Young v. Brighton School District 27J

JUSTICE COATS,

concurring in part and concurring in the judgment.

1386 Like the majority, I too believe the court of appeals erred in concluding that having determined the inapplicability of the waiver for dangerous conditions caused by snow and ice on walks leading to a public building, it was relieved of considering the applicability of other waiver provisions of the Act; but like the majority, I too believe immunity was nevertheless not waived in this case, as asserted by the plaintiffs, for a dangerous condition of a "public facility located in any park or recreation area maintained by a public entity," see § 24-10-106(1)(e), C.R.S. (2013). Largely for the reasons outlined in my separate opinions in Daniel v. City of Colorado Springs, 2014 CO 34, ¶¶ 35-49, 327 P.3d 891 (Coats, J., concurring), and St. Vrain Valley School District RE-1J v. A.R.L., 2014 CO 33, ¶¶ 38-44, 325 P.3d 1014 (Coats, J., dissenting), also announced today, however, I disagree with the majority's understanding of the term "public facility," as it appears in the Act, and I therefore decline to join the majority's rationale concerning the parks or recreation area waiver. Because I would nevertheless affirm, I concur in the judgment of the court.

137 As I indicated in my separate opinions in Daniel and St. Vrain, I consider it manifest that a "recreation area maintained by a public entity," just as a "park," refers only to those areas designated and maintained by a public entity as a recreation area, as permitted by statute or the provisions of the entity's own regulations governing the creation, operation, and maintenance of recreation areas. While a school district is statutorily authorized to operate parks and public recreational facilities open to public use, see §§ 29-7-102(1), -10l(l)(g), CRS. (2013), there is no suggestion that the school or playground at issue in this case was created and maintained according to the dictates of those provisions, and in fact, the record strongly suggests the walkway in question was simply a component of a public school ground, providing ingress and egress for those working or matriculating at that public school. Because "public facility" appears and *583has significance as a separate term in the Act only to the extent that the facilities in question are located in parks or recreation areas, it is therefore inconsequential whether the walkway in this case could in some sense be classified as a public facility. See § 24-10-106(1)(e).

1388 Rather than even address the overriding consideration whether the facility in question is located in a park or recreation area, the majority literally ties itself in knots attempting to define "public facility" in a manner capable of reconciling its disparate conclusions concerning the walkway in this case, the parking lot in Daniel, and the zip line and playground in St. Vrain. In contradistinction to this unmanageable, amorphous (or perhaps multi-dimensional) definition, I believe (as I have indicated more fully in my separate opinions in those other cases) the structure and history of the Act clearly demonstrate that the term "facility" is used in the Act simply to distinguish man-made from natural objects, and that the term "public," with regard to public parks and recreation areas, is used to distinguish those facilities designed for the use and enjoyment of the public from those facilities benefiting the public only in the sense that they exist for the entity's operation and maintenance of the park or recreation area. Were it necessary to address the question at all, I would therefore find that the walkway in question is clearly a "facility," but that nothing in the record suggests it has been provided for the use and enjoyment of the public for reere-ational purposes.

139 Because I would affirm the judgment of the court of appeals but on different grounds from those articulated by either the court of appeals or the majority, I concur in part and concur in the judgment.

I am authorized to state that JUSTICE EID joins in this concurrence.