Opinion
No. 98CA0783
September 30, 1999 Certiorari Granted May 22, 2000.
Appeal from the District Court of the City and County of Denver, Honorable Edward A. Simons, Judge, No. 97CV5773.
JUDGMENT AFFIRMED
Law Office of Kathleen Mullen, P.C., Kathleen Mullen, Linda M. Davison, Denver, Colorado, for Plaintiff-Appellant.
Semple, Miller Mooney, P.C., Patrick B. Mooney, Elizabeth J. Hyatt, Denver, Colorado, for Defendants-Appellees.
Division II
Plank, J., concurs
Jones, J., dissents
Plaintiff, Shayne Padilla, through her legal guardians and next friends, Mariano and Michelle Padilla, appeals the judgment dismissing her negligence action against defendants, School District No. 1 in the City and County of Denver, Colorado, and the Denver School District Board of Education. We affirm.
Plaintiff, a ten-year-old disabled child, initiated this action to recover damages for injuries she sustained from a fall at her Denver elementary school. According to the complaint, on an occasion when the child was agitated and upset, a classroom aide put her in a stroller, removed her from the other children, and placed her in a storage closet with the door open. The back of the stroller was propped against the open closet door, out of the line of sight of the school staff. When the child became more agitated, the stroller tipped over backward, causing her to sustain a skull fracture when her head hit the tile floor.
Defendants moved to dismiss under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction based on the Colorado Governmental Immunity Act (CGIA), 24-10-101, et seq., C.R.S. 1999. They argued that, notwithstanding plaintiff's allegation in her complaint that "[t]he use of the open door as a backstop for the stroller created a dangerous condition of a public building" within the meaning of 24-10-106(1)(c), C.R.S. 1999, her injuries did not result from a physical or structural defect of the building and, thus, the 24-10-106(1)(c) "dangerous condition" exception to governmental immunity did not apply.
In response, plaintiff submitted transcripts of interviews with school staff in support of her argument that positioning the stroller against the open door and wall of the storage closet, without any direct line of observation, created a physical defect in a room that was being used as a place of seclusion. She also argued that use of the closet as a seclusion room was inconsistent with standards set forth in Colorado regulations governing the use of seclusion rooms in state mental institutions. Plaintiff requested denial of defendants' motion or, in the alternative, an evidentiary hearing "if this Court is in any way unclear as to how DPS staff used the physical condition of the door, wall, open doorway, and storage room to create a dangerous condition of a public building."
Stating that it accepted plaintiff's version of the facts for purposes of its order on defendants' motion, the trial court concluded that these facts did not support a finding that plaintiff's injuries were caused by a dangerous condition of a public building. Accordingly, the court granted defendants' motion and dismissed plaintiff's complaint without a hearing. Plaintiff's motion for reconsideration was denied. This appeal followed.
I.
As an initial matter, we reject plaintiff's contention that the trial court abused its discretion by failing to hold a hearing before granting defendants' motion.
Whether a public entity's immunity has been waived under the CGIA involves an issue of subject matter jurisdiction as to which, under C.R.C.P. 12(b)(1), the plaintiff bears the burden of proof. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997); Capra v. Tucker, 857 P.2d 1346 (Colo.App. 1993).
If a motion to dismiss on the basis of governmental immunity is a factual attack on the jurisdictional allegations of the complaint, the trial court may receive any competent evidence pertaining to the motion and may hold an evidentiary hearing to resolve any factual dispute. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993); Capra v. Tucker, supra; see also C.R.C.P. 121 1-15(4). If the relevant facts are not in dispute, whether governmental immunity has been waived is a question of law. Swieckowski v. City of Fort Collins, supra.
In Trinity Broadcasting, on which plaintiff relies, an evidentiary hearing was required because there were factual disputes as to whether the plaintiff gave timely notice under the CGIA. Here, by contrast, defendants did not dispute the facts which plaintiff contended brought her case within the statutory waiver of immunity for a dangerous condition of a public building. The trial court likewise accepted plaintiff's version of the facts but concluded these facts did not establish a waiver of defendants' immunity.
Where the evidence relevant to the immunity defense is before the court, no hearing is required. See Capra v. Tucker, supra. Here, as noted, plaintiff's request for a hearing was simply presented to the court as an alternative if the court had questions as to how the staff used the storage room and other parts of the building to create a dangerous condition. It was not an abuse of discretion for the trial court to conclude that it did not need to hear further evidence or argument as to these issues, especially where defendants were not disputing plaintiff's factual allegations.
II.
Plaintiff argues that the trial court erred by failing to consider evidence showing improper use and "negligent maintenance" of the windowless storage closet as a seclusion room. She contends that such improper use "created the dangerous condition of the building itself," so as to bring her case within the 24-10-106(1)(c) exception to governmental immunity. We disagree.
As set forth above, a public entity's sovereign immunity is waived under 24-10-106(1)(c) in an action for injuries resulting from a "dangerous condition of any public building." The term "dangerous condition" is defined in 24-10-103(1), C.R.S. 1999, as:
[A] physical condition of a facility or the use thereof which 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 in constructing or maintaining such facility. Maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility. For the purposes of this subsection (1), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate. . . .
Thus, to establish a waiver of sovereign immunity under 24-10-106(1)(c), the injured party must show that the accident occurred as a result of the (1) 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. Walton v. State, 968 P.2d 636 (Colo. 1998). We agree with the trial court that plaintiff did not make such a showing.
We note initially that plaintiff's assertion in her appellate briefs that the storage closet was "routinely" or "on multiple occasions" used as a seclusion room for the child is not supported by the evidence she provided to the trial court. Plaintiff cites transcripts of police interviews with the child's teacher and an aide. However, according to the transcripts, the teacher stated that the child had been placed against the door in the storage closet "maybe once or twice before," and the aide said that the child had been placed in that position "possibly once, to my knowledge" before the incident that led to the child's injuries.
More important, even if the school staff had in fact used the storage closet more than once or twice as a seclusion room for the child, such use would not bring this case within the "dangerous condition" exception to governmental immunity.
To come within that exception, the dangerous physical condition must be proximately caused by the negligent act or omission of the public entity in constructing or maintaining the public facility. See 24-10-103(1); Walton v. State, supra.
Plaintiff does not allege that the storage closet was negligently constructed for the use for which it was intended. Rather, she contends that defendants were negligent by "improperly using and maintaining the storage closet as a seclusion room when the room was defective for that purpose." Contrary to plaintiff's contention, negligent use of the storage closet as a seclusion room would not constitute negligent "maintenance" of the facility for purposes of the "dangerous condition" exception.
In Swieckowski v. City of Fort Collins, supra, 934 P.2d at 1386, the supreme court concluded that, under the CGIA, "a failure to `maintain' means a failure to keep a facility in the same general state of being, repair, or efficiency as initially constructed." In Walton v. State, supra, on which plaintiff relies, the supreme court upheld the trial court's finding of a dangerous condition based on negligent maintenance where the university failed to provide a safe stairway to afford access to a storage space for cleaning purposes. The court reasoned that "use of the space by the university for storage required a means of maintenance and the institution of maintenance procedures that did not pose an unreasonable risk of injury to members of the public." Walton v. State, supra, 968 P.2d at 645.
Here, plaintiff's complaint does not allege negligent maintenance within the meaning of Swieckowski and Walton, but, instead, alleges improper actions on the part of school staff in placing the child out of their line of sight. Accepting plaintiff's argument that this brings the case within 24-10-106(1)(c) would mean that any time a school child is injured because she had been inappropriately placed where the staff could not see her, governmental immunity would be waived under the "dangerous condition" exception. Neither the plain language of the statute nor the case law supports such a construction.
Because the evidence which the plaintiff claims the court failed to consider did not establish a dangerous condition of a public facility, the trial court did not err by not considering or making findings of fact as to this evidence.
III.
Finally, plaintiff contends that the trial court erred in stating that waivers to sovereign immunity must be strictly construed. We agree that the court's statement is incorrect in light of the supreme court's holding in Walton announced after the trial court's decision here that "the CGIA waiver provisions are entitled to deferential construction in favor of victims." Walton v. State, supra, 968 P.2d at 643. Nevertheless, because we conclude that, even under a deferential construction, the waiver of governmental immunity set forth in 24-10-106(1)(c) does not apply in this case, the trial court's strict construction of that waiver does not require reversal.
The judgment is affirmed.
JUDGE PLANK concurs.
JUDGE JONES dissents.