DISTRICT COURT, WELD COUNTY, COLORADO P.O. Box 2038 Greeley, CO 80631 (970)475-2400 Plaintiff(s): ALEXA RAE LOVELAND, a minor, by and through her parents and next friends, RANDY LOVELAND and MARY NICOLE LOVELAND; and RANDY LOVELAND and MARY NICOLE LOVELAND, individually
DATE FILED: August 11, 2014 2:57 PM CASE NUMBER: 2010CV1079
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Case No. 2010 CV 1079 Division 5
v. Defendant(s): ST. VRAIN VALLEY SCHOOL DISTRICT RE-1J, CATHY O’DONNELL
ORDER RE: DEFENDANTS’ MOTION TO DISMISS THIS MATTER comes before the court on Defendants’ Motion to Dismiss, filed on July 7, 2014. The court, having considered said Motion, together with responsive pleadings, the file in this case, and being otherwise fully advised, HEREBY FINDS and ORDERS as follows: I.
FACTUAL BACKGROUND The Complaint alleges that on November 21, 2008 at Black Rock Elementary, an elementary
school within the St. Vrain School District, Plaintiff Alexa Rae Loveland, then nine years old, was playing on the playground during lunch recess and fell from the “zip line” playground equipment, resulting in injuries. Alexa and her parents, Randy Loveland and Mary Nicole Loveland (“Plaintiffs”), claimed that Alexa’s injury was caused by the negligent act or omission of the St. Vrain Valley School District in constructing, maintaining, and/or supervising the playground at Black Rock Elementary. Defendants filed a Motion to Dismiss and this court granted the Motion. This matter was then appealed to the Colorado Court of Appeals, which affirmed this court’s dismissal of Plaintiffs’ negligent supervision claim and reversed this court’s findings regarding waiver of immunity with respect to the playground equipment as a public facility. This second issue alone was appealed to the Colorado Supreme Court, which affirmed the Court of Appeals’ determination, albeit on alternative grounds.
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a. Defendants’ Position Defendants argue that Plaintiffs’ sole remaining negligence claim should be dismissed for lack of subject matter jurisdiction as Defendants are entitled to governmental immunity because the playground equipment did not constitute a dangerous condition under the Colorado Governmental Immunity Act (CGIA). Specifically, Defendants argue that Plaintiffs have failed to allege that Alexa’s injury resulted from a physical or structural defect that was caused by negligence in the construction or maintenance of the zip line. b. Plaintiffs’ Position Plaintiffs argue that Defendants’ immunity is waived under the CGIA because the zip line itself is a dangerous condition of a public facility. “The ‘physical condition’ of the ‘zip line’ contained in this ‘public facility’ was dangerous in that children behaving in a foreseeable manner could be seriously injured in fact were physically injured on multiple occasions at this ‘public facility.’” Plaintiffs’ Response, ¶ 43. Plaintiffs specifically argue that the lack of adult supervision at the zip line resulted in Alexa’s injury. II.
STANDARD OF REVIEW Courts view motions to dismiss under C.R.C.P. 12(b)(5) with disfavor. Hemmann
Management Services v. Mediacell, Inc., 176 P.3d 856, 859 (Colo. App. 2007). The purpose of a 12(b)(5) motion “is to test the legal sufficiency of the complaint to determine whether the plaintiff has asserted a valid claim or claims upon which relief can be granted.” Id. at 858. A court should deny the motion, “‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Davidson v. Dill, 180 Colo. 123, 131-32 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all facts in the complaint as true, viewing them in the light most favorable to the plaintiff, and taking into consideration the “documents attached to, incorporated by reference in, or otherwise referred to in the complaint.” General Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010). If, based on those facts, the plaintiff is entitled to relief under any theory of law; the Court must deny the motion. Schlitters v. State, 787 P.2d 656, 658 (Colo. App. 1989). III.
ANALYSIS
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The CGIA establishes that “[e]xcept as provided in sections 24-10-104 and 24-10-106, sovereign immunity shall be a bar to any action against a public entity for injury which lies in tort . . . .” C.R.S. § 24-10-108. However, pursuant to C.R.S. 24-10-106(1)(e), sovereign immunity is waived by a public entity when the action resulted from a dangerous condition of any “public facility located in any park or recreation area maintained by a public entity . . . .” The Colorado Supreme Court affirmed the Court of Appeals findings in this case that the playground equipment is a “public facility” which is “located in” the “recreation area” that is the school playground. St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 325 P.3d 1014, 1024 (Colo. 2014). Plaintiffs argue that the zip line is a dangerous condition and therefore Defendants’ sovereign immunity is waived. “‘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 the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity or public employee in constructing or maintaining such facility.” C.R.S. § 24-10-103(1.3). To establish that a dangerous condition was present, Plaintiffs must show: (1) that the injury occurred as a result of the physical condition of a public facility or the use thereof; (2) which constitutes an unreasonable risk to the health or safety of the public; (3) which is known to exist or should have been known to exist in the exercise of reasonable care; and (4) which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. Luenberger v. City of Golden, 990 P.2d 1145, 1147 (Colo.App. 1999). a. Insufficient Argument of a Physical or Structural Condition A condition is dangerous only if it relates to the physical or structural condition of the facility, not to the operation of the facility. Padilla ex rel. Padilla v. School District No. 1 in City and County of Denver, 25 P.3d 1176, 1181 (Colo. 2011). Plaintiffs assert that they have alleged that a physical or structural condition was a dangerous condition because the zip line itself is a dangerous condition. Response ¶ 36. However, the court cannot find that Plaintiffs have sufficiently supported this assertion, even accepting all facts in their Complaint as true. In a 3
footnote of its order, the Colorado Supreme Court provided that “the zip line could contain a ‘dangerous condition’ if it had a rusty or obstructed track due to being negligently constructed or maintained by the District.” St. Vrain Valley Sch. Dist., 325 P.3d at 1026 n. 8. Plaintiffs make no claim that there was such a defect in the zip line. Even assuming that the assertions in the Complaint are true, Plaintiffs have still failed to assert an argument that a physical or structural condition of the zip line makes it a dangerous condition other than to just blanketly state that the zip line itself is a dangerous condition. As Plaintiffs themselves argue: “These are elementary school age children on a playground.” Plaintiffs’ Response ¶ 39. Children playing on a playground will occasionally get hurt, but this fact does not in itself prove that the playground equipment is a dangerous condition. This court cannot find that the Defendants have waived their sovereign immunity without a claim as to what specific physical or structural condition existed to cause the zip line to be a dangerous condition, as opposed to a broad assertion that its mere presence makes the zip line a dangerous condition. The court notes that the brunt of Plaintiffs arguments revert back to their negligent supervision claim, which has already been found to be barred by the CGIA. Loveland ex rel. Loveland v. St. Vrain Valley Sch. Dist. RE-1J, 328 P.3d 228, 233-234 (Colo.App. 2012). Specifically Plaintiffs allege that the zip line was a dangerous condition because Defendants failed to provide adequate supervision. See Plaintiffs’ Response, ¶ 41 (“If there had been adults supervising the ‘zip line’ properly, Alexa Loveland would not have been injured.”). In Curtis v. Hyland Hills Park & Recreation Dist., the Court conclusively stated that the absence of adequate supervision for the water park ride involved did not constitute a dangerous condition under C.R.S. § 24-10-106(1)(e) as plaintiff’s claim went to the “operation of the attraction, not that there was a physical defect in the attraction’s construction or maintenance.” 179 P.3d 81, 84 (Colo.App. 2007). Similarly, Plaintiffs argue that the lack of supervision made the zip line a dangerous condition. However, this argument is not sufficient to waive immunity as it does not go to whether there was a physical or structural defect in the zip line itself. Although the court finds that Plaintiffs have failed to satisfy this first factor to waive sovereign immunity, it finds it appropriate to address the rest of the factors as if the factor(s) beforehand were successfully met.
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i. Intervening Third Party Had Plaintiffs provided sufficient argument that there was a dangerous condition, Defendants argue the fact that the alleged injury resulted from the actions of a third party prevents the waiver of immunity. Injuries caused by intervening third parties, rather than by a dangerous condition, do not fall under the “dangerous condition” definition. See Hendricks v. Weld, 895 P.2d 1120, 1123 (Colo.App. 1995); Duong v. County of Arapahoe, 837 P.2d 226 (Colo.App. 1992). The Student Injury Report states that “another student pushed Alexa on the zipline and it flew to the other end and she fell off.” Defendants’ Exhibit A. While Plaintiffs argue that this is a causation issue, they also argue that adequate adult supervision would have prevented the Alexa’s injuries. This argument, again, goes to the operation of the facility and does not argue that the injuries were caused by a “dangerous condition” as opposed to the acts of a third party. In any event, the court cannot find that the argument raised by Defendants that Alexa’s injuries were caused by an intervening third party, except to the extent it goes to lack of supervision, would result in the court lacking subject matter jurisdiction under the Governmental Immunity Act. b. No Unreasonable Risk Plaintiffs argue that the zip line itself “constitutes an unreasonable risk to health and safety of the children who would be using it at an elementary school.” Plaintiffs’ Response ¶ 44. In support of this assertion Plaintiffs rely on a study showing an increase in playground-related injuries, an article from Ohio about zip line injuries, a California news story about playgroundrelated injuries, and the assertions by Alexa that two other students were previously injured on the zip line. Plaintiffs also, again, rely on the fact that adult supervision was necessary for the zip line. This latter argument goes directly to their negligent supervision claim which has already been held to be barred by the CGIA. Outside of the negligent supervision claim, Plaintiffs also rely on evidence which does show that other children have been injured on playground equipment, including the zip line in question. However, this evidence does not rise to the threshold of supporting the statement that the zip line poses an unreasonable risk. The court is again reminded that this is a case involving playground equipment and that it is not unforeseeable that children will sustain injuries on such equipment, regardless of how safe the equipment is made. The very fact that injuries occur does not result in the equipment being an unreasonable risk, even when assuming the facts in the Complaint are true this court is still unable to find that Plaintiffs have met their burden on this 5
element. Plaintiffs failure to meet their requirement for this element, and instead its reliance on the fact that children get hurt while playing on playground equipment, must lead this court to conclude that there was no unreasonable risk posed by the zip line. Plaintiffs rely on Luenberger v. City of Golden, stating that: “If a half-pipe in a city park presents a factual dispute as to whether it is an ‘unreasonable risk to the health or safety of the public,’ certainly a ‘zip line’ in the recreation area of an elementary school does as well.” Plaintiffs’ Response ¶51; see 990 P.2d 1145, 1148 (Colo.App. 1999). This reliance on the specific issue of whether the zip line is an unreasonable risk or not is unfounded, however, as the Court only directly addressed the need for factual findings on the issue of notice. Id. In fact, after stating that factual findings must be made in regards to the issue of notice, the Court specifically stated that “we do not address whether other provisions of the GIA might also be applicable.” Id. Therefore, the court cannot find Luenberger persuasive as to the assertion that the zip line constitutes a dangerous condition. c. For Purposes of this Motion there is Sufficient Notice Plaintiffs assert that two children were previously seriously injured on the zip line and therefore Defendants were put on constructive or actual notice. For purposes of this motion only, the court must assume that these facts are correct and therefore the court must conclude that the Defendants were put on notice. d. For Purposes of this Motion the Injury is Attributable to Negligent Construction or Maintenance Plaintiffs state that “Defendants’ negligence is twofold: (1) in choosing to place this dangerous structure in the recreation area of the school; and (2) not providing the supervision the manufacturers of the track made clear was required for use of this equipment.” Plaintiffs’ Response ¶ 68. In the latter claim, Plaintiffs again rely on rephrasing their already barred negligent supervision claim. In order to meet this final prong, Plaintiffs must prove that the injury was proximately caused by Defendants’ negligence in constructing or maintaining the facility. Failure to provide adequate supervision does not satisfy this requirement. As to Plaintiffs first argument, for the purposes of this Motion only, the court must assume that the facts pled by Plaintiffs are true. If a physical or structural condition of the zip line is found to be a dangerous condition, this court must conclude that Defendants act of constructing 6
the zip line on the playground did proximately cause Alexa’s injuries and therefore Plaintiffs satisfied this final prong. IV.
CONCLUSION The court cannot find that Plaintiffs satisfied the first two prongs of the test for a dangerous
condition, that the injuries resulted from a physical or structural condition or that the zip line posed an unreasonable risk. For purposes of this motion alone, the court must find that Plaintiffs did satisfy the remaining prongs, notice and proximate causation, as it assumes that all facts contained in the Complaint are true. However, because of the failure to meet the first two prongs the court must conclude that Plaintiffs have failed to state a sufficient claim to waive Defendants sovereign immunity and therefore this court does not have subject matter jurisdiction.
IT IS THEREFORE ORDERED that Defendant’s Motion be GRANTED.
Dated: August 11, 2014
____________________________ Julie C. Hoskins District Court Judge This document was filed pursuant to C.R.C.P. 121, § 1-26. A printable version of the electronically signed order is available in the Court’s electronic file.
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