incorrect legal standard, the court relieved Heeren of her burden.

¶ 16 Accordingly, we reverse the court’s denial of Arvada’s motion

to dismiss and remand the case for the court to make findings of

fact and conclusions of law resolving the factual and legal disputes

related to Arvada’s sovereign immunity.

C. Whether a Trinity Hearing is Required

¶ 17 Because it will arise on remand, we next address Arvada’s

related contention that the court erred by not holding a Trinity

hearing.

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¶ 18 When the alleged jurisdictional facts are in dispute in a CGIA

case, the district court “should conduct an evidentiary hearing and

enter findings of fact.” Tidwell, 83 P.3d at 85-86. When no

evidentiary dispute exists, however, the trial court may rule on the

jurisdictional question without holding a hearing. Id. at 86.

Nonetheless, the court holds discretion to conduct a Trinity hearing

to develop facts relating to immunity issues even when such facts

aren’t directly disputed. Finnie v. Jefferson Cnty. Sch. Dist. R-1, 79

P.3d 1253, 1260 (Colo. 2003). We review the court’s decision

declining to hold a Trinity hearing for an abuse of discretion.

Bilderback, ¶ 10.

¶ 19 As discussed above, Arvada’s motion to dismiss disputed

many of the factual allegations that Heeren leaned on to argue that

Arvada had waived its sovereign immunity. At least some of these

disputes are central to the question of Arvada’s immunity — for

example, whether the restroom’s kickplate or door caused Heeren’s

injuries and, if the door, whether it’s part of the restroom’s design.

As the case is currently postured, we fail to see how the court could

resolve such disputes without hearing evidence and making

credibility determinations at an evidentiary hearing. See id. at ¶ 20

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(concluding an evidentiary hearing or similar procedure was

necessary on remand, given the “centrality of th[e] factual issue”

involving the police officer’s line of sight).

¶ 20 Accordingly, the court is directed on remand to resolve any

factual disputes bearing on Arvada’s sovereign immunity by

ordering an evidentiary hearing or “such other procedures” as may

be necessary to determine those issues. Id. at ¶ 21.

III. Disposition

¶ 21 We reverse the court’s order denying Arvada’s motion to

dismiss and remand the case for further proceedings consistent

with this opinion.

JUDGE FREYRE and JUDGE SCHOCK concur.

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