HomeMy WebLinkAbout2024CV31043 - Zaffos v. City of Fort Collins - 10 - Motion to Dismiss4cDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521
Plaintiff: LINDA ZAFFOS
v.
Defendant: THE CITY OF FORT COLLINS
COURT USE ONLY
Cassie L. Williams, #58279 – cwilliams@wicklaw.com
WICK & TRAUTWEIN, LLC
323 S. College Ave., Suite #3
Fort Collins, Colorado 80524
Case No: 2024CV31043
Division: 4C
DEFENDANT CITY OF FORT COLLINS’ MOTION TO DISMISS
COMES NOW, Defendant, by and through its attorneys, Andrew W. Callahan and Cassie
L. Williams of Wick & Trautwein, LLC and files this Motion to Dismiss pursuant to C.R.C.P.
12(b)(1) and the Colorado Governmental Immunity Act (the “CGIA”), C.R.S. § 24-10-101, et seq.:
Certificate of Conferral – Undersigned counsel conferred with counsel for Plaintiff, who
opposes the motion.
I. INTRODUCTION
Plaintiff, a resident of New Jersey, is suing the City of Fort Collins in tort. She states that
she tripped over a planter on a City sidewalk near the Aggie Theater on College Avenue. She
claims that the fall injured her false teeth. Because the City did not waive sovereign immunity, the
Court lacks subject matter jurisdiction, and the claim must be dismissed. Before further
proceedings, the Court must resolve this issue, following Trinity Broadcasting of Denver v. City
of Westminster, 848 P.2d 916, 925 (Colo. 1993), and applying the standard established by the
Colorado Supreme Court in Maphis v. City of Boulder, 504 P.3d 287, 291 (Colo. 2022).
DATE FILED
December 31, 2024 5:01 PM
FILING ID: 3784922E928A8
CASE NUMBER: 2024CV31043
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II. STANDARD OF REVIEW
1. Motion to Dismiss
An affirmative defense raised for lack of jurisdiction over the subject matter of a case may
be made “by separate motion filed on or before the date the answer or reply to a pleading under
C.R.C.P. 12(a) is due.” C.R.C.P. 12(b)(1). “[A] lack of subject matter jurisdiction deprives the
court of any authority to act….” People In Interest of P.K., 411 P.3d 963, 968 (Colo. App. 2015).
“Whether the CGIA applies to protect the government from suit is a question of subject
matter jurisdiction governed by the standard for dismissal pursuant to C.R.C.P. 12(b)(1).” Maphis
v. City of Boulder, 504 P.3d 287, 291 (Colo. 2022). “As such, the plaintiff carries the burden of
proof to show that the government waived its immunity.” Id.
2. Colorado Governmental Immunity Act (“CGIA”)
Colorado’s legislature ensured that waivers to sovereign immunity are strictly limited.
The general assembly . . . recognizes that the state and its political subdivisions
provide essential public services and functions and that unlimited liability could
disrupt or make prohibitively expensive the provision of such essential public
services and functions. The general assembly further recognizes that the taxpayers
would ultimately bear the fiscal burdens of unlimited liability and that limitations
on the liability of public entities and public employees are necessary in order to
protect the taxpayers against excessive fiscal burdens.
C.R.S. § 24-10-102 (emphasis added).
Unless expressly waived in the CGIA, “[a] public entity shall be immune from liability in
all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type
of action or the form of relief chosen by the claimant . . ..” C.R.S. § 24-10-106(1) (emphasis added).
There are ten recognized waivers, enumerated in C.R.S. § 24-10-106(1)(a)-(h).
Plaintiff attempts to invoke waiver under C.R.S. § 24-10-106(1)(d)(I). Complaint at ¶ 6.
To prove waiver under subsection (d)(I), Plaintiff must show “[a] dangerous condition of a public
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highway, road, or street which physically interferes with the movement of traffic on the paved
portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of
any public highway, road, street, or sidewalk within the corporate limits of any municipality....”
Additionally, “the phrase ‘physically interferes with the movement of traffic’ shall not include
traffic signs, signals, or markings, or the lack thereof.” Id. (emphasis added).
“[T]o prove the ‘dangerous condition’ element of the immunity waiver, a plaintiff must
show that the ‘condition created a chance of injury, damage, or loss which exceeded the bounds of
reason.’” Maphis, 504 P.3d at 292 (emphasis added) (quoting City & Cty. of Denver v. Dennis¸
418 P.3d 489, 497 (Colo. 2018)). As a result, “the CGIA requires ‘more than a foreseeable risk of
harm.’” Id. at 291-92. “Assessing whether the plaintiff has met this burden requires examining the
totality of the circumstances presented by the undisputed evidence as to whether that particular
condition presented an unreasonable risk.” Id. at 292.
In Maphis, the Court of Appeals and the Supreme Court of Colorado both held that a two-
and-a-half-inch sidewalk deviation did not constitute a dangerous condition, even though the City
of Boulder itself already had designated the deviation as a hazard and planned to remedy the issue.
Id. Similarly, in Dennis, 418 P.3d 489 (Colo. 2018), a claimant suffered injuries related to cracks
and ruts in the road at an intersection. Just days before the incident, the City’s own Pavement
Engineer had inspected the site, testifying that he considered the state of the road to be
“‘dangerous,’ but not ‘dangerous enough’ to warrant immediate repairs.” Id. at 493. The Colorado
Supreme Court recognized that “[t]here are situations where… there is a foreseeable risk that the
road [or condition] could cause an injury, but that risk is reasonable. The CGIA requires more than
a foreseeable risk of harm; it requires an unreasonable risk of harm.” Id. at 497.
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3. Trinity Hearing
“A trial court may hold an evidentiary hearing to resolve any factual dispute concerning its
jurisdiction under the GIA.” Martinez v. Weld Cty. School Dist. RE-1, 60 P.3d 736, 739 (Colo.
App. 2002). “The CGIA requires that once a public entity raises the defense of sovereign
immunity, the court must immediately suspend discovery unrelated to sovereign immunity and
decide that issue. § 24–10–108, C.R.S. (2017).” City & Cty. Of Denver v. Dennis¸ 418 P.3d 489,
494 (Colo. 2018).
“Any factual dispute upon which the existence of jurisdiction may turn is for the trial court,
not the jury, to determine.” Ferrel v. Colo. Dept. of Corrections, 179 P.3d 178, 183 (Colo. App.
2007). “[T]rial courts must resolve all issues of immunity before trial through the procedures
employed in Trinity Broadcasting of Denver v. City of Westminster…, and its progeny….” Finnie
v. Jefferson Cty. School Dist. R-1¸79 P.3d 1253, 1259 (Colo. 2003). “If the motion is a factual
attack on the jurisdictional allegations of the complaint . . . the trial court may receive any
competent evidence pertaining to the motion.” Trinity Broad. Corp., 848 P.2d at 924.
III. ARGUMENT
1. Plaintiff fails to allege a dangerous condition.
“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).
Much of Plaintiff’s Complaint focuses on arguing that her injury was “foreseeable.” But
“the CGIA requires ‘more than a foreseeable risk of harm.’” Maphis, 504 P.3d at 291-92 (emphasis
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in original). Rather, Plaintiff must allege facts which could reasonably demonstrate that the planter
presented a danger which exceeds the bounds of reason. Id. at 292. Further, as in any pleading,
Plaintiff cannot simply state in conclusory fashion that the planter was somehow unreasonable;
instead, she must allege facts that would support that finding. Plaintiff has failed to do so.
Below is an image of the planter over which Plaintiff alleges she tripped:
Before the City removed it, the planter was located between two lines of newspaper boxes
and a bike rack, positioned against the curb. The planter also was located directly above a storm
drain. The large silver pole to the left is a streetlight. The Court likely is familiar with the location;
the storefronts facing the planter are often lit up at night, in addition to the streetlight to the left,
the lights from traffic, and other surrounding lights throughout Downtown Fort Collins. Further,
Plaintiff states that she fell on December 20, 2023, when the City has additional holiday lighting
throughout the area.
Below is an image of the planter without the tree in the middle. The first image is shown
in the daylight, and the second (Exhibit 1 to Plaintiff’s Complaint), was taken at night. The planter
is just as visible at night as in the daylight photograph.
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In Maphis, the Colorado Supreme Court found that a two-and-a-half inch “deviation” in
the sidewalk was not a dangerous condition that waived immunity under the CGIA. Said
“deviation” was not an intended part of the sidewalk’s design; that sidewalk was damaged.1 In
fact, the City of Boulder itself considered the deviation in the sidewalk to be a “hazard” and had
marked it “for repair.” Maphis, 504 P.3d at 289-90. After a Trinity hearing, the district court in
Maphis found that the deviation was “largely imperceptible.” Even so, the appellate court reversed
the trial court’s determination that the City of Boulder had waived immunity. Colorado’s Supreme
Court later affirmed that reversal, agreeing that the City of Boulder did not waive sovereign
immunity because of the condition of the sidewalk.
1 Maphis compares this deviation in a sidewalk to the standard in City and County of Denver v. Dennis, 418 P.3d 489
(Colo. 2018). Dennis considered a road that was “cracked, worn, . . . somewhat rutted,” and otherwise “deteriorated.”
Denver’s own Pavement Engineer testified that he considered the area of the road “‘dangerous,’ but not ‘dangerous
enough’ to warrant immediate repairs.” Still, the Colorado Supreme Court held that Denver did not waive immunity.
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In this case, the facts weigh even more strongly towards finding that the City of Fort Collins
did not waive sovereign immunity. First, the planter was not a sidewalk “deviation” – it is a large,
raised, square platform, similar to many around town, intended to provide space for a tree. There
also is a grill on top of the platform, which is a different color, material, and pattern than the
surrounding sidewalk. As emphasized in the images above, a streetlight is just a few feet away
from the planter, shining directly onto its raised concrete edges and the darker grill on top. Contrary
to the allegations in the Complaint, the area is well lit, and the planter is clearly visible. Prior to
December of 2023, the City has no record of any complaints related to this planter.
At the time of Plaintiff’s alleged fall, the planter at issue was not subject to any
“deterioration” of the intended design. Unlike the conditions at issue in Dennis and Maphis, the
condition of the planter is not a crack, pothole, or other similar type of degradation of material.
Instead, the planter was a purposefully raised platform intended to hold and adequately protect a
tree, which in turn directly benefitted residents of the City by providing additional scenery, an
increase in foliage, as well as an auditory, visual, and physical separation between the road and
the sidewalk. Furthermore, the planter was located directly between two other items (which, like
the planter, serve the dual purpose of obstructing foot traffic from straying too close to College
Avenue – a very busy street), those items being a dark green newspaper box and a dark green bike
rack.
2. As a matter of law, the planter’s design was not a “dangerous condition”.
“A dangerous condition shall not exist solely because the design of any facility is
inadequate.” C.R.S. § 24-10-103. The CGIA “specifically excludes from the state’s maintenance
obligation any duty to upgrade, modernize, modify, or improve the design of a facility.” Medina
v. State, 35 P.3d 443, 457 (Colo. 2001). That is because “[s]ome risk is inherent in every design.”
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Id. at 458. Even “designs that become inadequate over time – because of a change in use… or
because of changing safety standards – need not be corrected.” Id. Instead, “an injury results from
a state’s failure to maintain . . . when the dangerous condition . . . causing the injury is allowed to
develop subsequent to the initial design and construction . . ..” Id. at 456. It is this “development
of a dangerous condition . . . subsequent to its initial design and construction, that creates in the
state a duty to return the road to ‘the same state of being, repair, or efficiency as initially
constructed.’” Id. at 458 (emphasis added). In Medina, Colorado’s Supreme Court recognized that
Highway 6’s design – having been built “without shoulders, without ditches, and with very steep
highway clearance rock cuts” – carried an inherent risk of causing or allowing rock falls to strike
vehicles below, but such a design flaw still did not waive sovereign immunity.
Similarly, in Estate of Grant v. State, the trial court originally determined that the State of
Colorado waived immunity where the estate of a claimant alleged that the claimant’s death in a
motor vehicle collision resulted from a defective traffic control plan issued by the Colorado
Department of Transportation (CDOT) during the construction of a highway. 181 P.3d 1202, 1205-
7 (Colo. App. 2008). The Court of Appeals reversed, however, finding that the State did not waive
sovereign immunity, even if elements of the traffic control plan removed preexisting barriers that
otherwise prevented illegal U-turns. The Court of Appeals determined that the final traffic control
plan was a design (although temporary), and because the Plaintiff’s injury resulted “solely from
design,” the State had not waived immunity “even if this design was, in fact, negligent or
inadequate.” Id. at 1207.
The Court of Appeals in Grant went on to explain that this reasoning is tied to the definition
of “dangerous condition,” which requires a Plaintiff to show that their injury stemmed from
negligent construction or maintenance of a facility, but which specifically provides that a Plaintiff
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cannot establish waiver due to an allegedly negligent design. C.R.S. § 24-10-103. CDOT’s “failure
to require or install barriers or similar devices during the upgrade did not create a ‘dangerous
condition’ within the meaning of the statute....” Id. at 1207.
Here, assuming Plaintiff’s allegations in the Complaint are true, there can be no waiver of
the City’s immunity. The planter was designed to be raised above the sidewalk to protect the roots
of a tree. That is part of a larger, ongoing design throughout Downtown Fort Collins. The City
uses the raised “curbing,” as well as the flat grates on the top of the structure, to prevent damage
to existing trees and their roots. The tree near the Aggie Theater is located above a storm drain, so
the curbing design was used to protect the roots of the existing tree at the time. Similar curbing
planters are currently used around the City, for example, along W. Elizabeth. The City adopted
this curbing design approximately two decades ago as part of a sidewalk improvement project.
The current Assistant City Forester, Ralph Zentz, will testify to these facts. See Exhibit A
(“Declaration of Ralph Zentz”).
On the date Plaintiff states she fell, the City was not in the process of constructing the
planter at issue; it had been in place for many years. There also is no allegation that the City failed
to maintain the structure – as seen in the photographs, it was not cracked, deteriorated, or degraded.
There was no need for restoration work to return the planter to its original design. It remained in a
condition exactly as it was designed. Using Medina’s phrasing, no new condition to the planter
had been allowed to “develop” subsequent to its initial design and construction, which led to the
alleged injury to Plaintiff. The fact that the planter is a raised platform by design cannot be
considered a dangerous condition waiving immunity under the CGIA.
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3. As a matter of law, the lack of signage was not a “dangerous condition.”
Beyond attacking the design of the planter, Plaintiff argues that the City should have posted
signage around the planter. However, “[p]ursuant to § 24-10-106(1)(d)(I), the failure to post
warning signs cannot serve as the basis for finding a dangerous condition and thus a waiver of
sovereign immunity.” Mason v. Adams, 961 P.2d 540, 546-47 (Colo. App. 1997). The same is true
here. Plaintiff cannot, as a matter of law, rely on an argument that the City should have posted
some sort of signage. A lack of warning signs cannot establish a waiver of sovereign immunity
under the CGIA.
IV. CONCLUSION
This case must be dismissed for lack of subject matter jurisdiction. The City did not waive
sovereign immunity. Plaintiff has not established that the planter created a “dangerous condition”
as that term is defined within the CGIA. Having this curbed planter located on the sidewalk near
the Aggie Theater was not outside “the bounds of reason.” The area is well-lit; the planter is visibly
distinguishable from the surrounding sidewalk; it is situated between two other dark green
obstacles; it had been in that location for approximately two decades without any record of
complaints until December of 2023. There is no waiver of the City’s immunity for negligent
design, and there is no waiver for failure to post warning signs.
As such, the City respectfully asks the Court to dismiss Plaintiff’s suit, either summarily
or following a Trinity hearing.
Respectfully submitted this 31st day of December, 2024.
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WICK & TRAUTWEIN, LLC
s/Andrew W. Callahan
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
Counsel for City of Fort Collins
CERTIFICATE OF FILING
I certify that on the 31st day of December, 2024, a copy of this Motion to Dismiss was filed
with the court via CCE and served on the following:
Karl W. Hager #52710
123 North College Avenue, Suite 112
Fort Collins, CO 80524
Attorney for Linda Zaffos
/s/ Nicole Pagliari
Nicole Pagliari, Paralegal