Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 23CA1908
Judgment
Affirmed
Attorneys for Petitioner: Kane Law Firm, P.C. Mark H. Kane
Colorado Springs, Colorado
Attorneys for Respondent: Marc Smith, Acting City Attorney W.
Erik Lamphere, Division Chief Colorado Springs, Colorado
Attorneys for Amicus Curiae Colorado Municipal League: Robert
D. Sheesley Rachel Bender Denver, Colorado
2
JUSTICE GABRIEL delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO
joined.
3
OPINION
GABRIEL JUSTICE
¶1
We granted certiorari to consider whether (1) the court of
appeals division below erred in reversing the district
court's order denying the City of Colorado Springs'
motion to dismiss, in which the district court had found that
the deadline to provide notice under the Colorado
Governmental Immunity Act ("CGIA") did not begin to
run until the City of Manitou Springs informed Jaimi J.
Mostellar of the intergovernmental agreement that made
Colorado Springs potentially liable for her accident; and (2)
the CGIA should require strict compliance when such
compliance is impossible based on one public entity's
failure to inform the claimant of the potential liability of
another public entity.
¶2
Addressing the second issue first, we conclude that this case
does not implicate a scenario in which strict compliance with
the CGIA was impossible or a defendant prevented strict
compliance by misleading a plaintiff. In this case, Colorado
Springs, which was the entity entitled to notice, did nothing
to inhibit Mostellar's compliance with the CGIA.
Accordingly, strict compliance with the CGIA's plain
terms was required.
¶3
Having thus decided, we turn to the first issue on which we
granted certiorari, and we conclude that under section
24-10-109(1), C.R.S. (2025), of the CGIA, the notice period
began to run on August 26, 2021, the date on which Mostellar
was injured, not on the date that Manitou Springs informed
her of the
4
intergovernmental agreement. Accordingly, Mostellar's
notice of claim was untimely, and the division correctly
determined that her claim must be dismissed.
¶4
We therefore affirm the division's judgment.
I.
Facts and Procedural History
¶5
Mostellar alleged that she was injured on a public sidewalk
in Manitou Springs on August 26, 2021, when she tripped and
fell over the base of an old bus stop sign that had been
removed. She then provided Manitou Springs with timely notice
of her injury pursuant to section 24-10-109(1) of the CGIA,
which requires "person[s] claiming to have suffered an
injury by a public entity" to file written notice with
that public entity "within one hundred eighty-two days
after the date of the discovery of the injury."
¶6
Over the ensuing months, Manitou Springs never indicated that
it was not the real party in interest. In April 2023,
however, over a year and a half after Mostellar's fall,
Manitou Springs informed Mostellar, for the first time, that
pursuant to an intergovernmental agreement between it and
Colorado Springs, Colorado Springs was responsible for the
condition of the sign (and, thus, the condition of the
sidewalk on which Mostellar was injured).
¶7
Forty days later, on May 30, 2023, Mostellar provided
Colorado Springs with notice under the CGIA. By that point,
however (and even by the day on
5
which Mostellar was advised of Colorado Springs'
involvement), section 24-10-109(1)'s 182-day notice
period had long passed.
¶8
Mostellar thereafter brought an action against both Colorado
Springs and Manitou Springs, asserting claims for premises
liability and negligence, stemming from the existence of a
"significant trip hazard" on the sidewalk on which
Mostellar had fallen. Colorado Springs responded by moving to
dismiss on the ground that Mostellar had not provided it with
timely notice under the CGIA. In support of this contention,
Colorado Springs argued, among other things, that equitable
defenses, such as tolling, did not overcome the CGIA's
182-day notice period and that Mostellar's failure to
comply with that statutory deadline required the court to
dismiss her complaint for lack of subject matter
jurisdiction.
¶9
Mostellar responded that her notice to Colorado Springs was
timely under the CGIA, because, in her view, "the
statute of limitations with respect to Defendant Colorado
Springs did not begin to run until Plaintiff knew of the
city's potential liability as the real party in interest
for the cause of her injury." In support of this
argument, Mostellar asserted that under our decision in
Finnie v. Jefferson County School District R-1, 79
P.3d 1253, 1256-58 (Colo. 2003), determinations of compliance
with section 24-10-109(1) should consider whether the
purposes of the statute—namely, to allow public
entities to investigate and remedy dangerous conditions
promptly, to foster prompt settlement of
6
meritorious claims, to make necessary arrangements to cover
potential liability, and to prepare to defend
themselves—were satisfied. She further contended that
when a public entity has engaged with a plaintiff in a way
that thwarts those aims, service on that entity is not
necessary and principles of agency and equity should apply.
And she argued that a claimant like her must be afforded a
reasonable opportunity to discover the basic and material
facts underlying a claim before having to provide the
statutorily required notice. This was particularly true here,
given that she asserts that she had no means of discovering
the intergovernmental agreement other than through Manitou
Springs and Manitou Springs had not advised her of that
agreement until approximately a year and a half after
Mostellar had provided it with notice. Mostellar thus
contended that her claim was "within the 182 day
requirement upon discovering the basic and material facts
concerning Colorado Springs' responsibility."
¶10
The district court ultimately denied Colorado Springs'
motion to dismiss. Although the court believed that
Finnie was distinguishable because it implicated
section 24-10-109(3), rather than section 24-10-109(1), of
the CGIA, the court agreed with Mostellar that under
State v. Young, 665 P.2d 108, 109-11 (Colo. 1983),
the CGIA's notice period did not begin to run until she
learned not only of her injury but also of who caused it. In
the court's view, Mostellar did not obtain the latter
information until Manitou Springs informed her of the
intergovernmental
7
agreement that purportedly rendered Colorado Springs
responsible for the accident. This was because the incident
happened on a public sidewalk in Manitou Springs and, the
court opined, Mostellar could not reasonably have been
expected to know that Colorado Springs would have had
potential liability. Specifically, the court discerned no
reason Mostellar would have been expected to learn of the
intergovernmental agreement between the two cities.
Accordingly, because Mostellar had been reasonably diligent
in investigating her claim and giving timely notice to
Manitou Springs, and because Colorado Springs had not
suggested that the intergovernmental agreement was widely
known or that Mostellar, with reasonable diligence, could or
should have discovered it before Manitou Springs disclosed
it, the court denied Colorado Springs' motion to dismiss.
¶11
Colorado Springs then appealed, and in a unanimous,
unpublished decision, the division below disagreed with the
district court and reversed its judgment. Mostellar v.
City of Colo. Springs, No. 23CA1908, ¶ 1 (Oct. 24,
2024). The division began by noting that "[t]he 182-day
deadline is jurisdictional, and because it is a non-claim
provision, it cannot be waived, tolled, or estopped."
Id. at ¶ 10. Accordingly, a claimant's
failure to comply strictly with the CGIA's notice
requirement mandates dismissal of her complaint. Id.
Next, the court observed that "[t]he CGIA's notice
period begins when a claimant 'knew or, through the
8
exercise of reasonable diligence, should have known' that
she was wrongfully injured," although "[t]he
claimant need not yet know the cause of the injury or the
extent of the damage." Id. at ¶ 11
(quoting Trinity Broad. of Denver, Inc. v. City of
Westminster, 848 P.2d 916, 923 (Colo. 1993)). Lastly,
the division took issue with the district court's
reliance on Young because that case predated the
legislature's 1986 amendment to section 24-10-109(1),
which responded to our opinion in Young by
clarifying that the CGIA's notice period is triggered by
claimants' discovery of their injury, not their discovery
of the legal theory underlying their claims. Id. at
¶ 14.
¶12
Applying these legal principles to the facts before it, the
division concluded that it would have been immediately
apparent that Mostellar's fall and injury were the result
of negligence that met the CGIA's definition of injury.
Id. at ¶ 16. Thus, Mostellar's time to
provide notice began running on the date of her injury.
Id. And because she did not provide the required
notice until 602 days after her injury, she had not strictly
complied with the CGIA's notice deadline, and her
complaint should have been dismissed for lack of subject
matter jurisdiction. Id. at ¶ 18.
¶13
Judge Freyre specially concurred. Id. at
¶¶ 22-26 (Freyre, J., specially concurring).
Although she agreed with the majority's reasoning and
application of the law, she expressed concern regarding the
policy implications of the division's decision, noting
that the facts of this case contradict the prompt
9
investigation policy underlying the CGIA's notice
requirements. Id. at ¶¶ 22, 25. She thus
urged the General Assembly to consider statutory
modifications that would preclude public entities from
misleading plaintiffs regarding how to comply with the
CGIA's notice provisions and then assert a defense of
noncompliance. Id. at ¶ 26.
¶14
Mostellar thereafter petitioned this court for certiorari
review, and we granted her petition.
II.
Analysis
¶15
We begin by setting forth the applicable standard of review
and principles of statutory construction. Next, we address
the second issue on which we granted certiorari, namely,
whether the CGIA requires strict compliance with its notice
provision when such compliance is impossible based on one
public entity's failure to inform a claimant of the
potential liability of another public entity. Concluding that
this case implicates neither impossibility of compliance nor
any misleading conduct by Colorado Springs, we determine that
the CGIA demanded strict compliance here. We then address
whether Mostellar strictly complied with the CGIA's
notice requirement and conclude that she did not.
A.
Standard of Review and Principles of Statutory
Construction
¶16
The CGIA is a non-claim statute that raises a jurisdictional
bar if notice is not given within the applicable time period.
Trinity, 848 P.2d at 923. When, as
10
here, the parties dispute only the characterization of a
plaintiff's complaint and not the jurisdictional facts
alleged therein, we review de novo a court's ruling on a
C.R.C.P 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction. City of Boulder v. Pub. Serv. Co. of
Colo., 2018 CO 59, ¶ 14, 420 P.3d 289, 293.
¶17
Statutory construction presents a question of law that we
review de novo. Pub. Serv. Co. of Colo. v. Outdoor Design
Landscaping LLC, 2026 CO 6, ¶ 23, 583 P.3d 778,
783. In interpreting statutory provisions, we seek to
determine and effectuate the intent of those who adopted
those measures. Id. To do so, we begin with the
language employed, and we give words and phrases their plain
and ordinary meanings. Id.
¶18
If the language of a provision is unambiguous, then we apply
it as written and need not turn to other tools of
construction. Id. at ¶ 24. If, however, the
provision is ambiguous, then we may consider the intent of
those who adopted the provision, the circumstances of its
adoption, and the possible consequences of different
interpretations. Id. A provision is ambiguous when
it is reasonably susceptible of multiple interpretations.
Id.
B.
Whether Strict Compliance Was Required
¶19
Section 24-10-109(1) provides, in pertinent part:
Any person claiming to have suffered an injury by a public
entity . . ., whether or not by a willful and wanton act or
omission, shall file a written notice as provided in this
section within one hundred eighty-two days after the date of
the discovery of the injury,
11
regardless of whether the person then knew all of the
elements of a claim or of a cause of action for such injury.
Compliance with the provisions of this section shall be a
jurisdictional prerequisite to any action brought under the
provisions of this article, and failure of compliance shall
forever bar any such action.
(Emphasis added.)
¶20
This language unambiguously requires written notice within
182 days after the date the claimant discovers their injury,
regardless of whether they knew all of the elements of their
claim. The language further makes clear that strict
compliance with the statute is a jurisdictional prerequisite
to any action brought under the CGIA. Thus, we have held,
"A claimant's failure to comply with the
requirements of section 24-10-109(1) requires a court to
dismiss the action for lack of subject-matter
jurisdiction." Mesa Cnty. Valley Sch. Dist. No. 51
v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000). And we have
further opined that section 24-10-109(1) is a non-claim
statute, and, therefore, unlike an ordinary statute of
limitations, it is "not subject to equitable defenses
such as waiver, tolling, or estoppel." Id.;
accord City & Cnty. of Denver v. Crandall, 161
P.3d 627, 633 (Colo. 2007).
¶21
Notwithstanding the foregoing, Mostellar asserts that (1)
section 24-10-109(1) includes a discovery rule that required
her to know not only of her injury but also of Colorado
Springs' involvement in it before her time to provide
notice began to run; (2) when compliance with the statutory
deadline was impossible due to Manitou Springs' delay in
disclosing Colorado Springs'
12
involvement, principles of agency and equity should apply;
and (3) requiring strict compliance leads to absurd results
when, as here, Mostellar could not ascertain the identity of
the governmental entity to whom she was to provide notice
under the CGIA. We address and reject each of these arguments
in turn.
¶22
First, as to Mostellar's argument that section
24-10-109(1) includes a discovery rule that required her to
know both of her injury and of Colorado Springs'
involvement in it before the notice period began to run, the
statutory language belies this contention. As noted above,
the statute makes clear that discovery of the injury alone is
sufficient to trigger the running of the notice period.
§ 24-10-109(1).
¶23
Young, 665 P.2d at 111, on which Mostellar relies,
does not persuade us otherwise. Although in Young,
we held that a claimant must have a reasonable opportunity to
discover the basic and material facts underlying their claim
before being required to provide notice under the CGIA,
id., the legislature amended section 24-10-109(1) in
1986 to override that decision, see Reg'l Transp.
Dist. v. Lopez, 916 P.2d 1187, 1193 (Colo. 1996). Thus,
since the 1986 amendment, we have been clear that the
CGIA's "notice period is triggered when a claimant
has only discovered that he or she has been wrongfully
injured." Trinity, 848 P.2d at 923.
¶24
Second, as to Mostellar's contention that because
compliance with the statutory deadline was impossible due to
Manitou Springs' delay in disclosing
13
Colorado Springs' involvement, principles of agency and
equity should apply, we initially note that Mostellar has
provided no evidence to support her claim of impossibility of
compliance. For example, she has not explained why she could
not have submitted an open records request or researched how
transit systems are organized in Manitou Springs, either of
which could have revealed Colorado Springs' involvement.
Accordingly, the premise of Mostellar's argument fails.
¶25
In any event, Finnie, on which Mostellar relies to
assert that equitable principles should excuse her
noncompliance here, does not support her contention. In
Finnie, 79 P.3d at 1256, we differentiated between
section 24-10-109(1) and section 24-10-109(3), the latter of
which sets forth where a CGIA notice is to be filed. We
observed that section 24-10-109(1) creates a
"jurisdictional prerequisite to suit that therefore
requires strict compliance with its terms," while
section 24-10-109(3), in contrast, "provid[es] a
statutory defense to claims rather than creating a
jurisdictional prerequisite to suit." Finnie,
79 P.3d at 1256. Thus, we said, with regard to section
24-10-109(3) only, that a court may make "case-by-case
determinations of compliance, which consider principles of
agency and equity, the purposes of the statute, and concerns
of protecting plaintiffs from misrepresentations by
governmental entities." Finnie, 79 P.3d at
1258. We opined that this standard "is best described as
substantial compliance." Id.
14
¶26
Even if Finnie's substantial compliance standard
for section 24-10-109(3) could theoretically apply under the
circumstances presented here, which involve section
24-10-109(1), and even if Mostellar's compliance were
truly impossible, Finnie still would not assist
Mostellar because Colorado Springs, the party that was
entitled to the CGIA notice at issue in this case, did
nothing to impede Mostellar from providing timely notice. In
Finnie, counsel for a plaintiff who had been injured
in a school contacted the school district's risk
management department to determine where a CGIA notice of
claim should be filed. Id. at 1254. Counsel was told
by an employee of the department that the department was
authorized to receive the CGIA notice on the school
board's behalf, and counsel submitted a timely notice of
claim as directed, which the department acknowledged
receiving. Id. at 1254-55. Thereafter, the plaintiff
filed a tort action against the school district, but the
district moved to dismiss the complaint, arguing that the
plaintiff had failed to send notice to the school board or
its attorney, as required by the CGIA. Id. at 1255.
¶27
The district court granted the school district's motion,
concluding that strict compliance with the statute was
required, and a division of the court of appeals affirmed.
Id. We, however, granted review and reversed.
Id. In so ruling, we observed that the purposes
behind section 24-10-109(3) are critical in determining
whether a claimant has complied with that statute.
Id. at 1258. We then opined,
15
"Allowing public entities to mislead plaintiffs about
how to meet the requirements of the notice provision, and
then to assert the affirmative defense of noncompliance, is
beyond the legitimate purposes of the [C]GIA's notice
provision." Id. Accordingly, we deemed it
appropriate in such circumstances to apply a substantial
compliance standard that allowed a court to consider, among
other things, principles of agency and equity and concerns of
protecting plaintiffs from misrepresentations by governmental
entities. Id.
¶28
Here, in contrast, Colorado Springs did not mislead Mostellar
in any way. Nor did it do anything to prevent her from filing
a timely notice of claim. Indeed, Mostellar does not assert
that Colorado Springs engaged in any such conduct. Instead,
she focuses on what she believes to be Manitou
Springs' misconduct in failing to disclose Colorado
Springs' involvement on a timely basis. But any
misconduct by Manitou Springs is irrelevant to
Mostellar's statutory duties toward Colorado Springs, the
party entitled to notice here.
¶29
Finally, as to Mostellar's assertion that strict
compliance with the applicable statutory deadline would lead
to absurd results because she could not ascertain the proper
entity to whom she was to give notice, as noted above,
Mostellar has provided no evidence to establish that she
could not ascertain this information. Nor do we perceive any
absurdity in applying section 24-10-109(1) as the legislature
plainly wrote it. As we observed above, the statute is clear
in its
16
mandates, and we view strict adherence with those mandates as
consistent with the legislature's intent to allow public
entities to investigate and remedy dangerous conditions
promptly, to foster prompt settlement of meritorious claims,
to make fiscal arrangements to cover any potential liability,
and to prepare to defend against claims. Jefferson Cnty.
Health Servs. Ass'n v. Feeney, 974 P.2d 1001, 1003
(Colo. 1998).
¶30
For these reasons, we conclude that on the facts of this
case, section 24-10-109(1) required strict compliance with
its deadline to file a notice of claim.
¶31
Having so concluded, we turn to whether Mostellar complied
with her statutory duties here.
C.
Application
¶32
As noted above, by its plain terms, section 24-10-109(1)
requires a person claiming to have suffered any injury by a
public entity to provide written notice to that entity within
182 days after the date the person discovers their injury,
regardless of whether they knew all of the elements of their
claim. The statute further makes clear that strict compliance
with its terms is a jurisdictional prerequisite to any action
brought under the CGIA. Id. Thus, a plaintiff's
failure to comply with section 24-10-109(1)'s deadline
requires a court to dismiss the action for lack of subject
matter jurisdiction. Mesa Cnty. Valley Sch. Dist. No.
51, 8 P.3d at 1206.
17
¶33
Here, Mostellar unquestionably knew of her injury on the day
of her accident, August 26, 2021. Accordingly, she had 182
days from that date to provide the requisite notice to
Colorado Springs. It is undisputed, however, that she did not
provide notice by the statutory deadline.
¶34
For these reasons, like the division below, we conclude that
section 24-10-109(1) required the dismissal of
Mostellar's claims against Colorado Springs.
¶35
In so concluding, we acknowledge, as did the division below,
see Mostellar, ¶ 18 n.1; id. at
¶¶ 22-26 (Freyre, J., specially concurring), that
the result that we reach today may, to some, seem harsh and
inequitable because Mostellar and her counsel appear to have
acted in good faith and tried to comply with the CGIA's
mandates, while Manitou Springs delayed disclosing the
intergovernmental agreement for a lengthy period of time.
Although we are not unsympathetic to this argument, we are
constrained to follow the plain language of section
24-10-109(1), and any effort to remedy inequity that might
result from the application of the statute's plain
language is more appropriately directed to our General
Assembly.
III.
Conclusion
¶36
For these reasons, we conclude that, even if principles of
agency and equity could apply here, this case does not
involve a scenario in which strict compliance with the CGIA
was impossible or a defendant prevented a plaintiff's
strict
18
compliance by misleading the plaintiff. Accordingly, strict
compliance with the CGIA's notice period was required,
and, under the plain language of section 24-10-109(1),
Mostellar's time to provide the requisite notice began to
run on the date she was injured, August 26, 2021. Because
Mostellar did not provide Colorado Springs with the
statutorily required notice within 182 days of that date, her
claim was untimely, and, as the division below concluded,
dismissal was required.
¶37
We therefore affirm the division's judgment.