City's Reply to Red Rocks Concertgoers' Answer Brief

8/11/2019 City's Reply to Red Rocks Concertgoers' Answer Brief

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COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue

Denver, Colorado 80203

COURT USE ONLY

________________________

Case Number: 13CA1561

District Court, Jefferson County

The Honorable Christopher C. Zenisek

Civil Action No. 12-CV-3705

Plaintiffs-Appellees: JENNIFER ACKERMAN,

DAVID SCHEUERMANN, FORREST

HUDSPETH, and ADAM KINNARD,

v.

Defendant-Appellant: CITY AND COUNTY OF

DENVER.

Barry A. Schwartz, #17981

Jamesy C. Owen, #44926

Assistant City AttorneysDenver City Attorneys Office

Litigation Section

201 West Colfax Ave., Dept. No. 1108

Denver, CO 80202-5332

Telephone: (720) 913-3100

Facsimile: (720) 913-3182

[email protected]

[email protected]

Attorneys for the Defendant-Appellant

REPLY BRIEF
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE ........................................................................ ii

TABLE OF AUTHORITIES .......................................................................... iv, v, vi

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

A. Plaintiffs cannot demonstrate that their injuries were caused by a dangerous

condition as that phrase is defined by the CGIA ........................................... 2

1. The two incidents on which Plaintiffs rely do not support the districtcourts conclusion that Denver had actual or constructive notice that

a natural rockfall might injure concertgoers ......................................... 3

a. Neither actual nor constructive notice is established by thediscovery of a rock in the Amphitheatre in 1999 or of the rocks

that fell into a construction zone there in 2007. ............................ 4

b. The case law Plaintiffs cite in support of their notice argumentis inapposite ................................................................................... 8

2. The district court erred in concluding that Denvers failure toinspect Creation Rock in 2010 was the proximate cause of Plaintiffs

injuries ................................................................................................. 10

3. Plaintiffs injuries were not caused by negligent maintenance of theAmphitheatre ....................................................................................... 14

4. The mere fact that the Amphitheatre was designed to be placed next toCreation Rock does not render the combination of them a public

facility. ................................................................................................. 16

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B. Plaintiffs injuries were caused by the natural condition of unimproved

property, for which there is no waiver under the CGIA ................................ 18

1. Denver retains immunity under the natural condition of any

unimproved property provision of the CGIA because Creation

Rock is not integral and essential to the use and enjoyment ofRed Rocks Amphitheatre .................................................................... 19

2. Creation Rock is not improved property ......................................... 21

3. This Court should not disturb the balance embodied in the CGIAbetween encouraging governments to provide public facilities in

natural surroundings, while preserving limited public resources ....... 23

CONCLUSION ........................................................................................................ 25

REQUEST FOR ATTORNEY FEES ...................................................................... 25

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TABLE OF AUTHORITIES

Cases

Altairi v. Alhaj,599 N.W.2d 537 (Mich. App. 1999) ....................................................................... 7

Aurora v. Loveless,

639 P.2d 1061 (Colo. 1981) .................................................................................. 11

Brady v. Southern R.R. Co.,

320 U.S. 476 (1943) .............................................................................................. 11

Branco Eastern Co. v. Leffler,482 P.2d 364 (1971) ................................................................................................ 5

Burnett v. State Dept. of Natural Resources,

No. 11CA2141, 2013 WL 1245366 (Colo. App. March 28, 2013),cert. granted(Nov. 12, 2013) .................................................................... 17, 20, 21

Curtis v. Hyland Hills Park & Rec. Dist.,179 P.3d 81 (Colo. App. 2007) ............................................................................. 10

Dubray v. Intertribal Bison Coop.,

192 P.3d 604 (Colo. App. 2008) ........................................................................... 25

Johnson v. Town of Grand Lake,No. 05-cv-1169-WDM, 2006 WL 686487 (D. Colo. March 17, 2006) .............. 4, 8

Luenberger v. City of Golden,

990 P.2d 1145 (Colo. App. 1999) ................................................................. 8, 9, 10

Martinez v. Weld County School Dist. RE-1,

60 P.3d 736 (Colo. App. 2002) ...........................................................................4, 8

McIntire v. Trammell Crow, Inc.,172 P.3d 977 (Colo. App. 2007) ............................................................................. 3

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Mendoza v. White Stores, Inc.,

488 P.2d 90 (Colo. App. 1971) ............................................................................. 11

Padilla v. School Dist. No. 1,

25 P.3d 1176 (Colo. 2001) ................................................................................ 3, 15

Repka v. Rentalent,477 P.2d 470 (Colo. App. 1970) ........................................................................... 11

Rosales v. City & Cnty. of Denver,89 P.3d 507 (Colo. App. 2004) ....................................................................... 17, 19

Smith v. State Comp. Ins. Fund,

749 P.2d 462 (Colo. App. 1982) ........................................................................... 11

Smith v. Town of Snowmass Village,

919 P.2d 868 (Colo. App. 1996) ............................................................... 4, 7, 8, 10

Springer v. City & County of Denver,13 P.3d 794 (Colo. 2000) .......................................................................... 10, 13, 14

Western & A. R.R. v. Henderson,

279 U.S. 639 (1929) .............................................................................................. 11

Westland v. Gold Coin Mines Co.,101 F. 59 (8th Cir. 1900) ....................................................................................... 11

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Statutes

C.R.S. 24-10-106(1)(e) .......................................................... 1, 2, 3, 18, 19, 21, 23

C.R.S. 24-10-103(1.3) ...................................................................1, 3, 8, 10, 14, 15

C.R.S. 24-10-103(2.5) ..................................................................................... 15, 16

C.R.S. 24-10-106.5(1) ........................................................................................... 22

C.R.S. 13-17-201 .................................................................................................. 25

Rules

C.R.C.P. 12(b) .......................................................................................................... 25

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INTRODUCTION

The issue before the Court is whether Denver retains governmental

immunity in the face of Plaintiffs claims for damages resulting from injuries they

sustained when rocks fell into the Red Rocks Amphitheatre (the Amphitheatre)

during a September 2011 concert. The CGIA waives immunity where the

dangerous condition of a public facility located in a park causes injury. C.R.S.

24-10-106(1)(e). But there is no waiver for injuries resulting from the natural

condition of unimproved property.Id.

The district court erred in denying Denvers Motion to Dismiss because the

evidence does not show that Plaintiffs injuries resulted from the dangerous

condition of a public facility as defined by the CGIA. See C.R.S. 24-10-

103(1.3). First, the record does not demonstrate that Denver had actual or

constructive notice of the allegedly dangerous condition of Creation Rock. Id.

Second, even if Denver could be deemed to have had notice of a dangerous

condition of Creation Rock, the record does not support the courts finding that

Denvers failure to inspect prior to the 2011 concert season proximately caused

Plaintiffs injuries. Third, Plaintiffs injuries resulted from the inherent risk in the

designof the Amphitheatre, rather than its negligent maintenance. See id. Fourth,

the district court erred in determining that Creation Rock is so essential to the

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function of the Amphitheatre as to render it part of a public facility. For these

reasons, Plaintiffs arguments are fatally flawed because they have not met their

burden of establishing Creation Rock constitutes a dangerous condition.

Plaintiffs claims must also fail under the CGIA exception that retains

immunity where an injury is caused by the natural condition of unimproved

property. C.R.S. 24-10-106(1)(e). Despite the installation of minimal safety

devices, Creation Rock is unimproved property, and it is not essential to the

Amphitheatres purpose as a music venue.

For these reasons, Denver respectfully asks this Court to reverse the

judgment of the district court and remand with instructions to dismiss Plaintiffs

Complaints.

ARGUMENT

A. Plaintiffs cannot demonstrate that their injuries were caused by a

dangerous condition as that phrase is defined by the CGIA.

As relevant here, the CGIA waives governmental immunity only if the

dangerous condition of a public facility in a park causes an injury. C.R.S. 24-10-

106(1)(e). To establish a waiver of sovereign immunity because of a dangerous

condition, Plaintiffs must show that they were injured by a dangerous condition

that resulted from: (1) the physical condition of a public facility, (2) which

constitutes an unreasonable risk to the health or safety of the public, (3) which the

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public entity knew existed or should have known existed in the exercise of

reasonable care, and (4) the negligent act or omission of the public entity

proximately caused such condition. C.R.S. 24-10-103(1.3); 24-10-106(1)(e);

Padilla v. School Dist. No.1, 25 P.3d 1176, 1180-81 (Colo. 2001). The record does

not support a finding that Plaintiffs have met any of the elements of the dangerous

condition definition in the CGIA. As a result, the district court erred in finding that

immunity is waived.

1. The two incidents on which Plaintiffs rely do not support the

district courts conclusion that Denver had actual or constructivenotice that a natural rockfall might injure concertgoers.

1

A dangerous condition cannot exist for CGIA purposes unless the public

entity knew or should have known of its existence. C.R.S. 24-10-103(1.3); see

Padilla, 25 P.3d at 1180. The record establishes neither actual nor constructive

notice of a dangerous condition of Creation Rock.

It is not knowledge of the condition, activities, or circumstances that gives

rise to liability; it is the danger of which the owner actually knew or should have

known. McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007).

Thus, for example, a defendants mere knowledge that ice and snow tend to

1 Denver does not concede that the September 2011 rockfall was natural.

Rather, as Plaintiffs allege in their Complaints, CF, pp.6, 91, 103, trespassers who at least one of Plaintiffs saw on Creation Rock that night apparently caused

the rocks to fall.

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accumulate does not satisfy the CGIAs requirement of actual or constructive

knowledge of a dangerous condition that injured plaintiff. Smith v. Town of

Snowmass Village, 919 P.2d 868, 871 (Colo. App. 1996)); accordJohnson v. Town

of Grand Lake, No. 05-cv-1169-WDM, 2006 WL 686487, slip op. at *2-3 (D.

Colo. March 17, 2006) (unpublished) (same; distinguishing Smith fromMartinez v.

Weld County School Dist. RE-1, infra, and finding that the town had no actual or

constructive notice of problems with the particular defective board on the boat

dock that broke, injuring plaintiff). Here, there is no evidence in the record upon

which notice of a dangerous condition might be found with respect to Creation

Rock and Denvers general knowledge that rocks tend to fall cannot suffice.

a. Neither actual nor constructive notice is established by the

discovery of a rock in the Amphitheatre in 1999 or of the rocksthat fell into a construction zone there in 2007.

As they did in the district court, Plaintiffs bank their argument on two events

that allegedly provided notice to Denver of a dangerous condition on Creation

Rock: (1) the discovery of a single rock on the stairs near Creation Rock in 1999,

and (2) several rocks that fell into an active construction zone near Creation Rock

while workers were using rock excavation equipment in 2007. Answer Brief at 9,

27-28. Their reliance on those events is misplaced.

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As to the first incident, the origin of the single rock found lying on the stairs

near Creation Rock is unknown; indeed, it is uncontroverted that nobody saw it fall

or knew how it came to be there. R.Tr. (8/7/13), pp.141:22-142:19. Although

discovery of that single rock on the Amphitheatres stairs does not demonstrate a

dangerous condition of Creation Rock, see, e.g.,Branco Eastern Co. v. Leffler, 482

P.2d 364, 367 (1971) (establishing elements of res ipsa loquitor, which elements

are not satisfied here) Red Rocks Facility Superintendant Joseph Davis, in an

excess of caution, directed his staff to check the area regularly so that Denvers

rock mitigation contractor, Yenter Companies, could be notified if a problem

presented itself. R.Tr. (8/7/13), pp.141:22-142:19. No such problem did present

itself, and indeed Plaintiffs presented no evidence whatsoever establishing (or even

suggesting) that any rocks fell from Creation Rock during the ensuing eight years.

Despite conceding that the single rock was found on the stairs beneath

Creation Rock, Plaintiffs ask this Court to speculate that the rock musthave fallen

from Creation Rock, thereby providing notice to Denver that rocks could fall from

Creation Rock again. Answer Brief at 9, 27-28. But there simply is no evidence to

justify such speculation.

As for the 2007 incident, when several rocks fell into an active construction

zone near Creation Rock, the record establishes that at the time rocks fell, workers

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were using vibration equipment and various things to excavate rock in that area

and by the very nature of the work to dislodge the rocks abutting Creation

Rock. R.Tr. (8/7/13), pp.136:22-141:15, 143:16-23; R.Ex. 53, pp.60, 141.

Contrary to Plaintiffs assertion, Answer Brief at 9, no one was hit by these rocks

or otherwise injured.2

Id. More importantly, the only significance of this event is

that it establishes that rocks could become loose and fall into the Amphitheatre

when construction work is undertaken using vibration equipment. Thus, Plaintiffs

contention that the 2007 event should have put Denver on notice of a dangerous

condition of Creation Rock is not supported. SeeAnswer Brief at 9-10, 28-29.

Again, although Mr. Davis concluded that the vibrating excavation

equipment caused the 2007 rockfall and contrary to Plaintiffs misrepresentation,

seeAnswer Brief at 11, 28-29 he again followed a precautionary approach and

called Yenter to inspect and perform mitigation work on Creation Rock to ensure

that there was no danger caused by the construction. R.Tr. (8/7/13), pp.140:23-

141:21, R.Ex. 53, pp. 60, 141.

2 Twice in their Answer Brief, Plaintiffs claim that 2007 event involved rocks

falling onto the RMA construction crew. Answer Brief at 9, 28. That is a grossmischaracterization. Mr. Davis testified unequivocally that those rocks did not fall

on any people. R.Tr. (8/7/13), p.152:3-8. There is no evidence in the record to thecontrary.

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Additionally, Denver had several mechanisms in place by which Red Rocks

employees monitored and reported any potential dangers or citizen injuries and by

which citizens themselves could report concerns or injuries at the Amphitheatre or

in Red Rocks Park. R.Tr. (8/7/13), pp.88:15-91:9, 92:1-95:2, 96:21-97:7, 99:21-

100:13, 108-114, 129:7-130-131:1. Notably, Denver never received any report of

any concern or injury related to rocks falling into the Amphitheatre through these

avenues prior to the September 2011 incident. Id. at 99:21-103:18, 110:6-114:12,

142:20-24, 163:20-164:3. SeeSmith, 919 P.2d at 871-72 (no actual or constructive

notice where government employees authorized to receive complaints did not

receive complaints of and did not know of dangerous condition at injury location).

Moreover, general knowledge that rocks tend to fall from natural geological

formations does not demonstrate notice under the CGIA. Id. (defendants mere

knowledge that ice and snow tend to accumulate does not constitute knowledge or

constructive knowledge of the ice build-up that injured plaintiff); accord Altairi v.

Alhaj, 599 N.W.2d 537, 543-44 (Mich. App. 1999) (Insofar as plaintiff seeks to

use general knowledge of local weather conditions to show that defendant should

have known that ice lay under the snow on his steps, the same knowledge can be

imputed to plaintiff.).

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Denver did not have actual or constructive notice that a rockfall would injure

concertgoers in the Amphitheatre and, therefore, Plaintiffs have not satisfied a

required element of the CGIA dangerous condition definition. C.R.S. 24-10-

103(1.3). Thus, the district court erred,see Smith, 919 P.2d at 871, in finding and

concluding that the 1999 and 2007 occurrences put Denver on notice of a

dangerous condition. Denver therefore is entitled to sovereign immunity.

b.

The case law Plaintiffs cite in support of their notice argumentis inapposite.

In support of their argument that Colorado law does not distinguish between

general and specific knowledge of a condition and its dangerous nature, Answer

Brief at 25, Plaintiffs rely on Luenberger v. City of Golden, 990 P.2d 1145 (Colo.

App. 1999) and Martinez v. Weld County School Dist. RE-1, 60 P.3d 736 (Colo.

App. 2002). That reliance is misplaced. In fact, the holding in Martinez

demonstrates directly contrary to Plaintiffs position here that courts may

distinguish between a public entitys general knowledge that a particular situation .

. . may give rise to a risk of harm and the entity's specific knowledge that such a

situation could arise in a particular area. Johnson, 2006 WL 686487, slip op. at

*3. Martinezinvolved a slip-and-fall case on an icy sidewalk. 60 P.3d at 738. In

affirming the trial courts denial of the school districts dismissal motion, the court

found that evidence existed establishing that the school district knew from prior

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experience that ice would accumulate at that location and that the area of the

accident was a problem area where the build-up of ice was chronic and

continuing. Id. at 741. Such evidence is missing in this case.

Furthermore, Plaintiffs mischaracterize the holding inLuenberger, 990 P.2d

1145. Answer Brief at 25. In Luenberger, where the plaintiff sued the city for

injuries arising from the condition of a half-pipe in a city park, the trial court did

not make any findings regarding the CGIA arguments put forward by the city in its

motion to dismiss, deciding the case on other grounds. Id. at 1147-48. Therefore,

the court did not decide the notice issue but rather remanded to the district court for

findings under the CGIA. Id. In dicta, the Luenbergercourt did note that [t]he

mere fact that the City had not received prior notice of the precise harm that

occurred here does not compel the conclusion that the City did not have either

constructive or actual knowledge of the alleged dangerous condition of the half-

pipe.Id. at 1148 (emphasis added).

Luenberger is distinguishable because there the city did have notice of a

dangerous condition of the half-pipe because a previous injury was caused by the

half-pipe. Id. at 1146-1148. The city argued it did not have notice since it had not

received complaints of accidents similar to the plaintiffs accident; the earlier

injury was caused by the steel skin of the half-pipe and a different piece of the

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half-pipe caused plaintiffs injury. Id. The court disagreed with this particular

argument, stating (in dicta) that notice of thepreciseinjury-causing mechanism in

a park is not necessary to put the city on notice of a dangerous condition. Id. at

1148. Luenberger is inapposite in the instant case because Denver did not have

any notice that rocks may fall from Creation Rock, injuring Plaintiffs. Mere

general knowledge that rocks tend to fall from natural structures does not fulfill the

CGIA notice requirement. SeeSmith, 919 P.2d at 871-72.

2. The district court erred in concluding that Denvers failure to

inspect Creation Rock in 2010 was the proximate cause of

Plaintiffs injuries.

Relying on Springer v. City & County of Denver, 13 P.3d 794, 801 (Colo.

2000), the district court concluded that Denvers negligent failure to inspect

Creation Rock in 2011 was the proximate cause of Plaintiffs injuries in this case.

CF, pp. 785-786. It is well-settled that a plaintiff cannot prevail on a negligence

claim unless his or her injuries were proximately caused by the defendants

negligence. C.R.S. 24-10-103(1.3); Curtis v. Hyland Hills Park & Rec. Dist., 179

P.3d 81, 84 (Colo. App. 2007). Even if Denver was negligent in failing to inspect

Creation Rock annually, the district court clearly erred in finding that the

negligence proximately caused Plaintiffs injuries, for Plaintiffs did not prove that

any alleged failure to inspect caused the rocks to fall in September 2011.

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The law is well settled in Colorado that the proprietor of a public place is

not an insurer of the safety of his patrons. Repka v. Rentalent, 477 P.2d 470, 471

(Colo. App. 1970) (nsop). The mere fact that an accident occurred does not imply

causation on the part of the defendant. See, e.g.,Western & A. R.R. v. Henderson,

279 U.S. 639, 642-43 (1929) (The mere fact of collision between a railway train

and a vehicle at a highway grade crossing furnishes no basis for any inference as to

whether the accident was caused by negligence of the railway company, or of the

traveler on the highway, or of both, or without fault of any one. Reasoning does

not lead from the occurrence back to its cause.); Brady v. Southern R.R. Co., 320

U.S. 476, 484 (1943);3Westland v. Gold Coin Mines Co., 101 F. 59, 64-65 (8th

Cir. 1900) (applying Colorado law). Indeed, even [a] finding of negligence does

not create liability on the part of a defendant unless that negligence caused the

plaintiff's injury. Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App.

1982); see Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981). Accordingly,

even if Denver could have performed inspections as often as Yenter recommended,

the fact that annual inspections were not conducted does not demonstrate that the

failure to do so proximately caused Plaintiffs injuries. This is especially so, given

their allegations that the rockfall was caused by trespassers. CF, pp.6, 91, 103.

3 That proposition in Bradywas adopted by this Court in Mendoza v. White

Stores, Inc., 488 P.2d 90, 92 (Colo. App. 1971).

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It is uncontroverted that, prior to the 2011 rockfall, on only two occasions in

the history of the Amphitheatre the two occasions detailed above were rocks

found in the Amphitheatre. Resting on the 1999 and 2007 occurrences, and noting

that Denver did not perform maintenance on Creation Rock in 2006, Plaintiffs

expert, Brendan Shine, concluded that Denver should have been on notice that

when it failed to perform an inspection and mitigation one year, rocks were apt to

fall the next year. Answer Brief at 13, 34-35. Had Denver performed an

inspection and mitigation in 2011, he concluded, the rock fall, within a reasonable

degree of scientific probability, would have been prevented. R.Tr. (7/8/13)

p.77:16-23. Relying solely on that testimony, the district court found that, [i]n the

years that rockfall mitigation was performed by Yenter, there are no reported

incidents of rockfall. In years when mitigation has not been performed, incidents

have occurred. CF, pp.780-781. Based on those findings, the district court

concluded that Plaintiffs had satisfied their burden of proving causation. Id. at

785.

The district court erred in making those findings and conclusions. First, as

detailed above, it is uncontroverted that a natural rockfall did not occur in

2007; Plaintiffs presented no evidence credibly suggesting that the 2007

rockfall was caused by anything other than the use of vibrating rock excavation

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equipment. Nor did Plaintiffs present any evidence tending to prove that an

inspection to prevent natural rockfall at that time would have prevented that

human-induced rockfall. And to the extent that Plaintiffs and the district court

equate the lack of inspection in 2006 and 2010 with rockfall the following

concert seasons, they do not explain the absence of rockfall in the other years in

which there was no inspection (i.e., all years prior to 2007 as well as 2008,

2009, and 2010). Furthermore, after Yenter completed the mitigation on

Creation Rock in 2007, no rockfall occurred in 2008, 2009, and 2010.

In the case relied on by the district court, Springer, the plaintiff fell from

her wheelchair after it struck a protruding threshold cover plate as she

attempted to enter the Buell Theatre. 13 P.3d at 797. She brought a premises

liability claim against Denver, which moved to dismiss under the CGIA

because the theatre was built and maintained by an independent contractor. Id.

at 797. The Supreme Court rejected that argument, holding that Denvers duty

to Springer was non-delegable and that, because her claim related to the

theatres constructionrather than its design the architectural plans called for a

half-inch threshold, whereas the threshold plate protruded at approximately

twice that height. Id. at 797. And with respect to causation, the court affirmed

that a public entity can proximately cause a condition by failing to reasonably

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discover and correct it, id. at 801, but immunity is waived only where the

public entity was or should have been aware of it. That requirement was

satisfied because Springer established that the particular threshold plate

remained at that height for over four years prior to the accident. Id. at 799.

Here, to the contrary, the record contains no evidence that Denver aware of the

unsafe condition that injured Plaintiffs, so Denvers failure to discover and

correct it did not proximately cause their injuries. There is no factual support

for the district courts finding to the contrary.

3. Plaintiffs injuries were not caused by negligent maintenance

of the Amphitheatre.

Nor do the facts presented to the district court demonstrate that Denver was

negligent in maintaining or constructing the Amphitheatre. C.R.S. 24-10-

103(1.3); Springer, 13 P.3d at 799-801. Plaintiffs rely heavily on their assumption

that Denvers allegedly deficient maintenance of the Amphitheatre led to their

injuries. E.g., Answer Brief at 32, 34. They go into great detail regarding what

portions of Creation Rock were inspected, when those inspections occurred, and

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which recommendations suggest that Denver should have known of and prevented

a rockfall. E.g., id. at 11-14, 31, 35. None of this is relevant.

4

Instead, the facts show that the original design of the Amphitheatre for

which CGIA immunity is not waived allowed an inherent risk of rockfall into the

concert arena. C.R.S. 24-10-103(1.3); Padilla, 25 P.3d at 1180-81; R.Tr.

(8/7/13), p.18:12-22. CGIA immunity is not waived for injuries caused solely by

the design of a public facility, even if that design was inadequate and led to an

injury. Id. Nor does the CGIA require the government to upgrade, modernize,

modify, or improve a design or make it safer, even if the design is risky and even

if there are better alternatives. C.R.S. 24-10-103(2.5); Medina, 35 P.3d at 456-

57. Furthermore, a public entitys acceptance of the final design including the

level of risk remaining at the end of the design phase determines the general state

of being, repair, or efficiency of the [public facility] as initially constructed,

which is what must be maintained by the government. Medina, 35 P.3d at 456-57.5

4 Even if this discussion were relevant, Plaintiffs claim that Denver wasnegligent in maintaining the Amphitheatre, proximately causing the Plaintiffs

injuries, must fail for the reasons set forth in the proximate cause section, supra.

5 While Medina dealt with injuries caused by the dangerous condition of

roads, the same reasoning applies by analogy to dangerous conditions in all public

facilities. See Medina, 35 P.3d at 456.

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A certain level of risk was necessarily inherent in the design of the

Amphitheatre from its inception, as would be the case for any facility situated in a

natural area. R.Tr. (8/7/13), p.18:12-22. It is undisputed that the Amphitheatre

was designed to be situated between two natural rock monoliths, Creation Rock

and Ship Rock, in a geological hazard zone where theres a potential for any kind

of natural rock fall to occur. Id. Plaintiffs presented no evidence to the

contrary. Denver had (and has) no duty to upgrade, modernize, modify, or improve

the design of the Amphitheatre to alleviate these inherent risks. C.R.S. 24-10-

103(2.5);Medina, 35 P.3d at 456-57. Indeed, Denver has not only preserved the

Amphitheatre as initially constructed, but has gone above and beyond its

obligations by making it even safer than it was originally designed to be. See, e.g.,

R.Tr. (8/7/13), 75:15-76:5.

Sovereign immunity is not waived for the risk of rockfall inherent in the

Amphitheatres design. Therefore, the district court erred in allowing Plaintiffs

claims against Denver to stand.

4. The mere fact that the Amphitheatre was designed to be placed

next to Creation Rock does not render the combination of them apublic facility.

The Amphitheatre is a public facility for purposes of the CGIA, but

Creation Rock is not, and Denvers decision to place the Amphitheatre next to

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Creation Rock does not change that conclusion. This proposition is consistent with

the courts decision inRosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.

App. 2004); andBurnett v. State Dept. of Natural Resources, No. 11CA2141, 2013

WL 1245366, at *2 (Colo. App. March 28, 2013), cert. granted (Nov. 12, 2013),

which examined whether a naturally occurring object such as a tree or rock

formation is a component of a public facility. InRosales, this Court held that

if a public entity incorporates a tree into a facility in such a manner that it

becomes both integral to the facility and essential for the intended use of the

facility, that tree may become a component of the public facility. In Burnett,

this Court clarified, holding that the mere fact that a park and a pre-existing,

natural object that enhances attendees experiences in that park join to become a

functional system is not enough, slip op. at *2. The natural object must be truly

integral and essential.

Although Creation Rock certainly benefits the concertgoers experience, it is

not integral and essential to the music-listening experience indeed, concertgoers

enjoy music without a rock monolith nearby in thousands of music venues

worldwide. Certainly the monoliths add aesthetic value, but aesthetics alone are

not enough to render a natural feature essential to and an integral part of a man-

made facility. Id. Creation Rocks proximity next to the Amphitheatre does not

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make it an essential component of the Amphitheatre, so it is not part of a public

facility.

B. Plaintiffs injuries were caused by the natural condition of

unimproved property, for which there is no waiver under the

CGIA.

Immunity is not waived for injuries caused by the natural condition of any

unimproved property. C.R.S. 24-10-106(1)(e). Plaintiffs argue that Creation

Rock is not the natural condition of unimproved property because it is integral to

the Amphitheatre, rendering it a public facility, and because it has been improved

through the installation of safety devices. Answer Brief at 22, 37. However, the

district court erred in finding that Creation Rock did not fall under the natural

condition of unimproved property provision because: (1) as detailed above,

Creation Rock is not an integral feature of the Amphitheatre because it is not

essential to the Amphitheatres intended purpose of hosting concerts, (2) the

installation of minimal safety devices does not render Creation Rock improved

property,and (3) the legislature enacted the provision to protect governments from

liability, while encouraging them to provide public facilities in natural

surroundings.

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1. Denver retains immunity under the natural condition of any

unimproved property provision of the CGIA because Creation

Rock is not integral and essential to the use and enjoyment of RedRocks Amphitheatre.

Creation Rock is the natural condition of unimproved property, and

therefore, immunity is not waived under the CGIA. SeeC.R.S. 24-10-106(1)(e).

In support of their argument to the contrary, Plaintiffs cite to the test enunciated in

Rosales, which provides that a natural feature that is incorporated into a public

facility such that it is an integral part of and essential to the intended use of the

facility may become a component of that facility for the purposes of the CGIA.

Rosales, 89 P.3d at 510; Answer Brief at 18-20. The Rosales test, however, is

inapplicable to the instant case for the reasons below.

Contrary to Plaintiffs characterizations, see Answer Brief at 4, 41-42,

Creation Rock and Ship Rock are not affixed to, nor are they a part of the

Amphitheatre. The Amphitheatre is a manmade facility that was placed between

two pre-existing, naturally occurring geological formations. Denver certainly does

not concede and the evidence in the record does not suggest that the

Amphitheatre would not exist without the walls created by the two monoliths.

Answer Brief at 14. Creation Rock and Ship Rock are two of many naturally

occurring rock features in Red Rocks Park, much like trees abutting a campground

are simply pieces of a larger, unimproved, natural park surrounding that manmade

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campground, but are not themselves part of it. SeeBurnett 2013 WL 1245366, at

*2.

Furthermore, Creation Rock and Ship Rock are not essential to the

Amphitheatres intended purpose of enjoying concerts. There is simply no

evidence in the record to demonstrate that Creation Rock and Ship Rock are

required in order for citizens to enjoy the Amphitheatre. There is no support for

Plaintiffs argument that [t]o enjoy an event at the Amphitheatre, music

reverberates between the two rock walls, such a proposition is not present at

the location Plaintiffs cite, nor is evidence of this proposition present elsewhere in

the record. 6

Answer Brief at 4, 21. Certainly the monoliths add aesthetic value,

but aesthetics alone are not enough to render a natural feature essential to and an

integral part of a man-made facility. SeeBurnett, 2013 WL 1245366, at *2.

Concertgoers do not need the geological features for the essential purpose of the

Amphitheatre, which is to enjoy concerts. Accordingly, Creation Rock cannot be

considered an integral part of the Amphitheatre and immunity is not waived for

Plaintiffs injuries. The trial court erred in finding otherwise.

6 Plaintiffs also cite Denvers Opening Brief for the proposition that even the

name of the public facility, Red Rocks Amphitheatre, refers to the two Red

Rocks, Creation Rock and Ship Rock. Answer Brief at 21. Denvers OpeningBrief neither states nor implies that this is the case, nor could it. Rather, the name

is based upon the red sandstone rocks found throughout Red Rocks Park.

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24-10-106.5(1) (In order to encourage the provision of services to protect the

public health and safety and to allow public entities to allocate their limited fiscal

resources, a public entity or public employee shall not be deemed to have assumed

a duty of care where none otherwise existed by the performance of a service or an

act of assistance for the benefit of any person.).

Moreover, it is undisputed that the rocks that injured Plaintiffs came from

Creation Rock, Answer Brief at 2-3, but there is no evidence to show that any

safety device was installed on the rock surface from which the rocks fell; in fact,

Plaintiffs claim the opposite: that the rocks fell because they had not been

inspected or mitigated with safety devices prior to the 2011 concert season.

Answer Brief at 32.

Taken to its end, Plaintiffs logic would require Denver either to install

safety devices upon every rock surface near the Amphitheatre thereby destroying

the very natural beauty the public seeks to enjoy, let alone the public coffers or

permanently shut down Red Rocks Amphitheatre for fear of overwhelming

liability. There are few who would benefit from such an outcome.

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3. This Court should not disturb the balance embodied in the

CGIA between encouraging governments to provide public

facilities in natural surroundings, while preserving limitedpublic resources.

Incentives played an important role in the balance the Colorado General

Assembly undertook in codifying the CGIA. SeeColorado Legislative Council

(commissioned prior to the passage of the CGIA), Report to the Colorado General

Assembly: Governmental Liability in Colorado, Research Publication No.134, at

xxi-xxii (1968); CF, pp. 674-677. Our society values the human relationship with

nature.Id. The General Assembly promotes this value by preserving and enhancing

the human experience in nature through creation of public parks and public

facilities set in natural areas. Id. The CGIA drafters recognized that governmental

efforts to encourage citizens relationship with nature should be supported. Id.

Thus, they created an exception to liability for injuries resulting from the natural

condition of any unimproved property.Id.; C.R.S. 24-10-106(1)(e). The General

Assembly explicitly limited liability in this context to encourage governments to

provide these special, natural places for citizens. Id. In its Report to the General

Assembly, the Colorado Legislative Council highlighted the incentives at play for

public facilities in natural surroundings:

[i]f immunity were waived with respect to injuries caused by the

natural condition of any unimproved property the burden and expenseof putting such property in a safe condition and the expense of

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defending claims for injuries would probably cause many public

entities to close such areas to public use. It is desirable to permit the

members of the public to use public property in its natural condition.In view of the limited funds available for the acquisition and

improvement of property for recreational purposes, the committee

concluded that it is not unreasonable to expect persons whovoluntarily use unimproved property in its natural condition to assume

the risk of injuries arising therefrom.

Id. Plaintiffs ask the Court to tamper with the delicate balance of incentives that is

the province of the legislature in enacting statutes such as the CGIA. It should not

do so.

Significantly, the CGIA commission report even expressly lists Red Rocks

as an example of the natural condition of unimproved property for which there is

no waiver under the CGIA. Id. at xxi. (A distinction is made between (1) injuries

caused by negligence in the construction, maintenance, failure to maintain, etc. of

artificial, man-made objects (swing sets, buildings, etc.) and (2) injuries caused by

the natural conditions of a park (the Flat Irons in Boulder or the Red Rocks west

of Denver) (emphasis added). The Report clarifies: [i]n other words, ordinary

negligence is sufficient to impose liability for injuries caused by the dangerous

condition of artificial objects. Forinjuries caused by natural dangerous conditions,

immunity is retained. Id. It is undisputed that the General Assembly intended to

retain immunity for Red Rocks Park, Answer Brief at 38, and Creation Rock is a

natural feature within that park.

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Therefore, Colorado law and policy both demonstrate that Denver is immune

from suit for injuries resulting from the dangerous condition of Creation Rock,

which is the natural condition of unimproved property. The trial court erred in

holding otherwise.

CONCLUSION

For the foregoing reasons, Denver respectfully requests that the Court

reverse the denial of Denvers Motion to Dismiss and remand this case to the trial

court with instructions to dismiss the lawsuit with prejudice.

REQUEST FOR ATTORNEY FEES

Denver reiterates its claim for attorney fees. C.R.S. 13-17-201 directs an

award of attorney fees in allpersonal injury actions dismissed on motion of the

defendant prior to trial under [C.R.C.P.] 12(b). If Denver prevails in this appeal

and the matter is remanded for an order dismissing it, then the requirements of that

statute will have been satisfied and Denver will be entitled to its fees, whether or

not that dismissal was directed by the district court or on appeal. E.g., Dubray v.

Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).

DATED this 8th day of August 2014.

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Respectfully submitted,

DENVER CITY ATTORNEYS OFFICE

By: s/ Jamesy C. Owen

Jamesy C. OwenBarry A. Schwartz

Assistant City AttorneysAttorneys for Defendant-Appellant City and

County of Denver

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of August 2014, the foregoing REPLYBRIEF was filed with the Court of Appeals and served on the following viaICCES:

Daniel P. Gerash, Esq.

Gerash Steiner, [email protected]

Samuel Ventola, Esq.

Staggs Ventola Morris [email protected]

Adrienne M. Tranel, Esq.

Geoffrey D. Petis, Esq.

Bachus & Schanker, [email protected]

[email protected]@ColoradoLaw.net

s/Barry A. Schwartz

Barry A. SchwartzDenver City Attorneys Office
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Documents

City's Reply to Red Rocks Concertgoers' Answer Brief