red rocks opening appeal brief

8/12/2019 Red Rocks Opening Appeal Brief

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COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue

Denver, Colorado 80203

COURT USE ONLY

________________________

Case Number: 13CA1561

District Court, Jefferson County

The Honorable Christopher C. Zenisek

Civil Action No. 12-CV-3705

Plaintiffs-Appellees:

JENNIFER ACKERMAN,

DAVID SCHEUERMANN,FORREST HUDSPETH, AND

ADAM KINNARD,

v.

Defendant-Appellant:

CITY AND COUNTY OF DENVER.

Barry A. Schwartz, #17981

Assistant City Attorney

Denver City Attorneys Office

Litigation Section

201 West Colfax Ave., Dept. No. 1108

Denver, CO 80202-5332

Telephone: (720) 913-3100

Facsimile: (720) 913-3182

[email protected]

Attorney for the Defendant-Appellant

CORRECTED OPENING BRIEF
mailto:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in those rules.

Specifically, I certify that this brief complies with C.A.R. 28(g) because it contains

no more than 9,500 words. It complies with C.A.R. 28(k) because it contains

under a separate heading: (1) a concise statement of the applicable standard of

appellate review with citation to authority; and (2) a citation to the precise location

in the record, not to an entire document, where the issue was raised and ruled on.1

s/ Barry A. Schwartz

Barry A. Schwartz

Counsel of record for Defendant-Appellant,

City and County of Denver

1 C.A.R. 28(e) directs that [r]eferences to the electronic record shall be by ID

number and appropriate page and line number. This Courts April 4, 2014 Policy

on Citation to the Record provides conventions for citing to electronic records.Here, the record on appeal contains three portions court file, transcripts, and

minute orders. The court file, which consists of pleadings, motions and orders,contains no ID numbers, per se, but the individual pages in the record are

sequentially numbered on the bottom right as COA 000XXX. References to itwill simply be to those page numbers. References to transcripts will follow the

convention set forth in the Policy on Citation to the Record.

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TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE .........................................................................I

TABLE OF AUTHORITIES .................................................................................. IV

STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1

STATEMENT OF THE CASE .................................................................................. 2

A. Nature of the Case, Course of Proceedings, and Disposition Below .............. 2

B. Statement of the Facts .................................................................................... 10

SUMMARY OF THE ARGUMENT ...................................................................... 20

ARGUMENT ........................................................................................................... 22

A. The district court erred in determining that Creation Rock is a

component of a public facility and that immunity under the CGIAis therefore waived ......................................................................................... 22

1. Standard of Review ............................................................................. 22

2. The facts do not establish that Creation Rock was incorporated intothe Amphitheatre such that it became an integral part of, and was

essential for the intended use of, the Amphitheatre. ........................... 23

B. The evidence presented at the Trinityhearing does not support theconclusion that Plaintiffs injuries were caused by a dangerous

condition as that phrase is defined by the CGIA. ........................................ 26


2. Rocks falling from Creation Rock do not meet the definition of

dangerous condition under the CGIA ............................................... 26

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C. The evidence does not support a finding that Denver had actual or

constructive knowledge of a dangerous condition ...................................... 27

1. There is no evidence of actual notice .................................................. 27

2. Nor was there any evidence of constructive notice. ............................ 29

D. The district court erred in finding that Denvers negligent constructionor maintenance of the Amphitheatre proximately caused a dangerouscondition ....................................................................................................... 31

E. The natural condition exception to the waiver of immunity for dangerous

conditions applies to Creation Rock because it is a natural condition of anunimproved property .................................................................................... 35


2. Immunity is not waived because Creation Rock is the natural

condition of unimproved property ..................................................... 36

3. The installation of minimal safety features did not alter the natural

condition of Creation Rock ................................................................. 36

F. Even assuming that Creation Rock could be considered an integralcomponent of the Amphitheatre, immunity is not waived under the

natural conditions exception ....................................................................... 40

CONCLUSION ........................................................................................................ 43

REQUEST FOR ATTORNEY FEES ...................................................................... 43

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McIntire v. Trammell Crow, Inc.,

172 P.3d 977 (Colo. App. 2007) ........................................................................... 28

Medina v. State,

35 P.3d 443 (Colo. 2001) .......................................................................... 31, 32, 33

Mercer v. State,

197 Cal.App.3d 158, 242 Cal. Rptr. 701 (Cal. App. 2d Dist. 1987) ..................... 38

Padilla v. School Dist. No. 1,

25 P.3d 1176 (Colo. 2001) ..................................................................26, 27, 31, 35

Rombalski v. City of Laguna Beach,213 Cal.App.3d 842, 261 Cal.Rptr. 820 (1989) .................................................... 39

Rosales v. City and County of Denver,

89 P.3d 507 (Colo. App. 2004) .......................................................7, 20, 23, 24, 25

Schubert v. People,698 P.2d 788 (Colo. 1985) .................................................................................... 41

Smith v. Town of Snowmass Village,919 P.2d 868 (Colo. App. 1996) ............................................................... 28, 30, 43

Springer v. City & County of Denver,

13 P.3d 794 (Colo. 2000) ..................................................................................... 22

St. Vrain Valley School Dist. RE-1J v. A.R.L.,No. 12SC631, 2014 WL 2042468 (Colo. May 19, 2014) ..................................... 41

State v. Moldovan,

842 P.2d 220 (Colo. 1992) .................................................................................... 24

State v. Nieto,

993 P.2d 493 (Colo. 2000) .................................................................................... 41

Swiekowski v. Ft. Collins,934 P.2d 1380 (Colo. 1997) ............................................................................ 26, 33

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Trinity Broadcasting of Denver, Inc. v. City of Westminster,

848 P.2d 916 (Colo. 1993) .......................................................................... 6, 13, 26

Troth v. State,

117 N.J. 258, 566 A.2d 515 (1989) ................................................................. 37, 38

Walton v. State,

968 P.2d 636 (Colo. 1998) .................................................................................... 35

Wark v. Bd. of County Commrs,

47 P.3d 711 (Colo. App. 2002) ............................................................................. 43

Willer v. City of Thornton,817 P.2d 514 (Colo. 1991) .............................................................................. 31, 32

Statutes

C.R.S. 13-17-201 ................................................................................................... 43

C.R.S. 24-10-103(1.3) ................................................................4, 20, 29, 31, 32, 35

C.R.S. 24-10-103(2.5) ...................................................................................... 33, 34

C.R.S. 24-10-106(1)(d) .......................................................................................... 33

C.R.S. 24-10-106(1)(e) ...................................................................................passim

C.R.S. 24-10-106.5(1) ............................................................................................ 39

C.R.S. 24-10-108 ..................................................................................................... 3

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Rules

C.R.C.P. 12(b)(1) ............................................................................................. 3, 6, 43

C.A.R. 28.....................................................................................................................i

C.A.R. 28(e) ................................................................................................................i

C.A.R. 28(g) ................................................................................................................i

C.A.R. 28(k) ................................................................................................................i

C.A.R. 32.....................................................................................................................i

Treatises

18 McQuillin Mun. Corp. 53:31 (3d ed. July 2013) ............................................. 37

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Did the district court err in determining that Creation Rock amassive, naturally-occurring rock formation that abuts the Amphitheatre in

Denvers Red Rocks Park and is neither public nor a facility became part of

a public facility for purposes of the Colorado Governmental Immunity Acts

(CGIA) immunity waiver provisions simply because Creation Rock is integral

to and an essential part of the Amphitheatre, which is a public facility?

2. Did the district court err in determining that the failure to inspectCreation Rock annually created an unreasonable risk to public health and safety?

3. Did the district court err in finding that the presence of a rock insidethe Amphitheatre in 1999, a rockfall incident caused by construction near Creation

Rock in 2007, and Denvers general knowledge that rocks can fall from Creation

Rock and its concomitant decision to retain a rockfall mitigation consultant

provided actual and constructive knowledge of the dangerous condition of

Creation Rock sufficient to waive immunity under C.R.S. 24-10-106(1)(e)?

4. Did the district court err in concluding that Denvers failure to inspectCreation Rock was the proximate cause of the dangerous condition of Creation

Rock?

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5. Did the district court err in concluding that Denvers conduct increating a dangerous condition by failing to inspect Creation Rock more often

implicate a maintenance function rather than a design function for purposes of the

CGIA?

6. Did the district court err in concluding that Plaintiffs injuries werenot caused by the natural condition of unimproved property for purposes of

24-10-106(1)(e)?

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition Below.Red Rocks Amphitheatre (the Amphitheatre) is a historic open-air concert

venue that is situated in Denvers Red Rocks Park (the Park). While attending a

concert in the Amphitheatre on September 10-11, 2011, Plaintiffs were struck by

rocks that originated from Creation Rock, a massive rock formation that abuts the

Amphitheatre.

On September 28, 2012, Plaintiffs Jennifer Ackerman and David

Scheuermann sued Denver, concert promoter Live Nation Worldwide, Inc., and

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security services provider Argus Event Staffing, LLC. CF, pp.4-9.2 The thrust of

their claims against Denver was that Denver negligently allowed trespassers to

cause the rockfall; that it negligently maintained the Amphitheatre by allowing

trespassers to kick [rocks] loose or otherwise cause them to fall into the

Amphitheatre from Creation Rock; and that it knew or should have known of the

risk of such rockfall. CF, pp.6-7.

On November 13, 2012, Denver moved to dismiss Plaintiffs claims under

C.R.C.P. 12(b)(1), arguing that C.R.S. 24-10-106(1)(e) of the CGIA immunizes it

from liability. As relevant here, 24-10-106(1)(e) provides as follows:

(1) A public entity shall be immune from liability in all claims for injurywhich lie in tort or could lie in tort regardless of whether that may be thetype of action or the form of relief chosen by the claimant except as

provided otherwise in this section. Sovereign immunity is waived by apublic entity in an action for injuries resulting from:

* * * *(e) A dangerous condition of any public facility located in any park

maintained by a public entity. Nothing in this paragraph (e) shall beconstrued to prevent a public entity from asserting sovereign immunity for

an injury caused by the natural condition of any unimproved property,whether or not such property is located in a park

2 This is an interlocutory appeal under C.R.S. 24-10-108. Plaintiffs

negligence claims against Live Nation and Argus remain in the District Court and

are stayed pending the resolution of this appeal.

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As relevant here, C.R.S. 24-10-103(1.3) defines dangerous condition as

follows:

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 thepublic, which is known to exist or which in the exercise of reasonable care

should have been known to exist and which condition is proximately causedby 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 itis 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 itsdangerous character should have been discovered. A dangerous condition

shall not exist solely because the design of any facility is inadequate.

Maintenance, for purposes of 24-10-103(1.3) means the act or omission

of a public entity or public employee in keeping a facility in the same general state

of repair or efficiency as initially constructed or in preserving a facility from

decline or failure. Maintenance does not include any duty to upgrade, modernize,

modify, or improve the design or construction of a facility.

Creation Rock, Denver argued in its Motion to Dismiss, is unimproved

property whose natural condition caused Plaintiffs injuries. It is therefore not a

public facility for purposes of 24-10-106(1)(e). Denver further argued that

Plaintiffs injuries did not result from a dangerous condition. Ackerman and

Scheuermann responded to Denvers Motion to Dismiss on January 4, 2013. CF,

pp.69-74. They argued that immunity is waived with respect to their claims

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because the Amphitheatre is a public facility for purposes of 24-10-106(1)(e)

(id. at pp. 70-71); their injuries were caused by improper maintenanceof the

Amphitheatre (id. at pp. 71-72); and Denvers decision to construct the

Amphitheatre abutting Creation Rock constituted a physical or structural defect

for which Denver is not immune (id.). Denver filed its Reply Brief on January 11,

2013. CF pp.75-78.

On January 19, 2013, Plaintiffs Adam Kinnard and Forrest Hudspeth, who

were also struck by rocks that night, sued Denver and Argus. CF, pp. 89-100

(Hudspeth); CF, pp.101-111 (Kinnard). Like Ackerman and Scheuermann, they

alleged that Denver negligently failed to prevent trespassers from kicking [rocks]

loose.

On February 12, 2013, Denver moved to dismiss the Kinnard and Hudspeth

cases on the same grounds it advanced against Ackerman and Scheuermann.3

Finding that each of the cases presented common issues of law and fact, the

District Court consolidated them on March 4, 2013. CF, p.149.

3 Because Denvers grounds for seeking dismissal were virtually identical as

to each of Plaintiffs, Denver will refer to those dismissal motions collectively as

the Motion to Dismiss.

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On March 8, 2013, Hudspeth and Kinnard filed a joint response to Denvers

Motion to Dismiss. CF, pp.155-59. Four days later, Denver filed its Reply to

Kinnard and Hudspeths Response.

On July 5, 2013, Denver filed supplemental authority a 1968 report the

Colorado Legislative Counsel submitted to the General Assembly regarding the

1968 amendments to the CGIA. CF, p.674-677. That report distinguished

between injuries caused by artificial, man-made, objects (swing sets, buildings,

etc.), and injuries caused by the natural condition of a park (the Flat Irons in

Boulder or the Red Rocks west of Denver). CF, pp.674-677. It thus expressed

the Legislative Counsels clear and unequivocal intent that the CGIA be read to

immunize Denver for rockfall injuries occurring at Red Rocks.

An evidentiary hearing on Denvers Motion to Dismiss a so-called Trinity

hearing4 commenced on June 28, 2013.

After the Trinityhearing, Denver submitted extensive proposed findings of

Fact and Conclusions of Law. CF, 742-771.

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

916 (Colo. 1993). A Trinityhearing is an evidentiary hearing on the question of

whether a claim or claims must be dismissed for lack of subject matter jurisdictionunder C.R.C.P. 12(b)(1). See id. at 924-25.

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The district court issued its order on Denvers Motion to Dismiss on August

23, 2013. CF, pp.777-787. With respect to the question whether Plaintiffs

injuries resulted from the dangerous condition of a public facility, the district

court concluded that the Amphitheatre is a public facility for purposes of 24-10-

106(1)(e). Id. at 782. Although Creation Rock is not a public facility, the court

further concluded, it was an integral and essential part of the Amphitheatre for

purposes of the rule announced by this court inRosales, 89 P.3d at 510. Id. at 783.

Thus, Creation Rock is a component of that public facility such that a

dangerous condition of Creation Rock constitutes a dangerous condition of the

Amphitheatre, which waives Denvers immunity under 24-10-106(1)(e). Id.

The court next found that rock falls are inevitable without continuing

maintenance. Id. Knowing of that inevitability, the court found, Denver hired

Yenter to perform mitigation work, and Yenter submitted reports suggesting that

Creation Rock be inspected, at a minimum, on a yearly basis. Id. Those reports,

according to the court, expressly show dangerous conditions present on Creation

Rock, which conditions Denver did not remediate. Id. at 783-784. Despite

Yenters recommendations, the court found, Denver did not address these

conditions between the reports issuance and the incident in this case. Id. at 784.

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For those reasons, the court concluded that Plaintiffs established that the physical

condition of the Amphitheatre including Creation Rock created an

unreasonable risk to the health or safety of the public. Id.

The court next found that Denver had actual and constructive knowledge of

the dangerous condition of Creation Rock by virtue of two prior events the

discovery of a rock on the steps beneath Creation Rock in 1999, and the 2007

incident involving the construction crew. Id. The court further found that

Denvers knowledge of the dangerous condition of Creation Rock was also

evidenced by the facts that it had retained Yenter to monitor the formations in the

Park and that Yenter generated reports, advising Denver to inspect those

formations annually. Id. Further, the court found that Denver undertook

mitigations efforts on Stage Rock (which rests above where the artists perform)

that surpassed those performed on Creation Rock. Id.

The court next found that Denvers fail[ure] to inspect for rockfall

created a dangerous condition of rocks that could land on concert attendees. Id. at

785. That failure, it concluded, was a maintenance matter[]. Id. Given Shines

testimony that, had Denver assigned Yenter to conduct yearly inspections, more

likely than not this would have prevented the rockfall that occurred in September

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2011, the court concluded that Denvers failure to perform inspections as often as

Yenter recommended was the proximate cause of the dangerous condition. Id.

5

The court further found that rain, snow, wind, and weather contributed to

the rockfall, and that the cracks and erosion in the Amphitheatres rock

formations have increased since the Amphitheatres original design and

construction. Id. at 786. That fact rendered Denvers failure to conduct more

frequent inspections a maintenance issue rather than a design issue. Id.

Finally, the district court found that Creation Rock had been improved by

removing rocks, bolting rocks, chaining rocks, and other improvements. Id. For

those reasons, and because it found that Creation Rock was an integral and

essential component for the amphitheatre to exist as a public facility, it concluded

that Creation Rock is improved property that is not subject to the natural

condition of any unimproved property provision of 24-10-106(1)(e). Id.

Further, it concluded, the integration of Creation Rock into the Amphitheatre

prevents Creation Rock from being immunized as a natural condition of

unimproved property. Id.

5 Although the district court found that Denvers failure to inspect was the

proximate cause of the dangerous condition(i.e.,the presence of rocks onCreation rock that could land on concertgoers), it made no finding or conclusion as

to the proximate cause of Plaintiffs injuries.

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For each of those reasons, the court concluded that immunity is waived

under 24-10-106(1)(e). It therefore denied Denvers Motion to Dismiss.

B. Statement of the Facts.1. The Amphitheatre is a concert venue owned by Denver and located in

Golden, Jefferson County, Colorado. It is located within and surrounded by Red

Rocks Park (the Park), which is a natural area owned by Denver. CF, p.496.

2. The Amphitheatre is a public facility for purposes of the CGIA. Id.3. The Amphitheatre, which opened to the public in 1941, was originally

designed to be situated in between two large natural rock monoliths known as Ship

Rock (running the length of the seating area on the south side of the Amphitheatre)

and Creation Rock (running the length of the seating area on the north side of the

Amphitheatre). It was designed to be situated in a scenic, natural area that is also a

geological hazard zone.

4. Denvers Arts and Venues Department is responsible for the operationand maintenance of the Amphitheatre, including all concerts and other events held

there. Denvers Parks and Recreation Department is responsible for the operation

and maintenance of the Park. The Plaintiffs in this case attended a concert at the

Amphitheatre on the night of September 10-11, 2011.

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5. In the early morning hours of September 11, 2011, while still insidethe Amphitheatre, each of them was struck and injured by a rock that originated on

Creation Rock.

6. Plaintiff Ackerman sat at approximately Row 20. She was struck asshe returned to her seat from the north side of the Amphitheatre.

7. Plaintiff Scheuermann sat in Row 5 or 6, toward the middle of thestage. As he walked up the stairs on the north side of the Amphitheatre somewhere

around Row 40 or 45, he, too, was struck by a rock.

8. Plaintiff Hudspeth was seated in Row 10 on the north side of theAmphitheatre when he was struck.

9. Plaintiff Kinnard was between the Amphitheatres north insidestaircase and Creation Rock near Row 5 or 6 when he, too, was struck.

10. Denver implemented an extensive rockfall inspection and mitigationprogram over the years, id. at 152:10-22; 167:10-21; 169:1-23; 170:20-171;

179:20-180:10. As part of that program, Yenter performed rock assessments in

2005, 2007, 2010, and 2011(after the rockfall incident at issue). Id. at 55:6-16

(2005); 173:17-174:3, 184:24-185:5 (2007); 173:17-174:3 (2010); 157:24-158:4

(2011). In addition to reported inspections, Yenter COO William Roberts testified

that Yenter went out to Red Rocks on emergency calls on numerous occasions. Id.

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at 174:4-175:12. According to Roberts, Denver typically called Yenter whenever a

Denver employee had a concern, and someone from Yenter was sent to address the

concern; these events were often informal, undocumented, and unbilled. Id. at

176:12-177:20.

11. Dan Koehmstedt is a former project manager with Yenter. Id. at195:23-196:5. While at Yenter, he inspected the Red Rocks formations by

vertically scaling their face from top to bottom, taking pictures, and measuring

anything thought to be a potential hazard. Id. at 197:7-14, 198:22-199. Loose or

dangerous rock materials that could be safely brought down by hand were brought

down during these inspections. Id. at 199. Mr. Robertss pictures and observations

were then compiled and studied, providing the basis for a report. Id. at 200:16-22;

201:21-202:2. Additionally, Yenter provided a quality control check of all

previously installed safety devices. Id. at 201:4-12, 202:8-203:10.

12. In his 2010 inspection of Red Rocks, Koehmstedt checked all of theareas on the rock formations that were recommended to be checked in Yenters

2007 inspection report. Id. at 203:11-23. Mr. Koehmstedt did not identify Row 40

the origin point for the September 2011 rockfall, according to Shine as a

problem in the 2010 Yenter Report (R. Ex. K) because he did not notice a problem

there during his 2010 inspection. Id. at 222:19-223:14.

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13. According to Denvers rockfall assessment and mitigation expert,Richard Andrew, the Amphitheatre was specifically designed to be situated

between two massive rock formations.6 Potential rockfall is inherent in the

Amphitheatres design because it was designed to be constructed, and was indeed

constructed, in a geological hazard zone. Id. at 18:12-22.

14. Although there is no generally accepted standard of practiceconcerning the frequency of inspections that should occur to assess natural rockfall

hazards, id. at 28:17-29:3, Andrew testified that annual inspections are way more

than what would typically be done. Id. at 44-45. According to Andrew, there is

no tool that can predict when and where a rockfall will occur; although an expert

might be able to tell a general area where a rockfall is likely to occur, it would be

difficult to predict when and where. Id. at 24:13-25.

15. Andrew disagreed with the location posited by Plaintiffs expert,Brendon Shine the area above Row 40 of the Amphitheatre. That location,

according to Andrew, is particularly unlikely because a rockfall originating there

6 Andrew is the president of Yeh and Associates, a geotechnical and

geological engineering firm. R. Tr. (8/7/13) p.6:1-4. At the Trinityhearing, thecourt accepted him as an expert in rockfall assessment, mitigation, and engineering

geology because of his extensive experience, including 29 years working ingeotechnical engineering, engineering geology, and geomorphology, and 25 years

of experience in rockfall assessment and mitigation. Id. at 6:23-8:18; 11:24-12.

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would not send rock pieces to Row 45 (a location above the alleged origin point),

where Scheuermann was struck. Id. at 29:17-30:11, 31:14-32:18.

16. Asked whether the September 2011 rockfall would have beenprevented by a rockfall assessment in spring 2011, Andrew opined that monitoring

and inspection alone cannot prevent rockfall, and it is unlikely that they would

have made any difference, especially if the rockfall was human-induced. Id. at

43:7-24. And if the rockfall was naturally-occurring, there is no way to know

whether an inspection would have prevented it. Id.

17. Benjamin Arndt is a geotechnical/geological engineer from Yeh andAssociates, and an expert in rockfall assessment and mitigation, geological

engineering, and geotechnical engineering, based on his 20-year career in

geotechnology and 13 years in rockfall assessment. Id. at 57:21-58, 62:4-9.

According to Arndt, in 2011, the standard for rockfall mitigation was typically to

evaluate the site, determine rockfall potential, and evaluate the hazard and risk. Id.

at 62:16-63:7.

18. Arndt accompanied Brendan Shine on his inspection of Creation Rockand the surrounding areas at Red Rocks in June 2013. Id. at 68:1-69:10. During

that inspection, he observed mitigation measures such as rock bolting, cable

lashing, and shotcrete on the rock formations during the inspection. Id. at 75:15-

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76:5. Based on that inspection and his document review, he opined that the

rockfall mitigation program at Red Rocks was reasonable. Id. at 79:20-80.

19. Denver employs a service line for all citizen inquiries and non-emergency service requests, including those arising at Red Rocks. Id. at 88-89,

91:7-9. When Denver 311 receives such requests, a trackable, searchable case or

ticket is opened. Id. at 92:1-95:2. Michael Major, the custodian of those records,

id. at 96:21-97:8, caused his staff to search the 311 call database for calls relating

to Red Rocks from 2006 to present. Id. at 99:21-100:13. That search revealed no

cases involving falling rocks. Id. at 99:21-103:18.

20. David Stewart is the Safety and Industrial Hygiene Administrator forDenvers Parks and Recreation Department. Id. at 107:4-7. His responsibilities

include employee safety, emergency management, and security and safety

inspections of Denver facilities. Id. at 107:8-108:20. Those responsibilities also

include maintaining records of incident and accident reports for the parks systems.

Id.

21. Denver employees are at Red Rocks Park daily; if an employee learnsof an injury, he or she submits a report, which is sent to and maintained by

Stewarts office. Id. at 110:2-5. An employee apprised of an injury caused by

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falling rocks at Red Rocks Park is required to complete an incident report. Id. at

112:21-25.

22. Rangers patrol the areas outside of the Amphitheatre daily to look forconcerns that could cause accidents or injuries. Id. at 113:7-10. Employees who

notice safety concerns with the rock formations are to report them to their

supervisors. Id. at 114:5-12. At the request of Denvers counsel, Mr. Stewart

caused a search to be made of the records of the Denver Mountain Parks System

including Red Rocks Park beginning in January 2009; he found no reports of

rockfall-related injuries in Red Rocks Park. Id. at 110:6-113:20.

23. Joseph Davis has been the Facilities Superintendent for theAmphitheatre for twenty-three years. Id. at 120:1-121:4. He oversees the

maintenance at the Amphitheatre and the areas immediately outside it. Id. at 121.

According to Davis, Red Rocks 24-hour security provider, Argus, is directed to

notify him of any safety problems that need to be addressed. Id. at 129:7-130:6.

Likewise, Red Rocks maintenance employees who are present at the

Amphitheater daily are required report any safety or maintenance problem to

him. Id. at 130:6-19.

24. Any work on the rock formations is performed by Yenter. Id. at121:18-22. Yenter performed general inspections and maintenance of the rock

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formations approximately every three years. Id. at 122:25-124:3. During these

inspections, it noted work that needed to be done and performed the work while

there when possible. Id. at 127:23-128:4. In addition to those scheduled

inspections, Denver contacted Yenter to inspect and remediate on an as-needed

basis. Id. at 122-125.

25. As for Yenters recommendation that it inspect Red Rocks annually,Davis testified that he and his supervisor determined, based on the frequency of

problems and 20-plus years of experience and history at Red Rocks, that triennial

inspections are sufficient. Id. at 134:4-25. Davis and his supervisor found no

reason to increase the inspection frequency because no incidents were observed

that would have required more frequent inspections. Id. at 134:23-135:5.

26. According to Davis, several rocks fell in a construction zone whererock was being excavated with vibration equipment in 2007. Id. at 138:14-18,

143:16-23; R. Ex. 53. After that construction-related rockfall was reported, Yenter

was called to do mitigation work, which it completed. Id. at 140:23-141:25.

27. In his career at Red Rocks, Davis never saw rockfall occurring insidethe Amphitheatre. Id. at 141:22-142:2. He did see people carry rocks as part of

their exercise regimen half a dozen times. Id. at 155:7-15. On one occasion

between 1999 and 2001 he found an orange-to-grapefruit sized rock on the stairs

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below Creation Rock. Id. at 141:22-142:9. Upon finding that rock, he directed his

staff to be vigilant and check the area regularly. Id. at 142:10-17. If any further

problems were found and they were not, id. at 142:18-19 Yenter would be

called to assess them. Id. at 142:10-17. Prior to the September 2011 incident, and

in his 20-plus years at Red Rocks, Davis received no report of any patron injured

by falling rocks inside the Amphitheatre. Id. at 142:20-24.

28. Tad Bowman is the Venue Director for Red Rocks Amphitheatre. Id.at 156:7-12. He has worked in some capacity for the agency that manages Red

Rocks for 26 years, with 15-16 years of Red Rocks-specific responsibilities. Id. at

156:17-18, 163:15-19. His responsibilities over the years included overseeing Red

Rocks event operations and the provision of other services such as security, police,

and paramedics at events. Id. at 157. In his career at Red Rocks, Bowman never

observed a rockfall inside the Amphitheatre. Id. at 163:20-23. Nor was he ever

apprised of any reports of people inside the Amphitheatre being injured by falling

rocks prior to the 2011 incident. Id. at 163:24-164:3. He did, however, see

numerous animals on the rock formations there. Id. at 158:11-19.

29. The Yenter reports contain evaluations of immediate dangers at thetime, problem areas to be monitored, and recommendations for future remediation.

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30. Although not every rock that was inspected was mentioned inYenters reports, every rock was inspected and all recommendations for

monitoring or scaling were followed. If a certain rock was mentioned in one

report, but not in subsequent reports, the absence of the rock in the report simply

meant that there was nothing problematic to note regarding that rock.

31. Extensive and comprehensive safety devices have been installed onthe natural features of Creation Rock and Ship Rock. Yenter designed and utilized

many of those safety devices, which include bolting, shotcrete buttressing, cable-

lashing, rock pins installation, soil nail installation, rockfall fences, and mesh.

32. Denver required that Yenter design and install the safety devices insuch a way as not to disturb the aesthetics and functionality of the natural features

of Red Rocks Park. That means that the vast majority of those safety devices are

not visible to the public.

33. As demonstrated by the Radio Log for the September 2011 concert,two people were seen in the cave atop Creation Rock during the concert. Plaintiff

Kinnard saw people climbing on Creation Rock during the concert.

34. The rocks that fell from Creation Rock during the September 2011concert hit the ground on or near the stairs located on the north side of the

Amphitheatre, below Creation Rock.

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SUMMARY OF THE ARGUMENT

1. InRosales, 89 P.3d at 510, this court held that objects that are notthemselves public or facilities can be deemed public facilities for purposes of

24-10-106(1)(e) if they are integral to and incorporated into objects that are

public facilities. Rosaleswas wrongly decided, and the district court here erred

in determining that Creation Rock became part of a public facility for purposes

of 24-10-106(1)(e), thereby rendering it a public facility, because of its

integral and essential connection with the Amphitheatre. Given that error, the

district court erred in concluding that Plaintiffs injuries resulted from a

dangerous condition of [a] public facility.

2. Denvers immunity is waived here only if Plaintiffs prove that thephysical condition of the public facility constitutes an unreasonable risk to the

health or safety of the public. C.R.S. 24-10-103(1.3). The district court erred in

concluding that Denver created such an unreasonable risk simply by failing to

inspect Creation Rock as often as Yenter suggested.

3. The evidence in this case suggested that, in 1999, a Denver employeefound a loose rock on the stairway near Creation Rock, that a rockfall incident

occurred on Creation Rock in 2007 when heavy construction equipment was in

use near Creation Rock, and that Denver knew generally that rocks can fall from

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Creation Rock and therefore chose to retain Yenter to perform rockfall mitigation

services. It is well settled that general knowledge of a potentially dangerous

condition such as general knowledge that water will turn to ice in a freeze is

insufficient. The district court therefore erred in concluding that the facts listed

above, standing alone, gave Denver actual and constructive notice that rocks were

likely to fall onto concertgoers from Creation Rock.

4. The district court erred in concluding that Denvers failure to inspectCreation Rock proximately caused the dangerous condition of Creation Rock.

5. Assuming that Creation Rock is not a public facility for purposes of24-10-106(1)(e) (because it is neither public nor a facility) and that only the

Amphitheatre is, the district court erred in concluding that Denvers conduct in

creating a dangerous condition on Creation Rock implicated the maintenance

function rather than the design function for purposes of the CGIA. Insofar as the

Amphitheatre is concerned, Plaintiffs injuries could not have been caused by a

failure to maintainthe Amphitheatre, but rather by Denvers design-related

decision to construct it between Creation Rock and Ship Rock.

6. Because the rocks that struck Plaintiffs uncontrovertedly originated onCreation Rock, the district court erred in concluding that Plaintiffs injuries were

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not caused by the natural condition of unimproved property for purposes of

24-10-106(1)(e).

7. Having improperly concluded that Creation Rocks integration intothe Amphitheatre rendered Creation Rock a public facility for purposes of 24-

10-106(1)(e), the district court compounded its error by concluding as a matter of

law that the integration of unimproved property into a public facility nullifies

24-10-106(1)(e)s exception for injur[ies] caused by the natural condition of

any unimproved property located in a park.

ARGUMENT

A. The district court erred in determining that Creation Rock is a

component of a public facility and that immunity under the CGIA

is therefore waived.

1. Standard of Review.A trial courts findings of fact will not be reversed unless they are clearly

erroneous. City and County of Denver v. Crandall, 161 P.3d 627, 633 (Colo.

2007). However, the issue of whether a trial court has subject matter jurisdiction

over a claim under the CGIA is a question of statutory interpretation that is

reviewed de novo. Springer v. City and County of Denver,13 P.3d 794, 798 (Colo.

2000).

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2. The facts do not establish that Creation Rock was incorporated

into the Amphitheatre such that it became an integral part of, and was

essential for the intended use of, the Amphitheatre.

Denvers immunity is waived in this case only if Plaintiffs demonstrate that

their injuries resulted from [a] dangerous condition of [a] ... public facility located

in [a] park. 24-10-106(1)(e). The first inquiry in that calculus is whether

Plaintiffs injuries resulted from a dangerous condition of a public facility.

Daniel v. City of Colorado Springs, No. 12SC908, 2014 WL 2030375, at *3 (Colo.

May 19, 2014). A facility is deemed public for purposes of 24-10-106(1)(e) if

it is both accessible to the public and operated for the public benefit. Id.

(examining 24-10-106(1)(e)s recreation area waiver).

The district court did not find that Creation Rockis a public facility.

Rather, relying uponRosales,89 P.3d at 510, andBurnett v. State Dept. of Natural

Resources, No. 11CA2141, 2013 WL 1245366 (Colo. App. March 28, 2013), cert.

granted(Nov. 12, 2013),7the district court concluded that Creation Rock is

integrated with the Amphitheatre, thereby rendering it a public facility under the

integral and essential test announced inRosales. CF, pp.782-783.

7 The issue upon which the supreme court granted certiorariis [w]hether the

court of appeals erred in concluding that the government did not waive immunityunder [24-10-106(1)(e)] for injuries caused by a tree limb that fell on a camper in

an improved campsite in a state park.

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InRosales, the City argued that a tree or tree branch in a city park did not

constitute a public facility for the purpose of the CGIA. 89 P.3d at 508. The court

agreed that the tree was not a public facility because it is a natural object not built

or constructed to serve some public purpose. Id. at 509-10. Citing State v.

Moldovan, 842 P.2d 220, 224-25 (Colo. 1992),8 however, the court concluded that

if a public entity incorporates a tree into a facility [i.e., the man-made picnic area

of a park] in such a manner that it becomes an integral part of the facility and is

essential for the intended use of the facility, the tree may be a component of the

public facility. Rosales, 89 P.3d at 510. Consequently, the case was remanded to

the trial court to make this determination. Id.

Another falling tree branch reignited this issue inBurnett, supra. There, a

branch fell on Plaintiff while she was sleeping in her tent in an improved,

designated, campground in a state park. 2013 WL 1245366, at *1. The trial court

applied theRosalestest and determined that the tree adjacent to the campground

was not a public facility. Id.at *9. The appellate court agreed, finding that:

8 InMoldovan, the court held that a fence adjacent to a highway was a safety

device that was an integral part of the highway.

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Trees are not integral to the use and enjoyment of a campsite merely

because they provide shade, protection, and aesthetic values, and trees

are not essential to the use of a campsite because campers do not needto use trees for camping. Indeed, the record reflects that some

campsites in Cherry Creek State Park do not have adjacent trees.

Id.9

Like a tree, Creation Rock is a natural occurring condition of Red Rocks

Parks and is not an integral part of the Amphitheatre. It is not integral to the use

and enjoyment of the Amphitheatre merely because the Amphitheatre was

designed and constructed between Creation Rock and Ship Rock. Visitors to the

Amphitheatre do not need to use Creation Rock or Ship Rock to attend and enjoy

an event at the Amphitheatre. Therefore, the trial court incorrectly determined that

Creation Rock is an integral part of the Amphitheatre and is essential for its

intended use. Accordingly, Denver is immune from liability for the injuries

allegedly resulting from rocks falling from Creation Rock in the Amphitheatre.

9 In making this determination, the court relied on the holdings inRosales and

Loveland v. St. Vrain Valley School Dist. RE-1J, No. 11CA1019, 2012 WL2581034 (Colo. App. July 5, 2012), affd on other grounds(2014 WL 2042468)

(Colo. May 19, 2014).

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B. The evidence presented at the Trinityhearing does not support theconclusion that Plaintiffs injuries were caused by a dangerous

condition as that phrase is defined by the CGIA.

1. Standard of Review.The applicable standard of appellate review is the same as that in section A.,

supra.

2. Rocks falling from Creation Rock do not meet the definition ofdangerous condition under the CGIA.

Even assuming Creation Rock could be considered a component of the

Amphitheatre, Plaintiffs can establish the existence of a dangerous condition only

if they show that: (1) rocks falling from Creation Rock constituted an

unreasonable risk to the health or safety of the public; (2) Denver knew or should

have known of that risk in the exercise of reasonable care; and (3) the rockfall was

proximately caused by Denvers negligent act or omission in constructing or

maintaining the Amphitheatre. See, e.g.,Padilla v. School Dist. No. 1, 25 P.3d

1176, 1180 (Colo. 2001). Additionally, to establish a dangerous condition,

Plaintiffs must demonstrate that the rockfall was caused by construction or

maintenance of the Amphitheatre, not solely its design. Id. (citing Swiekowski v.

Ft. Collins, 934 P.2d 1380, 1386 (Colo. 1997)). Because the evidence presented at

the Trinityhearing did not support a finding that Plaintiffs met elements two and

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three and that the falling rocks were caused by construction or maintenance as

opposed to design, the district courts order must be reversed.

C. The evidence does not support a finding that Denver had actual orconstructive knowledge of a dangerous condition.

To prove the existence of a dangerous condition, Plaintiffs must show that

Denver actually knew or should have known of the condition and its dangerous

nature. Padilla, 25 P.3d at 1180. Plaintiffs did not meet that burden and therefore

the district courts finding that a dangerous condition existed was clearly

erroneous.

1. There is no evidence of actual notice.

The district court found that Denver had actual knowledge of a dangerous

condition because of two incidents prior to September 2011. CF, p.784. The first

incident involved the discovery of a rock on the Amphitheatres stairs in 1999.

CF, p.784-85. That event, however, was not a rockfall; rather, a rock of

unknown origin was simply discovered on the stairs below Creation Rock. R. Tr.

(8/7/13), 141:22-142. The second incident occurred in 2007 when a construction

company was demolishing and rebuilding the north concession stand between

Rows 1 and 15 in the section of the Amphitheatre located below Creation Rock.

Id.at 136-39. During the construction, Denver was notified by the construction

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company that small rocks fell into the Amphitheatre. Id. The construction

company was using vibration equipment to excavate rock, making it probable that

the construction, rather than natural rockfall, caused the rocks to fall into the

Amphitheatre at that time. Id.at 138:14-18, 143:16-23. The mere presence of one

rock found on the Amphitheatre stairs in 1999, coupled with notification from a

construction company that small rocks fell into the Amphitheatre during

excavation in 2007 is not sufficient to demonstrate actual notice of a dangerous

condition.

At best, these two incidents show that rocks can fall from natural formations.

However, general knowledge that rocks tend to fall, or even of rockfall events in

Red Rocks Park will not suffice. See, e.g.,McIntire v. Trammell Crow, Inc., 172

P.3d 977, 980 (Colo. App. 2007) ([i]t is not knowledge of the condition, activities,

or circumstances that gives rise to liability; it is the danger of which the owner

actually knew or should have known.); Smith v. Town of Snowmass Village, 919

P.2d 868, 871 (Colo. App. 1996) (defendants mere knowledge that ice and snow

tend to accumulate does not constitute knowledge or constructive knowledge of the

condition that injured Plaintiff);Broderick v. City and County of Denver, 727 P.2d

881, 882 (Colo. App. 1986); accord Kowalsky v. Long Beach Township, 72 F.3d

385, 389 (3d Cir. 1995);Harjes v. State, 71 A.D.3d 1278, 896 N.Y.S.2d 248 (3d

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Dept 2010) (mere knowledge that a winter storm is taking place in the general

area did not establish constructive notice of a specific dangerous condition at the

site of the accident). The district court therefore erred in relying on these two

incidents to establish actual knowledge of a dangerous condition.

2. Nor was there any evidence of constructive notice.

The district court also made no specific findings as to the facts that would

have given Denver constructive notice and the record does not support such a

finding. CF, p. 784. A dangerous condition should have been known to exist

only 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 case, such condition and its

dangerous character should have been discovered. 24-10-103(1.3).

Certainly, for the reasons discussed above, the 1999 and 2007 incidents are

not sufficient to demonstrate constructive notice. Accordingly, the only potential

source of constructive notice identified by the court is the fact that Denvers rock

mitigation contractor, Yenter, completed reports addressing the risks associated

with Creation Rock and advised Denver to inspect the rock formations in the Park

yearly, which did not occur. Id. However, without more, these facts do not

support a finding of constructive notice.

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In finding that Denver had constructive notice of a dangerous condition, it

appears the district court relied upon the fact that Yenter had advised Denver to

inspect the rock formations yearly. CF, p.784. But both Yenter and Denvers

experts testified that no tools exist that can accurately predict when and where a

rockfall will occur. R. Tr. (8/7/13), 24:13-15. However, the testimony is

uncontroverted that regular monitoring and scaling of a rock face will not prevent a

rockfall because rockfall is sporadic and unpredictable; inspections will never be

able to catch every potential rockfall hazard. Id. at 43. Consequently, merely

advising Denver to inspect the rock formations yearly is insufficient to demonstrate

constructive notice because a naturally occurring condition such as rockfall, which

is sporadic and unpredictable, is insufficient to demonstrate constructive

knowledge of a dangerous condition. See, e.g.,Smith, 919 P.2d at 871.

Even if the September 2011 rockfall did originate at the location vertically

above row 40 as suggested by Plaintiffs expert, seeR. Tr. (7/8/13), 48:2-20, it is

undisputed that the area had never previously been identified as a source of

potential rockfall hazard in any of the Yenter reports. See id.at 120:1-121:1.

Indeed, the Yenter reports did not mention the area vertically above row 40

because the inspections did not detect any rockfall hazards that were associated

with that area during any of the inspections performed in the years prior to the

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September 2011 rockfall. Id.; see alsoid. at 222:19-223:14. As a result, neither

the Yenter reports nor Plaintiffs expert opinion demonstrate that Denver had

constructive notice. Therefore, it was erroneous for the district court to determine

the evidence was sufficient to demonstrate constructive notice.

D. The district court erred in finding that Denvers negligent constructionor maintenance of the Amphitheatre proximately caused a dangerous

condition.

To demonstrate waiver under the CGIA, a plaintiff must prove that the

dangerous condition was proximately caused by the public entitys negligence in

constructing or maintaining the public facility. 24-10-103(1.3); Padilla, 25 P.3d

at 1180. Negligent design or operation will not suffice. Curtis v. Hyland Hills

Park & Recr. Dist., 179 P.3d 81, 84 (Colo. App. 2007); see Padilla, 25 P.3d at

1181.

Under the CGIA, a condition cannot be deemed a dangerous condition

solely because the design of any facility is inadequate. 24-10-103(1.3); see

Medina v. State, 35 P.3d 443 (Colo. 2001)(immunity is not waived with respect to

inadequate, and even risky, designs); accordPadilla, 25 P.3d at 1180-81;

Willer v. City of Thornton, 817 P.2d 514, 518 (Colo. 1991).

Also for the purposes of the CGIA, a public entitys acceptance of the final

design including the level of risk remaining at the end of the design phase

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As defined in the CGIA, [m]aintenance means the act or omission of a

public entity or public employee in keeping a facility in the same general state of

repair or efficiency as initially constructed or in preserving a facility from decline

or failure. C.R.S. 24-10-103(2.5). It does not include any duty to upgrade,

modernize, modify, or improve the design or construction of a facility. Id.

By analogy in the context of C.R.S. 24-10-106(1)(d) (immunity for injuries

caused by the dangerous condition of a public highway, road or street), [i]t is the

development of a dangerous condition . . . subsequent to the initial design and

construction . . . that creates in the [public entity] a duty to return the road to the

same general state of being, repair or efficiency as initially constructed. Medina,

35 P.3d at 448 (quoting Swiekowski, 934 P.2d at 1385)).

Because the scope of this duty and, consequently, the scope of the

waiver of immunity for its breach under the CGIA is measured inrelation to the original condition of the road, it is imperative that the

first step in the courts analysis be to determine the general state ofbeing, repair, or efficiency of the road as initially constructed. Onlyafter making this determination can the trial court ascertain whether

the dangerous condition ... causing the injury developed through a

lack of maintenance subsequent to the initial design and

construction..., and thus, whether immunity has been waived.

Id.

Here, the record establishes that the general state of being, repair, or

efficiency of the Amphitheatre in September 2011, was the same as its condition

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when initially constructed. It is undisputed that the Amphitheatre was designed to

be situated between Creation Rock and Ship Rock, in a geological hazard zone

subject to natural and unpredictable rockfall events. R. Tr. (8/7/13), 18:12-22.

Because the Amphitheatres original design placed it within a geological hazard

zone, Denver had no duty to upgrade, modernize, modify its location, or to

improve the design or construction of the Amphitheatre. See24-10-103(2.5).

As a result, Plaintiffs did not and could not demonstrate that Denver failed to

maintain the Amphitheatre under the CGIAs definition of maintenance. See

24-10-103(2.5). Indeed, the only testimony or other evidence presented on this

issue demonstrated that, at least with respect to the mitigation of rockfall affecting

the Amphitheatre, Denver has kept the facility in a better state of general repair or

efficiency as it was in when initially constructed and has otherwise preserved it

from decline or failure. R. Tr. (7/8/13), 167:10-21; 169:1-23; 170:20-171; R. Tr.

(8/7/13), 75:15-76:5.

Even the Plaintiffs own allegations undermine the district courts proximate

cause finding, for each of them alleged in no uncertain terms that their injuries

were caused by the loosening or throwing of the rocks by trespassers on Creation

Rock. SeeCF, p.6, 91, 103. Indeed, plaintiff Kinnard testified that he saw the

trespassers on Creation Rock during the concert. R. Tr. (6/28/13), 70:7-71:5. As

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detailed above, the definition of dangerous condition must be proximately

caused by the negligent act or omission of the public entity or public employee in

constructing or maintaining the facility. 24-10-103(1.3). Here, by plaintiffs own

admission, the dangerous condition was proximately caused by a third party and

not the City and as a result subject matter jurisdiction cannot be established. See

City of Colorado Springs v. Powell, 48 P.3d 561, 567 n.6 (Colo. 2002); accord

Padilla, 25 P.3d at 1181 ([T]o be actionable, the state of the building or use of a

state of the building and the injury resulting therefrom ... must have occurred in

connection with a negligent act or omission of the governmental entity, not a third

party.); Walton v. State, 968 P.2d 636, 642 (Colo. 1998). Accordingly, the

record does not support the district courts finding that Plaintiffs injuries were

proximately caused by Denvers negligence in maintaining Creation Rock.

E. The Natural Condition Exception to the Waiver of Immunity forDangerous Conditions Applies to Creation Rock Because it is a

Natural Condition of an Unimproved Property.

1. Standard of ReviewThe applicable standard of appellate review is the same as that in section A.,

supra.

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2. Immunity is not waived because Creation Rock is the naturalcondition of unimproved property.

The CGIA waives sovereign immunity for a dangerous condition of any ...

public facility located in any park or recreation area maintained by a public

entity.... 24-10-106(1)(e). Importantly, however, the CGIA provides an

exception to that waiver where an injury is caused by the natural condition of

unimproved property:

Nothing in this paragraph (e) or in paragraph (d) of thissubsection (1) shall be construed to prevent a public entity from

asserting sovereign immunity for an injury caused by thenatural condition of any unimproved property, whether or not

such property is located in a park or recreation area or on a

highway, road, or street right-of-way.

See id.(emphasis added). Accordingly, Plaintiffs cannot prevail if their injuries

were caused by the natural condition of any unimproved property. Id.

The record establishes that Creation Rock is the natural condition of an

unimproved property. CF, p. 786. For this reason as well, Denver is entitled to

sovereign immunity.

3. The installation of minimal safety features did not alter thenatural condition of Creation Rock.

Creation Rock is a geological formation located in Red Rocks Park, a natural

mountain park. Denver retained its rock mitigation contractor, which installed all

safety devices on Creation Rock with the specific understanding that any work

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done there must preserve natural conditions. Id. at 142:25-143:3, 144:25-145:5.

While certain safety features, for example bolts to hold the rocks in place, have

been installed on portions of Creation Rock, it is not improved land. R. Tr.

(8/7/13), 75:15-76:5.

The key to determining whether land qualifies as unimproved is whether

the public entity has made changes in the condition of the land that make it

reasonable to believe that the public entity has made itself responsible for risk

management there. 18 McQuillin Mun. Corp. 53:31 (3d ed. 2013). A change in

one spot on a larger tract does not necessarily render the entire tract improved.

See id.

The majority of the appellate courts that have examined this issue have held

that public property loses its unimproved status only when there has been

substantial physical modification of the property from its natural state and when

the physical change creates hazards that did not previously exist and that require

management by the public entity. Troth v. State, 117 N.J. 258, 566 A.2d 515, 521

(1989); Kowalsky, 72 F.3d at 388 (beach nourishment / modification project did

not change the unimproved nature of a beach notwithstanding that it was a

manmade modification; the changes did not create that hazard that injured

Plaintiff); Geffen v. City of Los Angeles, 197 Cal.App.3d 188, 242 Cal. Rptr. 492

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(1987) (holding that the presence of a building, lifeguard towers, parking lots, food

concessions, a promenade, a breakwater, a pier, signs and a rock groin do not

render unimproved property improved for governmental immunity purposes if the

improvements themselves did not cause the injuries).

Moreover, in order to change the unimproved character of property for

governmental immunity purposes, the physical change in the condition of the

property must occur at the location of the injury, which justifies the conclusion

that the public entity is responsible for reasonable risk management in that area.

See, e.g., Troth, 566 A.2d at 521. In other words, there is no waiver of immunity

for injuries caused by the condition of improved property without a causal

connection between the improvement and the alleged injury. Id.

Nor, as a general rule, do changes made to land to improve safety turn

otherwise unimproved land into improved land. In order for such changes to

constitute an improvement for immunity purposes, the changes must change the

physical nature of characteristics of the property at the location of the injury to the

extent that it can no longer be considered in a natural condition. Mercer v. State,

197 Cal.App.3d 158, 242 Cal. Rptr. 701, 704 (Cal. App. 2d Dist. 1987). The

government does not become a guarantor of public safety by providing certain

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services on unimproved property in its natural condition. Rombalski v. City of

Laguna Beach,213 Cal.App.3d 842, 862, 261 Cal.Rptr. 820 (1989).

The law does not support the district courts finding that Creation Rock had

been improved by removing rocks, bolting rocks, chaining rocks, and other

improvements. CF, p.786. The safety devices installed on Creation Rock did not

change its unimproved nature, were installed for safety purposes, and did not lead

to the injuries that occurred. Plaintiffs presented no evidence to the contrary.

Furthermore, the General Assemblys edicts that a public entity or public

employee shall not be deemed to have assumed a duty of care where none

otherwise existed by the performance of a service or an act of assistance for the

benefit of any person, and that [t]he adoption of a policy or a regulation to

protect any persons health or safety shall not give rise to a duty of care on the part

of a public entity or public employee where none otherwise existed, C.R.S. 24-

10-106.5(1), demonstrate the policy values and positive incentives behind allowing

and implicitly encouraging a government entity to invest resources in increasing

public safety on natural property, rather than punishing those entities by waiving

immunity for undertaking such safety measures.

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For each of these reasons, the district court erred in its determination that the

safety measures installed on Creation Rock rendered it improved property, and

the determination should be revered.

F. Even assuming that Creation Rock could be considered an integralcomponent of the Amphitheatre, immunity is not waived under the

natural conditions exception.

The CGIA simply states: Nothing in this paragraph shall be construed to

prevent a public entity from asserting sovereign immunity for an injury caused by

the natural condition of any unimproved property. 24-10-106(1)(e) (emphasis

added). It does not list any exceptions to this rule. The district court therefore

erred in determining that Creation Rock did not meet the natural conditions

exception based upon its finding that Creation Rock was a component of the

Amphitheatre. CF, p. 786.

As recognized by the court inBurnett, [i]f the General Assembly intended

to waive immunity for all dangerous conditions in public parks, it would not have

limited that waiver to public facilities in parks or expressly retained immunity for

natural conditions in unimproved areas. Burnett, 2013 WL 1245366, at *2.

Moreover, the legislative history of the CGIA demonstrates the legislatures

specific intent to place Red Rocks and similar natural places under the natural

condition of unimproved property exception. As an initial matter, the phrase

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public facility is not defined in the CGIA and is ambiguous. St. Vrain Valley

School Dist. RE-1J v. A.R.L., No. 12SC631, 2014-WL-2042468, at *9 (Colo. May

19, 2014) (finding the phrase ambiguous and examining its meaning in the context

of 24-10-106(1)(e)s recreation area waiver) (citing State v. Nieto, 993 P.2d 493,

500-01 (Colo. 2000)). Because it is ambiguous, this court must look beyond the

plain meaning of that phrase and determine its meaning by reference to other tools

of statutory interpretation. Id.at *7 (citing Grant v. People, 48 P.3d 543, 546

(Colo. 2002)). Legislative intent is the polestar of statutory construction.

Schubert v. People, 698 P.2d 788, 793 (Colo. 1985).

The Court should look to legislative history to ascertain legislative intent of

the CGIA regarding the meaning of public facility. Loveland, 2012 WL 2581034,

at *3. As it is relevant here, legislative history includes the Colorado Legislative

Council Report (commissioned prior to the passage of the CGIA), Report to the

Colorado General Assembly: Governmental Liability in Colorado, Research

Publication No. 134, at xxi-xxii (1968), which stated the following with regard to

Red Rocks:

The defense of immunity is waived with respect to injuries resulting

from a dangerous condition of any public facility located in parks andrecreation areas and maintained by a public entity. A distinction ismade between (1) injuries caused by negligence in the construction,

maintenance, failure to maintain, etc. of artificial, man-made objects(swing sets, buildings, etc.) and (2) injuries caused by the natural

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conditions of a park (the Flat Irons in Boulder or the Red Rocks west

of Denver). In other words, ordinary negligence is sufficient to

impose liability for injuries caused by the dangerous condition ofartificial objects. For injuries caused by natural dangerous

conditions, immunity is retained.

(Emphasis added). Giving insight into the policy considerations for enactment of

the relevant provision, the committee concluded that:

[i]f immunity were waived with respect to injuries caused by thenatural condition of any unimproved property the burden and expense

of putting such property in a safe condition and the expense ofdefending claims for injuries would probably cause many public

entities to close such areas to public use. It is desirable to permit themembers of the public to use public property in its natural condition.

In view of the limited funds available for the acquisition and

improvement of property for recreational purposes, the committee

concluded that it is not unreasonable to expect persons whovoluntarily use unimproved property in its natural condition to assume

the risk of injuries arising therefrom.

Colorado Legislative Council, Report to the Colorado General Assembly:

Governmental Liability in Colorado, Research Publication No. 134, at pages 140-

144 (1968).

This legislative history demonstrates that no waiver of governmental

immunity was intended for the natural condition of the unimproved property of

Red Rocks including Creation Rock and therefore, Plaintiffs claims must be

dismissed for a lack of subject matter jurisdiction. Furthermore, the reasons above

demonstrate that the District Court erred in finding that Creation Rock was

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improved through the installation of safety devices, and in its finding that Creation

Rock is integral to the functioning of Red Rocks Amphitheatre. Because Creation

Rock is the natural condition of an unimproved property, there is no waiver of

governmental immunity in the instant case.

CONCLUSION

For the foregoing reasons, Denver respectfully requests that the Court

remand this case to the district court with instructions to dismiss the lawsuit with

prejudice.

REQUEST FOR ATTORNEY FEES

C.R.S. 13-17-201 provides in relevant part as follows:

In all actions brought as a result of a death or an injury to person or

property occasioned by the tort of any other person, where any suchaction is dismissed on motion of the defendant prior to trial under rule

12(b) of the Colorado rules of civil procedure, such defendant shallhave judgment for his reasonable attorney fees in defending the

action.

Pursuant to this statute, an award of attorney fees is mandatory when a trial court

dismisses an action under C.R.C.P. 12(b). Smith, 919 P.2d at 872-73. An award of

attorney fees incurred upon appeal which results in the dismissal of an action

pursuant to C.R.C.P. 12(b)(1) is also mandatory. Wark v. Bd. of County Commrs,

47 P.3d 711, 717 (Colo. App. 2002). Accordingly, if Denver prevails on this

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appeal, it respectfully requests that this Court remand this matter to the District

Court to enable it to file a motion for its reasonable attorney fees incurred in

responding to Plaintiffs Complaints and on appeal.

DATED this 5th day of June 2014.

Respectfully submitted,

DENVER CITY ATTORNEYS OFFICE

By: s/ Barry A. Schwartz

Barry A. Schwartz, Esq.Jamesy C. Owen, Esq.

Assistant City Attorneys

Attorneys for Defendant-Appellant City and

County of Denver

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CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of June 2014, the foregoingCORRECTED OPENING BRIEF was filed with the Court of Appeals and

served on the following via ICCES:

Daniel P. Gerash, Esq.

Gerash Steiner, [email protected]

Samuel Ventola, Esq.

Staggs Ventola Morris [email protected]

Adrienne M. Tranel, Esq.

Geoffrey D. Petis, Esq.

Bachus & Schanker, [email protected]@coloradolaw.net

[email protected]

s/ Barry A. Schwartz

Barry A. Schwartz

Denver City Attorneys Office
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

red rocks opening appeal brief

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