The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 4, 2022
2022COA91
No. 21CA0322, Galef v. University of Colorado — Torts — Personal Injury — Premises Liability; Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver — Dangerous Condition of a Public Building
For a slip-and-fall tort claim under the Premises Liability Act
against the University of Colorado, a division of the court of appeals
considers whether the University has waived its sovereign immunity
for a “dangerous condition of any public building” under sections
24-10-103(1.3) and -106(1)(c), C.R.S. 2021, of the Colorado
Governmental Immunity Act (CGIA). Specifically, the division
considers whether a “dangerous condition” exists when the
University fails to post a “wet floor” sign or otherwise warn that a
recently mopped dormitory staircase is imperceptibly wet and
slippery. The division first concludes that the University’s failure to
warn the plaintiff of a hazard it created by mopping can constitute a
“dangerous condition,” as it is a “negligent . . . omission . . . [in]
maintaining” the dormitory that is not attributable solely to the
inadequate design of the staircase. See § 24-10-103(1.3). The
division further reasons that this result is not foreclosed by the
supreme court’s case law regarding failure-to-warn claims under
the CGIA. See, e.g., Medina v. State, 35 P.3d 443 (Colo. 2001).
The division then concludes that the imperceptibly wet,
slippery stairs — together with the University’s failure to warn of
them — “constitute[d] an unreasonable risk to the health or safety
of the public” under the definition of “dangerous condition” as it’s
been interpreted by the supreme court. § 24-10-103(1.3); see City
& Cnty. of Denver v. Dennis, 2018 CO 37. COLORADO COURT OF APPEALS 2022COA91
Court of Appeals No. 21CA0322 Boulder County District Court No. 20CV30831 Honorable Andrew Hartman, Judge
Jordan Galef,
Plaintiff-Appellant,
v.
University of Colorado,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE KUHN Lipinsky and Graham*, JJ., concur
Announced August 4, 2022
Law Offices of Ross Ziev, P.C., Ross Ziev, Denver, Colorado, for Plaintiff- Appellant
Philip J. Weiser, Attorney General, Hermine Kallman, Special Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. ¶1 In this slip-and-fall personal injury case, plaintiff, Jordan
Galef, appeals the trial court’s dismissal of his complaint against
defendant, the University of Colorado, under C.R.C.P. 12(b)(1). The
court ruled that the University had not waived its immunity for
Galef’s Premises Liability Act (PLA) claim under the Colorado
Governmental Immunity Act (CGIA). We reverse and remand for
further proceedings.
I. Background
¶2 According to Galef’s complaint and other submissions to the
court, he was walking down a recently mopped staircase in his
dormitory hall when he slipped and fell down the stairs, dislocating
his shoulder. The injury required surgery to repair.
¶3 Galef alleged that the black coloring of the flooring made it
difficult to see that the stairs were wet and that, when he fell, the
University employee mopping the staircase had not displayed a “wet
floor” sign or provided any other warning that the stairs were wet.
He also alleged this staircase saw “high traffic” and that he had
been using it at least twice per day while a resident of his
dormitory.
1 ¶4 Soon after his injury, Galef brought a single premises liability
claim against the University, asserting that he was an invitee to a
public building within the meaning of the PLA and CGIA. He
alleged that his injuries were caused by the University’s
(1) unreasonable failure to exercise reasonable care with respect to a wet, slippery stairs [sic] created by [the University] of which [the University] knew or should have known about; and/or
(2) unreasonable failure to exercise reasonable care by failing to put up wet floor signs; and/or
(3) unreasonable failure to warn of wet, slippery stairs.
¶5 In response, the University moved to dismiss under Rule
12(b)(1), arguing that it had not waived its CGIA immunity to Galef’s
claim under the “dangerous condition of any public building”
provision of section 24-10-106(1)(c), C.R.S. 2021. In the ensuing
briefing, the University did not dispute any of Galef’s factual
allegations, and neither side affirmatively requested an evidentiary
hearing to determine disputed facts pursuant to Trinity
Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916
2 (Colo. 1993).1 Instead, the University argued that, based on the
allegations in Galef’s complaint and submissions to the court, its
immunity under section 24-10-106(1)(c) was not waived as a matter
of law. The court agreed with the University and dismissed Galef’s
complaint.
¶6 As relevant here, the court found the following undisputed
facts: (1) Galef fell and dislocated his shoulder while descending
recently mopped steps that, because of their black coloring, he
could not see were wet; (2) there was no wet-floor sign displayed
towards individuals approaching the stairs from his location; and
(3) mopping the stairs is part of the University’s maintenance plan
for the dormitory.
¶7 Based on these facts, the court ruled that the wet, black stairs
— and the University’s alleged failure to warn they were wet — did
not amount to a “dangerous condition” within the meaning of the
CGIA. In so ruling, the court agreed with the University on the
same two issues that Galef appeals here.
1 Galef stated that the motion to dismiss must be denied and, “[i]n the alternative, [he] requires a hearing and discovery to present undisputed facts that would allow the court to make its determination.”
3 ¶8 First, the court noted that the “negligent act or omission” Galef
alleged was the failure to warn him of the wet stairs by not placing
a wet-floor sign or some other notification regarding the stairs being
mopped. The court then concluded that a public entity does not
waive its immunity for a premises liability claim based on a
negligent failure to warn because such a failure — without any
other alleged negligent act or omission — cannot constitute a
“dangerous condition” within the meaning of the CGIA.
¶9 Second, the court concluded that — separate and apart from
the University’s failure to warn him of the hazard — Galef failed to
demonstrate that the mere difficult-to-detect wetness of the black
flooring otherwise constituted a “dangerous condition.” The court
reasoned that Galef failed to plead facts and presented no evidence
in his briefing showing either that (1) the wet, black, slippery
staircase presented an unreasonable risk to the health or safety of
the public; or (2) the University committed any other negligent act
or omission in constructing or maintaining the building other than
the University’s alleged failure to post a warning near the wet
staircase.
4 II. Analysis
¶ 10 Galef contends the trial court erred on both points. We agree
and conclude that, based on the unchallenged allegations in Galef’s
complaint, his submissions to the court, and the reasonable
inferences from the trial court’s undisputed factual findings, the
University’s immunity has been waived under section
24-10-106(1)(c) as a matter of law. We reverse the trial court’s
dismissal accordingly.
A. Standard of Review
¶ 11 A Rule 12(b)(1) motion to dismiss on grounds of immunity
under the CGIA raises an issue of the court’s subject matter
jurisdiction. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176, 1180 (Colo.
2001). The plaintiff has the burden of proving that the court has
jurisdiction. City of Longmont v. Henry-Hobbs, 50 P.3d 906, 908
(Colo. 2002). But “this burden is relatively lenient, as the plaintiff
is afforded the reasonable inferences from [his] undisputed
evidence.” City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 11.
¶ 12 Rule 12(b)(1) “permits the trial court to hold an evidentiary
hearing to resolve any factual dispute upon which the existence of
jurisdiction may turn.” Medina v. State, 35 P.3d 443, 452 (Colo.
5 2001). Here, however, in its motion to dismiss, the University did
not challenge any facts Galef alleged. The trial court thus relied on
the undisputed facts that the parties presented and determined, as
a matter of law, whether those facts constituted a waiver of
immunity under the CGIA. See id. We review the resolution of this
question of law, along with the associated statutory interpretation it
involves, de novo. Id. at 452-53.
¶ 13 Our goal in interpreting the CGIA is to give effect to legislative
intent. Maphis v. City of Boulder, 2022 CO 10, ¶ 15. “In doing so,
we look at the statute ‘as a whole, giving consistent, harmonious,
and sensible effect to all of its parts.’” Id. (quoting Dennis, ¶ 12).
We construe waivers of CGIA immunity broadly because “the
immunity created by the [CGIA] is in derogation of the common law
and must [itself] be strictly construed.” Bertrand v. Bd. of Cnty.
Comm’rs, 872 P.2d 223, 225 (Colo. 1994); Springer v. City & Cnty. of
Denver, 13 P.3d 794, 798 (Colo. 2000) (“[W]e broadly construe the
CGIA provisions that waive immunity in the interest of
compensating victims of governmental negligence.”).
B. The CGIA and the PLA
¶ 14 Section 24-10-106(1) of the CGIA provides as follows:
6 A public entity shall be immune from liability in all claims for injury which lie in tort . . . except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:
....
(c) A dangerous condition of any public building.2
Section 24-10-103(1.3), C.R.S. 2021, contains a definition of
“dangerous condition.” In Walton v. State, 968 P.2d 636 (Colo.
1998), the supreme court interpreted this definition to mean that
immunity is waived under section 24-10-106(1)(c) 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;
2 The University does not dispute that it is a “public entity” within the meaning of the CGIA. § 24-10-103(5), C.R.S. 2021; see Uberoi v. Univ. of Colo., 713 P.2d 894, 897-98 (Colo. 1986), overruled on other grounds by Graham v. State, 956 P.2d 556, 562 (Colo. 1998). Nor does it dispute here that Galef’s dormitory is a “public building” within the meaning of the CGIA waiver provision at issue. § 24-10-106(1)(c), C.R.S. 2021.
7 (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 the facility.
Walton, 968 P.2d at 644; see Jenks v. Sullivan, 826 P.2d 825, 827
(Colo. 1992) (“Injury stemming from the use of a dangerous or
defective physical condition of the building itself might include
injury resulting from, for example, using a faulty elevator or falling
down defective stairs.”), overruled by Bertrand, 872 P.2d 223.
¶ 15 Further, while a “dangerous condition” may be a hazard that
the public entity itself creates, that dangerous condition must be
one that is “associated with construction or maintenance, not solely
design.” Springer, 13 P.3d at 799, 801; § 24-10-103(1.3) (“A
dangerous condition shall not exist solely because the design of any
facility is inadequate.”).
¶ 16 The supreme court has further interpreted this immunity
waiver in the context of the PLA, section 13-21-115, C.R.S. 2021,
which “governs civil actions against landowners for injuries
occurring on the property.” Springer, 13 P.3d at 803 (citing
8 § 13-21-115(2), C.R.S. 2021). As relevant here, the PLA provides
that “an invitee may recover for damages caused by the landowner’s
unreasonable failure to exercise reasonable care to protect against
dangers the landowner actually knew about or should have known
about.” § 13-21-115(4)(c)(I); see also Gallegos v. Phipps, 779 P.2d
856, 862 n.11 (Colo. 1989) (noting that a landowner’s “duty . . . to
protect invitees” under this section is broad enough to encompass a
duty to warn an invitee of hazards on the premises).
¶ 17 Construing this provision alongside the CGIA waiver under
section 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 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.
Springer, 13 P.3d at 797, 803-05 (“The intent of the premises
liability statute is congruent with the intent of immunity waiver in
section 24-10-106(1)(c). . . . [C]laims [under section 13-21-115(4)]
fall within the scope of the immunity waiver . . . .”).
9 C. The University’s Immunity Is Waived As a Matter of Law
¶ 18 Galef alleged in his complaint a hazardous physical condition
in his dormitory — wet, slippery stairs that, due to their black
coloring, were difficult for him to see that they were wet. His
complaint also alleged that the University knew or should have
known about this hazard and that this hazard was caused by the
University’s negligence. We conclude these allegations are sufficient
to establish the first and third elements of the Walton test.
¶ 19 The fourth Walton element evaluates whether the condition
was proximately caused by the negligent act or omission of the
public entity in constructing or maintaining the facility. The trial
court ruled, and we agree, that Galef alleged only one “negligent act
or omission of the [University] in constructing or maintaining the
facility” under the definition of “dangerous condition” — that the
University failed to warn him of the hazardous wet condition of the
staircase. Galef does not challenge this finding on appeal. At issue
first, then, is whether this failure to warn satisfies the fourth
element of the Walton test.
10 ¶ 20 According to the University, the supreme court has interpreted
“dangerous condition” to categorically exclude instances in which
the public entity negligently failed to warn of a hazardous physical
condition. We disagree. We see the supreme court’s interpretation
of “dangerous condition,” and the plain statutory text of that term,
as permitting a claim for a public entity’s failure to warn of a
hazardous physical condition under the public-building waiver
when (1) the dangerous condition is not “attributable solely to the
inadequate design” of the building, see, e.g., Swieckowski v. City of
Fort Collins, 934 P.2d 1380, 1388 (Colo. 1997); and (2) the failure to
warn is a “negligent . . . omission . . . in . . . maintaining the
[building],”3 see Springer, 13 P.3d at 799. We further conclude that,
under the undisputed facts of this case, the University’s failure to
warn Galef of the imperceptibly wet, slippery stairs satisfies both
conditions.
¶ 21 Alternatively, however, the University argues that the trial
court was correct to conclude that Galef’s allegations fail to prove
3 Galef did not allege that the University negligently constructed the staircase, so we exclude references to negligent construction in our analysis.
11 the third Walton element — that the wet, slippery stairs did not
constitute an unreasonable risk to the health or safety of the
public. We again disagree. The allegations in Galef’s complaint, his
submissions to the court, and the reasonable inferences from the
trial court’s undisputed factual findings demonstrate that the wet,
slippery — and unwarned of — stairs “created a chance of injury,
damage, or loss which exceeded the bounds of reason.” Dennis,
¶ 23.
1. Failure-to-Warn Claims Under the CGIA
¶ 22 Citing Medina, 35 P.3d 443, the University claims that a
public entity’s failure to warn of a hazardous physical condition
cannot constitute a “dangerous condition” to support a waiver of
immunity under section 24-10-106(1)(c) for public buildings.
¶ 23 Galef counters that Medina and the supreme court’s other
failure-to-warn cases are not applicable to the public-building
waiver because they relied on a different provision of the CGIA —
the public-highway waiver in section 24-10-106(1)(d)(I). That
section waives CGIA immunity for a “dangerous condition of a
public highway, road, or street which physically interferes with the
movement of traffic.” It specifically states, though, that “the phrase
12 ‘physically interferes with the movement of traffic’ shall not include
traffic signs, signals, or markings, or the lack thereof.”
§ 24-10-106(1)(d)(I) (emphasis added). Galef argues this italicized
language — not the general definition of “dangerous condition” — is
what the supreme court relied on in excluding the failure to post
warning signs from the waiver of sovereign immunity under that
public-highway provision.
¶ 24 We disagree with both parties. Galef is correct that this
italicized language “expressly precludes liability for a public entity’s
failure to post signs on a public highway.” Swieckowski, 934 P.2d
at 1388 (citing § 24-10-106(1)(d)); see Willer v. City of Thornton, 817
P.2d 514, 519 (Colo. 1991) (“Th[e] language [in section
24-10-106(1)(d)] excludes the failure to post warning signs from the
general waiver of sovereign immunity for injuries resulting from
dangerous conditions.”). But contrary to Galef’s position, though
Medina and the supreme court’s failure-to-warn cases all arose in
the context of the public-highway waiver under section
24-10-106(1)(d), these cases also relied on the definition of
“dangerous condition” itself — which could make the cases
applicable to the public-building waiver as well. See § 24-10-103
13 (stating that the definition of “dangerous condition” applies
throughout the CGIA “unless the context otherwise requires”).
Further, contrary to the University’s position, we conclude that this
definition 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.
¶ 25 Medina involved plaintiffs who were injured while driving along
a public highway when a large boulder dislodged from a “cut slope”
above the road and crashed through their vehicle. Medina, 35 P.3d
at 448. As part of their complaint, the plaintiffs claimed that the
state negligently failed to close the highway, warn the public that it
was unsafe, and suggest alternative routes of travel. Id. at 462.
Noting that each claim amounted to no more than a general failure-
to-warn claim, the court offered two justifications why it could
dispatch them “summarily” — that is, without first needing
resolution of disputed facts. See id. at 449, 462 (“[W]e hold that, as
a matter of law, the CGIA does not waive immunity for claims
asserting a failure to warn, failure to close the highway, or failure to
suggest alternate routes.”). But see Maphis, ¶ 27 n.3 (stating, in a
14 footnote in a case under section 24-10-106(1)(d), that “‘[n]egligent
failure to warn’ does not ‘trigger[] a waiver of immunity under the
CGIA.’” (quoting Medina, 35 P.3d at 449)).
¶ 26 First, Medina noted that “our precedent makes clear that the
CGIA has not waived the state’s immunity for such a claim.”
Medina, 35 P.3d at 462. But the cases the court cited do not stand
for the broad conclusions that Galef and the University urge us to
adopt. Id. (first citing Swieckowski, 934 P.2d at 1386; then citing
Willer, 817 P.2d at 517-19; and then citing Szymanski v. Dep’t of
Highways, 776 P.2d 1124, 1125 (Colo. App. 1989)). Rather, each
case grounded this conclusion in both the express preclusion
language of the public-highway waiver as well as the definition of
“dangerous condition” itself. For the latter, these cases dictate that
a public entity’s failure to warn of a hazardous physical condition
does not fall within this definition when the dangerous condition is
attributable solely to the inadequate design of the facility. See
Willer, 817 P.2d at 519 (“Whatever the merits of Willer’s argument
that a governmental entity should never be granted the protection
of sovereign immunity when it fails to warn others of known
dangerous conditions, the [CGIA] reveals a contrary legislative
15 intent when the alleged defect is incorporated in the initial design.”);
Swieckowski, 934 P.2d at 1389 (Vollack, C.J., dissenting) (“[T]he
[public entity] is immune from claims which assert either an
inadequate design or a failure to post warning signs.” (citing
§§ 24-10-103(1), -106(1)(d), C.R.S. 1997)); Szymanski, 776 P.2d at
1125 (“Here, the gist of plaintiffs’ complaint against the City was
that [among other claims] there was no warning sign advising traffic
that the intersection was dangerous. Despite plaintiffs’ attempts to
characterize these alleged flaws as other than design defects, all of
them relate to claimed inadequacies in the design of that
intersection.”); see also Henry-Hobbs, 50 P.3d at 909 (noting that,
for a hazard that is dangerous as designed, a failure to post a
warning sign near it can be characterized as a “design flaw”).
¶ 27 Second, Medina further concluded that these failure-to-warn
claims are not “somehow encompassed within the state’s duty of
maintenance.” 35 P.3d at 462. It reasoned that, under the then-
existing definition of “maintenance,” the “duty to maintain” a public
highway is defined as “a duty to keep the road ‘in the same general
state of being, repair, or efficiency as initially constructed.’” Id. at
455 (quoting Swieckowski, 934 P.2d at 1385). Then, because
16 “[c]losing the road, warning of the road’s dangerous condition, or
suggesting alternate routes of travel do not effectuate this result,”
the court concluded that these claims “do not fall within the state’s
maintenance obligation for which immunity has been waived.” Id.
at 462.
¶ 28 In other words, contrary to the University’s position, Medina’s
second line of reasoning does not mean that a public entity’s
negligent failure to warn may never support a finding of a
“dangerous condition” under the CGIA — but rather only that this
duty to warn must be encompassed within the entity’s duty of
maintenance instead of being a design flaw. See Douglas v. City &
Cnty. of Denver, 203 P.3d 615, 619-20 (Colo. App. 2008) (In a case
involving an injury resulting from lifting weights in a city-run gym,
the division concluded “the failure to post warning signs [about the
danger of lifting weights] . . . does not involve the use of a
dangerous physical condition of the building that is associated with
its maintenance. . . . [U]nder the circumstances presented here, the
failure to post a sign is not a maintenance issue.”).
¶ 29 In summary, then, a “dangerous condition” can include a
public entity’s failure to warn of a hazardous physical condition in a
17 public building when (1) the dangerous condition is not attributable
solely to the inadequate design of the building, and (2) the public
entity’s duty to warn of a hazard is encompassed within its duty of
maintenance.
2. The University’s Duty to Warn of the Wet Stairs
¶ 30 We further conclude that the University’s alleged failure to
post a warning next to the imperceptibly wet, recently mopped
stairs constitutes a negligent act or omission proximately causing
the hazardous physical condition under the undisputed facts of this
case.
¶ 31 First, there is no question here that the stairs were designed to
be dry, not wet. While the design of the staircase — their black
coloring — may have contributed to the difficulty of perceiving that
they were wet, the University made the stairs more hazardous by
subsequently introducing a wet, slippery substance onto them.
Medina, 35 P.3d at 456 (noting that conditions implicating defective
maintenance rather than design “develop subsequent to the initial
design and construction of the [facility]”). Therefore, the hazard of
which the University allegedly failed to warn Galef was not solely
attributable to the design of the staircase. See § 24-10-103(1.3).
18 ¶ 32 Second, we conclude that the University’s duty to warn Galef
of a hazard its employee created in mopping the dormitory stairs is
“encompassed within [the University’s] duty of maintenance.”
Medina, 35 P.3d at 462. As relevant here, the CGIA defines
“maintenance” as “the act or omission of a public entity or public
employee in keeping a facility in the same general state of repair or
efficiency as initially constructed or in preserving a facility from
decline or failure.” § 24-10-103(2.5).
¶ 33 The undisputed fact in this case is that “mopping the stairs is
part of the University’s maintenance plan for the dormitory.” That
is, the University was mopping the stairs to keep them in the same
clean condition as they were originally designed and constructed.
Mopping, then, falls within the CGIA’s definition of “maintenance”
as it is an act done “in preserving [the dormitory] from decline.” See
§ 24-10-103(2.5). Further, Galef alleged that the University failed to
warn him of a hazard it created while mopping — that is, while the
University was “maintaining” the building. Under the definition of
“dangerous condition,” then, this failure to warn is a “negligent . . .
omission . . . in . . . maintaining” the dormitory. See
§ 24-10-103(1.3); see also N.M. v. Trujillo, 2017 CO 79, ¶¶ 25-27
19 (recognizing a distinction between claims based on the defendant’s
misfeasance, or active misconduct causing a positive injury to
other, and nonfeasance, or passive inaction or a failure to protect
from harm). The University’s duty of maintenance under the CGIA
thus encompasses a duty, under the PLA, to warn of the wet,
slippery condition the University created while mopping a dormitory
¶ 34 Medina is distinguishable under these facts. In that case, the
supreme court could not conclude, on the undisputed facts before
it, whether the hazardous cut slope on the public highway was
either (1) designed to be that way or (2) the result of the degradation
of the slope above the road that occurred after the road was
designed and constructed. Medina, 35 P.3d at 458-59. If the
former, the court concluded, the CGIA did not waive the state’s
immunity. Id. at 455, 459. But if the hazardous condition
developed after the road was designed and constructed, the state’s
immunity could be waived because it would have failed in its “duty
to maintain” the road, and the state might therefore have had an
obligation to install “safety devices” on the cut slope to rectify the
20 hazard and “return the road to its original state of being, repair, or
efficiency.” Id. at 461-62.
¶ 35 In this context, the supreme court concluded that the state’s
duty to warn of the hazardous cut slope was not encompassed
within its duty to rectify hazards that develop after the design and
construction of a facility. See id. at 454-58, 462. And, just as
posting a warning sign next to a hazardous cut slope doesn’t itself
rectify that physical condition, it’s true that here, posting a wet-
floor sign next to wet stairs also does not itself rectify their physical
condition — the wet-floor sign does nothing to help the stairs dry.
But 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. In contrast, here the
University affirmatively created — and then failed to warn of — the
hazard as part of its maintenance of the dormitory staircase.
¶ 36 Thus, Medina had no occasion to consider whether a public
entity’s “duty of maintenance” under the CGIA encompasses a duty
to warn of hazards created by the public entity’s acts of
21 maintenance.4 And in this case, we conclude that the University’s
duty to warn Galef of the wet, slippery stairs fits squarely within the
definitions of “dangerous condition” and “maintenance” under the
CGIA. We therefore see Medina as distinguishable on this basis.
¶ 37 For these reasons, we conclude that the University’s alleged
negligent failure to warn Galef of wet, slippery stairs is a “negligent
omission in maintaining” the dormitory within the meaning of
“dangerous condition.” The trial court therefore erred by excluding
the University’s alleged failure to warn Galef from its “dangerous
condition” analysis.
3. The Wet, Slippery Stairs Constituted an Unreasonable Risk
¶ 38 Alternatively, the University argues that Galef failed to carry
his burden in demonstrating the third element of the Walton test:
that the physical condition in question — the imperceptibly wet,
4 Notably, too, the General Assembly has since broadened the definition of “maintenance” from that existing when Medina was decided. At that time, section 24-10-103 did not define “maintenance,” but two years later, the General Assembly added a definition of this term to the statute. Ch. 182, sec. 2, § 24-10-103(2.5), 2003 Colo. Sess. Laws 1343. “Maintenance” is now defined as “act[s] or omission[s] . . . in preserving a facility from decline or failure.” § 24-10-103(2.), C.R.S. 2021.
22 slippery stairs — “constitute[d] an unreasonable risk to the health
or safety of the public.” § 24-10-103(1.3). We disagree.
¶ 39 Determining if a physical condition presents an unreasonable
risk “will necessarily be a fact-specific inquiry.” Dennis, ¶ 23.
Since there are no disputed facts, however, we can undertake this
review as a question of law. See Medina, 35 P.3d at 452. We
examine the totality of the circumstances surrounding the hazard
in making this determination. Maphis, ¶ 28.
¶ 40 In this context, the supreme court has interpreted
“unreasonable risk” to require the plaintiff to prove that the
physical condition “created a chance of injury, damage, or loss
which exceeded the bounds of reason.” Dennis, ¶ 23. Further, the
court has explained that “because the term ‘unreasonable’ modifies
the word ‘risk,’ the CGIA requires ‘more than a foreseeable risk of
harm.’” Maphis, ¶ 19 (quoting Dennis, ¶ 22).
¶ 41 Nonetheless, several of the unchallenged allegations from
Galef’s complaint, his submissions to the court, and reasonable
inferences from the trial court’s undisputed facts support the
23 conclusion that the imperceptibly wet, slippery stairs created a
chance of injury that exceeded the bounds of reason.5
¶ 42 First, the supreme court has indicated that the type and
severity of injuries risked by the physical condition are relevant to
whether that condition chanced an injury exceeding the bounds of
reason. See id. at ¶ 24; see also id. at ¶¶ 46-47 (Márquez, J.,
dissenting). Galef alleged he suffered an injury severe enough that
it would require two surgeries to repair. He also submitted a report
indicating that slippery floors in general risk a myriad of severe
injuries — including a significant chance of death. And further, the
risks of a wet, slippery staircase go beyond those associated with a
mere slippery floor; falling down stairs poses a far more
unreasonable risk of injury than a mere “tripping hazard” like the
hazard in Maphis — an uneven sidewalk. See id. at ¶ 24 (majority
opinion).
¶ 43 It’s true that Maphis ruled that “the frequency with which a
particular condition occurs is an appropriate consideration” when
5Many of the following considerations are taken from Maphis, which was decided after the trial court issued its order dismissing Galef’s complaint.
24 evaluating whether a physical condition poses an unreasonable
risk. Id. at ¶ 29. And Galef’s submitted report indicated that slip-
and-fall injuries are a frequent source of injury for the general
public. But the court’s concerns in Maphis about the frequency of
the hazard in that case are not present here. Unlike for a
commonplace sidewalk hazard, exposing the University to liability
for the wet stairs would not impose an “impossibly high standard”
on the University. Id. (quoting Dennis, ¶ 19). A wet floor will dry on
its own and there is a cheap and available solution to mitigate the
risk posed by wet flooring — posting a wet-floor sign.
¶ 44 Second, the supreme court has indicated that the degree to
which the hazard is responsible for causing the plaintiff’s injury is
also relevant to the unreasonableness of the risk it poses. See
Dennis, ¶ 24; Maphis, ¶ 41 (Márquez, J., dissenting). Galef alleged,
and the University did not challenge, that his injury was caused
primarily by the imperceptibly wet, slippery stairs.
¶ 45 Third, the supreme court has noted that the location of the
physical condition bears on this analysis. Maphis, ¶ 28 (majority
opinion). Galef’s complaint and affidavit alleged that the hazardous
physical condition was located in both a “high foot-traffic area” and
25 an “area of heightened public safety concern” — inside a school.
The supreme court has found that both kinds of locations make the
risk more unreasonable. Id.
¶ 46 Finally, the supreme court has noted that conditions that are
difficult to detect pose a more unreasonable risk of injury,
particularly when the public entity failed to call attention to the
hazard by warning the public of its presence. See id. at ¶ 27; see
also id. at ¶ 39 n.1 (Márquez, J., dissenting). Galef alleged that the
black coloring of the staircase made it difficult for him to detect that
it had been recently mopped — a difficulty that was compounded by
the University’s failure to post a wet-floor sign where Galef could
see it.
¶ 47 For these reasons, we conclude that Galef successfully
demonstrated that the imperceptibly wet, slippery stairs posed an
unreasonable risk to the health and safety of the public. Thus, in
combination with the other undisputed facts, he sufficiently carried
his burden to demonstrate that his injuries resulted from a
“dangerous condition of any public building” under section
24-10-106(1)(c). Under these circumstances, we conclude, as a
26 matter of law, that the University waived its immunity under the
CGIA. The trial court erred by ruling otherwise.
III. Conclusion
¶ 48 The judgment of dismissal is reversed and the case is
remanded for further proceedings consistent with this opinion.
JUDGE LIPINSKY and JUDGE GRAHAM concur.