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

*1014JUSTICE EID,

concurring in the judgment.

1 49 Section 24-10-106(1)(e) of the Colorado Governmental Immunity Act (CCGIA") retains immunity for injuries "caused by the natural condition of any unimproved property." § 24-10-106(1)(e), C.R.S. (2014). Here, there appears to be no dispute that Burnett's injury was "caused" by a tree limb, and that the tree limb was a "natural condition." Thus, the narrow issue presented by this case is whether the tree limb was a natural condition "of unimproved property." I would give the phrase "of unimproved property" its plain and ordinary meaning that focuses on the origin of the natural condition. As applied here, the tree limb was part of a tree whose origin was unimproved property, and, accordingly, Burnett's injury falls within the immunity provided by section 24-10-106(1)(e). Although the plurality reaches the same result, it does so by focusing almost exclusively on the statute's legislative history. Because I would focus on the text, I coneur only in the result reached by the plurality.

1 50 The plurality begins with the proposition that the phrase "natural condition of any unimproved property" is ambiguous because it is "susceptible to alternative, reasonable interpretations." Plur. op. 118. It then proceeds to analyze the case almost entirely by ' virtue of the statute's legislative history. Id. at 1120-36. Yet the plurality identifies no particular ambiguity in the language, nor does it suggest that the legislative history enlightens its understanding of any particular language." While a statute's legislative history may be an aid to interpreting a statute's language, see § 2-4-2083(1)(c), C.R.S. (2014), it is not the thing that is to be interpreted in and of itself. See, eg., Shannon v. United States, 512 U.S. 573, 583, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (declining to require jury instruction that was "endorsed" in legislative history but not "anchored in the text of the statute").

1151 There appears to be no dispute that the tree limb that "caused" Burnett's injury was a "natural condition." The only issue, then, is whether it was a natural condition "of unimproved property." I would give the phrase "of unimproved property" its plain and ordinary meaning-that is, a natural condition is "of unimproved property" when it originates from unimproved property. See Ceja v. Lemire, 154 P.3d 1064, 1066 (Colo.2007) (applying the "plain and ordinary meaning" of CGIA terms); Merriam-Webster Collegiate Dictionary 806 (10th ed. 1995) (defining "of" to mean "used as a function word to indicate origin or derivation"). Thus, in my view, there is no ambiguity in the language; the only issue is how that language applies to the facts of the case. And, under the facts of this case, the tree was "of" unimproved property because it originated from unimproved property.

€52 There is no question that the tree's trunk was located on the portion of property that was unimproved. Moreover, there is no dispute that the campsite was built adjacent to the tree. Burnett argues that because the state improved property adjacent to the tree by building a campsite, the tree was no longer "of unimproved property." But the campsite did not change the location of the tree, which remained on unimproved property. This is true even though many of the tree's ' branches may have hung over the campsite. Thus, this case is analogous to the California case of Meddock v. County of Yolo, where, in applying language nearly identical to the Colorado statute, the court concluded that the plaintiff could not recover for injuries caused by a falling tree where "the trees [were] located near-and perhaps superjacent to-the improved parking lot [where the plaintiff was standing], but themselves on unimproved property." 220 Cal.App.4th 170, 162 Cal.Rptr.3d 796, 800 (2013). I also agree with the Meddoek court's implicit holding that under the statutory language it is the origin of the natural condition that caused the injury, rather than the plaintiff's location, that controls the immunity inquiry. See id.

¶ 53 The plurality reaches the same conclusion that "native trees originating on unimproved property" constitute a "natural condition of ... unimproved property" under section 24-10-106(1)(e), but does so "[blased on ... the CGIA's legislative history." Plur. op. 136. It seems to justify its "extensive reliance" on the legislative history on the *1015ground that here, unlike the average case, the history is "particularly instructive." Id. at 123 n. 4. However, I know of no case in which we have held that "particularly instructive" legislative history may serve as a substitute for a close analysis of the text. Because I would reach the plurality's result using the text of the statute, I concur only in its judgment.