6857 South Spruce Street Centennial, CO 80112
Post-Loveland: School District Liability & Colorado Governmental Immunity Act On May 19, 2014, the Colorado Supreme Court decided a triumvirate of governmental immunity cases that focused on the waiver related to claims arising from injuries caused by a dangerous condition of a public facility located in a public park or recreation area. In some respects the Court’s decisions provided more questions than answers; however, one thing is certain: the immunity school districts and other public entities in Colorado enjoy is under a constant state of erosion. In Loveland v. St. Vrain (St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33), a student/minor child was playing on a zip line apparatus during her lunch recess when she fell and fractured her wrist. The zip line was part of her school’s playground, which contained other types of playground equipment, too. As a result of her injury, the student sued the school district in a tort action, asserting among other things that the school district did not have immunity from her injuries. The waiver at issue was the recreation area waiver, found at C.R.S. § 24-10-106(1)(e), which states that immunity is waived by a public entity for injuries resulting from: “a dangerous condition of any public hospital, jail, public facility, located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility.” (emphasis added.) The Court took up the following issue: whether an injury that occurs on a “zip line” apparatus located on a public school playground fulfills the requirements of the “recreation area waiver” of the Colorado Governmental Immunity Act. Ultimately, the Court issued two holdings: 1.
A collection of playground equipment considered as a whole qualifies as a “public facility” under the recreation area waiver because such playground equipment is (1) relatively permanent or otherwise affixed to the land, (2) a man-made structure, (3) accessible to the public, and (4) maintained by a public entity to serve a beneficial, common public purpose. (The Court of Appeals erred when it held that the zip line individually, rather than the playground collectively, constituted a “public facility.”)
2.
The public facility (the collection of playground equipment) was “located in” the “recreation area” of the school playground. Applying the three-step analysis in Daniel v. City of Colorado Springs1, we determine that the public land underlying the
1 To determine whether or not a public facility is located in a recreation area for purposes of the recreation area waiver, a court shall consider: (1) the underlying piece of contiguous public property to identify the putative (supposed) recreation area; (2) determine whether the public entity’s primary purpose in building or maintaining that area was the promotion of recreation; and, if so (3) determine whether the public facility at issue was located within the boundaries of that area.
303-722-2600
800-332-3556 303-722-7888 www.csdsip.net
OFFICE TOLL-FREE FAX
playground equipment is the “putative recreation area,” that the “primary purpose” of that area is recreation, and that the facility where the student was injured is “located in” this area. Huh? More questions than answers? How did the Court get to these holdings? Looking at the Court’s analysis (Loveland case is in your Member Conference packet), the logic path is as follows: Para. 17 – Court asks the question, what is a “public facility” for purposes of the recreation area waiver. Para. 18 – Court determines that an individual zip line apparatus on a public playground is NOT a “public facility” … but instead, may qualify as a “dangerous condition.” Court also states its holding is anchored in the dictionary definition of “facility,” the statutory context, and the purposes of the CGIA. (The Court acknowledges that the CGIA is designed to protect taxpayers from excessive fiscal burdens and prohibitively expensive public services that result from unlimited liability.) Para. 19 – Court acknowledges there is no plain and ordinary meaning for “public facility,” thus, concludes that a dictionary definition alone cannot resolve the question (you never knew Webster’s could be so powerful … did you?). The Court concludes that the term “facility” applies to permanent, bricks-and-mortar structures (e.g., classroom buildings), as well as collections of individual items that, when considered together, promote a broader, common purpose (e.g., a collection of individual pieces of playground equipment that together promote children’s play – not an individual piece of playground equipment). When considering the Court’s analysis and decision, the questions then become: (1) How does this impact my school district and me? (2) What best practices can I implement from a risk-management perspective? For example, should a school district post a sign that says the playground is not for “public use” (the majority opinion in Loveland makes note of no such sign in existence; however, the dissent dismisses the issue as not cogent to the analysis). Should playgrounds be limited to one piece of individual playground equipment? Given these decisions, is the only real answer here to make sure that inspections are up to date, and implement more rigorous inspection protocols so that defense counsel can focus on defending the “dangerous condition” issue? How far does the “putative recreation area” extend?
Daniel v. City of Colorado Springs In Daniel v. City of Colorado Springs, 2014 CO 34, the Court considered the issues of whether a parking lot serving a public golf course qualifies as a “public facility” and whether such a parking lot is “located” in a “recreation area.” Ultimately the Court created a three-part test (see fn1 on p.1) and applying the facts to the test, made the determination that, yes, the parking lot at issue is a “public facility” “located” in a “recreation area.” Factually, the case arose out of an injury the plaintiff suffered when she drove to a public golf course to see a community event that was scheduled at the golf course clubhouse. Instead of parking her vehicle in the parking lot next to the clubhouse, plaintiff parked on a street one block away. As she crossed the street and walked through the golf course parking lot, she stepped in a hole and fell, fracturing her hip. As a result of her injuries, she sued the City. Given the decision in Daniel and the creation of the three-part test, what implications for school parking lots, sidewalks, and blacktop near school playgrounds and school playing fields? Young v. Brighton School District 27J In Young v. Brighton School District 27J, 2014 CO 32, the Court took yet another look at the “recreation area” waiver and determined that there was not a waiver when a student sustained injuries on a walkway adjacent to a public school playground. The Court determined that the walkway at issue was not itself a “public facility,” nor was it a component of a larger collection of items that qualified as a “public facility.”