DISTRICT COURT, COUNTY OF ROUTT, COLORADO 1955 Shield Drive P.O. Box 773117 Steamboat Springs, DATE FILED: January 24,2013 (970)879-5020 Plaintiff: MAUREEN YVONNE RYAN V. 4 A Defendants: CITY OF STEAMBOAT SPRINGS, and CITY COURT USE ONLY OF STEAMBOAT SPRINGS PARKS, OPEN SPACE RECREATIONAL SERVICES d/b/a HOWELSEN HILL SKI AREA Case Number: ORDER DENYING DEF RULE 12(b)(1) MOTION TO DISMISS PURSUANT TO THE COLORADO GOVERNMENTAL IMMUNITY ACT Hearing was held on Defendants' Rule 12(b)(l) Motion to Dismiss Pursuant to the Colorado Governmental Immunity Act on January 10 and 11, 2013, pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). Present for both days were Plaintiff with her counsel, James Chalat and Evan Banker, and Timothy Fletcher, representative of Defendants, with counsel, Jordan Lipp. The initial order on Defendants' Motion issued on May 20, 2012 contained the following: The parties do not dispute that the claims in this case result from an allegedly wrongful death and are claims that "lie in tort or could lie in tort." C.R.S. accord C.R.S. ?24-10-108. It is undisputed that Defendants are public entities under the CGIA. Defendants also do not challenge that Howelsen Hill is a recreation area for purposes of C.R.S. See Denmark v. State, 954 P.2d 624, 626 (Colo. App. l997)(defining recreation area as "a location where a person could engage in a sport or similar activity"). The court agrees that Howelsen Hill ski area is a recreation area. The parties, however, dispute issues of fact relevant to whether Mr. Larsh's death resulted from a dangerous condition on Howelsen Hill, which is determinative of waiver under C.R.S. C.R.S. provides that: Sovereign immunity is waived by a public entity in an action for injuries resulting dangerous condition of facility located in any park or recreation area maintained by a public Nothing in this paragraph shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation The term "dangerous condition" is defined in the CGIA under C.R.S. - "Dangerous condition" means 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. For the purposes of this subsection (1), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate. The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition. "To establish that a dangerous condition was present [Plaintiff] must show: (1) that injury occurred as a result of the physical condition of a public facility or use thereof; (2) which constitutes unreasonable risk to health or safety of public; (3) which is known to exist or should have been known to exist in exercise of reasonable care; and (4) which condition is proximately caused by negligent act or omission of the public entity in constructing or maintaining such facility. Luenberger v. City of Golden, 990 P.2d H45, H47 (Colo. App. 1999). These are the issues that are now before the court. FINDINGS OF FACT The factual issues became at hearing. The parties do not dispute that Plaintiff" son, Cooper, died while skiing at Howelsen Hill on March 17, 2011. The parties do not dispute that the terrain over and surrounding the area of the alpine slide has been closed to skiing in the winter since the installation of the alpine slide in 2000. The closed area used to be a part of the Town View ski run that runs generally under and in the vicinity of the Barrows chair lift. When the City installed the alpine slide, it carved out of the Town View run an upper closure area (where Cooper's accident occurred) and a lower closure area. In between the two closed areas is an open ski run over a portion of the alpine slide that is made possible by the City installing an upper tube (apparently in advance of winter) over an identical lower tube that constitutes the alpine slide to create, essentially, a completely encircled tube. Such action protects the slide and permits the operation of a safe ski run over that portion of the slide. The lower closure area is completely roped off. The upper closure area is roped off on the sides and at the bottom, but not at the top. The parties agree that all of the trail maps of Howelsen Hill around the time of Cooper's death did not show that the upper and lower closure areas were actually closed for skiing. Rather, they show a completely open Town View run as it existed before the installation of the alpine slide. Defendants presented evidence that witnesses had never heard of a snow immersion suffocation near a man-made object. Nor had they heard of a ski area closing terrain because of SIS risk. Other evidence was also presented about SIS events. Even assuming all of that is true, however, Defendants' stated winter use of the alpine slide area was that they "would not let people in and ski around the alpine slide. We just decided to close it." Testimony of Timothy Fletcher. This decision would be consistent with the industry standard. Thus, the initial winter construction of ski terrain subsequent to the introduction of the alpine slide included closing both the upper and lower closure areas to skiing because Defendants knew that the existence of the alpine slide, with the attendant retaining walls, underneath otherwise skiable terrain created a dangerous condition. The safety device the City constructed to protect their skiing guests from the admitted dangerous conditions was a rope enclosure. The "dangerous condition" that the court focuses on is, therefore, not the admitted areas of closure (including the location of Cooper's accident)--which are admittedly dangerous areas--but on the open access to the upper closure area. This access area to the admittedly dangerous conditions below is an integral part of the upper closure area. The standard practice of the industry is to mark or close all spots where skiers may access dangerous areas, including the top, which would be a likely place for skiers to enter. The parties agree that at the top of the upper closure area is situated the shack. that houses the top of the Barrows chair lift, a wooden fence that runs from that structure generally in a southeast direction toward the sled shed, the sled shed, and, just inside the closed area between the two structures, a large wooden frame that is used in the summers for posting an area map. Below the wooden frame to skier's left is another small wooden structure. The parties agree that from the end of the wooden fence to the sled shed is an area of approximately 20 feet which, from 2000 into 2011, was not roped off. The parties also agree that no "area closed" signs were posted at the top of the upper closure area from 2000 into 2011. This is the area that the court is called on to evaluate and determine whether or not it constituted a "dangerous condition." The alpine slide was designed and is maintained properly. Defendants intention is and has been to maintain and operate the ski area in conformance with the Ski Safety and Liability Act at C.R.S. ?33--44-101 et seq. There has never been a death or a SIS incident on Howelsen Hill since its opening in 1915. Only once before had any City employee observed ski tracks in the upper closure area and that was under the Barrows chair lift. It is unknown whose tracks they were. There has never been a skiing accident in the alpine slide area. Since 2000 there have been approximately 12,000 skier visits per year. Most of the skiers on Howelsen Hill are season pass holders. On March 17, 2011, the date of Cooper's accident, there was a ski race occurring. All of the racers skied only on the Face run. Only four to five members of the general public were skiing. It was snowing, and snow was accumulating. Two other general public skiers (Mr. Woelk and Mr. Polen) commenced skiing hours after Cooper's accident and could not have created track marks on any run that Cooper could have seen. Thus, only one or two other public skiers might have made tracks in runs other than Face that Cooper might have seen. Mr. Woelk and Mr. Polen skied onto the upper closure area that day, from the top, as dark was setting, hours after Cooper's accident but before he was found] Neither one of these skiers had skied Howelsen Hill before that day. At least one of those skiers believed the upper closure area was an open run. The upper closure area at the time was lit by ambient light from the town and from the ski area lights that were pointed toward the Face run, to skier's left from the alpine slide area. - In the upper closure area: 1) there are multiple ground lines to stabilize a power pole that are not padded; 2) there are many structures at the top, and none of the structures or various power poles in the area is padded; 3) there are various shrubs in the area; 4) the sinuous outline of the alpine slide underneath the snow is visible; 5) depending on amount of snowfall, one needs to side step or wishbone from the open run up to the upper closure area to have access; 6) there are never the skiing tracks that are visible on the open runs; 7) there is no trail sign designating the alpine slide area as an open run; 8) there is a rope running down both sides of the upper closure area. Defendants maintain that the above multitudinous indications conclusively demonstrate to skiers that the area is closed. Plaintiff maintains that the mere failure to rope off and/or post as closed the top of the upper closure area creates a dangerous condition because the layout at the top creates a "gate" impression that invites the passing skier into the powder below. Plaintiff presented credible expert testimony in support of that position. Plaintiff argues that Defendants failed to maintain the alpine slide area, including the access point at the top, such that it was a dangerous condition. ANALYSIS AND ORDER In litigation against a governmental entity, it is the court's initial obligation to determine whether a waiver of governmental immunity is present, pursuant to C.R.S. ?25-10-106. The procedural mechanism is a C.R.C.P. 12(b)(1) motion challenging the court's jurisdiction. Padilla v. Sch. Dist. No. I in the City and Cnty. of Denver, 25 P.3d 1176 (Colo. 2001). Plaintiff has the burden I to establish jurisdiction. Id. The provisions of waiver of immunity are construed liberally. Id. "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." Id. at 1180. These criteria emanate from the definition of "dangerous condition" contained in C.R.S. ?24--l0--103. "[T]he condition must be associated with construction or maintenance, not solely design." Padilla, 25 P.3d at 1180- 81. The court agrees with Defendants that Mr. Woelk's recollection of his track marks, running right next to where Cooper lay, cannot be correct. Mr. Fletcher first saw Cooper's body from about 65 yards away. Mr. Woelk would had to have seen Cooper were his track marks as he testified they were. Notwithstanding, the court finds Mr. Woelk's testimony to be otherwise credible. 4 Although neither party has specifically made the argument, the condition of the winter closure areas is certainly associated with the underlying presence of the alpine slide, but the condition is not associated with the design of the alpine slide. The undisputed evidence is that the alpine slide itself was designed and is maintained properly. Additionally, the undisputed evidence is that Defendants decided to completely close the relevant areas of Town View run after the construction of the alpine slide and constructed the rope system enclosures to effectuate that result. Thus, any waiver of immunity analysis is not based solely on any design issue. Also, under the section under analysis, C.R.S. a waiver of immunity may not be based on an injury that resulted from the operation of a public facility. Curtis v. Hyland Hills Park Recreation Dist. 179 P.3d 81 (C010. App. 2007). The starting point of the analysis is the consideration of the definition of the statutory terms. The parties agree that the ski area is a public facility. The term "physical condition" receives broad interpretation in the case law. Padilla, 25 P.3d at 1181. It includes a "structural defect" in a facility, id. a "physical defect" in a facility, Curtis, 179 P.3d at 84, "other physical conditions that the governmental entity creates in association with constructing or maintaining a facility," Padilla, 25 P.3d at 1181, and the "[m]ode or state of being; state or situation; essential quality; [or] property" of a facility. Jenks v. Sullivan, 826 P.2d 825, 827 (Colo. on other grounds 872 P.2d 223)(internal quotations omitted). An injury must arise from the state of the facility itself or the use of a state of the facility. Id. Plaintiff has certainly met her burden as to the first factor. Defendants created and/or held out the physical ski area for members of the public to use. They created the alpine slide underneath the Town View run on the ski area, which created a nice summer attraction, but which rendered that portion of the Town View run unskiable in the winter. The access area at the top leads to the unskiable area. The injury here arose from the actual state of the public facility and the use thereof. As noted above, Defendants, by virtue of roping off most of the ski area above and surrounding the alpine slide, admit that those areas "constitute[] an unreasonable risk to the health or safety of the public." Padilla, 25 P.3d at 1180. That there may have never been a death or even an accident in the winter over the alpine slide area and only one set of tracks had been seen in that area in the past has no import as to the City's knowledge of a dangerous condition there. Luenberger, 990 P.2d 1145. Defendants admit that the area of Cooper's death is a dangerous area. Defendants also concede, and the photographs verify, that there are numerous structures, wires and poles at the top, in the area of the access, that are not padded or marked. Defendants begin their argument with the assertion that a duty to warn does not constitute a dangerous condition under the CGIA, correctly citing several cases.2 Plaintiff, however, correctly cites to other cases interpreting the CGIA that turn on the posting of warning signs. Both parties are right. The cases cited by Plaintiff, Martinez v. Weld Cnty. Sch. Dist. RE-1, 60 P.3d 736 (Colo. 2 Taking Defendants' argument to its end result, Defendants could have constructed the alpine slide and done nothing to protect the skiing public from the admitted dangers and claimed they had no duty to warn in the face of likely innumerable inevitable injuries or deaths. The public policy problem resulting is obvious. Of course, the City would never have taken such a callous action. App. 2002) and Mason v. Adams, 961 P.2d 540 (Colo. App. 1997) are, however, distinguishable from the case at bar. Both of those cases involve entirely different statutory subsections listing the waivers to immunity than does this case. As noted by the court in Martinez, both Martinez and Mason held that "although the public entity's failure to post warning signs alone could not establish a dangerous condition, that failure was relevant to whether the entity had used existing means available to it to mitigate the danger and also relevant in apportioning fault between the parties. Although Mason concerned the relevant language in that section is almost identical to the language at issue here in Martinez, 60 P.3d at 740 (emphasis added). The notice and mitigation language in those two sections is absent from C.R.S. the subsection under consideration here. The court is unsure why Plaintiff cited to Medina v. State, 35 P.3d 443 (Colo. 2001) in support of her position. That case states unequivocally "that, as a matter of law, the CGIA does not waive immunity for claims asserting a failure to warn, failure to close the highway, or failure to suggest alternate routes. The state's negligent construction or maintenance of a highway is what triggers a waiver of immunity under the CGIA. Negligent failure to warn, to which all these claims amount, does not." Id. at 449. Defendants, however, seem to conflate the two separate issues of failure to warn and failure to install safety devices. The court agrees with Defendants, as noted above, that failure to warn, under the subsection at issue, cannot be the basis of a waiver of immunity since such failure cannot be subsumed into the requirement that the injury be caused by negligence in construction or in maintenance. Some of the cases cited by Defendants have, however, the additional complaint by the plaintiff that waiver should attach because of the government's failure to install safety devices or barricades intended to prevent injuries. Swieckowski v. City of Ft. Collins, 934 P.2d 1380 (Colo. 1997) involved a boy who was injured when he bicycled into a ditch running perpendicular to a newly-widened road. The Court concluded the City had immunity because the road was constructed as designed and that the design did not- call for a barricade or fences to protect people from the abrupt ditch. Since immunity may not be waived solely because of a failure in design, Padilla, 25 P.3d at 1180-81, the lack of safety devices could not waive immunity in Swieckowski. Jafle v. City and Cnty. of Denver, 15 P.3d 806 (Colo. App. 2000) involved a girl who was injured by lightning on a public golf course. Plaintiff claimed the government should have installed "automatic lightning and foul weather detection systems, or have at least implemented warning and evacuation plans." Id. at 811. There the court found no waiver for failure to install safety devices because installation of those items was not contemplated in the "maintenance" obligation of the public entity there was no duty to upgrade). Waiver may apply, however, if the governmental entity failed to install safety devices when the risk of injury was caused by a failure in maintenance. The experts all agreed in Medina that the installation of safety devices would have prevented the serious injuries that resulted from the boulder dislodging from the mountainside. Medina, 35 P.3d at 461. Medina was remanded to the trial court because the record was incomplete as to whether the boulder dislodged from above the road because of a failure in design of the cut slope above the road, and which dangerous condition persisted to the time of injury, or a failure of the state to properly maintain the area surrounding the cut slope, and which dangerous condition developed subsequent to the initial design. Id. at 456. If the former, immunity would apply; if the latter, immunity would be waived. Maintenance is not limited to the actual roadway, sidewalk, etc, itself; it "also [includes] other safety devices that may be physically separated from the road surface. . . State of Colorado v. Moldovan, 842 P.2d 220, 224 (Colo. 1992). Thus, "an improperly maintained safety device that is an integral part of a state highway system may constitute a dangerous condition. Id. Thus, in Molodovan, immunity was waived when a safety fence constructed parallel to a roadway was not properly maintained, permitting a cow access to the roadway, with injury resulting to a motorist. This is similar to Medina, where the cut slope above the roadway was an integral part of the road. Plaintiff argues that this case is a failure of maintenance. "Whether to open or close terrain seasonally is a fundamental issue of ski area maintenance." Response at 15. "Posting accurate trail maps is integral to the safe maintenance of a ski area." Response at 15. "The City's failure to maintain ropeline closures above the alpine slide area is directly relevant to a dangerous condition inquiry under Response at 16. The statutory definition of "maintenance" is, however, "the act or omission of a public entity or public employee in keeping a facility in the same general state of repair or efficiency as initially constructed or in preserving a facility from decline or failure." C.R.S. "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." Padilla, 25 P.3d at 1182. The original construction of the alpine slide and the winter ropeline enclosure did not include a ropeline at the top of the upper closure area. Had the entry to the upper closure area been originally roped off or marked, the failure to continue to do so would easily constitute an omission in maintaining the facility as originally constructed. Such is not the case, however. Moreover, decisions to open or close terrain and publish accurate trail maps are operational issues, not issues related to maintenance of the actual ski area facility itself. With respect, the court does not see this case as a failure of maintenance of the facility, as defined in the statute. However, "[a]lthough the [City] has no duty under 'maintenance' to upgrade the construction of the facility. . ., this does not excuse a dangerous physical condition resulting from the [facility]'s construction." Springer v. City and Cnty. of Denver, 13 P.3d 794, 802 (Colo. 2000). Thus, the concepts in the CGIA of "maintenance" and "construction" may overlap. Padilla, 25 P.3d at 1182. 1 "Definitions of 'construct' include 'to form, make or create by combining parts or elements.' Definitions of 'construction' include 'the act of putting parts together to form a complete integrated object: as well as 'something built or erected: Id. at fn. 5 (internal citations omitted). Defendants' goal was to close off the alpine slide area to keep skiers out of the dangerous area in the winter. To do so, they constructed a rope enclosure (fence) around the dangerous area. As noted above, this rope enclosure was an integral part of the upper closure area. Moldovan, 842 P.2d 220. Thus, negligent construction or negligent maintenance of the rope enclosure would constitute a dangerous condition. Springer, 13 P.3d at 800; Moldovan, 842 P.2d 220. The "trial court need not, for the purposes of keeping jurisdiction, conduct a maintenance inquiry if the dangerous condition was present as a result of construction." Springer, 13 P.3d at 802. Although the provisions of the Ski Safety and Liability Act do not dictate waiver of governmental immunity, see court's order of May 20, 2012, the court is inclined to review those provisions in analyzing the reasonableness of Defendants' decision not to rope off the 20-foot access point at the top of the closed area over the alpine slide, which closed area they knew to be dangerous to skiers.3 If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, such operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. Alternatively, such a trail or slope or portion thereof may be clos'ed with ropes or fences. C.R.S. Even giving Defendants the benefit of the CGIA that a failure to warn does not constitute a waiver so that placing warning signs was not required, placing safety devices such as ropes or fences across the access area is required in the absence of posted warning signs by the Ski Safety and Liability Act.4 Given that standard, Defendants' decision not to rope off the 20-foot access at the top of the upper closure area constituted an unreasonable risk to the safety of the City's skiing guests. Moreover, under this standard, Defendants should have known of the unreasonable risk because their failure to rope off the area was in direct contravention of the Ski Safety and Liability Act. Finally, the physical condition of the unroped area was caused by the negligent omission of Defendants in constructing the enclosure surrounding the admittedly dangerous conditions over the alpine slide. Even if the court may not refer to the standards of the Ski Safety and Liability Act in determining the reasonableness of Defendants' decision to leave the access area without safety devices, the failure of Defendants to rope off the entire closed area was not consistent with standard industry practice and, thus, constituted an unreasonable risk to the public. The decision of Defendants to have the skiing public rely on "indications" of the closure of the area below slight uphill access from an open run, structures readily apparent, etc.) was unreasonable. It should not be left to the individual skier, of whatever skill level, to interpret the signs to discern what apparent run below is or is not closed and what powder below may or may not be dangerous. Since closing off the entire closed area is a standard industry practice, Defendants should have known in the exercise of reasonable care that failure to do so was an unreasonable risk to the public. The unroped access area, an integral part of the upper closure area, was a physical condition caused by the negligent omission of Defendants in constructing the enclosure. As stated oft-times above, Defendants knew the skiable terrain over and surrounding the alpine slide--including where Cooper perished--was a dangerous area. It is the industry standard to close off the terrain over alpine slides to skiers. That knowledge is precisely why Defendants, in the exercise of sound judgment, decided to close the area to skiing after the construction of the alpine slide. Defendants' negligence in failing to rope off or to construct 3 The court in Moldovan likewise consulted the state's duties under the Fence Law, C.R.S. ?35-46-10] et seq., in determining whether the state was subject to a private tort action resulting from injuries to a motorist. 4 Given the language of Moldovan, the court is of the opinion that the state in that case would have been equally subject to a private tort action had the state simply left a gap in the construction of the fence rather than having permitted its condition to deteriorate. other safety devices at the top of the access area to the upper closure area, an integral part of the upper closure area, constituted a dangerous condition, pursuant to C.R.S. and ?24-10-1 Given that there existed a dangerous condition at this recreation area maintained by Defendants, sovereign immunity is waived. WHEREFORE, Defendants' Rule 12(b)(1)Motion to Dismiss Pursuant to the Colorado Governmental Immunity Act is hereby denied. Defendants shall answer the Complaint within 21 days. so ORDERED this 24*" day of January 2013. BY THE COURT: