Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 21CA1726
Attorneys for Petitioner:
Jefferson County Attorney's Office
Kimberly S. Sorrells, Jefferson County Attorney
Eric
T. Butler, Deputy County Attorney
Jason
W. Soronson, Assistant County Attorney
Golden, Colorado
Attorneys for Respondent:
Law
Offices of Jonathan S. Willett
Jonathan S. Willett
Boulder, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.:
Hall
& Evans, L.L.C.
Andrew
D. Ringel
2
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE
GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE
BERKENKOTTER joined.
3
OPINION
HOOD
JUSTICE
¶1
After slipping and falling on an unmarked puddle of water in
the Jefferson County courthouse, Krista Dozier brought a tort
action against Jefferson County (the "County"). The
County moved to dismiss the case, claiming immunity under the
Colorado Governmental Immunity Act ("CGIA"),
§§ 24-10-101 to -120, C.R.S. (2024). Dozier
countered that the spill was a "dangerous
condition" of a public building, an exception to CGIA
immunity. The district court found that the County's
response to the spill was reasonable, and so the
dangerous-condition exception didn't apply. The court
then granted the County's C.R.C.P. 12(b)(1) motion to
dismiss Dozier's claims for lack of subject matter
jurisdiction. A division of the court of appeals reversed,
holding that (1) the reasonableness of the County's
response wasn't relevant to the court's jurisdiction,
and (2) the County had waived CGIA immunity under the
dangerous-condition exception. Dozier v. Jefferson
Cnty., No. 21CA1726, ¶¶ 14, 18-19 (May 25,
2023).
¶2
We now reverse the judgment of the court of appeals. We hold
that when disputed jurisdictional facts are inextricably
intertwined with the merits, a plaintiff must demonstrate a
likelihood of the existence of the facts necessary to
establish a waiver of CGIA immunity. We further hold that a
plaintiff must show that a public entity's negligent act
or omission proximately caused the condition in question for
the dangerous-condition exception to apply. Because the
district
4
court found that the County's response to the spill was
reasonable, it correctly concluded that Dozier had failed to
establish that the spill was a "dangerous
condition" and that it lacked jurisdiction over her
claims.
I.
Facts and Procedural History
¶3
In March 2019, an employee at the County courthouse noticed a
puddle of water in a hallway and contacted facilities
management. But before the spill was cleaned up, Dozier
slipped on it and fell.
¶4
In 2021, Dozier brought a premises liability and negligence
action against the County. The County moved to dismiss,
arguing that it was immune from liability under the CGIA
because the spill wasn't a "dangerous
condition" of a public building. See §
24-10-106(1)(c), C.R.S. (2024). Specifically, the County
maintained that its failure to warn of or to clean up the
spill before the accident wasn't negligent because less
than five minutes had elapsed between an employee learning of
the spill and Dozier's fall. Dozier contended that the
employee had known about the puddle for closer to twenty
minutes.
¶5
The district court held an evidentiary hearing pursuant to
Trinity Broadcasting of Denver, Inc. v. City of
Westminster, 848 P.2d 916 (Colo. 1993) (a
"Trinity hearing"), to resolve the
"genuine factual dispute" over how much time had
elapsed between the County learning of the spill and Dozier
falling. The district court found that the spill wasn't a
"dangerous condition" because the
5
County didn't "kn[ow] about it in enough time to
correct it before Ms. Dozier fell." So, it granted the
County's motion to dismiss.
¶6
A division of the court of appeals reversed, reasoning that
the district court had conflated the issues of immunity and
liability. Dozier, ¶¶ 12-14. In the
division's view, whether the County acted reasonably
after it learned of the spill wasn't "relevant to,
let alone determinative of," the district court's
jurisdiction; instead, the County's conduct related to
the factual merits issue of causation. Id. at ¶
14. Applying what it deemed "the appropriate legal
standard," id. at ¶ 15, the division then
determined that Dozier's allegations established the
requisite "minimal causal connection"
between her injuries and the County's failure to warn of
or to clean up the spill, id. at ¶ 17 (citing
Tidwell ex rel. Tidwell v. City & Cnty. of
Denver, 83 P.3d 75, 86 (Colo. 2003)). Therefore, the
division held, the County had waived CGIA immunity under the
dangerous-condition exception. Id. at ¶ 19.
¶7
We granted the County's petition for
review.[1]
6
II.
Analysis
¶8
We begin by discussing the principles that govern
interpretation of the CGIA. After explaining the standard of
review, we examine the relevant CGIA provisions. We then
consider the plaintiff's burden to prove that a public
entity waived CGIA immunity and provide the framework for
assessing whether a public entity has waived immunity under
the dangerous-condition exception. Finally, we apply that
framework.
A.
Interpretive Principles
¶9
Resolving the issues presented in this case requires us to
interpret the CGIA. In doing so, we recognize that, because
the CGIA derogates Colorado's common law, we must
strictly construe legislative grants of immunity and broadly
construe exceptions, or waivers, to that immunity.
Tidwell, 83 P.3d at 81. Our goal in interpreting
statutes is to effectuate the legislature's intent.
Springer v. City & Cnty. of Denver, 13 P.3d 794,
799 (Colo. 2000). Accordingly, we construe the CGIA as a
whole, "giving consistent, harmonious, and sensible
effect to all of its parts." City & Cnty. of
Denver v. Dennis, 2018 CO 37, ¶ 12, 418 P.3d 489,
494. Because we must respect the legislature's choice of
language, we will not add or subtract words from the statute.
Id. If the statutory language is unambiguous, we
"give effect to its plain and ordinary meaning and look
no further." Id. (quoting Smokebrush Found.
v. City of Colo. Springs, 2018 CO 10, ¶ 18, 410
P.3d 1236, 1240). But if the
7
language is ambiguous, "we may consider other aids to
statutory construction," Hice v. Giron, 2024 CO
9, ¶ 10, 543 P.3d 385, 390 (quoting McBride v.
People, 2022 CO 30, ¶ 23, 511 P.3d 613, 617), such
as "[t]he consequences of a particular
construction," § 2-4-203(1)(e), C.R.S. (2024).
B.
Standard of Review
¶10
The CGIA generally immunizes public entities "from
liability in all claims for injury that lie in tort or could
lie in tort." § 24-10-106(1). However, the
legislature has carved out exceptions that, when applicable,
constitute a waiver of immunity and subject public entities
to liability as if they were private persons. See
§§ 24-10-106 to -107, C.R.S. (2024).
¶11
Whether CGIA immunity applies in a particular case is a
jurisdictional issue governed by Rule 12(b)(1)'s standard
of dismissal. Maphis v. City of Boulder, 2022 CO 10,
¶ 13, 504 P.3d 287, 291. Under this standard, the
plaintiff bears "the burden of proving jurisdictional
facts adequate to support subject matter jurisdiction."
City & Cnty. of Denver v. Crandall, 161 P.3d
627, 632 (Colo. 2007). If the jurisdictional facts are
undisputed, the court may decide the issue of jurisdiction as
a matter of law, without first holding a hearing. See
Tidwell, 83 P.3d at 85-86. But if the jurisdictional
facts are disputed, the district court may hold an
evidentiary hearing. Medina v. State, 35 P.3d 443,
452 (Colo. 2001).
8
¶12
At the evidentiary hearing, a district court "may
receive any competent evidence pertaining to" a factual
attack on the jurisdictional allegations of the complaint.
Trinity, 848 P.2d at 924. The court should afford
the plaintiff the reasonable inferences from her undisputed
evidence and, if the court finds that the plaintiff's
allegations are true, it should also give the plaintiff the
reasonable inferences from her disputed evidence.
Dennis, ¶ 11, 418 P.3d at 494;
Tidwell, 83 P.3d at 85-86. The district court
"is authorized to make appropriate factual
findings" and must rely on these facts in deciding, as a
matter of law, whether it has jurisdiction to hear the case.
Medina, 35 P.3d at 452.
¶13
Thus, a district court's resolution of a Rule 12(b)(1)
motion to dismiss presents a mixed question of fact and law.
Maphis, ¶ 14, 504 P.3d at 291. We defer to the
district court's factual findings unless they're
clearly erroneous, and we review the district court's
conclusion regarding CGIA immunity de novo. Dennis,
¶ 12, 418 P.3d at 494.
C. A
"Dangerous
Condition" of a Public
Building
¶14
A public entity waives CGIA immunity when the plaintiff's
injuries resulted from "[a] dangerous condition of any
public building." § 24-10-106(1)(c). Dozier argues
that this exception applies here because her injuries
resulted from an unmarked spill in the courthouse, which no
one disputes is a public building.
¶15
The CGIA defines a "[d]angerous condition" as
9
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.
§ 24-10-103(1.3), C.R.S. (2024) (emphasis added).
We've interpreted this definition as creating a
four-factor test. E.g., Walton v. State,
968 P.2d 636, 644 (Colo. 1998). Accordingly, the
dangerous-condition exception to CGIA immunity applies here
if Dozier's injuries resulted from (1) the physical
condition of the courthouse-i.e., the unmarked spill; (2)
"which constitute[d] an unreasonable risk to the health
or safety of the public"; (3) about which the County
reasonably knew or should have known; and (4) which was
proximately caused by the County's negligent act or
omission in maintaining the courthouse. St. Vrain Valley
Sch. Dist. RE-1J v. Loveland ex rel. Loveland, 2017 CO
54, ¶ 16, 395 P.3d 751, 755.
¶16
The County argues that the reasonableness of its response is
relevant to the fourth factor; namely, whether the spill was
proximately caused by the County's negligent act or
omission. Dozier counters that she need only show that the
County had notice of the spill to prove that the
dangerous-condition exception applies. Thus, the parties
dispute only the fourth factor: proximate cause.
¶17
Before interpreting and applying the fourth factor of the
"dangerous condition" test, we first clarify the
burden the plaintiff must meet to prove that a public entity
waived CGIA immunity.
10
1.
Burden of Proof
¶18
We've long held that the plaintiff's burden to prove
that a public entity waived immunity is "relatively
lenient." Dennis, ¶ 11, 418 P.3d at 494;
Tidwell, 83 P.3d at 85-86; see also
Trinity, 848 P.2d at 925. We haven't, however,
articulated what this burden entails, particularly when the
jurisdictional facts are inextricably intertwined with the
merits of the claim, as they are here. We do so now.
¶19
We examine three options. First, we consider a prima
facie showing. We've held that this evidentiary burden is
appropriate when the district court relies only on
documentary evidence and thus doesn't need to engage in
factfinding to decide a Rule 12(b)(2) motion to dismiss for
lack of personal jurisdiction. Archangel Diamond Corp. v.
Lukoil, 123 P.3d 1187, 1192 (Colo. 2005). This burden is
"light": The plaintiff need only "raise[] a
reasonable inference that the court has jurisdiction,"
and the court accepts the plaintiff's undisputed
allegations as true and resolves disputes arising from
"the parties' competent evidence" in the
plaintiff's favor. Id. This standard is
inapplicable, however, when an evidentiary hearing is needed
to resolve any factual disputes related to jurisdiction.
See Ferrel v. Colo. Dep't of Corr., 179 P.3d
178, 184 (Colo.App. 2007) (explaining that, "when the
resolution of disputed facts is necessary to determine the
court's jurisdiction, application of a prima facie
standard is directly at odds with the very
11
purpose of a Trinity hearing"); see also
Finnie v. Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253,
1260-61 (Colo. 2003). So, we must press forward and consider
other options.
¶20
Second, on the other end of the spectrum, we could
simply require the plaintiff to prove an immunity exception
by a preponderance of the evidence. After all, this is the
standard that generally applies in civil actions. §
13-25-127(1), C.R.S. (2024). And we've applied this
standard in both the personal and subject matter jurisdiction
contexts when the jurisdictional facts were disputed and
necessitated a hearing. See Archangel Diamond Corp.,
123 P.3d at 1192 (determining personal jurisdiction in a
pretrial hearing); Cash Advance & Preferred Cash
Loans v. State, 242 P.3d 1099, 1113 (Colo 2010)
(determining subject matter jurisdiction in a pretrial
hearing). But we've cautioned district courts to "be
wary of finally deciding the jurisdictional question at an
evidentiary hearing where the jurisdictional facts are
inextricably intertwined with the merits of the case, because
doing so could endanger the plaintiff's substantive right
to a jury trial," and the court's findings
"could later have a preclusive effect against a
party." Archangel Diamond Corp., 123 P.3d at
1193 (citing Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 146 (1st Cir. 1995)). Instead, when
faced with inextricably intertwined facts, "the court
should only satisfy itself that it has the ability to hear
the case." Dennis, ¶ 11, 418 P.3d at 494.
So, the preponderance standard is less than ideal.
12
¶21
Third, we could take guidance from federal
precedent, which offers a middle ground-the likelihood
standard-when disputed jurisdictional facts are "bound
up with the claim on the merits."
Foster-Miller, 46 F.3d at 146. This standard is more
exacting than the prima facie showing, as it "involves
factfinding rather than merely making a ruling of law
regarding sufficiency of the evidence to present a fact
question." Id. (quoting Boit v. Gar-Tec
Prods., Inc., 967 F.2d 671, 678 (1st Cir. 1992)). But
it's less demanding than the preponderance standard, as
the court's findings are "limited to probable
outcomes as opposed to definitive findings of fact."
Id. In this way, it is like the first element of the
preliminary injunction analysis, under which "the
plaintiff must show a likelihood," or "a reasonable
probability[,] of success on the merits." Dallman v.
Ritter, 225 P.3d 610, 621 (Colo. 2010) (first quoting
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
546 n.12 (1987); and then quoting Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982)).
¶22
Although this "likelihood standard" itself is
hardly pervasive, it has friends. Several federal courts of
appeals have relaxed the plaintiff's burden of proof when
disputed jurisdictional facts are inextricably intertwined
with the merits under the federal analog to the CGIA, the
Federal Tort Claims Act. The Third Circuit, for example, has
instructed district courts to "demand 'less in the
way of jurisdictional proof than would be appropriate at a
trial stage'" under these circumstances to
"ensure that defendants are not allowed to use Rule
12(b)(1) to resolve the merits"
13
before the plaintiff has been "given the benefit of
discovery." CNA v. United States, 535 F.3d 132,
144-45 (3d Cir. 2008) (quoting Gould Elecs. Inc. v.
United States, 220 F.3d 169, 178 (3d Cir.
2000)).[2]
¶23
The likelihood standard appropriately addresses the
countervailing considerations we've discussed. Unlike the
prima facie standard, it involves weighing evidence and
making factual findings and "enhance[es] the courts'
ability to weed out unfounded claims of jurisdiction" at
the pleading stage, as the CGIA mandates.
Foster-Miller, 46 F.3d at 146. On the other hand, by
limiting these jurisdictional findings "to probable
outcomes," plaintiffs are spared having to meet the
preponderance standard-the burden of proof at trial-before
completing discovery.
14
¶24
So, we hold that when a public entity asserts CGIA immunity
and the disputed jurisdictional facts are inextricably
intertwined with the merits, the likelihood standard applies.
We now return to the fourth factor of the "dangerous
condition" test and consider whether the disputed
jurisdictional facts are inextricably intertwined with the
merits of Dozier's claim.
2.
Fourth Factor
of a
"Dangerous Condition": Proximate
Cause
¶25
The division concluded that Dozier needed to prove only that
the County had notice of the spill to establish that the
spill was a "dangerous condition." Dozier,
¶¶ 11-14. According to the division, by considering
the reasonableness of the County's response, the district
court essentially required Dozier to prove liability at the
Trinity hearing. Id. at ¶ 14. We
disagree.
¶26
While the division is correct that Dozier didn't need
"to prove that the County was negligent and liable for
her injuries," id. (emphasis added),
as that inquiry is properly reserved for trial, the
definition of "dangerous condition" plainly
requires the plaintiff to prove that the
"condition [wa]s proximately caused by the
negligent act or omission of the public
entity," § 24-10-103(1.3) (emphases added). Indeed,
the definition goes on to state, "The mere existence of
wind, water, snow, ice or temperature shall not, by
itself, constitute a dangerous condition." Id.
(emphasis added). So, Dozier was required to prove that the
allegedly dangerous condition existed because of the
County's negligent act or omission. Cf.
Springer,
15
13 P.3d at 801 ("In each . . . subsection [of section
24-10-106(1)], a public entity lacks immunity, not because it
necessarily causes a dangerous condition, but
because it is in a position to discover and correct the
condition.").
¶27
It was therefore appropriate for the district court to rely
on negligence principles, including the reasonableness of the
County's response to the spill, to determine whether the
County's failure to warn of or to clean up the spill was
a negligent omission under the circumstances. See,
e.g., Greenberg v. Perkins, 845 P.2d 530,
533-34 (Colo. 1993) (stating the elements of a prima facie
case for negligence, which include whether the defendant
acted reasonably). The district court concluded that if the
County wasn't afforded "a reasonable time under the
circumstances to discover and correct the condition,"
its omission wasn't negligent, and the spill wasn't a
"dangerous condition." See Safeway Stores, Inc.
v. Smith, 658 P.2d 255, 257 (Colo. 1983).
¶28
The division's reliance on Tidwell to conclude
otherwise was misplaced. In Tidwell, we explained
that "a waiver will exist where a plaintiff alleges
facts proving a minimal causal connection between the
injuries and the specified conduct." 83 P.3d at 86. But
we weren't interpreting the definition of "dangerous
condition" under section 24-10-103(1.3); instead, we
were interpreting the phrase "resulting from" in
section 24-10-106(1). Tidwell, 83 P.3d at 86
("[U]nder subsection (1) of 24-10-106, [the plaintiff]
was required to offer evidence proving
16
that he suffered from 'injuries resulting from'
conduct enumerated by subparts (a) through
(f)."). And even if that interpretation were
applicable here, it doesn't help Dozier because, before
we may consider whether Dozier's injuries
"result[ed] from" a "dangerous
condition," she must first prove that the spill
was a "dangerous condition."
¶29
We also reject Dozier's argument that the district court
erred by relying on section 24-10-106(1)(d)(I) and
(III)'s reasonable-time-to-act language in considering
the "dangerous condition" test's fourth factor.
See § 24-10-106(1)(d)(I) (waiving CGIA immunity
for injuries resulting from certain "dangerous
condition[s]" of public roads and sidewalks); §
24-10-106(1)(d)(III) (waiving CGIA immunity for injuries
resulting from certain "dangerous condition[s] caused by
an accumulation of snow and ice" on public walkways). As
we've explained, the fourth factor incorporates prima
facie negligence principles, of which reasonableness is the
cornerstone. Further, the "dangerous condition"
test explicitly includes consideration of reasonableness.
§ 24-10-103(1.3) ("[W]hich [condition] is known to
exist or which in the exercise of reasonable care
should have been known to exist . . . ." (emphasis
added)). Accordingly, neither we nor the district court
improperly added language from section 24-10-106 to section
24-10-103; rather, we simply applied common-law principles to
interpret a common-law term. See Allen v. People,
485 P.2d 886, 887-88 (Colo. 1971) ("[T]he
17
common law may be used in aid of the meaning to be given
statutory language, when such language is not defined in the
statute.").
¶30
Although we resolve this case under the CGIA's plain
language, we further note that the division's
interpretation could lead to absurd results. If the
reasonableness of a public entity's response were
irrelevant, a plaintiff could overcome immunity and proceed
to trial despite being injured by a condition only seconds
after the public entity learned of it. Such a result is not
only illogical, it's antithetical to the CGIA's
purpose to "protect the taxpayers against excessive
fiscal burdens" that could arise from "unlimited
liability." § 24-10-102, C.R.S. (2024).
¶31
Finally, we conclude that the disputed jurisdictional facts
are inextricably intertwined with the merits of Dozier's
claim. Whether the County's failure to act was a
negligent omission is at the heart of the merits. Under
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 entity's response is relevant to that
inquiry.
¶33
With this framework in mind, we consider whether Dozier
proved the existence of a "dangerous condition."
D.
Whether the County's Negligent Omission Proximately
Caused the Spill
¶34
The district court found that only a few minutes had elapsed
between the County learning of the spill and Dozier falling.
But instead of relying on this finding, and without
determining that the district court's finding was clearly
erroneous, the division relied on Dozier's allegations to
conclude that she had sufficiently established that the
County's negligent maintenance of the courthouse
proximately caused her injuries. Dozier, ¶ 18.
This was error.
¶35
Because the district court's temporal finding is
supported by the record, that finding isn't clearly
erroneous. The employee who reported the spill, Kim Knight,
testified that she learned of the spill at "about 12:10
[p.m.] or so" and called facilities. She further
testified that she received an email from facilities
management confirming her request at 12:12 p.m. and that
Dozier was sitting on the floor when she went to lunch at
12:15 p.m.
¶36
While Dozier argues that the district court disregarded the
"undisputed fact that 'another county
employee,'" Debbie Platten, told Knight about the
spill, she offered no evidence about when Platten learned of
the spill, a fact as to which she
19
bore the burden of proof. Knight testified that "[a]s
soon as [Platten] walked in the door, she told [Knight] that
there was a spill" approximately twenty feet from
Knight's office door. Knight said that she didn't
know how Platten learned of the spill. Even after drawing all
reasonable inferences in Dozier's favor, as the district
court must do when the evidence is undisputed, we can't
conclude that the court's finding was clearly erroneous
without some evidence of when or how Platten learned
of the spill.
¶37
Moreover, accepting the district court's factual finding
that only a few minutes had passed between the County
learning of the spill and Dozier's fall, we agree with
the district court's legal conclusion that the County
didn't have a reasonable time to warn of or to clean up
the spill before Dozier fell. See, e.g., Miller
v. Crown Mart, Inc., 425 P.2d 690, 692-93 (Colo. 1967)
(concluding as a matter of law that a store owner didn't
have a reasonable time to discover and clean up popcorn
kernels where they were only on the floor "for something
less than five minutes" before the plaintiff fell).
¶38
Therefore, in this case with disputed jurisdictional facts
that are inextricably intertwined with the merits, we
conclude that Dozier failed to establish that it was likely
that the County's failure to warn of or to clean up the
spill was a negligent omission that proximately caused the
condition. Accordingly, she failed to prove that the County
waived immunity.
20
III.
Conclusion
¶39
We reverse the judgment of the court of appeals, and we
reinstate the district court's order dismissing
Dozier's complaint.
---------
Notes:
[1] We granted certiorari to review the
following two issues:
1. Whether, for purposes of analyzing whether a waiver
of immunity exists based on a "dangerous
condition," the reasonableness of a public entity's
response to a spill on its floors is a jurisdictional fact
that must be proved by a preponderance of the
evidence.
2. Whether the court of appeals erred in determining
that Plaintiff's contested allegations that her injury
was proximately caused by the County's failure to
maintain a public building sufficiently established that her
injuries resulted from a dangerous condition.
[2] Other federal circuit courts of
appeals have concluded that a district court should assume
jurisdiction exists and treat "'the objection as a
direct attack on the merits of the plaintiff's case'
under either [Fed. R. Civ. P.] 12(b)(6), [a motion to dismiss
for failure to state a claim,] or [Fed. R. Civ. P.] 56[,] [a
summary judgment motion]," to offer the plaintiff
"'a greater level of protection.'"
Montez v. Dep't of Navy, 392 F.3d 147, 150 (5th
Cir. 2004) (quoting Williamson v. Tucker, 645 F.2d
404, 415 (5th Cir. 1981)); accord Kerns v. United
States, 585 F.3d 187, 193 (4th Cir. 2009); Augustine
v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983);
Tippett v. United States, 108 F.3d 1194, 1196 (10th
Cir. 1997); Lawrence v. Dunbar, 919 F.2d 1525, 1530
(11th Cir. 1990). Although we've rejected this approach,
Dennis, ¶ 9, 418 P.3d at 494 (concluding that
"C.R.C.P. 12(b)(1) is the correct standard of
review" to resolve "immunity questions which
implicate tort concepts"), we nevertheless find it
compelling that these courts share our concerns with
requiring the plaintiff to prove jurisdiction by a
preponderance of the evidence when "issues of fact are
central both to subject matter jurisdiction and the claim on
the merits," Montez, 392 F.3d at 150.