Burnett v. Colorado Dep't of Natural Resources, Div. of Parks and Outdoor Recreation

JUSTICE HOOD

delivered the judgment of the Court.

{1 In this case, we address whether the government waived its immunity for injuries petitioner Sara Burnett sustained when a tree limb fell on her as she camped below in a designated campsite in Cherry Creek State Park. The answer turns on whether the tree was a "natural condition of ... unimproved property" under section 24-10-106(1)(e), C.R.S. (2014), of the Colorado Governmental Immunity Act ("CGIA"). If so, the government is immune from Burnett's lawsuit.

{2 We hold that a "natural condition of any unimproved property" includes native trees originating on unimproved property. Because a limb from such a tree caused Burnett's injuries, the natural condition provision of section 24-10-106(1)(e) immunizes the government here.

I. Facts and Procedural History

T3 Located just southeast of Denver, Cherry Creek State Park ("the Park") encompasses 4,200 acres and includes more than thirty miles of multi-use trails for biking, hiking, and horseback riding. It also features 185 designated camping sites. The State of Colorado leases the land on which the Park is located from the U.S. Army Corps of Engineers. Despite various man-made attractions and amenities, many of the Park's naturally occurring features remain undisturbed. Among these features are several thousand trees that were on the property when the State established the Park in *10071959. Some of these trees border the campsite at issue in this case.1

«I 4 The parties do not dispute the key facts giving rise to this case. On July 18, 2010, Burnett and her friend, Mackenzie Brady, went camping in the Park after they paid a fee to enter, The pair chose Campsite No. 14, which included a utility hookup, a parking area, a picnic table, and a level dirt pad. Burnett and Brady chose to pitch their tent on the dirt pad under the canopy of four mature cottonwood trees, reaching some seventy-five feet in height and flanking Campsite No. 14. The weather that night was uneventful.

15 Early the next morning, while Burnett and Brady remained asleep inside their tent, a tree limb dropped from one of the cottonwoods and struck both of them. - The blow fractured Burnett's skull and a vertebra and caused other acute injuries, including a concussion and multiple lacerations to her sealp and face. Brady suffered only minor injuries and was able to drive Burnett to the hospital, where Burnett spent three days. Due to the density of the canopy, Park employees who subsequently investigated the campsite were unable to determine the source of the fallen tree limb.

16 Burnett brought a premises lability action against the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation ("the State") seeking compensation for her injuries. She relied on section 24-10-106(1)(e) of the CGIA, §§ 24-10-101 to -120, C.R.S. (2014), to argue that the Park was a "public facility" and the branches overhanging the campsite constituted a "dangerous condition" of it. See § 24-10-106(1)(e) (stating that a public entity waives immunity for injuries caused by a "dangerous condition of any ... public facility located in any park or recreation area maintained by a public entity"); see also § 24-10-108(5) (defining "public entity" to include "the state" and "every other kind of . ageney [or] instrumentality ... thereof").

17 The State moved to dismiss, asserting sovereign immunity under a separate provision of section 24-10-106(1)(e), by which a public entity retains immunity for "an injury caused by the natural condition of any unimproved property" ("the natural condition provision"). The parties subsequently stipulated that the improved campsite was a "public facility" but the trees adjacent to it originated on unimproved property.

T8 The trial court determined that the "sole issue" was whether the trees adjacent to Burnett's campsite constituted a "public facility." In granting the State's motion to dismiss, the trial court conducted a two-part analysis to assess whether a pre-existing natural object, such as the tree, could be part of a "public facility." See Rosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.App.2004) (holding that a tree is part of a public facility "if a public entity incorporates [it] into a facility in such a manner that it [1] becomes an integral part of the facility and [2] is essential for the intended use of the facility"). The trial court held that the trees bordering Campsite No. 14 were not integral or essential to the campsite and thus could not constitute part of a "public facility" under section 24-10-106(1)(e).

T 9 In a split decision, the court of appeals affirmed the trial court's application of the two-part Rosales test, holding that the trees adjacent to the campsite (Me. the public facility) were not integral to the facility or essential to its intended use. Burnett v. State Dep't of Natural Res., 2013 COA 42, ¶ 9, -- P.3d --. The court also held that because the trees were a "natural condition of ... unimproved property," section 24-10-106(1)(e) precluded Burnett's suit. Id. at ¶ 11.

1 10 We granted certiorari and now affirm in part the judgment of the court of appeals.2

*1008II. Standard of Review and Statutory Construction

{11 Whether a governmental entity waives immunity under the CGIA is an issue of subject matter jurisdiction resolved under C.R.C.P. 12(b)(1). Medina v. State, 35 P.3d 443, 451-52 (Colo.2001). Where the facts are undisputed, as they are here, appellate review is de novo. Id. at 452-58. Because the CGIA derogates the common law, we strictly construe its grants of immunity and, in turn, broadly construe its waivers of immunity. Id. at 453 (citing Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000)).

112 To resolve the case at hand, we must analyze section 24-10-106(1)(e)'s natural condition provision. The primary task in statutory interpretation is to determine and effectuate legislative intent by construing the statute as a whole, "giving consistent, harmonious, and sensible effect to all of the statute's parts." St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 10, 325 P.3d 1014, 1019. Where the statutory language is unambiguous, we give effect to the language's plain and ordinary meaning. Id. Where the statutory language is susceptible to more than one reasonable interpretation, it is ambiguous; in such cases, we may examine statements of legislative policy to determine legislative intent. See id. at 325 P.3d at 1019 (citing § 2-4-208(1), C.R.S. (2013) (noting that when statutory ambiguity exists, a reviewing court may consider, among other things, the object sought to be attained by the statute, the legislative history, the consequences of a particular construction, and the legislative declaration).

HI. Analysis

113 The CGIA generally immunizes governmental entities and employees from tort liability but waives this immunity under limited circumstances. See $ 24-10-106. The Act recognizes that governmental immunity is sometimes inequitable, but it also recognizes that governmental entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive. See § 24-10-102. The balance between these two competing interests "is for the legislature alone to reach." Medina, 35 P.3d at 453.

1 14 Under section 24-10-106(1)(e), a public entity waives its immunity in an action for an injury arising from a "dangerous condition of any ... public facility located in any park" it maintains. But a public entity retains immunity for injuries "caused by the natural condition of any unimproved property, whether or not such property is located in a park...." Id.3 Therefore, irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.

{15 The CGIA does not define "natural condition of any unimproved property," and none of Colorado's appellate courts has interpreted this statutory language. The parties submit divergent interpretations of the provision and essentially debate where the improved property ends and the unimproved property begins.

"[ 16 Burnett broadly interprets the natural condition provision. Under her view, the trees were in their "natural condition" until the State altered the trees' condition through incidental maintenance. She also reads the provision to imply that there can be "natural" conditions of improved property. That is, because the State built the campsite subja-cent to the trees, the State incorporated the trees into improved property. Thus, she argues, the trees ceased to be a natural condition of unimproved property.

{17 The State takes a more restrictive view. It reasons that where trees are native flora to property, their character as a "natu*1009ral condition of unimproved property" persists irrespective of incidental maintenance or their proximity to improvements on the land. Thus, it argues, because the trees here are natural conditions that existed on unimproved property before the State built the campsite, the trees' mere presence and proximity to the campsite do not affect their status as natural conditions of unimproved property.

118 Both of these views present reasonable interpretations of the natural condition provision's plain language. Because the natural condition provision is therefore susceptible to alternative, reasonable interpretations, we conclude that the statutory language is ambiguous. We therefore look beyond the statute's plain language to ascertain and effectuate legislative intent.

119 We do so by first examining the legislative history of the natural condition provision and then applying the resulting principles to Burnett's case. After finding legislative intent to immunize the government, we also assess the two-part Rosales test used by the trial court and court of appeals. We overrule Rosales.

A. Legislative History

[ 20 In 1971, this court held that judicially imposed sovereign immunity was inappropriate and abolished such immunity at every level of government. Evans v. Bd. of Cnty. Comm'rs, 174 Colo. 97, 482 P.2d 968, 972 (1971); Flournoy v. Sch. Dist. No. 1, 174 Colo. 110, 482 P.2d 966, 967 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965, 966 (1971). The next year, the General Assembly enacted the CGIA to reestablish governmental immunity, excepting a finite number of specific cireumstances in which public entities waive immunity. Before adopting the Act, a Legislative Council committee to the General Assembly researched governmental immunity and assembled its conclusions in a 156-page report, Colo. Legislative Council, Report to the Colorado General Assembly: Governmental Liability in Colorado, Research Publication No. 134, iii (1968) ("Report"), to assist in developing immunity legislation.

{21 The Report summarizes the origins, purposes, criticisms, and trends of sovereign immunity and discusses policy considerations relevant to the substantive law, procedural handling, and financial administration of governmental tort liability claims. Id. at ix-xii. The Report includes a proposed bill, much of which remained unchanged in the version the General Assembly adopted. Compare Report, at xxvii-lii, with House Bill 71-1047, 1971 Laws 1204-18; see also Daniel v. City of Colo. Springs, 2014 CO 34, ¶ 37, 327 P.3d 891, 901 (Coats, J., concurring) ("[The basic structure and terminology of the proposed bill were retained [in the enacted legislation].").

122 In 1986, as a consequence of excessively high municipal insurance rates, the General Assembly substantially amended the CGIA to afford the government greater protection against lHability. See Daniel, 327 P.3d at 901 (citing Chuck Berry & Tami Tanoue, Amendments to the Colorado Governmental Immunity Act, 15 Colo. Lawyer 1191 (1986)); City of Aspen v. Meserole, 803 P.2d 950, 952 (Colo.1990). Although the current version of the CGIA has changed over the past four decades, the portions relevant here remain largely the same.

123 The Report elucidates the legislative intent underlying the natural condition provision in at least four ways: first, it distinguishes between dangerous conditions arising from man-made and natural objects; second, it suggests that immunity turns on the precise mechanism of the injury; third, it expresses a clear intent to exempt public entities from a duty to maintain any natural conditions; and finally, its stated policy goals include encouraging public entities to open up to the public unimproved, government-owned property without exposing the entities to the burden and expense of defending claims brought by individuals who are injured while using the property.4

*1010« 24 Based on the Report, we conclude that the legislature intended to retain immunity for injuries caused by native trees originating on unimproved property regardless of their proximity to a public facility, such as the improved area of the campsite here.

1. Man-Made vs. Natural Objects

125 First, the Report distinguishes between injuries caused by two types of dangerous conditions-those arising from man-made objects and those arising from natural objects: "For injuries caused by natural dangerous conditions, immunity should be retained.... [This means that sovereign immunity does not apply with respect to man-made objects and does apply to natural objects." Report, at 140-41 (emphasis added); see also Daniel, ¶ 42, 327 P.3d at 903-04 (observing that the Report distinguishes man-made objects from natural conditions of property). This dichotomy between man-made and natural objects suggests that the natural condition provision governs any injuries arising from naturally occurring features of parks without consideration of their proximity to man-made objects. Accord Rendak v. California, 18 Cal.App.3d 286, 95 Cal.Rptr. 665, 667 (1971) ("[IImprovement of a portion of a park area does not remove the immunity from the unimproved areas.").

26 The Report also specifically mentions "natural conditions of a park (the Flat Irons in Boulder or the Red Rocks west of Denver)" Report, at xxi (emphasis added). This indicates that the General Assembly intended the natural condition provision to retain vitality as applied to partially developed state parks.

2. Mechanism vs. Location

127 Second, the Report states that immunity should turn on the precise mechanism of the injury rather than the plaintiff's location when the injury occurred:

The committee concluded that a distinction should be made between (1) injuries caused by negligence in the construction, maintenance, failure to maintain, etc. of artificial, man-made objects (swing sets,
buildings, ete.) and (2) injuries coused by the natural conditions of a park.... In other words, ordinary negligence is siffi-clent [sic] to impose liability for injuries caused by the dangerous condition of artificial objects. For injuries caused by nat-wral dangerous conditions, immunity should be retained. >

Id. at 140 (emphasis added). That is, immunity turns on whether the injury was caused by negligence in the construction or maintenance of a man-made object or by a dangerous natural condition.

128 Another portion of the Report rein-forees this point when it assigns to the public the risk of injury from dangerous natural conditions: "In view of the limited funds available for the acquisition and improvement of property for recreational purposes, ... it is not unreasonable to expect persons who voluntarily use unimproved property in its natural condition to assume the risk of injuries arising therefrom." Id. at xxi-xxii (emphasis added). The Report states that individuals assume the risk of injuries arising from unimproved property in its natural state. Nothing in the Report suggests that a person's location on a man-made improvement shifts to the State the risk of injuries caused by dangerous natural conditions.

29 Courts in other jurisdictions have also relied on a causal analysis to conclude that the exact mechanism of a plaintiff's injury, not her location at the time of injury, determines immunity. In Meddock v. County of Yolo, 220 Cal.App.4th 170, 162 Cal.Rptr.3d 796, 799 (2013), the plaintiff argued that because he was on improved property-a paved parking lot-and using it as intended when a tree adjacent to the lot fell on him, the county waived its governmental immunity. In interpreting a provision nearly identical to our natural condition provision, the California Court of Appeal rejected the plaintiffs argument and held, "[AlIthough the injury occurred on improved property, that is, the paved parking lot, it was caused by the trees, native flora located near-and perhaps su-perjacent to--the improved parking lot, but themselves on unimproved property." Id. at 800-01 (footnote omitted). The court con*1011cluded that the plaintiff's spatial analysis reads "caused by" out of the statute. Id. at 801 ("Proximity may inform causation, but is no substitute therefor.").

130 In Redinger v. Clapper's Tree Service Inc., 419 Pa.Super. 487, 615 A.2d 743, 748 (1992), the court also interpreted a comparable immunity waiver. It held that the plaintiff's injury did not arise out of an improvement to the land but was "caused by a falling, decayed tree limb" and "this limb came from a part of [defendant]'s land which remained unimproved." Id. at 750. It also noted, significantly, that "the fact that the land in question was a partially developed ... tract is of no consequence; unimproved portions of it may still come under the liability limitation of the [statute]." Id.

[ 31 These courts' holdings lend support to our conclusion that a causal analysis should control immunity here.

3. Maintenance of Unimproved Property

$32 Third, the Report expresses a clear intent to exempt public entities from liability for failing to maintain natural conditions:

If a facility is constructed or built, it must be maintained at the risk of being liable for a failure to do so. If there is property which was not constructed, but is natural and unimproved, a public entity is not required to maintain it and cannot be held liable for failure to maintain it. In this case, sovereign immunity is applicable.

Report, at 140-41 (emphasis added). Accordingly, we conclude that section 24-10-106(1)(e) does not create a duty to maintain natural features, nor does a duty arise merely because of the features' proximity or contiguity to improved property.5

133 Furthermore, even where the State chooses to maintain unimproved property to protect the public health and safety, it does not assume a duty to maintain the property where none otherwise existed. See § 24-10-106.5(1) (stating that a public entity does not "assumel[ ] a duty of care where none otherwise existed by the performance of a service"). Such a policy "encourage[s] the provision of services to protect the public health and safety" and "allow[s] public entities to allocate their limited fiscal resources." Id.

4. Balancing Safety and Access to Public Land

T 34 Fourth, the Report highlights the policy reasons underlying the CGIA and the natural condition provision. The primary concern in implementing the CGIA was to provide the public with a sufficient avenue to tort recovery without exhausting governmental resoureee-namely, the public fise-through excessive exposure to tort liability. See Report, at xxi; see also Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 32, 325 P.3d 571, 581 ("[The legislature has conducted a careful balancing act in crafting the CGIA; specifically, it sought to balance the competing interests of protecting the public fise on the one hand and allowing a sufficient avenue for tort recovery on the other."). The CGIA avoids exposing governmental entities to liability that would "disrupt" or "make prohibitively expensive" the essential public services and functions that the entities provide. § 24-10-102.

T35 Indeed, the Report expressly warns against subjecting public entities to lability where injuries arise from natural conditions: "IH immunity were waived with respect to injuries caused by the natural condition of any unimproved property[,] the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many entities to close such areas to public use." Report, at xxi. It is clear from this *1012language that the General Assembly intend-ed to encourage governmental entities to open primitive, government-owned property to the public by limiting the entities' exposure to liability from individuals who choose to use the property.

36 Based on these portions of the CGIA's legislative history, we hold that the General Assembly intended a "natural condition of . unimproved property" to include native trees originating on unimproved property.

B. Application

187 Burnett asserts that: (1) the trees were located on improved rather than unimproved property because the State built and situated Campsite No. 14 subjacent to the trees; (2) her injury occurred on improved property while she was using the campsite as intended, thereby rendering the natural condition provision inapplicable; and (3) the trees bordering Campsite No. 14 were no longer in their natural condition because the Park had previously pruned them. The State argues that because a branch from trees originating on unimproved property caused Burnett's injuries, the natural condition provision precludes her suit. We agree with the State.

4 38 The natural condition provision's legislative history unequivocally manifests the General Assembly's intent to distinguish between injuries caused by man-made objects (for which immunity is waived) and those caused by natural objects (for which immunity is retained). Burnett erroneously reads a third possibility into the statute: the State waives immunity for injuries caused by natural objects that are contiguous to improved property. We are not at liberty to create this third category.

139 Furthermore, nothing in the legislative history indicates that the General Assembly intended the spatial analysis for which Burnett advocates. Her conclusion that a public entity waives immunity for injuries that are caused by natural conditions and occur on improved property creates a literal line drawing problem. This approach would require us to adopt an arbitrary rule to determine when natural objects, such as trees, sit on improved property and when they do not. For instance, if a falling tree limb injures two campers standing side-by-side in the same campsite but on either side of the imaginary boundary, one camper could establish an immunity waiver while the other could not. The legislative history does not support such an approach, and the canons of statutory interpretation militate against such an amorphous standard. See People v. Cross, 127 P.3d 71, 74 (Colo.2006) ("We ... consider the consequences of a particular construction and avoid constructions that produce illogical or absurd results." (citations omitted)).

T 40 Because the Report and the statutory text state that immunity is retained for injuries "caused by a natural condition of ... unimproved property," we conclude that immunity turns on the mechanism of Burnett's injuries, not her location when the injuries occurred.6 The record shows the cottonwoods bordering Campsite No. 14 were native vegetation of the unimproved property. The branch at issue fell from one of those cottonwoods. Thus, Burnett's injuries were caused by a natural condition of unimproved property, such that the natural condition provision precludes her suit.

*1013"I 41 In reaching this holding, we necessarily reject Burnett's argument that the State altered the natural condition of the trees by having previously pruned them. Under the CGIA, the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them onee it chose to do so. See § 24-10-106.5(1). An assumed duty would be contrary to the public health and safety, as it would discourage the State from undertaking any pruning whatsoever. We decline to create a rule under section 24-10-106(1)(e) that would transform natural conditions of unimproved property into improved property where, for the public health and safety, a public entity performs such incidental maintenance.

142 Our analysis is consistent with the legislature's policy goals. To make the State a guarantor of the public's safety from dangerous natural conditions of this sort would discourage it from opening and improving park lands for the public to enjoy. Neither the State's limited maintenance of some unimproved portions of the Park, nor its construction of structures nearby eliminated the governmental immunity intended by the legislature.

143 Because a natural condition of unimproved property caused Burnett's injuries, we conclude that the State is immune from suit under the natural condition provision of section 24-10-106(1)(e).

C. Rosales Is Overruled

1944 In analyzing whether the trees here constituted a "public facility" under seetion 24-10-106(1)(e), the trial court and court of appeals relied upon the two-part analysis delineated in Rosales The test asks, first, was the tree an "integral" part of the public facility? Rosales, 89 P.3d at 510. And, see-ond, was the tree "essential" for the public facility's intended use? Id. Because these questions do not originate in the CGIA, we overrule Rosales.

4 45 The facts in Rosales resemble those in this case. There, a tree branch fell on and injured the plaintiff while she was picnicking in a Denver city park. Id. at 508. She © brought an action pursuant to section 24-10-106(1)(e), alleging that the city and county created a dangerous condition by failing to maintain the tree above the picnic table. Id. The court of appeals rejected the plaintiff's argument that the tree itself constituted a public facility but held nonetheless that "if a public entity incorporates a tree into a facility in such a manner that it becomes an integral part of the facility and is essential for the intended use of the facility, the tree may be a component of the public facility." Id. at 510.

[46 By expanding the definition of "public facility" to incorporate natural objects, Rosales impermissibly narrows the cireum-stances in which public entities, particularly those operating parks and recreation areas, retain immunity for injuries caused by dangerous natural conditions We implicitly rejected this expanded definition of "public facility" in St Vrain when we held that " 'facility' applies to permanent, bricks-and-mortar structures ... as well as to collections of individual items that, considered together, promote a broader, common purpose." St. Vrain, ¶ 19, 325 P.8d at 1021. Because Rosales's holding is inconsistent with the language of the CGIA, the policy objectives in the Report, and our holding in St. Vrain, we overrule it.

IV. Conclusion

147 Burnett's injuries are tragie, but eliminating governmental immunity in this case would only compound the tragedy by sidestepping legislative intent and providing a disincentive for the government to facilitate access to public lands. *

48 We hold that a "natural condition of any unimproved property" includes native trees originating on unimproved property. Because a limb from such a tree caused Burnett's injuries, the natural condition provision of section 24-10-106(1)(e) immunizes the State. We therefore affirm in part the judgment of the court of appeals.

JUSTICE EID concurs in the judgment. JUSTICE HOBBS dissents, and CHIEF JUSTICE RICE and JUSTICE MARQUEZ Join in the dissent.

. The Park's mature trees provide a habitat for great horned owls and bald eagles. Whitetail and mule deer use the thick cover for bedding. Woodpeckers and northern flickers eat the insects that are inside the trees, and pheasants use the vegetation for cover and roosting.

. We granted certiorari on the following re-framed issue: "Whether the court of appeals erred in concluding that the government did not waive immunity under section 24-10-106(1)(e), C.R.S. (2013), of the Colorado Governmental Immunity Act for injuries caused by a tree limb that *1008fell on a camper in an improved campsite in a state park."

. The paragraph states, in relevant part, that a public entity waives immunity for:

A dangerous condition of any ... public facility located in a park or recreation area maintained by a public entity.... Nothing in this paragraph (e) ... shall be construed to prevent a public entity from asserting 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 area or on a highway, road, or street right-of-way.

§ 24-10-106(1)(e).

. While we rely extensively on legislative history in resolving this case, we do not mean to suggest that such extensive reliance is always appropriate. Legislative history is only one way to gauge legislative intent. The legislative history here is particularly instructive because it speaks to the specific circumstances of this case. In some cases with greater ambiguity in the historical *1010record, the use of legislative history may not be the most analytically sound approach.

. Our decision today does not contravene our holding in City of Colorado Springs v. Powell, 48 P.3d 561, 566 (Colo.2002). There, we held that the city had a duty to maintain the natural features adjacent to a drainage facility because the features affected the facility's overall condition. Id, We reached this holding, however, under a different CGIA section, 24-10-106(1)(f), which waives a public entity's immunity for injuries resulting from the "operation and maintenance" of the enumerated facilities. Id. at 567. We expressly held, "A failure to maintain is within the scope of the operation and maintenance provision." Id. Because paragraph (e) does not impose such a maintenance duty, Powel! is distinguishable from the case at hand.

. Burnett relies on several cases to argue that an entity waives immunity when a maintenance failure allows objects to intrude upon or interfere with a public facility and cause an injury thereon. See State v. Moldovan, 842 P.2d 220, 225 (Colo.1992) (holding that the government waived immunity for failing to repair a damaged fence that allowed a cow to wander onto a roadway); Medina, 35 P.3d at 448-49 (remanding to determine if the government waived immunity for failing to secure boulders above road); Belfiore v. Colo. State Dep't of Highways, 847 P.2d 244, 246 (Colo.App.1993) (holding that the government waived immunity for failing to secure boulders above road); Schlitters v. State, 787 P.2d 656, 658 (Colo.App.1989) (same). These cases do take location into account. However, they are inapposite because they involve section 24-10-106(1)(d), which states, in pertinent part, that a public entity waives immunity for injuries resulting from "[a) dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion." (Emphasis added.) Paragraph (e) does not carve out a waiver for conditions that "physically interfere" with the use of the enumerated public facilities. Consequently, Burnett's interference argument fails.