24CA0626 Mostellar v Manitou Springs 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0626 El Paso County District Court No. 23CV31616 Honorable Eric Bentley, Judge
Jaimi J. Mostellar,
Plaintiff-Appellant,
v.
City of Manitou Springs,
Defendant-Appellee.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE MOULTRIE Lipinsky and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 27, 2025
Kane Law Firm, P.C., Mark H. Kane, Colorado Springs, Colorado, for Plaintiff- Appellant
Tucker Holmes, P.C., Bradley D. Tucker, Michael T. Sullivan, Centennial, Colorado, for Defendant-Appellee ¶1 Plaintiff, Jaimi J. Mostellar, appeals the district court’s entry
of judgment dismissing her lawsuit against defendant, the City of
Manitou Springs (Manitou), because Manitou is immune from suit
under the Colorado Governmental Immunity Act (CGIA) and thus
the court lacked subject matter jurisdiction. Mostellar urges us to
reverse the court’s judgment and reinstate her complaint. We
affirm.
I. Background
¶2 Mostellar was injured in Manitou after she tripped over a bus
stop sign remnant (the sign base) on a sidewalk.
¶3 Mostellar filed a complaint asserting claims of premises
liability and negligence against Manitou and others. Mostellar
alleged that she was injured because of a dangerous condition of
which Manitou knew or should have known on property that
Manitou was responsible for maintaining. Manitou filed a C.R.C.P.
12(b)(1) motion to dismiss for lack of subject matter jurisdiction (the
motion to dismiss), asserting that it was a public entity immune
from suit under the CGIA, sections 24-10-101 to -120, C.R.S. 2024,
and that it had not waived immunity.
1 ¶4 Mostellar and Manitou filed a joint status report after the
motion to dismiss was fully briefed. In the status report, Manitou
requested that the court rule on the motion to dismiss based on the
pleadings if the court believed it had the necessary information.
Mostellar indicated she did not object to proceeding in that manner.
¶5 The court granted the motion to dismiss. The court found that
the parties didn’t dispute the basic facts and that neither party had
requested an evidentiary hearing. The court concluded that
Mostellar failed to meet her burden of proving that (1) the sign base
constituted an unreasonable risk to the public; (2) Manitou knew or
should’ve known of the risk posed by the sign base; and
(3) Manitou’s negligence caused “the trip hazard” posed by the sign
base. Accordingly, the court concluded that Mostellar hadn’t
demonstrated that Manitou waived immunity and dismissed
Manitou from the case.
¶6 Mostellar appeals, asserting that the court erroneously relied
on evidence outside the pleadings, which consequently converted
the motion to dismiss to a motion for summary judgment under
C.R.C.P. 56. She asserts that, because the court misapplied the
2 law governing summary judgment motions, the judgment must be
reversed.
¶7 We first discuss the legal principles underlying the CGIA and
the standard district courts must use to resolve a public entity’s
motion to dismiss on grounds that the entity is immune from suit
under the CGIA. We then discuss our standard for reviewing a
district court’s determination that it lacks subject matter
jurisdiction over a public entity because the CGIA applies. Finally,
applying these principles, we conclude that the court didn’t err by
determining Manitou was immune from suit under the CGIA and
dismissing Manitou from these proceedings.
II. Legal Principles
A. The CGIA
¶8 The CGIA generally bars actions “against a public entity for
[an] injury which lies in tort or could lie in tort.” § 24-10-108,
C.R.S. 2024; see Trinity Broad. of Denver, Inc. v. City of Westminster,
848 P.2d 916, 924 (Colo. 1993) (“Unless a plaintiff complies with
the statutory requirements, . . . sovereign immunity bars suit
against a public entity for injury which lies or could lie in tort.”).
3 ¶9 “Questions of governmental immunity implicate subject matter
jurisdiction and are determined in accordance with C.R.C.P.
12(b)(1).” St. Vrain Valley Sch. Dist. RE-1J v. Loveland, 2017 CO 54,
¶ 10. “[C]ourts lack subject matter jurisdiction over claims barred
by sovereign immunity.” Grand Junction Peace Officers’ Ass’n v.
City of Grand Junction, 2024 COA 89, ¶ 1. Under C.R.C.P. 12(b)(1),
when a public entity seeks to dismiss the plaintiff’s complaint on
the grounds of immunity under the CGIA, the plaintiff has the
burden of proving that the entity waived immunity and the court
therefore has subject matter jurisdiction. Tidwell v. City & Cnty. of
Denver, 83 P.3d 75, 85 (Colo. 2003).
¶ 10 While the CGIA generally immunizes public entities from tort
liability, it contains exceptions that “waive[] this immunity under
certain limited circumstances.” Medina v. State, 35 P.3d 443, 453
(Colo. 2001); see §§ 24-10-104, -106, C.R.S. 2024. Because the
CGIA derogates common law, we strictly construe its provisions
granting immunity and broadly construe its provisions waiving
immunity to determine whether a plaintiff satisfied their burden.
Smokebrush Found. v. City of Colorado Springs, 2018 CO 10, ¶ 22.
“Sovereign immunity is waived by a public entity in an action for
4 injuries resulting from . . . [a] dangerous condition of a public . . .
sidewalk which was designed and intended for public travel . . . .”
§ 24-10-106(1)(d)(I).
¶ 11 “[P]ublic entities are liable for dangerous conditions on
sidewalks . . . .” City of Aspen v. Meserole, 803 P.2d 950, 955 (Colo.
1990). Section 24-10-103(1.3), C.R.S. 2024, defines “dangerous
condition” as
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.
In Walton v. State, 968 P.2d 636, 644 (Colo. 1998), the supreme
court held that immunity is waived under section 24-10-106(1)(d)(I)
for a “dangerous condition” if the plaintiff’s 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;
5 (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.
A court must consider the four Walton factors in deciding whether a
plaintiff met their burden to rebut a public entity’s assertion of
sovereign immunity in a C.R.C.P. 12(b)(1) motion. Furthermore, to
prove that the condition of a sidewalk presents an “unreasonable
risk,” a plaintiff must prove that the condition “created a chance of
injury, damage, or loss which exceeded the bounds of reason.” City
& Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 23. In making its
factual findings, the court must afford a plaintiff the reasonable
inferences from their undisputed evidence. Id. at ¶ 11.
B. The Standard for Determining a Public Entity’s Motion to Dismiss Based on the CGIA
¶ 12 In Trinity, the supreme court considered whether a court
should apply a C.R.C.P. 12(b)(1) or a C.R.C.P. 56 standard when a
public entity asserts immunity under the CGIA and seeks dismissal
of the plaintiff’s claims against it. See Trinity, 848 P.2d at 924-27.
6 ¶ 13 Relying on parallels between Rule 12(b)(1) of the Federal Rules
of Civil Procedure and C.R.C.P. 12(b)(1), Trinity held that, “[i]f the
motion [to dismiss] is a factual attack on the jurisdictional
allegations of the complaint . . . , the trial court may receive any
competent evidence pertaining to the motion” without converting it
to a summary judgment motion. Id. at 924.
III. Standard of Review
¶ 14 Questions of immunity under the CGIA present mixed
questions of fact and law. Maphis v. City of Boulder, 2022 CO 10,
¶ 12. In deciding a C.R.C.P. 12(b)(1) motion to dismiss based on
immunity under the CGIA, the court must make factual findings
about its ability to hear the case. Dennis, ¶ 9.
¶ 15 We review a court’s factual findings for clear error, but we
review de novo the legal determination of whether those facts
demonstrate that the public entity waived sovereign immunity
under the CGIA. See Maphis, ¶ 12 (noting that whether
jurisdictional facts constitute a “dangerous condition” under the
CGIA is reviewed de novo).
7 IV. Application
¶ 16 Manitou contends that Mostellar didn’t preserve her argument
that the court converted the motion to dismiss to a motion for
summary judgment. We disagree.
¶ 17 Manitou moved for an award of attorney fees after the court
granted the motion to dismiss. Mostellar responded that Manitou
wasn’t entitled to attorney fees because the motion to dismiss was
“treated as a motion for summary judgment.”
¶ 18 Furthermore, in its order granting Manitou’s motion for
attorney fees, the court said it “did not convert [Manitou]’s motion
into a motion for summary judgment; rather it considered the facts
and dismissed the claims pursuant to the CGIA, [C.R.C.P.] 12(b)(1),
and Trinity.”
¶ 19 Thus, the record demonstrates that Mostellar adequately
preserved this issue. See Berra v. Springer & Steinberg, P.C., 251
P.3d 567, 570 (Colo. App. 2010) (“[T]o preserve [an] issue for
appeal[,] all that [is] needed [is] that the issue be brought to the
attention of the trial court and that the court be given an
opportunity to rule on it.”).
8 A. The Court Correctly Applied the Standards of C.R.C.P. 12(b)(1) to the Motion to Dismiss
¶ 20 Mostellar contends that, by considering matters outside the
motion to dismiss — specifically, the accompanying exhibits — the
court converted the motion to dismiss to a motion for summary
judgment under C.R.C.P. 56. Mostellar also asserts that the court
should not have made factual findings without holding an
evidentiary hearing and that she “was entitled to inferences in her
favor in law under C.R.C.P. 12(b)(1) and in fact under C.R.C.P. 56
but was given neither.” We address and reject these contentions in
turn.
1. The Court Appropriately Considered Evidence Outside the Complaint to Determine the Motion to Dismiss
¶ 21 Mostellar asserts that, “[u]nder C.R.C.P. 12(b)(1), the court
should not have considered anything outside [her] complaint.” We
disagree.
¶ 22 A public entity’s assertion of immunity under the CGIA raises
a jurisdictional question that the court is empowered to resolve as
the fact finder under C.R.C.P. 12(b)(1). See Trinity, 848 P.2d at
924-25; Medina, 35 P.3d at 454; see also Fogg v. Macaluso, 892
P.2d 271, 277 (Colo. 1995) (“Whether a claim falls within an
9 exception to the [C]GIA’s waiver of sovereign immunity is a question
of subject matter jurisdiction and, if raised before trial, it
appropriately is addressed under C.R.C.P. 12(b)(1).”); Corsentino v.
Cordova, 4 P.3d 1082, 1087 (Colo. 2000) (noting that whether a
public entity qualifies for immunity is a question of subject matter
jurisdiction and, if the issue is raised before trial, it is properly
addressed pursuant to a C.R.C.P. 12(b)(1) motion to dismiss);
accord Tidwell, 83 P.3d at 81; City of Aspen v. Burlingame Ranch II
Condo. Owners Ass’n, 2024 CO 46, ¶ 23. Likewise, a court may
consider all competent evidence to determine whether a plaintiff has
met their burden to demonstrate a waiver of sovereign immunity,
and doing so does not convert a motion to dismiss into a motion for
summary judgment. Trinity, 848 P.2d at 924; accord Lee v. Banner
Health, 214 P.3d 589, 593 (Colo. App. 2009).
¶ 23 Despite recognizing this authority in her response to the
motion to dismiss, Mostellar’s appellate arguments are contrary to
these cases. Further, she does not identify legal authority to
support her assertion that the court was restricted to the four
corners of her complaint in deciding the motion to dismiss. “It is
the task of counsel to inform us . . . both as to the specific errors
10 relied on and the grounds and supporting facts and authorities.”
Mauldin v. Lowery, 255 P.2d 976, 977 (Colo. 1953). Mostellar has
failed to advise us of alternative controlling legal authority, and we
are bound by the standards set forth in the supreme court’s Trinity
opinion. See Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo.
App. 2009) (noting that a division of the Colorado Court of Appeals
is not at liberty to disregard a rule announced in a prior supreme
court case absent “some clear indication” that the supreme court
overruled its prior case). Thus, the court was entitled to consider
any competent evidence to resolve the motion to dismiss, and we
reject Mostellar’s contention otherwise.
2. The Court Acted Within Its Discretion to Rule on the Pleadings
¶ 24 Mostellar alternatively argues that the court didn’t have “all
relevant evidence” it needed to rule on the motion to dismiss. But
she doesn’t identify what relevant evidence she believes the court
was missing; rather, she takes issue with the court’s reliance on
Manitou’s evidence — instead of holding an evidentiary hearing —
to make the factual findings supporting the judgment. We discern
no error.
11 ¶ 25 A court isn’t required to hold an evidentiary hearing to decide
a defendant’s motion to dismiss under the CGIA if the court has
been presented with all relevant evidence. See Trinity, 848 P.2d at
925. Mostellar doesn’t point us to, nor have we found, any place in
the record where she denied the facts that Manitou presented in the
motion to dismiss or the supporting exhibits. Instead, Mostellar
asserted that Manitou “allowed a significant trip hazard to exist on
its sidewalks.” The extent of the hazard, if any, that the sign base
created was a legal question for the court to decide and not a
disputed fact.
¶ 26 Mostellar didn’t present any opposing evidence in her response
to the motion to dismiss or request that the court hold an
evidentiary hearing. Indeed, she agreed that the court could decide
the motion to dismiss based on the pleadings, unless the court
determined, in its discretion, that it needed additional information.
And, as discussed infra Part IV.B.1, the parties presented sufficient
evidence in their pleadings from which the court could determine
the undisputed facts supporting its conclusion that Manitou had
not waived its sovereign immunity. Accordingly, we also reject this
contention.
12 3. The Court Appropriately Considered Any Reasonable Inferences to Which Mostellar Was Entitled
¶ 27 We disagree with Mostellar’s assertion that she was not given
the benefit of inferences to which she was entitled for two reasons.
First, she was not entitled to an inference under C.R.C.P. 56
because the court did not convert the motion to dismiss to a motion
for summary judgment. Second, the court did afford her the
reasonable inferences from her undisputed evidence. Mostellar
alleged in her complaint that she was injured after she tripped and
fell on a public sidewalk in Manitou and that the sign base
protruding above the sidewalk caused her fall. Manitou didn’t
dispute these facts in the motion to dismiss, and the court
appropriately incorporated these undisputed facts in the judgment.
¶ 28 Despite her contention otherwise, Mostellar didn’t dispute
most of the facts upon which the court relied to decide the motion
to dismiss. Rather, she disputed the legal significance of those
facts and whether they supported her burden to show that Manitou
had waived immunity from a suit seeking damages for the type of
injuries that she incurred. Accordingly, we turn to whether
13 Mostellar met her burden to show that Manitou waived its sovereign
immunity.
B. Mostellar Failed to Meet Her Burden to Demonstrate that Manitou Waived Immunity
¶ 29 Mostellar had the burden of demonstrating that Manitou
waived its immunity under the CGIA because her injuries resulted
from a dangerous condition of which Manitou knew or should have
known. See Trinity, 848 P.2d at 925; see also Medina, 35 P.3d at
454. To do so, she needed to demonstrate that the Walton factors
were satisfied.
¶ 30 Manitou didn’t dispute that Mostellar’s injuries resulted from
a physical condition of a public sidewalk. Thus, Mostellar needed
to establish, and the court considered, the three remaining factors.
As discussed next, the record supports the court’s factual findings.
We agree with the court’s conclusion that Mostellar failed to
demonstrate that the sign base constituted an unreasonable risk to
the public based on the undisputed facts.
1. The Record Supports the Court’s Determination of the Undisputed Facts
¶ 31 The exhibits that Manitou submitted in support of the motion
to dismiss included Mostellar’s notice to Manitou of her claim,
14 which included photos of the sign base taken from different angles;
an affidavit from Manitou’s deputy city manager, who attested to
his supervisory role over the department responsible for overseeing
sidewalks within Manitou and his investigation into the status of
the sign base after Mostellar notified Manitou of her claim; and
photos of the sign base and the surrounding area, including a photo
of the sign base before the post was removed and a photo showing
the sign base covered by a traffic cone.
¶ 32 After reviewing the pleadings and the supporting
documentation, the court found the following relevant undisputed
facts:
• The sign base over which Mostellar tripped protruded
about three inches above the sidewalk.
• The sign base was located in a narrow, off-white portion
of pavement that was differentiated from the salmon pink
color of the “throughway” portion of the sidewalk where
pedestrians typically walk.
• The signpost appeared intact one month before
Mostellar’s trip and fall and, three months later, it had
15 been removed and a traffic cone placed at the sign’s
former location.
• Manitou maintains a “See-Click-Fix” function on its city
website where people can report city maintenance issues
or concerns, and Manitou’s records did not contain any
complaints or reports about the sign base.
¶ 33 Because the court’s factual findings are supported by the
record, we won’t disturb them. See Trinity, 848 P.2d at 925.
2. The Sign Base Did Not Constitute an Unreasonable Risk
¶ 34 The court relied on the supreme court’s reasoning in Maphis to
conclude that Mostellar had not met her burden to show that the
sign base presented an unreasonable risk to the public. In Maphis,
¶ 3, the plaintiff was injured after she tripped over a
two-and-a-half-inch deviation in a Boulder sidewalk. Boulder
moved to dismiss the plaintiff’s complaint for lack of subject matter
jurisdiction, arguing it was immune from suit under the CGIA
because the sidewalk deviation didn’t constitute a “dangerous
condition.” Id. at ¶ 1.
¶ 35 On review, the supreme court reiterated its holding in Dennis
and further held that, to assess whether a plaintiff has met their
16 burden to prove the “dangerous condition” element of a CGIA
immunity waiver, a court must “examin[e] the totality of the
circumstances presented by the undisputed evidence as to whether
that particular condition presented an unreasonable risk.” Maphis,
¶ 22. The supreme court noted that what may constitute a
“dangerous condition” in one set of circumstances may not in
another, and may include consideration of things like whether the
condition occurred in a “high foot-traffic area or an area of
heightened public safety concern — such as at the entrance of an
assisted-living facility, hospital, school, or daycare,” or whether the
condition had been the subject of frequent reporting by members of
the public. Id. at ¶ 28. The supreme court concluded that, under
the circumstances presented in Maphis, the plaintiff hadn’t
demonstrated that the deviation created a chance of injury,
damage, or loss that exceeded the bounds of reason. Id. at ¶ 30.
¶ 36 After making its factual findings, the court concluded that
(1) the sign base wasn’t in an area with “heightened safety
concerns”; (2) pedestrians were likely to see the sign base as it
“st[u]ck[] straight up from the pavement and thus [was] much more
visible to the naked eye than the ‘largely imperceptible’ slab
17 deviation” in Maphis; and (3) the sign was “located on a narrow,
off-white strip of pavement next to the curb” in a space provided for
street signs that was “differentiated by color from the salmon pink
‘throughway’ portion of the sidewalk” designated for pedestrians.
¶ 37 Although Mostellar argued that the sign base was located in a
“high foot-traffic business area,” the court rejected that contention
as Mostellar didn’t provide any supporting evidence; rather, she
only provided argument of counsel.
¶ 38 Our own review of the record compels us to reach the same
conclusion as did the court regarding whether Mostellar met her
burden.
¶ 39 The sign base — which was irregularly shaped and protruded
out of the ground close to the curb — was located in a portion of the
sidewalk outside the “throughway” where pedestrians traveled and
was differentiated by color from the “throughway.” The sign base
was not located in an area with heightened safety concerns, and
Mostellar didn’t present evidence that anyone had contacted
Manitou to inform the city of the potential hazard. We acknowledge
that the sign base posed some level of risk as it was protruding
from the sidewalk. But we cannot conclude that, under the totality
18 of the circumstances, the sign base created a chance of injury,
damage, or loss that exceeded the bounds of reason. Thus, we
conclude that the court didn’t err by determining that Mostellar
hadn’t met her burden to demonstrate that the sign base created an
unreasonable risk.
¶ 40 Because Mostellar didn’t meet this burden, we need not
address the remaining Walton factors, and her allegation that the
sign base constituted a dangerous condition for which Manitou’s
immunity from suit was waived necessarily fails.
V. Requests for Attorney Fees
¶ 41 Both parties request that we grant their respective attorney
fees related to this appeal.
¶ 42 Mostellar requests attorney fees in her primary brief but fails
to cite a basis for that request. C.A.R. 39.1 (“If attorney fees are
recoverable for the appeal, the principal brief of the party claiming
attorney fees must include a specific request . . . and must explain
the legal and factual basis, for an award of attorney fees.”)
(emphasis added); see Cikraji v. Snowberger, 2015 COA 66, ¶ 22
(declining to address unsupported request for attorney fees).
19 ¶ 43 Manitou requests an award of its reasonable attorney fees as
required by section 13-17-201, C.R.S. 2024. “Section
13-17-201 . . . requires a court to award reasonable attorney fees to
the defendant when a court dismisses a plaintiff’s tort action before
trial under C.R.C.P. 12(b),” and “a party that successfully defends
an appeal of an action that was dismissed on a pretrial motion to
dismiss under the CGIA is entitled to recover its reasonable
appellate attorney fees under section 13-17-201.” Henderson v.
City & Cnty. of Denver, 2012 COA 152, ¶ 47; see Smith v. Town of
Snowmass Village, 919 P.2d 868, 873 (Colo. App. 1996) (“[A]n
award of attorney fees is mandatory when a trial court dismisses an
action under the [C]GIA for lack of subject matter jurisdiction.”).
Accordingly, we grant Manitou’s request. Because the district court
is in a better position than we are to determine the reasonable
attorney fees Manitou has incurred, we remand the case for further
proceedings on that issue. See Stauffer v. Stegemann, 165 P.3d
713, 719 (Colo. App. 2006).
20 VI. Disposition
¶ 44 The judgment is affirmed. The case is remanded to the district
court with directions to award Manitou its reasonable appellate
attorney fees, consistent with this opinion.
JUDGE LIPINSKY and JUDGE JOHNSON concur.