dissenting.
I respectfully dissent from the majority opinion. I believe that the trial court erred in not conducting an evidentiary hearing on the motion to dismiss. However, even under the record now before us, I believe that the trial court erred in concluding that plaintiff's injuries did not result from a dangerous condition of a public building for which governmental immunity must be waived.
I.
Here, plaintiff filed her complaint alleging negligence against defendants and asserted that governmental immunity had been waived pursuant to $ 24-10-106(1)(c), C.R.S. 1999, which provides for waiver of governmental immunity when an injury is caused by a dangerous condition of a public building. Defendants filed a motion to dismiss under C.R.C.P. 12(b)(1). Plaintiff responded, raising factual allegations which, if believed, would overcome the motion to dismiss, along with documentary evidence in support thereof.
To the extent that defendants asserted in their motion to dismiss that, based on the complaint by itself, and the allegations contained therein, no jurisdiction resided in the court to hear the matter, the motion should also be considered as having been filed under CRCP. 12(b)(5). A motion filed under C.R.C.P. 12(b)(5) is to be considered a motion for summary judgment under C.R.C.P. 56 if matter outside the pleadings are presented and not excluded by the court. In such cireumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by [C.R.C.P.] 56." CRCP. 12(b); C.R.C.P. 56.
Regardless of how the court denominated the motion, however, it should have granted an evidentiary hearing as requested by plaintiff. Such a hearing "would have permitted the full development of a factual record and *261determination of the [issues involved]." Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 926 (Colo.1993). This procedure for resolving the immunity issue has been held to be proper, as mandated by § 24-10-108, C.R.S.1999, even where the issue is raised in the form of a motion for summary judgment. Cline v. Rabson, 862 P.2d 1085 (Colo.App.1993).
The burden of proving the court's subject matter jurisdiction is on the non-moving party, and the court may consider any competent evidence necessary and relevant in determining subject matter jurisdiction. Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra.
Here, at the time defendants filed their motion, only the complaint had been filed, and no discovery had been conducted. Therefore, in light of the necessity of plaintiff to carry the burden to show the court's subject matter jurisdiction, fairness dictates that she should have been granted a hearing, as is encouraged by Trinity. See Cline v. Rabson, supra.
IL.
Furthermore, even when the record before this court is considered, absent any Trinity hearing, in my view, the trial court erred in dismissing plaintiff's complaint.
Section 24-10-106(1)(c), C.R.S.1999, provides for waiver of governmental immunity for injuries caused by a "dangerous condition of any public building." "Dangerous condition" is defined in § 24-10-108(1), C.R.S. 1999, as:
[A] physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health and 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 acts or omissions of the public entity in constructing or maintaining such facility....
Here, the record before us demonstrates that public school personnel had converted a storage closet in the school building into a seclusion room. It was used as a place for students in "time out," and was used to isolate such students from other students and from their teachers. If this case were presented in the context of the use of the closet for what it was designed, as a storage closet, waiver of governmental immunity probably could not be considered. See Swieckowski v. City of Fort Collins, 984 P.2d 1880 (Colo.1997). But here, use of the storage closet as a seclusion room constitutes a dangerous condition because the closet is defective for such use, even if proper for other uses.
The closet had no window that enabled a "time out" student to be observed and monitored by a teacher. Also, school employees improperly used the open door and wall of the closet as a "backstop" for the stroller that the student here was seated in, in an attempt to jerryrig a method of preventing the stroller from toppling over. The floor of the closet was unpadded even though school personnel were aware that the stroller could topple over because the student's activities in the stroller. Their awareness that the stroller could topple over did not cause them to construct a system for preventing the stroller from toppling over, nor for padding the floor to avert injury.
As used in § 24-10-108(1), the phrase "the use thereof" means "the use of a physical condition of this facility under circumstances such as to waive governmental immunity." See Hendricks v. Weld County School District No. 6, 895 P.2d 1120 (Colo.App.1995)(Hendricks).
In Hendricks, a division of this court held that, where students had to slide into an unpadded gymnasium wall while playing dodge ball, and one was injured during that activity, the unpadded wall was a physical condition of the building which, combined with its use, constituted a dangerous condition of a public facility. The facts in Hendricks are analogous to the circumstances here, and the holding there applies here equally.
I also view Walton v. State, 968 P.2d 6836, 639 (Colo.1998) as being applicable here. In Walton, a student was injured while responding to a teacher's request to clean a loft storage space located high above the floor of the university's seulpture shop. Because no *262ladder or steps led to the loft, the student had to use a portable extension ladder, which she ascended with a broom. The ladder slipped on the floor that had been recently stripped and sealed with a finish that made it "hard to walk on but easy to sweep." The student fell and suffered injuries.
The Supreme Court held that the student's negligence action was within the statutory waiver of governmental immunity for a dangerous condition of a public building. The court first opined that because governmental immunity derogates Colorado's common law, provisions for waiver of governmental immunity are entitled to deferential construction in favor of victims injured by the negligence of governmental agents, while the immunity provisions are subject to strict construction. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994). The court then went on to determine that "(e)ach of the elements for waiver of immunity based on a dangerous condition of a public facility exists in connection with Walton's negligence cause of action." Walton v. State, supra, 968 P.2d at 645.
In my view, such is the case as to the plaintiff's negligence action here. Through its teachers, the school foreed a student to participate in a use of the building connected with the educational mission of the building without a safe means for doing so. The school's personnel were aware, or should have been, that the space used was a storage closet, not a safe place for providing separation and calming of a student; that the closet did not have a window for observation of the student; that the stroller the student was in could overturn, especially in cireumstances under which the student was active and agitated; that the floor was unpadded and that the student would contact a hard floor should the stroller topple; and they were aware that the door.to the storage closet was not designed for use as a "backstop" for a stroller.
Thus, while not necessarily under a duty to redesign the storage closet, the school was under an obligation to use the space in a way that did not pose an unreasonable risk of injury to members of the public. See Walton v. State, supra.
Thus, I would hold that, as a matter of law, the record supports :a conclusion that the dangerous condition associated with the use of the building forced upon plaintiff, and her injuries, was proximately caused by the negligent act or omission of the public entity here in using and maintaining the facility. Hence, I would hold that this action is not barred by governmental immunity.
Accordingly, I would reverse the judgment and remand the cause for reinstatement of the complaint and for further proceedings.