dissenting.
1127 In Rosales v. City & County of Denver, 89 P.3d 507 (Colo.App.2004) a division of this court remanded that case to the trial court for a determination of whether a tree from which a branch had fallen was and integral part of a public facility and was essential to public use of the facility. However, the division did not derive this standard from the words of the Colorado Government Immunity Act, sections 24-10-101 to -120, C.R.S.2012, and, in my view, it does not accurately reflect the CGIA or cases that apply it. Therefore, I conclude that the trial court erred when it applied Rosales and granted the Colorado Department of Natural Resources (CDNR) motion to dismiss.
T 28 I also disagree with the majority opinion's application of the second sentence of section 24-10-106(1)(e) (the natural condition provision).
29 Therefore, I respectfully dissent.
I. Issues Raised
1380 CDNR relied on Sanchez v. School District 9-R, 902 P.2d 450, 453 (Colo.App.1995), to argue that section 24-10-106(1)(e), C.R.S. 2012, does not waive sovereign immunity because "the dangerous condition must arise from the physical or structural defect of *859compsite structures, not from [plaintiffs] use of the structures." (Emphasis added.) However, the passage from Sanches upon which CDNR relied has been superseded by later supreme court decisions.
[ 31 CDNR also relied on Rosales, arguing that "[a] tree located in a park is not a 'public facility' within the meaning of the [Colorado Government Immunity Act, sections 24-10-101 to -120, C.R.8.2012], unless the tree is an integral part of the structures and essential to their use." Consequently, the trial court applied Rosales and granted the motion.
II. Issues Not Raised
1 32 CDNR's motion did not assert that (1) the tree did not constitute an unreasonable risk to the health or safety of campsite users; (2) it did not know or through the exercise of reasonable care could not have known that the tree constituted such a risk; or (8) the allegedly dangerous condition of the campsite was not proximately caused by its negligent act or omission in maintaining the campsite facility. CDNR did not raise these issues in its motion, the trial court did not rule on them, and they are not before us on appeal.
133 In this dissent, I address only the issues raised in CDNR's motion and in the majority opinion, and provisions of the CGIA that are necessary to resolve those issues.
III. Rosales
134 In Rosales, the plaintiff was injured when a tree branch fell on her while she was picnicking in a city park. The trial court concluded that the tree constituted a public facility, and, on appeal, the defendant argued that this was error. A division of this court ruled that, contrary to the trial court's ruling, the tree was not a public facility. However, recognizing that the conclusion that the tree was not, itself, a facility, did not resolve the issue, the division opined that a tree "may be a component of [a] public facility" if a public entity incorporates it into a facility in a manner that it becomes an integral part of the facility and is essential for its intended use (integration and necessity). 89 P.8d at 510. In so doing, the division reframed the issue and, in effect, focused on whether the picnic area was a public facility and whether there was a connection between the tree and the picnic area. Id. Unfortunately, the Rosales test of integration and necessity is not derived from the statute. Moreover, because it is subjective, it is more suited to a finding of fact than a conclusion of law. In my view, it should be abandoned.
IV. Section 24-10-106(1)(e)
1 85 Because the CGIA is in derogation of the common law, we strictly construe the statutory grant of immunity in favor of the public entity. However, we broadly construe statutory waivers of immunity in the interest of compensating victims of governmental negligence. Springer v. City & County of Denver, 18 P.3d 794, 798 (Colo.2000).
186 As pertinent here, section 24-10-106(1)(e) waives sovereign immunity in an action for injuries resulting from, among other things, "[a] dangerous condition of any ... public facility located in any park ... maintained by a public entity."
I 37Section 24-10-108(1.8), C.R.8.2012, defines "dangerous condition" as "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."
V. Physical Condition of a Facility
1 38 As I explain below, the term "physical condition," as used in section 24-10-108(1.3), refers to a physical state, condition, or situation that affects the use of a facility in a way that constitutes a risk to the health and safety of those who use it. Here, the facility is the campsite, not the tree. Contrary to CDNR's argument, neither the risk nor the injury must arise from a physical or structural defect of campsite structures. Nor must the source of the risk be essential to use of the facility.
*860A. Risk to Users
139 In Jenks v. Sullivan, 826 P.2d 825 (Colo.1992), overruled in part by Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994) (exceptions to the waiver of sovereign immunity are not in derogation of common law and are not to be strictly construed, overruling Jenks to the extent that it said that otherwise), the plaintiff was in a courthouse when he was shot by a party to a divorce case. The supreme court rejected the plaintiff's contention that the phrase "or the use thereof" included the shooter's use of the building. The court held that "[the phrase 'or the use thereof means the use of a physical condition of a facility." Id. at 827.
1 40 In Jenks, the court explained that the word "condition" is defined as "[mljode or state of being; state or situation; essential quality; property; attribute; status or rank." Id. (quoting Black's Law Dictionary 293 (6th ed. 1990)). Continuing, the court said "the statute refers to an injury arising from the state of the building itself or the use of a state of the building," not from the dangerous activities of a person using the building. Id.
B. Physical Condition Defined
[ 41 In Walton v. State, 968 P.2d 686 (Colo.1998), a student suffered injuries when, responding to a request from a teacher, she climbed a ladder and the ladder slipped out from under her. The evidence showed that the school's custodian had recently stripped and sealed the floor, rendering it extremely slippery. The supreme court distinguished the student's use of the facility from the shooter's use of the courthouse in Jenks. It explained that the school had asked members of the public to use the school, the use was connected with the school's maintenance, the school had not provided a safe means for doing so, and the school knew or should have known that injuries could result from the dangerous combination of factors. Id. at 645. Thus, contrary to CDNR's argument, the case turned on the public entity's failure to provide for the safety of the user, not on the existence of a physical or structural defect.
1 42 Indeed, the supreme court and a division of this court reached the same conclu-
sion some years before Walton. See Stephen v. City & County of Denver, 659 P.2d 666, 668 (Colo.1983) (addressing physical conditions of roads or highways that affect their use in ways that constitutes a risk to the health or safety of the public); Hallam v. City of Colorado Springs, 914 P.2d 479, 483 (Colo.App.1995) ("A dangerous condition is not limited to those conditions that have their physical source in the highway surface itself,").
43 The supreme court provided further guidance in Padilla v. School District No. 1, 25 P.3d 1176 (Colo.2001). There, the court said that the decision in Walton "demonstrates that the case-by-case jurisdictional inquiry methodology requires courts to take into account varying definitions of 'physical condition, 'constructing,' and 'maintaining.'" Id. at 1181. Continuing, the court said that although a structural defect is a "physical condition," the term "also includes other physical conditions that the governmental entity creates in association with constructing or maintaining a facility." Id. Reiterating the analysis in Jenks, the court said that "physical condition" includes a "'[mlode or state of being; state or situation.'" Id. - (quoting Jenks, 826 P.2d at 827). The court also noted that in Jenks, it had employed a narrow construction of the immunity waiver, ' that Bertrand overruled that aspect of Jenks and that Colorado courts now afford deferential construction to immunity waivers and "give broad seope to the term 'physical condition, as evidenced in Walton." Id.; see Schlitters v. State, 787 P.2d 656, 658 (Colo.App.1989) (a dangerous condition may exist if there has been a failure to maintain the roadside so as to avoid the presence of obstructions on the traveled portion of a state highway").
€ 44 Therefore, contrary to CDNR's argument, there need not be a physical or structural defect, nor must the instrumentality and circumstances of the injury be integrated into and essential to use of a facility. See City of Colorado Springs v. Powell, 48 P.3d 561, 566 (Colo.2002) (commenting that areas surrounding a facility often affect the overall condition of the facility). Instead, "dangerous condition" includes physical conditions *861that affect the use of a facility in a way that constitutes an unreasonable risk to the health and safety of those who use it.
T45 Because CDNR's motion did not address the risk to users of the campsite, the trial court did not rule on the question.
C. Maintaining the Safety of a Facility
146 "'Maintenance' means 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." § 24-10-1038(2.5), C.R.S.2012. It does not include any duty "to upgrade, modernize, modify, or improve the design or construction of a facility." Id.
T47 In Medina v. State, 35 P.3d 443, 448 (Colo.2001), the plaintiffs were passengers on a charter bus traveling through Clear Creek Canyon on U.S. Highway 6 when they were injured by a large boulder that had dislodged from a "cut slope" above the road and crashed through the roof of the bus. The essential question was whether the dangerous condition was caused by negligent maintenance. To answer that question, the court provided a thorough discussion of the differences between negligent maintenance, for which the CGIA waives sovereign immunity, and negligent design, for which it does not. Appropriately, the court did not address whether the boulder was, itself, a public facility.
{48 The supreme court held that "the CGIA waives immunity in an action for injuries resulting from the state's negligent failure to maintain a public highway." The court explained the development of a dangerous condition of a public highway creates a duty to return the road to " 'the same general state of being, repair, or efficiency as initially constructed.'" Id. (emphasis added) (quoting Swieckowski v. City of Fort Collings, 934 P.2d 1380, 1385 (Colo. 1997)).
D. Conclusions Regarding Dangerous Condition
€49 Broadly construing this statutory waiver of immunity in the interest of compensating victims of governmental negli-genee, I conclude that, as pertinent here, section 24-10-106(1)(e) waives immunity when a public entity knows or in the exercise of reasonable care should have known that the physical state of a public facility or the physical situation at a public facility constituted an unreasonable risk to the health or safety of the public using the facility and the risk is proximately caused by the negligent act or omission of the public entity that maintains the facility. CDNR's motion did not address whether the tree limbs constituted an unreasonable risk to the health and safety of the public, whether CDNR knew or should have known about the risk, or whether the injury resulted from CDNR's negligence.
150 Accordingly, I conclude that the trial court erred when it dismissed plaintiffs claims based solely on its determinations that the tree "was not integral to the improved campsite and therefore the tree was not a 'public facility' as defined under [the] CGIA."
E. Remand is Appropriate
[ 51 I am not persuaded by CDNR's suggestion that plaintiff's stipulation of facts in this case and her waiver of a hearing on CDNR's motion enables CDNR to prevail on issues it did not raise and the trial court did not address. CDNR's argument framed the issue for the trial court, and the parties stipulated to facts relevant to that argument. Although it is plaintiff's burden to prove that the trial court has jurisdiction in this matter, I reject CDNR's suggestion that it should be permitted to prevail on issues it did not raise and the trial court did not address.
1 52 Therefore, on this record, I conclude that the trial court erred when it dismissed plaintiff's claims, and that neither the record nor the trial court's ruling enables us to affirm on other grounds.
V. The Natural Condition Provision
1 53 I also disagree with the majority opinion's conclusion that the statute does not waive sovereign immunity because the tree is a natural condition of unimproved property.
154 In accordance with the second sentence of section 24-10-106(1)(e), we may not *862construe subsections 106(1)(d) and (e) "to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved proper- * ty, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way."
A. Unimproved Property
{55 The CGIA does not define "unimproved property" or "improved property." Because there is no statutory definition of "unimproved property," we must assume that the General Assembly intended that it have its usual and ordinary meaning. See Enright v. City of Colorado Springs, 716 P.2d 148, 149 (Colo.App.1985).
T 56 "Unimproved property" usually refers to real property that is in its natural state. Unimproved property typically contains a variety of features such as shrubs, trees, rocks, ruts, ditches, cliffs, and watercourses. When property is unimproved, these natural features have not been disturbed.
€57 For property tax purposes, the term "improvements" refers to "structures, buildings, fixtures, fences, and water rights erected upon or affixed to land.6 5 § 39-1-102(6.8), C.R.S.2012. Considering this definition as guidance with regard to the issues here, it could be said that property is unimproved when no structures or fixtures are built on or affized to the land.
158 Here, CDNR attached an affidavit of the park manager of Cherry Creek State Park, which said, among other things, that the campsite used by plaintiff had electric, water, and sewer connections, as well as a concrete parking pad, a level dirt pad, a picnic table, and a fire pit. I conclude that the concrete pad and electric, water, and sewer connections constitute "fixtures" because they have been physically incorporated into and affized to the camping facility. See § 39-1-102(4), C.R.S.2012 (defining "fixtures"). Consequently, I also conclude that the campsite constitutes "improved property.”
B. Natural Condition
T59 The term "natural condition of unimproved property" is susceptible of several meanings.
1. Injuries Occurring on Unimproved Property.
I 60 The natural condition provision might be applied to mean that a public entity may assert sovereign immunity when an injury oceurs on unimproved property and is caused by a natural condition of that property. This is a plain and reasonable application of the provision. A public entity does not construct and maintain unimproved property, and a dangerous natural condition of the unimproved property cannot be said to have been proximately caused by the negligent act or omission of the public entity. Therefore, in my view, it would be correct to apply this provision in this way.
2. Injuries Caused by Natural Objects
1 61 The natural condition provision could also be applied to mean that a public entity may assert immunity when an injury is caused by an object or condition that commonly exists as a natural condition of unimproved property. If the provision is applied in this way, an entity could assert immunity whenever a shrub, tree, rock, rut, ditch, cliff, or watercourse causes an injury and the injury occurs on improved public property.
162 If the natural condition provision is applied in this way, a public entity that constructs and maintains a roadway will be immune even when it knows that a dead tree is on a roadway and negligently fails to remove or warn of the hazard, and a driver is injured as the result of the obstruction. Similarly, an entity that builds and maintains a playground will be immune when it knows there is a dead and rotting tree standing in the middle of the playground and negligently fails to remove the hazard, and the tree falls and injures someone.
*863T63 We are required to construe section 24-10-106(1)(e) and the natural condition provision in the interest of compensating vie-tims of governmental negligence. In my view, applying the natural condition provision to permit a public entity to assert sovereign immunity in an action for injuries resulting from its negligent failure to maintain the safety of a public facility not only is contrary to the interest of compensating victims of governmental negligence, but also leads to an absurd and illogical result.
3. Injuries on Improved Property Caused by Objects on Unimproved Property
1 64 The natural condition provision could be applied to mean that a public entity may assert immunity when an injury occurs on improved property that is a public facility and the injury is caused by something that is natural to and is situated on unimproved property.
65 In my view, it would be erroneous to apply the provision in this way because doing so would encourage public entities to leave a modicum of unimproved land around trees adjacent to public facilities It would also encourage public entities to refrain from pruning those trees, lest the trees be considered "improved property." ~The reasoning would be that so long as the improvements do not touch the trunk of a tree, (1) the tree is situated on unimproved property; (2) the tree, itself has not been "improved"; and (8) the entity has no duty to ensure that the tree does not constitute an unreasonable risk to the health and safety of those who use the area of the facility immediately adjacent to the tree and under the branches of the tree.
T66 Here, the photographs suggest that the vehicle pad and tent area may touch or nearly touch one side of the tree, but do not surround it. This presents yet another difficulty. When a public entity constructs improvements that touch one side of a tree, but do not surround the tree, and the tree's limbs overhang the public facility, courts would be required to determine whether the improvement causes the tree to be situated on improved or unimproved property. We would also be required to determine whether tree limbs that overhang a public facility are a natural condition of unimproved property or a physical condition or situation of improved property.
T 67 Onee again, applying the natural condition provision to permit a public entity to assert sovereign immunity in an action for injuries resulting from the entity's negligent failure to maintain the safety of a public facility is contrary to the interest of compensating victims of governmental negligence.
VI. Conclusion
T68 I conclude that the Rosales test of integration and necessity is not derived from the statute, unduly subjective, and should be abandoned. I also conclude that the natural condition provision must be applied in the interest of compensating victims of governmental negligence. Accordingly, I conclude that the trial court erred when it dismissed plaintiff's action based on its determination that the tree "was not integral to the improved campsite and therefore the tree was not a 'public facility' as defined under [the] CGIA."
1 69 Because the trial court considered and ruled only on these issues, I do not address issues regarding the existence of a risk, CDNR's knowledge of a risk, or CDNR's alleged negligence. I would reverse and remand for further proceedings.
170 For these reasons, I respectfully dissent.
. Section 39-1-102(4.3), C.R.S.2012, defines "forest land" to mean "land of which at least ten percent is stocked by forest trees of any size and includes land that formerly had such tree cover and that will be naturally or artificially regenerated," including "unimproved roads and trails, streams, and clearings which are less than one hundred twenty feet wide."