Colorado Supreme Court Determines that a Piece of Playground Equipment on School Property Is Not Protected by the Colorado Governmental Immunity Act

Jul 21, 2017

By Jim Moss, Esq.
In St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33; 325 P.3d 1014; 2014 Colo. LEXIS 362, the plaintiff was playing on a piece of school equipment called a zip line when she fell and fractured her wrist. The court described the playground equipment as an apparatus. The defendants, who included the principal of the school where the playground was located, filed a motion to dismiss based on C.R.C.P. 12(b)(1) stating the court lacked jurisdiction based on the Colorado Governmental Immunities Act, (CGIA).
The zip line was a horizontal pipe with a pole that hung down. The rider stepped up off the ground, grasped the handle on the pole and rode along the ground. The zip line looked more like any other piece of playground equipment rather than riding a cable between towers or across a valley you may recognize as recent thrill rides. Before reaching the end of the ride the plaintiff fell off.
The plaintiff argued the defendant waived jurisdiction based on the recreation area waiver in the CGIA § 24-10-106(1)(e). The CGIA did not give any court jurisdiction to review cases against entities in the state of Colorado, unless there was an exception to the CGIA for the suit.
24-10-106. Immunity and partial waiver
(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:
(e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility. Nothing in this paragraph (e) or in paragraph (d) of this subsection (1) shall be construed to prevent a public entity from asserting sovereign 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.
The plaintiff argued the zip line qualified as both a dangerous condition and a public facility. As such, the recreation area waiver highlighted above should apply- allowing the claim to proceed.
The trial court granted the defendant’s motion to dismiss finding the recreation area waiver did not apply in this case, and the CGIA prevented the lawsuit. The plaintiff appealed and the Colorado Court of Appeals reversed the trial court’s ruling.
The appellate court found that public facility was an ambiguous term that could be defined by two reasonable but contradictory interpretations. Looking at legislative history, the appellate court found the legislature intended playground equipment to qualify as a public facility. Finding the playground equipment met the requirements of public facility and recreation area, the requirements of the recreation area waiver were met, and the plaintiff could continue her suit.
The Colorado Supreme Court granted certiorari and determined it needed to conduct a review of the recreation area waiver because the issue had not been examined before, and the terms were ambiguous.
The court first found public facility to be an ambiguous term with two different meanings. It could be construed as either a single piece of playground equipment or not. The court first held that the zip line apparatus at issue did not qualify as a public facility on its own. However, the entire playground, including the zip line apparatus did qualify as a public facility. (At issue would be an identified playground attached to a school with only one piece of equipment.)
The playground promotes the common purpose of play and recreation for school children and the public thus giving the entire grouping of apparatus the status to qualify as a facility. The legislative intent as defined in the waiver was intended for large and permanent structures, which serve a broad purpose. However, the court then concluded that the definition included a collection of affixed man-made items that promote the broader purpose, such as the playground. The term facility can be interpreted to include the collection of items that promote the greater purpose of the structure or building it is attached to.
The Supreme Court found the Appellate Court erred when it determined the individual zip line apparatus was a facility when the entire playground, which included the zip line apparatus was a facility.
The next question was whether the facility, the playground, was public. Again, the court found the term public both modified and constricted the term facility. Here the court found the playground, although attached to a school, was public because the general public was not prevented from accessing the playground during non-school hours. Public was then defined to mean accessible to the public and maintained by a public entity to serve a beneficial public purpose. Thus the playground was a public facility as identified in the recreation area waiver of the CGIA.
The next analysis focused on whether the playground was a recreation area. This required a three-step analysis developed in another CGIA decision, Daniel v. City of Colorado Springs, 2014 CO 34, 327 P.3d 891.
First, we determine what property is relevant to our analysis by determining the boundaries of the “putative recreation area.” Id. We do so by including any contiguous areas of public property that plausibly promote recreation and excluding any pieces of property that clearly do not promote recreation. Id. Second, we determine if the public entity’s “primary purpose” in constructing or maintaining the recreation area is recreational. Id. Third, assuming the primary purpose is recreational, we determine whether the public facility at issue was located in the boundaries of this recreation area.
Applying this test the court found the playground containing the zip line apparatus was located in a recreation area. The physical requirement was met by the land underlying the playground equipment. The land under the school was excluded by the court because its purpose was educational, not recreational. Impromptu recreation in the school did not change its purpose from educational to recreational. The primary purpose of the activities occurring on the land was recreational and the zip line apparatus was located in that recreation area.
The definition required to meet the recreation waiver area exception of the CGIA was met in this case.
We hold that a collection of playground equipment at a public school qualifies as a “public facility” under the recreation area waiver because it is (1) relatively permanent or otherwise affixed to the land, (2) a man-made structure, (3) accessible to the public, and (4) maintained by a public entity to serve a beneficial, common public purpose.
Additionally, pursuant to the three-step analysis employed in Daniel, ¶ 23, we determine that the land underlying the playground equipment was the relevant “putative recreation area,” that the “primary purpose” of that area was recreation, and that the playground where A.R.L. was injured was “located in” that area. Therefore, we hold that the public facility here, i.e., the collection of playground equipment, was “located in” the “recreation area” that was the school playground.
Thus the recreation area waiver contained in the CGIA was met and allowed the plaintiff to continue her lawsuit (The appellate court ruling was affirmed). The piece of playground equipment the plaintiff was injured on, was not protected by the CGIA because it was part of a larger facility and recreation area. It was a public facility located in a recreation area and as such not afforded the protection of the CGIA.
Take Away: Recreational user statutes need to be carefully reviewed to determine what is actually covered and protected. Is a ballfield or gym a facility? Would these same facilities be considered a recreational area? If they are attached to an educational institution should they be treated differently than if they were stand alone or part of a park? Can adding/removing one or more elements change the designation and coverage? There can be similar concerns with non-profit immunity protection in states that offer such protection. The fact that a non-profit generates revenue from some fundraising activities can possibly remove some activities from non-profit activities and thus expose an otherwise protected entity to possible liability. The best defense is to ask the facility’s counsel to review all public and non-profit facilities to determine whether immunity provisions might have changed or are applied differently than in the past.


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