Padilla Ex Rel. Padilla v. School District No. 1 in the City & County of Denver

25 P.3d 1176, 2001 Colo. J. C.A.R. 2814, 2001 Colo. LEXIS 478, 2001 WL 637376

• Court: Supreme Court of Colorado
• Decided: June 11, 2001
• Docket: 99SC862
• Status: Published

Opinions

Justice HOBBS

delivered the Opinion of the Court.

The Colorado Governmental Immunity Act (CGIA) waives the defense of governmental immunity in an action for damages due to injuries resulting from "a dangerous condition of any public building." See § 24-10-106(1)(c), 7 C.R.S. (2000). Petitioner Shayne Padilla (Padilla) through her parents brought a negligence action against School District No. 1 of the City and County of Denver and the Denver School District Board of Education (School District), asserting that she sustained injuries resulting from a dangerous condition of a public building. We granted certiorari review of the court of appeals' decision in Padilla v. School District No. 1, 1 P.3d 256 (Colo.App.1999), to determine whether Padilla may proceed with her negligence action in light of the CGIA.¹ We hold that Padilla failed to show jurisdictional facts sufficient for application of the immunity waiver. Accordingly, we affirm the judgment of the court of appeals upholding the trial court's order dismissing the action.

L.

Padilla, a ten-year-old developmentally disabled child, suffered from serious medical conditions for which she had frequently been subject to hospitalization, blood draws, and invasive medical procedures. Due to such procedures, she associated physical restraint with pain and became frightened and agitated when restrained, pulled, or grabbed.

Her mother informed personnel of the Denver Public Schools (DPS) that Padilla should not be pulled or restrained. She provided a stroller for transporting Padilla to avoid pulling or dragging her.

On February 12, 1997, Padilla refused to eat her lunch, and became agitated when DPS employees tried to get her to eat. DPS employees placed Padilla in her stroller and propped the stroller out of their line of sight against an open door of a closet adjoining the classroom. Padilla became agitated, the stroller fell backward, and Padilla struck her head against the floor, fracturing her skull.

Padilla brought suit for negligence against the School District. The School District moved to dismiss under C.R.C.P. 12(b)(1), on the grounds that it was immune from suit under the CGIA. In response to the motion to dismiss, Padilla set forth her alleged jurisdictional facts through proposed findings of fact, asking in the alternative that the court hold an evidentiary hearing in the event that the court did not accept her proposed findings of fact for jurisdictional purposes.

Padilla's proposed findings recited, in part, that the "Centennial Elementary School staff used the stroller and the storage closet as a place of restraint and 'time out' without Mrs. Padilla's knowledge or consent" and the "Centennial staff isolated [the child] inside the storage closet and used the door and wall next to the open doorway as a means of securing the stroller from toppling over." The child became "more agitated, frustrated, and upset" and "[the stroller toppled backward, causing [the child] to hit her head on the floor of the open doorway, resulting in a skull fracture." Padilla further alleged that immunity was waived because the "placement of [the child's] stroller combined with the use of the storage room without a window or line of sight created a dangerous condition in a public building."

The trial court granted the motion to dismiss without an evidentiary hearing. In its order of dismissal, the trial court recited the jurisdictional facts as follows:

For the purpose of this order, the Court accepts plaintiff's version of facts.

Plaintiff is a ten-year-old disabled child with various medical conditions. Defendants are the school district and board of education where plaintiff attends school.

Because of plaintiffs association with painful medical procedures, plaintiff becomes frightened and agitated when restrained. To prevent school personnel from forcibly pulling or dragging plaintiff, Mrs. Padilla supplied a stroller for transporting plaintiff. Mrs. Padilla did not authorize the use of the stroller for physical restraint. On February 12, 1997, because plaintiff refused to eat her lunch defendants' employees put plaintiff in her stroller that was placed in a storage closet against an open door. The door was used as a backstop for the stroller. However, plaintiff became agitated and the stroller toppled backward into the open doorway causing plaintiff to hit her head on the floor.

In granting the motion to dismiss, the trial court focused on Padilla's failure to prove or allege facts coming within the immunity waiver, because she did not link the use of the facility with a construction or maintenance activity:

Thus, in order to prove a waiver of sovereign immunity under CRS. § 24-10-106(1)(c), plaintiff must prove that the positioning of the stroller was (1) a physical condition of a facility or use thereof; (2) an unreasonable risk to the health or safety of the public; (3) known to exist or which should have been known to exist; and (4) proximately caused by the negligent act or omission in constructing or maintaining such facility. Plaintiff has failed to prove or even allege any facts to support a finding that positioning the stroller was caused by constructing or maintaining this facility.

(Emphasis added.)

Summing up its determination, the trial court said, "Plaintiffs case is wholly premised on the positioning of the stroller. Nothing in plaintiff's case supports a finding that plaintiffs injuries were caused by construction or maintenance of the school."

The court of appeals affirmed, holding that negligent use of the closet as a seclusion room did not constitute negligent "maintenance" of the facility for the purposes of the "dangerous condition" exception. Padilla, 1 P.3d at 259. The court's majority characterized Padilla's claims as alleging not "negligent maintenance" but "improper actions on the part of the school staff in placing the child out of their line of sight." Id. at 260. The majority also determined that the trial court had not erred in refusing to grant an evidentiary hearing before ruling on the School District's motion to dismiss. Id. at 259.

We agree and affirm the judgment of the court of appeals.

IL

We hold that Padilla did not allege sufficient jurisdictional facts associating her injuries with actions or omissions of the School District in constructing or maintaining the facility.

A.

The CGIA Jurisdictional Inquiry

The General Assembly enacted the CGIA in 1971 in response to a trilogy of cases abrogating Colorado's common law of governmental immunity. See ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1204-11; Evans v. Board of County Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971) (abrogating common law sovereign immunity and recognizing that the legislature could reestablish governmental immunity by statute). The CGIA establishes immunity from suit for public entities and their employees in tort cases, but then waives immunity under certain cireumstances and also provides exceptions to certain waivers. Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo.2000); § 24-10-106.

The CGIA derogates Colorado's common law. Consequently, we strictly construe the statute's immunity provisions. See Springer, 13 P.3d at 798; Bertrand v. Board of County Comm'rs, 872 P.2d 223, 227 (Colo.1994). As a logical corollary, we broadly construe the provisions withholding immunity in the interest of compensating victims of governmental negligence. Springer, 13 P.3d at 798; Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000); Walton v. State, 968 P.2d 636, 643 (Colo.1998).

A C.R.C.P. 12(b)(1) motion to dismiss on grounds of immunity under the CGIA raises a jurisdictional issue; the plaintiff has the burden of demonstrating jurisdiction. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo.1993). When the alleged jurisdictional facts are in dispute, the trial court should conduct an evidentiary hearing before ruling on the jurisdictional issue. See Fogg v. Macaluso, 892 P.2d 271, 276 (Colo.1995). Where there is no evidentiary dispute, governmental immunity or waiver of immunity is a matter of law, and the trial court may rule on the jurisdictional issue without a hearing. See Corsentino, 4 P.3d at 1087; Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384 (Colo.1997).

Here, the trial court accepted all of Padilla's assertions of fact as true; consequently, it did not abuse its discretion in proceeding to rule on the School District's motion to dismiss without convening an evi-dentiary hearing.

B.

Waiver for Dangerous Condition of Any Public Building

I. Construction or Maintenance Nexus

Section 24-10-106(1)(c) provides that "[slovereign immunity is waived by a public entity in an action for injuries resulting from ... [a] dangerous condition of any public building." The CGIA further defines "dan-condition" as

a physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in construct ing or maintaining the facility. Maintenance does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility .... A dangerous condition shall not exist solely because the design of any facility is inadequate.

§ 24-10-1083(1), 7 C.R.S. (2000).

We give effect to legislative intent in construing the CGIA provisions for immunity, waiver, and exception to waiver. Springer, 13 P.3d at 799; Walton, 968 P.2d at 644. We look to the statutory language, giving the words and phrases their plain and ordinary meaning. Walton, 968 P.2d at 644.

The CGIA sets forth a four-factor test for determining the existence of a dangerous condition of a public building. The waiver of immunity applies if the alleged injuries occurred as a result of: (1) the physical condition of a public facility or the use thereof; (2) which constitutes an unreasonable risk to the health or safety of the public; (3) which is known to exist or should have been known to exist in the exercise of reasonable care; and (4) which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining the facility. § 24-10-108(1); Springer, 13 P.3d at 799; Walton, 968 P.2d at 644. Additionally, the condition must be associated with construction or maintenance, not solely design. § 24-10-103(1); Swieckowski, 934 P.2d at 1386.

In Walton, utilizing the canon of broad construction for immunity waivers, we said "[Iiability attaches for injury stemming from the public's use of a dangerous or defective physical condition of the building" and the "linchpin of our 'use' inquiry ... is that 'the statute refers to an injury arising from the state of the building itself or the use of a state of the building'" Walton, 968 P.2d at 645 (quoting Jenks v. Sullivan, 826 P.2d 825, 827 (Colo.1992))² (emphasis in Walton). Nonetheless, to be actionable, the state of the building or use of a state of the building and the injury resulting therefrom: (1) must have occurred in connection with a negligent act or omission of the governmental entity, not a third party; (2) must be associated with "constructing" or "maintaining" the facility; and (8) must not be solely due to the facility's design. See Walton, 968 P.2d at 644.

In Walton, we described the dangerous condition as a combination of physical facts involving the use of an unsecured ladder on a slippery floor to access a loft for maintenance, and we explained that the governmental entity had caused the dangerous condition resulting in the injury:

Walton's injuries were not solely due to inadequate design of the building. There was no evidence presented to the trial court that the space between the two ceilings was designed to serve as a storage area. While the State was under no obligation to upgrade the design of the ceilings, use of the space by the university for storage required a means of maintenance and the institution of maintenance practices that did not pose an unreasonable risk of injury to members of the public.

Id. at 645.

Distinguishing Jenks, we stated in Walton that "the negligent act or omission of the State-not a third party-caused the dangerous condition that resulted in Walton's injuries." Id. We concluded that Walton's "use and injury was, in the words of the statute, (proximately caused by the negligent act or omission of the public entity in ... maintaining the facility'" Id. (quoting § 24-10-103(1)) (omission in original).

Our discussion in Walton distinguishing Jenks demonstrates that the case-by-case jurisdictional inquiry methodology requires courts to take into account varying definitions of "physical condition," "constructing," and "maintaining." For example, in discussing a "physical condition" in Jenks, we referred to a "structural defect in the building." Jenks, 826 P.2d at 830. While such a structural defect is a "physical condition" within the immunity waiver, we held in Walton that this term also includes other physical conditions that the governmental entity creates in association with constructing or maintaining a facility. Walton, 968 P.2d at 644.

Furthermore, within Jenks itself, we expressed varying formulations of the term "physical condition." The first prong of the four-pronged definition of "dangerous condition" contains the words "physical condition of a facility or the use thereof." $ 24-10-103(1). Although in Jenks we said the words "use thereof" in that phrase modify "physical condition," we then employed a broad de-seription of "physical condition" to include a "[mlode or state of being; state or situation." Jenks, 826 P.2d at 827. This broad description is all the more significant because Jenks employed a narrow construction of immunity waivers.³ Because we now afford deferential construction to immunity waivers in the CGIA, we continue to give broad seope to the term "physical condition," as evidenced in Walton. See Springer, 13 P.3d at 798; Walton, 968 P.2d at 643.

Similarly, in Swiechowski, we used a definition of "maintain," not to narrow the construction of this word to a single meaning but, rather, to point out that the allegations there amounted only to a design defect. We said " 'maintain' is defined as keeping a constructed edifice, structure, or improvement in the same general state of being, repair, or efficiency as initially constructed." Swieckowski, 934 P.2d at 1385 (emphasis in original). However, we did not intend to civreumseribe the jurisdictional inquiry to this one meaning. Broadly construed, "maintenance" encompasses ongoing repair and upkeep of the facility as it is put to the original, additional, or different uses than originally constructed.⁴ Similarly, "constructing" includes the facility as originally constructed but also encompasses permanent or temporary alterations to the facility made during its ensuing lifetime in service to the public.⁵

In some cireumstances, "constructing" and "maintaining" can apply to the same set of facts. In Walton, for example, the governmental entity "constructed" a temporary access to a loft not designed for a storage space and asked members of the public to clean it, a "maintenance" activity. See 968 P.2d at 645. Likewise, "constructing" and "maintaining" potentially intersected in Springer. There, we held that the plaintiff's negligence action could proceed on theories of either construction or maintenance or both. Springer, 13 P.3d at 805. We thus gave effect to the Premises Liability Statute, seetion 13-21-115, 5 C.R.S. (2000). The plaintiff in Springer alleged that the public entity had negligently failed to fix a protruding plate in a door entrance, which existed by reason of construction not in accordance with the building's design, or because the plate began to protrude after construction and was not corrected. See id. at 804. We determined that the "premises lability statute applies to the [governmental entity] as a landowner by reason of the CGIA's immunity waiver for dangerous conditions associated with construction or maintenance of the building." Id. at 805.

In Swieckowski, in contrast to Walton and Springer, the facts before the court demonstrated that the accident occurred because of the facility's design. The plaintiff's case, we said, amounted to an argument that the governmental entity was responsible for "an accident waiting to happen." Swieckowski, 934 P.2d at 1387. There simply was no showing of any governmental negligence associated with "constructing" or "maintaining" the facility, apart from alleged design defects of the enlarged roadway shoulder on which plaintiff was riding his bicycle. We observed that the statute excluded from "maintaining" any necessity of the public entity to "upgrade, modernize, modify, or improve the design or construction of a facility." Id. at 1385. We did not address in Swieckowski a situation where the governmental entity undertook to upgrade, modernize, modify, or improve the design or construction of the facility and did so negligently.

2. Padilla's Insufficient Jurisdictional Facts

In this case, Padilla argues that "her serious injuries directly resulted from the conversion and use by school personnel of the windowless storage closet as a seclusion room for disabled children." On the issue of whether the alleged negligence was associated with actions or omissions of the School District in constructing or maintaining the facility, Padilla asserts that "the use of the storage closet by school employees as a seclusion room required that the room be maintained in a manner that did not pose an unreasonable risk of injury to members of the public."

In answer, the School District contends that: (1) "a 'dangerous condition' is a physical condition (or the use of that condition) which constitutes an unreasonable risk, which is actually or constructively known to exist, and which is caused by negligent construction or maintenance;" and (2) "Plaintiff's alleged injuries resulted not from the state of the building or even the use of the building; they resulted from the use of the stroller."

Like the trial court, the court of appeals focused on Padilla's failure to show jurisdictional facts associating the alleged negligence with actions of the School District in constructing or maintaining the facility. The court of appeals held that "negligent use of the storage closet as a seclusion room would not constitute negligent 'maintenance' of the facility for purposes of the 'dangerous condition' exception." Padilla, 1 P.3d at 259. Rather, it determined that the substance of Padilla's negligence action was the failure of School District employees to keep Padilla within their line of sight so they could take action to prevent her from falling out of the stroller. Id. at 260. The court of appeals explained, "the dangerous physical condition must be proximately caused by the negligent act or omission of the public entity in constructing or maintaining the public facility." Id. at 259. We agree with the court of appeals.

Padilla argues that the case before us parallels Walton:

In Walton, it is the university's conversion of an empty space above the ceiling in the art studio to serve as a storage area which required the public entity to ensure a safe way to clean or maintain the area. Thus, as here, it is the particular use of the physical structure of the building-converting a windowless storage closet with a hard tile floor to a seclusion room-by public employees that created the dangerous condition of the public building.

While Padilla may have sufficiently alleged an act of negligence, leaving a disabled and distraught child out of sight and reach in an unstable stroller, we conclude that she did not demonstrate a sufficient connection between use of the state of the building and a construction or maintenance activity or omission for which the School District is responsible. Padilla's theory of the case only amounts to a claim that the School District should have upgraded the design of the closet if it wished to use it as a "time out" room for students exhibiting disruptive behavior. This is inadequate to effectuate the waiver. See Swieckowski, 934 P.2d at 1386-87 (holding that design of the widened area of the road used by the victim for riding his bike was sole reason for the injury).

IIL.

Padilla merely alleged that the government used the facility in an unsafe manner, thus only alleging that the government was negligent in its use of the facility. Therefore, Padilla's complaint lacked sufficient jurisdictional facts to support an immunity waiver under the provision of the CGIA waiving immunity for a dangerous condition of a public facility. Accordingly, we affirm the judgment of the court of appeals upholding the trial court's order dismissing Padilla's negli-genee action.

Justice COATS concurs in the judgment only, and Chief Justice MULLARKEY and Justice KOURLIS join in the concurrence.

1 . We granted certiorari on the following issues:

(1) Whether the court of appeals erred in determining that the negligent use and maintenance by public employees of a windowless storage closet with a hard tile floor as a seclusion room for an agitated, disabled child does not constitute negligent "maintenance" of the facility for the purposes of the "dangerous condition of a public building" exception to the Colorado Governmental Immunity Act (CGIA).

(2) Whether this court should resolve the apparent split of authority among divisions of the court of appeals regarding the proper interpretation of the CGIA "dangerous condition of a public building" waiver provision, including the rule in Hendricks v. Weld County Sch. Dist., 895 P.2d 1120 (Colo.App.1995), which is in direct contradiction to the majority decision in this case.

(3) Whether this court's adoption in Walton v. State, 968 P.2d 636 (Colo.1998) of the "deferential construction in favor of the victim" standard for interpretation of the CGIA waiver provisions overruled the "narrow" construction of waiver provisions standard set forth in City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996).

(4) Whether the court of appeals erred in failing to apply, consistent with Walton v. State, a narrow construction of the immunity provision of the CGIA and in failing to accord deferential construction of the CGIA's waiver provisions in favor of the plaintiff who was seriously injured by the negligence of governmental agents.

(5) Whether the court of appeals erred in affirming the district court's refusal to permit an evidentiary hearing in accordance with Trinity Broadcasting of Denver v. City of Westminster, 848 P.2d 916 (Colo.1993), when both the defendants' Motion to Dismiss and the district court's ruling failed to consider or accept as true all of the relevant facts asserted in plaintiffs complaint, and plaintiff specifically requested such a hearing in order to create a full factual record to establish compliance with the jurisdictional requirements.

2 . Jenks involved the firing of a gun by an intervening third party in a public building. We held that an act of a third party was insufficient to create a dangerous condition of a public building under the CGIA, and that "the statute refers to an injury arising from the state of the building itself or the use of a state of the building, but not to one arising from activities conducted within the building." 826 P.2d at 827.

3 . We have since overruled this part of the Jenks opinion. See Bertrand, 872 P.2d at 227.

4 . Broadly construing the immunity waiver provisions, as we must, meanings of "maintain" include "to keep in a state of repair, efficiency, or validity: preserve from failure or decline." Webster's Third New International Dictionary 1362 (1993). "Maintenance" includes "the labor of keeping something (as buildings or equipment) in a state of repair or efficiency: CARE, UPKEEP." Id.

5 . Definitions of "construct" include "to form, make or create by combining parts or elements." Id. at 489. Definitions of "construction" include "'the act of putting parts together to form a complete integrated object: FABRICATION" as well as "something built or erected: STRUCTURE." Id.