Loading...
HomeMy WebLinkAbout2024CV31043 - Zaffos v. City of Fort Collins - 011 - Response to Motion to Dismiss1 District Court, Larimer, Colorado 201 LaPorte Avenue, Ste 100 Fort Collins, CO 80521 Phone: (970) 498-6100 ↑ Court Use Only ↑ LINDA ZAFFOS Plaintiff, vs. THE CITY OF FORT COLLINS Defendant Karl W. Hager #52710 VanMeveren Law Group, P.C. 123 N College Avenue, Suite 112 Fort Collins, CO 80524 Telephone (970) 495-9741 Fax (970) 495-6854 Email: khager@vanmeverenlaw.com Case No.: 2024CV31043 Division: 4C PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF FORT COLLINS’ MOTION TO DISMISS Plaintiff, Linda Zaffos, (“ZAFFOS”) by and through undersigned counsel, VanMeveren Law Group, P.C., Karl W. Hager appearing, hereby responds to Defendant City of Fort Collins’ (the “CITY”) motion to dismiss and states: I. INTRODUCTION The Defendant (the CITY), while undertaking a landscaping project in Old Town, Fort Collins and maintaining its sidewalk prior to December 20, 2023, removed a tree from a raised, concrete planter (the PLANTER) situated within the walking path of the southbound sidewalk on the eastern side of College Avenue. ZAFFOS, while walking on the sidewalk past the Aggie Theater, a relatively high foot traffic area, caught her foot on the vacant PLANTER and fell, causing serious bodily injury. The CITY failed to call attention to the hazard after removing the DATE FILED January 21, 2025 10:19 AM FILING ID: 62BB1724AD7CC CASE NUMBER: 2024CV31043 2 tree prior to December 20, 2023, but thereafter removed the PLANTER and replanted the tree akin to the rest of the sidewalk along College Avenue and throughout Old Town. Plaintiff brings a Premises Liability claim against the CITY, with pleaded allegations that the CITY waived its sovereign immunity under C.R.S. § 24-10-106(1)(d)(I). Defendant CITY now moves to dismiss Plaintiff’s claims on jurisdictional grounds, citing the Colorado Governmental Immunity Act. As pled in part by Plaintiff, the unused, vacant PLANTER situated in a poorly lit walking path while being in line for repair/removal with no warnings constituted a dangerous condition under the Act. As such, this Court has subject matter jurisdiction over the CITY, and the Court should properly deny the CITY’s motion to dismiss under C.R.C.P. 12(b)(1) and C.R.S. § 24-10-106(1)(d)(I), or, in the alternative, defer ruling to allow the parties discovery and a Trinity hearing. II. STANDARD OF REVIEW 1. Motion to Dismiss A Motion to Dismiss on the basis of sovereign immunity is the same as a Motion to Dismiss for Lack of Subject Matter Jurisdiction and is decided pursuant to C.R.C.P. 12(b)(1). When presented with such a Motion, the Court must make factual findings to determine whether the Court has jurisdiction to hear the case. Trinity Broad. Corp. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993). The burden of proof is on the plaintiff to prove the government has waived its immunity. However, this burden “is relatively lenient, as the plaintiff is afforded the reasonable inferences from [his or her] undisputed evidence.” City and County of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). If the court determines that the plaintiff’s factual allegations regarding the waiver of immunity are true, then it should award the plaintiff the reasonable inferences from his or her evidence. Id. 3 2. Colorado Governmental Immunity Act (“CGIA”) A public entity, such as the City of Fort Collins, has sovereign immunity from tort liability by virtue of the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24 -10-101, et seq. The immunity conferred by the CGIA is in derogation of the common law. The court is to strictly construe the immunity provisions of the Act and the waiver provisions are to be broadly construed. Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. App. 2000). As a “logical corollary” of that narrow construction, courts will “broadly construe the CGIA provisions that waive immunity in the interest of compensating victims of governmental negligence.” Id. The allegations in the complaint demonstrate that the CITY waived sovereign immunity under the C.G.I.A. (Complaint in part: ¶ ¶ 7-23, 35-40) As such, the motion to dismiss should be denied. C.R.S. § 24-10-106 entitled Immunity and Partial Waiver states: (1) 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 except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from: (d)(I) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved … of any public highway, road, street, or sidewalk within the corporate limits of any municipality … which was designed and intended for public travel or parking thereon…. Whether governmental immunity applies to bar a suit is a question of jurisdiction for the trial court. Springer v. City and County of Denver, 13 P.3d 794, 798 (Colo. 2000). “The burden of proof is on the plaintiff to prove that the government waived its immunity, but this burden is relatively lenient, as the plaintiff is afforded the reasonable inferences from her undisputed evidence.” Tidwell ex rel. Tidwell v. City and Cty. of Denver, 83 P.3d 75, 85-86 (Colo. 2003). 4 “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.” Maphis v. City of Boulder, 504 P.3d 287, 292 (Colo. 2022) citing City & Cty. Of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). Grants of immunity by the C.G.I.A. must be strictly construed. Bertrand v. Board of City Comm’rs, 872 P.2d 223, 227 (Colo. 1994). Because the C.G.I.A. is in derogation of common law, the waiver of immunity is viewed broadly. Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000). See Walton v. State, 968 P.2d 636, 643 (Colo. 1998); City & County of Denver v. Gallegos, 916 P.2d 509, 515 (Colo. 1996). “[B]ecause tort concepts are naturally subjective, the district court should not resolve the iss ue of whether the government has committed negligence, the court should only satisfy itself that it has the ability to hear the case.” City & Cty. Of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018). “At this stage in the proceeding,” this Court should view the case “in the light most favorable to the [P]laintiff.” Swieckowski by Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1387 (Colo. 1997). C.R.S. § 24-10-103(1.3) defines dangerous condition as a condition that constitutes an unreasonable risk 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 . . . of the public entity . . . in constructing or maintaining such facility. In St. Vrain Valley Sch. Dist. RE-1J v Loveland, 395 P.3d 751, 755 (Colo. 2017) the Colorado Supreme Court said: This court has segregated the CGIA's definition of "dangerous condition" into a four-factor test. The waiver applies if the injuries occurred as a result of: (1) the physical condition of the 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 5 negligent act or omission of the public entity in constructing or maintaining the facility." Citing Springer, 13 P.3d at799 (Colo. 2000). Pursuant to C.R.S. § 24-10-106(1)(d)(l) the CGIA is subject to waiver: “Sovereign immunity is waived by a public entity in an action for injuries resulting from: A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, . . . within the corporate limits of any municipality . . .” Pursuant to C.R.S. § 24-10-103 (1.3): "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. For the purposes of this subsection (1.3), a dangerous condition should have been known to exist 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 care, such condition and its dangerous character should have been discovered.” The courts in Colorado firmly adopt constructive notice as it relates to waivers of immunity under the C.G.I.A.. See Walton v. State, 968 P.2d 636, at 645 (Colo. 1998). A public entity may proximately cause a condition not only by affirmatively creating it, but also by its omission in failing to reasonably discover and correct the unsafe condition. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000). A dangerous condition should have been known to exist if the Plaintiff establishes 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 its dangerous character should have been discovered.” C.R.S. § 24-10-103(1.3). The question of a municipality’s knowledge of a dangerous condition is a question of fact that precludes dismissal on immunity grounds. Luenberger v. City of Golden, 990 P.2d 1145, 1148 (Colo. App. 1999). 6 3. Trinity Hearing Standard “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. In Defendant’s Motion to Dismiss, several material facts are claimed, without the benefit of Plaintiff having an opportunity to conduct discovery through a Trinity hearing or amend of her Complaint. Either result should be afforded in lieu of granting Defendant’s Motion to Dismiss at this stage, and Plaintiff specifically requests such if the Motion to Dismiss cannot be denied. 4. Premises Liability Review Standards The Colorado Supreme Court has interpreted immunity waiver in the context of the Premises Liability Act (PLA), C.R.S. § 13-21-115, which governs civil actions against landowners for injuries occurring on the property. Construing this provision alongside the Colorado Governmental Immunity Act (CGIA) waiver under C.R.S. § 24-10-106(1)(c), the Supreme Court has held that, when a public entity provides a public building for public use, it owes a nondelegable 7 duty to protect invitees under the PLA from an unreasonable risk to their health and safety due to a negligent act or omission in constructing or maintaining the facility. Galef v. Univ. of Colo., 2022 COA 91, ¶ 16, 520 P.3d 184, 188. Regarding the definition of “dangerous condition”, the fourth element evaluates whether the condition was proximately caused by the public entity in constructing or maintaining the facility. Id. at ¶ 19. The definition of “dangerous condition” does not always preclude a waiver for a dangerous condition of a public building where the public entity’s sole alleged negligent act or omission is a failure to warn of a hazardous physical condition. Id. at ¶ 24. III. ARGUMENT By its Motion to Dismiss, the CITY states that Plaintiff failed to allege a “dangerous condition,” that the PLANTER itself was not a dangerous condition as a matter of law, and that lack of signage alone cannot rise to the level of a “dangerous condition.” However, Defendant injects disputed facts into its argument (Defendant’s Motion to Dismiss pg. 5-6, 9; Declaration of Ralph Zentz), which should be subject to further discovery by Plaintiff through Trinity procedures. Notwithstanding, by Plaintiff’s pleading, these arguments are incorrect and misguided and Defendant’s Motion should be denied, or ruling deferred until further discovery through Trinity procedures and/or amendment of Plaintiff’s pleading. 1. Plaintiff Properly Alleged the PLANTER Constituted a Dangerous Condition Defendant improperly argues that Plaintiff failed to allege a dangerous condition as it applies to waiver of sovereign immunity under the CGIA. C.R.S. § 24-10-103(1.3) defines dangerous condition as a condition: that constitutes an unreasonable risk 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 . . . of the public entity . . . in constructing or maintaining such facility. 8 In St. Vrain Valley Sch. Dist. RE-1J v Loveland, 395 P.3d 751, 755 (Colo. 2017) the court acknowledged the segregation of the CGIA's definition of "dangerous condition" into a four-factor test. The waiver applies if the injuries occurred as a result of: (1) the physical condition of the 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 exerci se of reasonable care; and (4) which condition is "proximately caused by the negligent act or omission of the public entity in constructing or maintaining the facility." Citing Springer, 13 P.3d at 799 (Colo. 2000). Plaintiff’s Complaint alleges that ZAFFOS’ injuries occurred as a result of each of these factors. (in part, Plaintiff’s Complaint ¶ ¶ 7-21; 35-40) “At this stage in the proceeding,” this Court should view the case “in the light most favorable to the [P]laintiff.” Swieckowski by Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1387 (Colo. 1997). By Plaintiff’s pleading, Defendant’s argument fails and the Motion should be denied. Considering disputed factual information through Defendant’s argument, at a minimum, requires further discovery. Defendant cites Maphis (which was decided through a Trinity hearing) and Dennis and compares the PLANTER in this case to a two-inch deviation in a sidewalk that was “largely imperceptible.” (Defendant Motion to Dismiss pg. 6-7). The CITY then discloses several photographs in comparison and to describe the character and nature of the PLANTER, which is far from a “largely imperceptible” two-inch deviation that creates factual disputes warranting additional discovery. In Maphis the Colorado Supreme Court affirmed the appellate court’s reversal of the district court’s decision to dismiss the complaint against Boulder. Maphis, 504 P.3d at 293-94. The court decided that “based on a totality of the circumstances presented by the undisputed facts” (id., at 293), the crack in the sidewalk did not “present a risk that ‘exceeded the bounds of reason.’” Id., 9 at 289, quoting Dennis 418 P.3d at 497. The central undisputed fact that the Maphis Court relied upon in determining that the risk associated with the crack in the sidewalk was not an unreasonable risk (i.e., it did not exceed the bounds of reason) was that these types of cracks in sidewalks are “commonplace throughout Colorado due to the harsh climate and other environmental factors.” Id., at 293. The court reasoned that in light of some of the purposes of the C.G.I.A. – of protecting governments from unlimited liability that could disrupt or make prohibitively expensive the provision of essential services and protecting taxpayers against excessive financial burdens (id., at 291) – the risk was not unreasonable (id., at 293). The court considered that Boulder had a program to address the cracks (id., at 289-90), had discovered the crack causing the injury (id., at 290), but that budget limitations necessitated the need for several years to address the cracks (id., at 290). The court, noting that “we cannot ignore the realities Colorado’s local governments face in trying to maintain roads and sidewalks”, decided that it is unwilling to impose an impossibly high standard whereby state and local governments must keep sidewalks like new at all times. Id., at 293, citing Dennis, 418 P.3d at 496. This would significantly increase rather than reduce potential burdens on taxpayers. Id. None of these circumstances exist in this case. The unused and empty PLANTER in the pedestrian walking path on the sidewalk is not commonplace. It’s not commonplace within the City of Fort Collins in this area either, as nearly every single concrete plante r is now flush with the sidewalks or removed completely, even housing large trees. The CITY fails to acknowledge this fact, instead alluding to the length of time that this particular planter was in its current location prior to December 20, 2023, and that it was remedied after Plaintiff’s injury in response to complaints. The CITY created the dangerous condition by placing it in its location in the walking path of pedestrians, especially while not being used to house a tree. It is unknown at this time why 10 there was no tree in the PLANTER at the time Plaintiff was injured. It appears, however, that the PLANTER in question was intended to be “leveled” to sidewalk level at some point prior to December 20, 2023, as pled by Plaintiff, based on the remedial measures taken by the CITY to level the PLANTER following Plaintiff’s incident and also based on the rest of these similar devices in this area of town. There is no information available regarding time or budget limitations in remediating the unused PLANTER or completing the maintenance regarding replanting the tree. There are no assertions of any increase in potential burdens on taxpayers. The Maphis Court determined that monetary considerations made the foreseeable risk, reasonable under the C.G.I.A. None of these factors exist to make the risk here “reasonable.” Here, the CITY created the dangerous condition that gave rise to Plaintiff’s injury through its maintenance of the sidewalk; the chance of injury, damage, or loss was unreasonable, as pled by Plaintiff. The CITY’s reliance on Dennis is likewise misplaced. In Dennis, the Colorado Supreme Court reversed the appellate court decision reversing the district court’s decision dismissing the case against Denver under the C.G.I.A. Dennis 418 P.3d at 498. The court stated that the evidence showed that the cracks and ruts in the road did not hinder or impede the movement of traffic, that a third-party driver impeded (cut off) plaintiff (a motorcyclist with a passenger), and that there was no proof that the road itself caused the accident. Id. The court found that there was no evidence that the road surface “prevented the motorcycle driver from performing as expected.” Id. The court also considered the estimated cost to keep roads in Colorado in the condition necessary to correct the condition at issue (i.e., one billion dollars for roads per year and $360 million per year for bridges). Id., at 496. Based upon these circumstances and the size of the pothole, the court decided that “there is a foreseeable risk that the road could cause injury, but that risk is reasonable” under the C.G.I.A. Id., at 497. The court said that the appellate court must be reversed because it 11 “would require state and local governments to keep roads like new at all times or face potential liability in a tort lawsuit because the road constitutes an unreasonable risk to the health and safety of the public.” Id., at 496. The Court decided that it was foreseeable that the road condition could cause injury, “but that risk is inherent in driving on a road that has deteriorated from its original condition through use.” Id. at 497. Similar to the comparison of Maphis to this case, none of the material factors leading the Dennis Court to decide that the risk was reasonable exist in the instant case. In this case, the PLANTER hindered and impeded the movement of Plaintiff as a pedestrian on the sidewalk, there was no third-party impeding the Plaintiff, and the PLANTER itself caused the accident. Here, unlike Dennis, the PLANTER prevented a pedestrian (on the sidewalk) from “performing as expected.” Also, unlike Dennis, the risk posed by the PLANTER in the sidewalk walking path is not an inherent risk to pedestrians. It is an unreasonable unique risk, as the PLANTER was not being used for its intended purpose of protecting and housing a large, visible tree, and instead was vacant in the walking path with no alerts or warnings as to its presence. The description given of the PLANTER by Defendant in its Motion to Dismiss (Defendant’s Motion to Dismiss pg. 7) misrepresents the character and nature of the PLANTER and lighting conditions on December 20, 2023 (as plead by Plaintiff, Complaint ¶¶ 31, 32). The photograph described as taken at night, most closely resembling the condition of the PLANTER on December 20, 2023 (aside from the warning cones and spray paint that were put in place after Plaintiff sustained her injuries), was taken with night vision and/or flash, illuminating the area. Defendant then states that the PLANTER was a purposely raised platform intended to hold and protect a tree, but there was no tree in the PLANTER on December 20, 2023. Defendant further admits that the PLANTER is located on a “very busy” street and serves an actual purpose of 12 obstructing foot traffic, while being located between two dark green items. At the very least, the facts advanced by Defendant throughout its Motion are disputed and warrant further discovery. Defendant next argues that the PLANTER’s design was not a “dangerous condition” as a matter of law, citing design-based rulings. 2. Plaintiff Alleges that Defendant Caused the Dangerous Condition by the Negligent Act of the CITY in Maintaining the Sidewalk Defendant next argues that the CITY’s design of the PLANTER did not change and did not rise to the level of a “dangerous condition.” Relying on Medina and Estate of Grant, the CITY attempts to make design-based arguments, however the allegations which are scrutinized for purposes of sovereign immunity here are negligent construction and/or maintenance (in part, Complaint ¶ 39). Conditions implicating defective maintenance rather than design “develop subsequent to the initial design and construction.” Medina, 35 P.3d at 456. In Medina, there was no allegation that the hazardous physical condition developed as a result of the state’s affirmative actions in undertaking maintenance of the road. Further, a C.G.I.A. definition of “maintenance” was not in place when Medina was decided. See Galef at ¶ 36, 520 P.3d 184, 192. In contrast, ZAFFOS alleged that the dangerous condition (PLANTER) was proximately caused by the negligent act or omission of Defendant in maintaining the roadway. (Complaint ¶ 39), contrary to Defendant’s argument (Defendant’s Motion to Dismiss pg. 9) The “initial design,” as indicated by the Declaration of Ralph Zents, was to protect tree roots of the exiting tree at the time, but there was no tree in the PLANTER on December 20, 2023. The fact that the CITY removed the tree from the PLANTER prior to December 20, 2023 with no replacement, warning or otherwise until after Plaintiff was injured, changed the entire utility of the structure, but not its design. Its presence was nothing more than a hazard until it was removed 13 after the tree was taken out, as the Declaration states that the PLANTER was raised to protect tree roots. This is not the case throughout the same area in the CITY, and the tree was replanted in that same spot after the PLANTER was leveled. The CITY admits by its Motion to Dismiss that the PLANTER was removed or made flush with the sidewalk after Plaintiff’s incident, but provides no facts regarding when the tree was initially removed (as misrepresented in the photographs provided), or if the PLANTER had a work order or time frame for when it was supposed to be remedied to its current state. This Declaration further states that similar curbing planters are currently used around the CITY, but not in Old Town or along College Avenue on December 20, 2023. The PLANTER, located in the walking path of pedestrians, not serving its intended purpose (i.e. being vacant of any tree) and thereafter being leveled to flush like the majority of every other tree planter throughout this area of town, all lend to its dangerousness and the unreasonableness of it through the CITY’s maintenance efforts. Remedial measures taken thereafter would be admissible as to the feasibility of the maintenance completed on the PLANTER after Plaintiff was injured (i.e. leveling it and replanting the tree thereafter). See Duggan v. Board of Cty. Commrs. Of Weld County, 747 P.2d 6. At a minimum, these facts are disputed and warrant further discovery through the Trinity process. Whether it was part of a pre-determined plan is disputed, as is whether subcontractors were involved, or the timing of the overall landscaping project with tree removal and the work orders for the rest of the planters in this area already have been removed or made flush. It is also unclear at this time who, whether the CITY or a subcontractor, was responsible for placing the warning/traffic cones on the PLANTER after December 20, 2023 or who painted the area with bright spray paint after the fact, as represented in the photo provided by Defendant in its Motion to Dismiss. 14 3. Failure to Warn or Lack of Signage Can Constitute a Dangerous Condition Although Plaintiff did not allege a failure to warn as the sole factor constituting the PLANTER as a dangerous condition, Defendant’s argument is still inapposite. The CITY argues in its’ Motion to Dismiss (pg. 10), that the C.G.I.A. does not waive immunity for claims asserting a failure to warn. Medina v. State, 35 P.3d 442, 449 (Colo. 2001). However, the Galef ruling renders that statement untrue. In Galef v. Univ. of Colo., 2022 COA 91, 520 P.3d 184, an injured Plaintiff successfully demonstrated that imperceptibly wet, slippery stairs posed an unreasonable risk to the health and safety of the public and sufficiently carried his burden to demonstrate that his injuries resulted from a “dangerous condition of any public building” under the Colorado Governmental Immunity Act. In so holding, the Court confirmed that the definition of “dangerous condition” can include a public entity’s failure to warn of a hazardous physical condition in a public building when: (1) the dangerous condition is not attributable solely to inadequate design; and (2) the public entity’s duty to warn of a hazard is encompassed within its duty of maintenance. Galef v. Univ. of Colo., 2022 COA 91, ¶ 24, 520 P.3d 184, 190. “Maintenance” is the act of keeping a facility in the same general state of repair or efficiency as initially constructed. Id. at, ¶ 36, 520 P.3d 184, 192. Removing the tree from the PLANTER prior to December 20, 2023 was within the CITY’s maintenance duties, and the CITY was undertaking maintenance of the PLANTER when it removed the tree. As pointed out by the dissent in Maphis, “the failure to call attention to the hazard [], particularly given how difficult it was to perceive, is relevant to determining whether it was unreasonably dangerous.” Maphis, 504 P.3d at 295. In this case, the PLANTER being without a large tree and sticking partially in the walking path of pedestrians, hidden between two dark objects, is difficult to perceive. Moreover, Defendant fails to acknowledge that the photograph 15 disclosed (taken at night) was used with flash and “night vision” lens. Removing the tree, the purpose of the PLANTER, and failing to call attention to the hazard before thereafter remediating it completely is highly relevant in the determination of whether or not it is a dangerous condition under the Act. ZAFFOS alleges that “[l]eaving the PLANTER exposed in the walking path of the sidewalk on College Avenue with no warnings, additional lighting, pedestrian traffic control devices or other indicators created a foreseeable chance of injury, damage and/or loss which exceeded the bounds of reason.” (Complaint ¶ 37). Shortly after this incident occurred, the CITY placed construction cones around the dangerous condition, painted portions of the sidewalk around it and then thereafter leveled the planter to flush with the sidewalk. The CITY’s Affidavit provides no insight into who placed the traffic cones or spray paint, nor any indication as to when or why the tree was removed prior to December 20, 2023, then replanted after the fact. IV. CONCLUSION Based on Plaintiff’s allegations and taking the information in the light most favorable to the Plaintiff, the Court cannot grant the CITY’s Motion to Dismiss. By Plaintiff’s pleading, the PLANTER represented a dangerous condition under the Act for which the CITY waived its sovereign immunity. Plaintiff’s injuries were caused by the dangerous condition alleged and she should be afforded the opportunity to seek redress for her injuries. This Court should deny the CITY’s motion to dismiss, or, in the alternative, allow Plaintiff to amend her Complaint following a Trinity hearing with appropriate discovery in order to decide the question of the CITY’s sovereign immunity in this case on facts that are determined to be undisputed. 16 Dated this 21st day of January 2025. VANMEVEREN LAW GROUP, P.C. _/s/ Karl W. Hager_____________ Karl W. Hager - #52710 123 North College Avenue, Ste 112 Fort Collins, CO 80524 Telephone: (970) 495-9741 Facsimile: (970) 495-6854 CERTIFICATE OF ELECTRONIC FILING AND SERVICE I hereby certify that on January 21, 2025 the foregoing Plaintiff’s Response to Defendant City of Fort Collins’ Motion to Dismiss was filed with the Court and served on all counsel of record via ICCES according to the Colorado Rules of Civil Procedure. /s/ Jenn Schossow Jenn Schossow Legal Assistant, VanMeveren Law Group, P.C.