dangerous condition exception in Colorado

2015See id. ; see also Longbottom v. State Bd. of Cmty. Colls. & Occupational Educ. , 872 P.2d 1253, 1255 (Colo. App. 1993) (college student, who partially amputated one hand in a gunsmithing class while operating a jointer machine, was not barred by the CGIA from suing the public college); cf. Jenks v. Sullivan , 826 P.2d 825, 827 (Colo.1992) (the term “or the use thereof†in the dangerous condition definition refers to the use of a physical condition of a public building or facility), overruled in part on other grounds by Bertrand v. Bd. of Cnty.

1992Jenks v. Sullivan, 826 P.2d 825 (Colo.App.1992).

1992In Mentzel v. Judicial Department, 778 P.2d 323 (Colo.App.1989), the court of appeals interpreted the dangerous condition exception.

1991In Mentzel v. Judicial Department, 778 P.2d 323 (Colo.App.1989), we held that "acts or omissions in construction and maintenance relate directly to the physical condition of the facility itself rather than to `uses' of the facility that, albeit dangerous, do not render the facility or structure unsafe for public use." Thus, the dangerous condition exception relates to a physical condition of the building, not to activities conducted therein.

2026Thus, the supreme court did not limit the application of the reasonable likelihood standard to the fourth factor of the dangerous condition test. ¶ 37 In light of our determination that the likelihood standard applies to “operation of a motor vehicle” CGIA cases, before the district court could determine whether Denver Water waived immunity, it needed to examine whether Scott satisfied his burden of proving, under the likelihood standard, that Williams was operating a motor vehicle, § 24-10-106(1)(a), and that Scott’s injuries likely “result[ed] from” Williams’s “operation of a motor vehicle.”

2026Id. at ¶¶ 2, 21, 24, 570 P.3d at 485, 488-89. 16 ¶ 36 Although the supreme court sought to “first clarify the burden the plaintiff must meet to prove that a public entity waived CGIA immunity” before applying the fourth factor of the dangerous condition test, it did not expressly or implicitly say that its holding was limited to such an application.

2025Under Colorado's premises liability statute, Dozier would have to prove that the County didn't exercise reasonable care to prevent her accident to prevail on her underlying claim. § 13-21-115(4)(c)(I), C.R.S. (2024); see also Vigil v. Franklin , 103 P.3d 322, 326 (Colo. 2004). ¶32 Accordingly, to establish waiver under the CGIA's dangerous-condition exception, the plaintiff must demonstrate that it was likely that the public entity's negligent act or omission proximately caused the allegedly dangerous condition. 18 And, as the district court acknowledged, the reasonableness of the public entit

2018Restatement (Second) of Torts § 422, Westlaw (database updated June 2018). ¶ 46 Indeed, the Springer court relied on section 422 to conclude that attribution of an independent contractor’s work to a public entity is consistent with the rationale of the dangerous condition waiver of immunity provisions. 13 P.3d at 802 .

2018See § 24-10-103(1.3) (defining “dangerous condition” to be a physical condition caused “by the negligent act or omission of the public entity . . . in constructing or maintaining such facility”) (emphasis added); see also Springer, 13 P.3d at 799 (“[T]he dangerous condition must be associated with construction or maintenance, not solely design.”). ¶ 42 Next, as in Springer, the waiver’s underlying principle would be nullified if the public entity could escape liability by simply hiring an independent contractor for the operation and maintenance of its public facilities.

2017Vrain I, after concluding that an individual zip line apparatus on a playground does not qualify as a “public facility,” we did not suggest that the zip line could nevertheless be a dangerous condition of the public facility, but rather that “a condition on such an apparatus might qualify as a dangerous condition.” ¶ 18, 325 P.3d at 1020 (first emphasis added); see also id. at ¶ 18 n.8, 325 P.3d at 1020 n.8 (“For example, 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.”). 2 ¶20 Second,

2017Id. at ¶ 37; see also id. at ¶ 18 n.8, 325 P.3d at 1020 n.8 (“Because the trial court made no findings of-fact regarding the dangerous condition requirement, this Court cannot determine whether a dangerous condition existed.”)., ¶7 On remand, the District again moved to dismiss, arguing that the recreation-area waiver did not apply because the Lovelands failed to establish a dangerous condition on the zip line.

2017Even so, this is an argument about the design of the playground, which section 24-10-103(1.3) clearly prohibits. § 24-10-103(1.3) (“A dangerous condition shall not exist solely because the design of any facility is inadequate.”); see also, e.g., Estate of Grant v. State, 181 P.3d 1202, 1205 (Colo. App. 2008) (“Design means ‘to conceive or plan out in the mind,’ and *757 conditions attributable ‘solely to inadequate, or risky, design’ that are intrinsic to the general state of the road as initially constructed may not be considered a dangerous condition and do not waive immunity.” (Citation omi

2015See id. ; see also Longbottom v. State Bd. of Cmty. Colls. & Occupational Educ. , 872 P.2d 1253, 1255 (Colo. App. 1993) (college student, who partially amputated one hand in a gunsmithing class while operating a jointer machine, was not barred by the CGIA from suing the public college); cf. Jenks v. Sullivan , 826 P.2d 825, 827 (Colo.1992) (the term “or the use thereof†in the dangerous condition definition refers to the use of a physical condition of a public building or facility), overruled in part on other grounds by Bertrand v. Bd. of Cnty.

2015See id. ; see also Longbottom v. State Bd. of Cmty. Colls. & Occupational Educ. , 872 P.2d 1253, 1255 (Colo. App. 1993) (college student, who partially amputated one hand in a gunsmithing class while operating a jointer machine, was not barred by the CGIA from suing the public college); cf. Jenks v. Sullivan , 826 P.2d 825, 827 (Colo.1992) (the term “or the use thereof†in the dangerous condition definition refers to the use of a physical condition of a public building or facility), overruled in part on other grounds by Bertrand v. Bd. of Cnty.