Dennis v. City and County of Denver

COLORADO COURT OF APPEALS 2016COA140

Court of Appeals No. 15CA1572
City and County of Denver District Court No. 14CV33332
Honorable Elizabeth A. Starrs, Judge

Sean Dennis, as conservator and on behalf of
Doreen Heyboer,

Plaintiff-Appellant,

v.

City and County of Denver, Colorado,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE FREYRE
Taubman and Plank*, JJ., concur

Announced September 22, 2016

Bachus & Schanker, LLC, David Krivit, Scot C. Kreider, Denver, Colorado, for
Plaintiff-Appellant

Cristal Torres DeHerrera, Interim City Attorney, Wendy J. Shea, Assistant City
Attorney, Jamesy C. Owen, Assistant City Attorney, Denver, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this case, we address whether the defendant, the City and

County of Denver,1 waived its immunity for injuries Doreen Heyboer

sustained as a passenger on a motorcycle that could not timely

brake when a car unexpectedly turned left in front of it. The

answer depends on whether a deteriorated roadway is an

“unreasonable risk to the health or safety of the public” under

§ 24-10-103(1.3) C.R.S. 2016 of Colorado’s Governmental Immunity

Act (CGIA), a precursor to establishing a “dangerous condition”

under § 24-10-106(1)(d)(I), C.R.S. 2016. This is a novel question.

Plaintiff Sean Dennis, as conservator and guardian for Heyboer,

brought this negligence and premises liability action against the

City.

¶2 The complaint alleged that the City had a duty to maintain the

roadway free from dangerous conditions that physically interfered

with the movement of traffic, that it breached this duty by allowing

the roadway to fall into disrepair, that it knew of the deteriorated

1The complaint also named the motorcycle driver, Michael Veres,
as a defendant, however, the allegations against Veres were settled
before the hearing. Heyboer also settled with the driver of the car
without litigation.

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 state of the road from prior complaints, and that Heyboer’s injuries

resulted from the City’s breach of its duty of care.

¶3 In response, the City moved to dismiss under C.R.C.P.

12(b)(1). It asserted immunity and denied Heyboer’s allegations.

The district court conducted a hearing under Trinity Broadcasting of

Denver, Inc., v. City of Westminster, 848 P.2d 916 (Colo. 1993) and

issued a judgment granting the City’s motion. It concluded that the

City was immune from suit because “[t]he Plaintiff produced no

evidence, either through a witness or an exhibit, that this

dangerous condition posed “an unreasonable risk to the health and

safety of the public” as required by § 24-10-103(1.3).” (Emphasis

added.) It further concluded that Heyboer failed to sustain her

burden of proof.

¶4 We conclude that the court clearly erred in its factual finding

that the record contained no evidence of an unreasonable risk to

the health or safety of the public because the record contradicts

that finding.2 Indeed, both the record and the court’s factual

2 We note that Heyboer contends the court failed to make any
“factual findings” in its written judgment. We disagree and
construe the court’s “Discussion” section of the judgment, which

2
 findings show the City’s knowledge of the road’s poor conditions,

the City’s admission that road surface conditions raised a public

safety risk, and the City’s determination that the road was

dangerous but not dangerous enough to fix. These facts

demonstrate that the City failed to maintain the road as required

under § 24-10-103(2.5), thereby creating an unreasonable risk to

the health or safety of the public. In reaching this conclusion, we

necessarily find that Heyboer satisfied her burden of proof.

¶5 We further conclude that because the record contains evidence

of an unreasonable risk to the health or safety of the public, the

court erred as a matter of law in finding no waiver of immunity

under § 24-10-106(1)(d)(I). Accordingly, we reverse the court’s

judgment and remand the case for reinstatement of the complaint.

I. Court’s Findings

¶6 The facts of the accident are not disputed. On September 20,

2013, while riding as a passenger on the back of a motorcycle

driven by Veres, Heyboer was thrown from the motorcycle when

Veres suddenly braked to avoid a collision. Veres was traveling

specifically details the hearing evidence and the facts the City
conceded, as the court’s factual findings.

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 eastbound on Mississippi Avenue, and as he neared the intersection

with Broadway, a car suddenly turned left across traffic in front of

him. He applied the brakes, but he was unable to avoid the

accident and hit the right rear panel of the car. Heyboer suffered

permanent brain injuries from the accident.

¶7 At the hearing, the City conceded knowledge of the road’s

deteriorated condition, conceded that Heyboer was injured at the

intersection, and conceded that it had a duty to maintain the road

at that intersection. However, it denied that the condition of the

road posed an unreasonable risk to the health or safety of the

public, a requisite showing under § 24-10-103(1.3), which defines

“dangerous condition.”

¶8 In its judgment, the court found that Veres examined the

pavement after the crash and determined that it had played a role

in his inability to stop. Veres described more than fifteen years of

experience as a motorcycle driver and said he regularly maintained

his motorcycle.

¶9 The court found Heyboer’s accident reconstruction and vehicle

dynamics expert, David Bilek, reliable, and he opined that the

collision would not have occurred if the road surface had been

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 smooth, that the road’s condition interfered with the movement of

traffic, and that the road’s uneven surface interfered with Veres’

braking ability.

¶ 10 The court’s judgment extensively recited the testimony of

William Kennedy, the City’s Pavement Engineer. Kennedy admitted

that road surface condition was a factor in determining public

safety risk, that the intersection where the accident occurred was

well worn and in very poor condition, and that he was never fiscally

constrained in repairing potholes.

¶ 11 Kennedy described a Pavement Condition Index (PCI) the City

used to rate road conditions from excellent to very poor. Kennedy

used this index to prioritize his repair work and said the PCI of this

intersection was “very poor.” He clarified that the PCI was not a

measure of dangerousness, but he said that it provided an objective

and rational basis for determining maintenance and repair needs

and priorities. He admitted that this intersection was dangerous at

the time of the accident but opined that it was not dangerous

enough to fix. He said he had never found an intersection in

Denver to be dangerous.

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¶ 12 The court’s judgment recited testimony from the City’s two

witnesses. The officer who investigated the crash, Stephanie

Linkus, did not find that the road conditions played a role in this

accident. Similarly, the City’s accident reconstruction and

mechanical engineering expert, Guy Barbera, opined that the road’s

surface did not interfere with braking and that the collision would

still have occurred if the road conditions had been smooth. No

witness opined on whether the road condition posed an

“unreasonable risk.”

II. CGIA Jurisdiction

¶ 13 Governmental immunity is an issue of subject matter

jurisdiction. City of Colorado Springs v. Powell, 48 P.3d 561, 563

(Colo. 2002); Springer v. City & Cty. of Denver, 13 P.3d 794, 798

(Colo. 2000). The General Assembly enacted the CGIA in response

to three cases abrogating Colorado’s common law of governmental

immunity. Padilla in Interest of Padilla v. Sch. Dist. No. 1, 25 P.3d

1176, 1180 (Colo. 2001) (listing cases and statutory response);

§ 24-10-102, C.R.S 2016. The CGIA establishes governmental

immunity from suit in tort actions, but it waives immunity under

specific circumstances, including, as relevant here, when there

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 exists “[a] dangerous condition of a public highway, road, or street

which physically interferes with the movement of traffic.”

§ 24-10-106(1)(d)(I).

¶ 14 The CGIA’s purpose is twofold: (1) to protect the public from

unlimited liability and excessive fiscal burdens; and (2) to allow the

common law of negligence to operate against governmental entities,

subject to the exceptions barring specific suits. See State v.

Moldovan, 842 P.2d 220, 222 (Colo. 1992) (The purposes of CGIA

include “permit[ting] a person to seek redress for personal injuries

caused by a public entity.”). Because the CGIA derogates

Colorado’s common law, we strictly construe the statute’s immunity

provisions. Springer, 13 P.3d at 798. Conversely, we broadly

construe the CGIA’s waiver provisions in favor of victims injured by

the negligence of governmental agents. Id.; Walton v. State, 968

P.2d 636, 643 (Colo. 1998).

A. Standard of Review

¶ 15 If governmental immunity is raised before trial, “the issue is

properly addressed pursuant to a C.R.C.P. 12(b)(1) motion to

dismiss.” Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo. 2000).

Under C.R.C.P. 12(b)(1), the injured plaintiff bears the burden of

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 proving the court’s subject matter jurisdiction under the CGIA and

that immunity has been waived. Tidwell ex rel. Tidwell v. City &

Cty. of Denver, 83 P.3d 75, 85 (Colo. 2003); Powell, 48 P.3d at 563.

Any factual dispute upon which the existence of jurisdiction may

turn is for the district court to resolve after weighing the evidence,

finding facts, and entering conclusions of law. Swieckowski v. City

of Fort Collins, 934 P.2d 1380, 1384 (Colo. 1997); see also Walton,

968 P.2d at 641.

¶ 16 On review, we defer to the district court’s factual findings

unless they are clearly erroneous and unsupported by evidence in

the record. See Walton, 968 P.2d at 645. A finding is clearly

erroneous if there is no support for it in the record. See Cont’l W.

Ins. Co. v. Jim’s Hardwood Floor Co., 12 P.3d 824, 828 (Colo. App.

2000), as modified on denial of reh’g (May 18, 2000).

¶ 17 Once questions of historical fact are resolved, the question of

whether a governmental entity is entitled to immunity is one of law,

which we review de novo. Jordan v. Panorama Orthopedics & Spine

Ctr., PC, 2013 COA 87, ¶ 11, aff’d, 2015 CO 24; Douglas v. City &

Cty. of Denver, 203 P.3d 615, 618 (Colo. App. 2008).

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¶ 18 Similarly, the interpretation of statutory definitions is a

question of law that we review de novo. Douglas, 203 P.3d at 618.

Therefore, in reviewing a district court’s determination of whether a

dangerous condition exists under the CGIA, we review the court’s

findings of historical fact for clear error, deciding only whether there

is any evidence in the record to support those findings. Jordan, ¶

11. We review the court’s ultimate legal conclusion de novo,

applying principles of statutory interpretation. Id. at ¶ 13.

B. Burden of Proof in Establishing Immunity Waiver

¶ 19 Heyboer raises two issues on appeal. First, she contends the

court factually erred in finding there was no evidence in the record

of an “unreasonable risk” and that in doing so, it erred as a matter

of law in refusing to find a waiver of immunity. Second, she

contends that she satisfied her burden of proving an “unreasonable

risk to the health or safety of the public” under the standard set

forth in Tidwell. Because the parties dispute the appropriate

standard that applies to the plaintiff’s burden of proof in

establishing a waiver of immunity, we address this issue first and

then review the facts developed at the hearing and found by the

court under that standard.

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¶ 20 Relying on Tidwell, Heyboer contends that we should apply

C.R.C.P. 12(b)(5) and the summary judgment standard of

C.R.C.P. 56 because the court conducted a Trinity hearing and

considered evidence outside the pleadings. In contrast, the City

contends that Tidwell does not apply because it involved a different

section of the immunity statute (emergency vehicle exception) and

because the court “inappropriately intermixed a summary judgment

inquiry with the immunity inquiry.” Instead, the City asks us to

apply the preponderance of the evidence standard and argues that

Heyboer failed to prove, by a preponderance of the evidence, that

her injuries resulted from the dangerous road conditions, rather

than from the illegal actions of the car’s driver.

¶ 21 In Trinity, the supreme court held that the issue of state

immunity under the CGIA is a question of subject matter

jurisdiction that must be determined according to C.R.C.P. 12(b)(1)

and that the plaintiff bears the burden of proving jurisdiction.

Trinity Broad., 848 P.2d at 924-25. The court further held that

when jurisdictional facts are disputed, the district court should

allow the parties latitude in discovering or introducing evidence at a

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 hearing tending to prove or disprove jurisdiction. Id. at 924. It did

not, however, specify how a plaintiff could meet this burden.

¶ 22 The court in Tidwell addressed this unanswered question. It

reaffirmed Trinity’s holding that C.R.C.P. 12(b)(1) governs the issue

of immunity and that the plaintiff bears the burden of proof. It

further concluded that because statutes granting immunity must be

narrowly construed (and those waiving immunity must be broadly

construed), the plaintiff should be afforded the reasonable

inferences from his or her evidence. Tidwell, 83 P.3d at 85. It

described this burden as “a relatively lenient one.” Id. at 86.

¶ 23 Similar to this case, the facts related to jurisdiction in Tidwell

were intertwined with the merits of the case (causation element),

making the application of the standard more difficult for the district

court. Citing the requirement that waiver of immunity be construed

broadly, and applying inferences favorably to the plaintiff, the court

concluded that a plaintiff need only prove a “minimal causal

connection” between the injuries and the specified conduct to

satisfy his or her burden. Id. Implicit in this finding is that proof of

causation under the preponderance of the evidence standard is

reserved for the trial on the merits. Accordingly, we reject the City’s

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 argument that the preponderance standard applies in a Trinity

hearing.

¶ 24 Following Tidwell, the court, in Finnie v. Jefferson County

School District R-1, 79 P.3d 1253 (Colo. 2003), rejected the

argument Heyboer makes here that Rule 12(b)(5) applies and

requires a court to covert a motion to dismiss into a motion for

summary judgment. Id. at 1259. It ruled that the text of

§ 24-10-108, C.R.S. 2016, requires courts to resolve jurisdictional

issues before trial, and that “[b]ecause summary judgment

procedures sometimes fail to definitely resolve issues of fact before

trial, . . . summary judgment procedures pursuant to C.R.C.P.

12(b)(5) are inconsistent with the requirements” of the statute. Id.

at 1258-59. The court therefore, expanded the Trinity hearing

procedures under C.R.C.P. 12(b)(1) to include all issues of

immunity, including facts not directly disputed by the parties. Id.

at 1260; see also Martinez v. Estate of Bleck, 2016 CO 58, ¶ 27

(“trial courts must resolve all issues pertaining to sovereign

immunity prior to trial, including factual issues, regardless of

whether those issues pertain to jurisdiction”). It reaffirmed that

although the plaintiff must prove jurisdiction, this burden is

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 “relatively lenient,” and the plaintiff must be afforded the

reasonable inferences from his or her evidence. Finnie, 79 P.3d at

1261. Therefore, we reject Heyboer’s argument that the standards

of C.R.C.P. 12(b)(5) and C.R.C.P. 56 should be applied in Trinity

hearings.

¶ 25 In sum, we conclude that when a plaintiff sues a governmental

entity and that entity moves to dismiss for lack of jurisdiction, the

plaintiff has the burden of proving jurisdiction under

C.R.C.P. 12(b)(1). The court may conduct a Trinity hearing at which

the parties may present evidence related to all issues of immunity,

including facts not in dispute. Finnie, 79 P.3d at 1260. After the

hearing, the court must “weigh the evidence and decide the facts” to

satisfy itself of its power to hear the case. Trinity Broad., 848 P.2d

at 925 (quoting Boyle v. Governor’s Veterans Outreach & Assistance

Ctr., 925 F.2d 71, 74 (3d Cir. 1991)). In doing so, it must afford the

plaintiff the reasonable inferences from his or her evidence.

Tidwell, 83 P.3d at 86. This same lenient standard applies to facts

related to both the jurisdictional issue and the merits of the case.

Id.

¶ 26

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 C. Unreasonable Risk

¶ 27 Heyboer contends that the district court erred in finding that

she produced no evidence of an unreasonable risk and that the

record demonstrates the City failed to maintain the road in its

original condition, thereby creating an unreasonable risk to the

public. Alternatively, she asks this court to remand for further

factual development if necessary.

¶ 28 The City, relying on the absence of evidence of an

unreasonable risk or an opinion of unreasonableness, contends

that the court’s order is supported by the record and that no

evidence of an unreasonable risk exists. It further contends that

the accident resulted from the other car’s traffic violation rather

than the road’s surface condition, and asks us to affirm the court’s

dismissal. Thus, our resolution of the immunity question under

§ 24-10-106(1)(d)(I) requires us to interpret the meaning of

“unreasonable risk to the health or safety of the public” in

§ 24-10-103(1.3).

¶ 29 As noted above, a public entity is generally “immune from

liability in all claims for injury which lie in tort or could lie in tort.”

§ 24-10-106(1). As relevant here, governmental immunity is

14
 explicitly waived for “[a] dangerous condition of a public highway,

road, or street which physically interferes with the movement of

traffic.” § 24-10-106(1)(d)(I). The phrase “interferes with the

movement of traffic” modifies “[a] dangerous condition” in that

section. Thus, immunity is waived only when a dangerous

condition both exists and interferes with the movement of traffic.

See Bloomer v. Bd. of Cty. Comm’rs, 799 P.2d 942, 946 (Colo. 1990)

(holding that “of a public highway, road, or street which physically

interferes with the movement of traffic” “merely modifies”

“dangerous condition”), overruled on other grounds by Bertrand v.

Bd. of Cty. Comm’rs, 872 P.2d 223 (Colo. 1994)), superseded by

statute, Ch. 262, sec. 1, § 24-10-103(2.7), 2007 Colo. Sess. Laws

1025.

¶ 30 To establish that a dangerous condition exists under

§ 24-10-103(1.3), an injured party must show that an injury

resulted from (1) a physical condition of a public facility or the use

thereof; (2) which constituted an unreasonable risk to the health or

safety of the public; (3) which was known to exist or should have

been known to exist in the exercise of reasonable care; and (4)

which was proximately caused by the negligent act or omission of

15
 the public entity in constructing or maintaining such facility.

Medina v. State, 35 P.3d 443, 454 (Colo. 2001); Springer, 13 P.3d at

799; Walton, 968 P.2d at 644.

¶ 31 This, in turn, requires us to define the phrase “unreasonable

risk to the health or safety of the public,” which is not defined in

the CGIA. Accordingly, we apply the rules of statutory

interpretation to determine its meaning. We must give effect to the

General Assembly’s intent, recognizing that provisions that waive

immunity should be broadly construed. Tidwell, 83 P.3d at 81. We

look first to the plain language of the statute and give words and

phrases their ordinary meanings. Id. If the plain language of the

statute demonstrates a clear legislative intent, we look no further in

conducting our analysis. See Jones v. Cox, 828 P.2d 218, 221

(Colo. 1992); see also Springer, 13 P.3d at 799.

¶ 32 The term “unreasonable,” as it appears in the statute, is an

adjective that modifies “risk.” Unreasonable means “[n]ot guided by

reason; irrational or capricious.” Black’s Law Dictionary 1772 (10th

ed. 2014). In the context of tort law, reasonableness is defined as

acting in accordance with the duty of care owed to another.

Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412, 417 (Colo.

16
 App. 2011); see also CJI-Civ. 4th 9:8 (2016) (“Reasonable care is

that degree of care which a reasonably careful person would use

under the same or similar circumstances.”). Thus,

unreasonableness is the failure to act reasonably with regard to a

particular risk or duty of care.

¶ 33 To determine what constitutes an unreasonable risk, we must

identify what constitutes a risk. “Risk” is defined as “the existence

and extent of the possibility of harm” or “the chance of injury,

damage, or loss.” Black’s Law Dictionary 1524 (10th ed. 2014).

Section 24-10-103(1.3) narrows the class of applicable risks to

those “known to exist” and those caused by the failure to

“construct[] or maintain[] [a] facility.” A risk that exists only

because “the design of any facility is inadequate” is explicitly

excluded. Id.

¶ 34 The statute defines “maintenance” as “the act or omission of a

public entity . . . 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.” § 24-10-103(2.5). Thus, “maintain” means

a duty to restore a facility to the “same general state of being,

repair, or efficiency as initially constructed.” Swieckowski, 934

17
 P.2d at 1385; see Martinez v. Weld Cty. Sch. Dist. RE-1, 60 P.3d

736, 739 (Colo. App. 2002) (school liable for failure to maintain

sidewalks free from ice and snow); see also Moldovan, 842 P.2d at

224-25 (government liable for failure to repair damaged fence that

allowed cow to enter roadway); Wheeler in Interest of Wheeler v. Cty.

of Eagle, 666 P.2d 559, 561 (Colo. 1983) (government liable for

failure to clear trees and bushes that had obstructed road); Stephen

v. City & Cty. of Denver, 659 P.2d 666, 668 (Colo. 1983)

(government liable for failure to repair stop sign that had been

turned to face wrong direction); Hallam v. City of Colorado Springs,

914 P.2d 479, 482-83 (Colo. App. 1995) (government liable for

failure to replace barriers that someone had removed); Schlitters v.

State, 787 P.2d 656, 657-58 (Colo. App. 1989) (government liable

for failure to secure loose boulders above road).

¶ 35 The duty to maintain, however, “does not include any duty to

upgrade, modernize, modify, or improve the design or construction

of a facility.” § 24-10-103(2.5); Walton, 968 P.2d at 645; see also

Estate of Grant v. State, 181 P.3d 1202, 1206-07 (Colo. App. 2008)

(government not liable for failure of design on temporary road to

provide for median barrier); Lyons v. City of Aurora, 987 P.2d 900,

18
 903 (Colo. App. 1999) (government not liable for failure of traffic

signal design to provide sufficient time for pedestrians to cross

intersection); Karr v. City & Cty. of Denver, 677 P.2d 1384,1385

(Colo. App. 1984) (holding that an increase in vehicle-pedestrian

accidents, after an increase in pedestrian traffic where the City had

not installed a stoplight at an intersection, was not a dangerous

condition because the public entity was not required to improve the

intersection based upon its changed use).

¶ 36 The failure to keep a road in the same general state of repair

or efficiency as it was initially constructed, therefore, constitutes an

unreasonable risk because it could “increase the risk of injury

above that deemed to be acceptable during the design stage.”

Medina, 35 P.3d at 448-49, 457. As our supreme court has

explained, the reasoning behind a waiver of immunity in this

context is “not because [the City] necessarily causes a dangerous

condition, but because it is in a position to discover and correct the

condition.” Springer, 13 P.3d at 801. Accordingly, reading the plain

language of the immunity statute and interpreting it broadly as we

must, we conclude that a plaintiff satisfies his or her burden of

proving an “unreasonable risk to the health or safety of the public”

19
 under § 24-10-103(1.3) when he or she shows that a governmental

entity failed to restore a damaged road to its “same state of

efficiency or repair as initially constructed.” This showing alone,

however, is insufficient to establish jurisdiction. A plaintiff must

still prove that the governmental entity knew of the condition, that

the road is a public facility, and that the road’s condition interfered

with the movement of traffic. Springer, 13 P.3d at 799; see also

§ 24-10-106(1)(d)(I).

D. Application

¶ 37 We reject the City’s argument and the district court’s

conclusion that Heyboer presented no evidence of an unreasonable

risk. The City conceded that the road’s surface condition was a

factor in determining the safety risk to the public, that the road was

in poor condition, and that it knew of the road’s deteriorated

condition. Moreover, the City failed to produce any evidence of

repairs (beyond pothole repairs not at issue here) that it had

conducted to restore the road’s uneven surface to “its same general

state of repair or efficiency as initially constructed” and instead

admitted, through its City Engineer, that the road was dangerous,

but not dangerous enough to fix. Indeed, photographs taken after

20
 the accident and relied on by the expert witnesses show the

deteriorated state of the road and its uneven surface.

¶ 38 Additionally, though not recited in the court’s judgment, the

hearing evidence included:

 Veres’ testimony that numerous ruts and cracks caused

his motorcycle to “skip” and lose contact with the

ground;

 Bilek’s statement that the non-uniformity of the tire

marks led him to conclude that the motorcycle’s tires

were not in full contact with the pavement when Veres

applied the brakes, thereby impacting Veres’ ability to

decelerate and handle the motorcycle;

 Kennedy’s description of numerous 3113 calls concerning

the condition of this intersection in the months before the

accident and citizens’ reports that the road was cracked,

worn, rutted, and potholed; and

 Barbera’s opinion that the last eleven feet of the road

before the motorcycle struck the car created “some

3 311 is a citizen hotline used to report road conditions to the City.

21
 influence” in the accident, and that for at least fifty

percent of this distance, the motorcycle’s rear tire was

not in contact with the road.

¶ 39 Accordingly, we conclude that Heyboer presented competent

evidence of the City’s failure to maintain the road in the same state

of repair or efficiency as initially constructed under

§ 24-10-103(2.5) and that this failure established an unreasonable

risk to the health or safety of the public under § 24-10-103(1.3).

Thus, we conclude that Heyboer established the existence of a

“dangerous condition.”

¶ 40 Because the court’s factual findings demonstrate that the road

conditions physically interfered with the movement of traffic on a

road designed for public travel, and because that finding is not

contested on appeal, we further conclude that Heyboer established

that the road constituted a “dangerous condition” for purposes of

waiving the City’s immunity under §24-10-106(1)(d)(I) of the CGIA.

Thus, the court erred as a matter of law in finding no waiver of

immunity. Whether the road’s conditions, the car’s traffic

violations, or a combination of these factors caused the accident are

questions to be determined on remand. Accordingly, we reverse the

22
 court’s order granting the City’s motion to dismiss and conclude

that Heyboer established a waiver of immunity under the CGIA.

III. III. Conclusion

¶ 41 We reverse the district court’s judgment granting the City’s

motion to dismiss and remand the case for reinstatement of

Heyboer’s complaint.

JUDGE TAUBMAN and JUDGE PLANK concur.

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