COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue

Denver, Colorado 80203





















COURT USE ONLY
________________________

Case Number: 13CA1561




District Court, J efferson County
The Honorable Christopher C. Zenisek
Civil Action No. 12-CV-3705


Plaintiffs-Appellees:
J ENNIFER ACKERMAN,
DAVID SCHEUERMANN,
FORREST HUDSPETH, AND
ADAM KINNARD,

v.

Defendant-Appellant:
CITY AND COUNTY OF DENVER.

Barry A. Schwartz, #17981
Assistant City Attorney
Denver City Attorneys Office
Litigation Section
201 West Colfax Ave., Dept. No. 1108
Denver, CO 80202-5332
Telephone: (720) 913-3100
Facsimile: (720) 913-3182
Barry.Schwartz@denvergov.org
Attorney for the Defendant-Appellant

CORRECTED OPENING BRIEF

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in those rules.
Specifically, I certify that this brief complies with C.A.R. 28(g) because it contains
no more than 9,500 words. It complies with C.A.R. 28(k) because it contains
under a separate heading: (1) a concise statement of the applicable standard of
appellate review with citation to authority; and (2) a citation to the precise location
in the record, not to an entire document, where the issue was raised and ruled on.
1


s/ Barry A. Schwartz
Barry A. Schwartz
Counsel of record for Defendant-Appellant,
City and County of Denver

1
C.A.R. 28(e) directs that [r]eferences to the electronic record shall be by ID
number and appropriate page and line number. This Courts April 4, 2014 Policy
on Citation to the Record provides conventions for citing to electronic records.
Here, the record on appeal contains three portions court file, transcripts, and
minute orders. The court file, which consists of pleadings, motions and orders,
contains no ID numbers, per se, but the individual pages in the record are
sequentially numbered on the bottom right as COA 000XXX. References to it
will simply be to those page numbers. References to transcripts will follow the
convention set forth in the Policy on Citation to the Record.
i


TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE ......................................................................... I

TABLE OF AUTHORITIES .................................................................................. IV

STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1

STATEMENT OF THE CASE .................................................................................. 2

A. Nature of the Case, Course of Proceedings, and Disposition Below .............. 2

B. Statement of the Facts .................................................................................... 10

SUMMARY OF THE ARGUMENT ...................................................................... 20

ARGUMENT ........................................................................................................... 22

A. The district court erred in determining that Creation Rock is a
component of a public facility and that immunity under the CGIA
is therefore waived ......................................................................................... 22

1. Standard of Review ............................................................................. 22

2. The facts do not establish that Creation Rock was incorporated into
the Amphitheatre such that it became an integral part of, and was
essential for the intended use of, the Amphitheatre. ........................... 23

B. The evidence presented at the Trinity hearing does not support the
conclusion that Plaintiffs injuries were caused by a dangerous
condition as that phrase is defined by the CGIA. ........................................ 26

1. Standard of Review ............................................................................. 26

2. Rocks falling from Creation Rock do not meet the definition of
dangerous condition under the CGIA ............................................... 26

ii

C. The evidence does not support a finding that Denver had actual or
constructive knowledge of a dangerous condition ...................................... 27

1. There is no evidence of actual notice .................................................. 27

2. Nor was there any evidence of constructive notice. ............................ 29

D. The district court erred in finding that Denvers negligent construction
or maintenance of the Amphitheatre proximately caused a dangerous
condition ....................................................................................................... 31

E. The natural condition exception to the waiver of immunity for dangerous
conditions applies to Creation Rock because it is a natural condition of an
unimproved property .................................................................................... 35

1. Standard of Review ............................................................................. 35

2. Immunity is not waived because Creation Rock is the natural
condition of unimproved property ..................................................... 36

3. The installation of minimal safety features did not alter the natural
condition of Creation Rock ................................................................. 36

F. Even assuming that Creation Rock could be considered an integral
component of the Amphitheatre, immunity is not waived under the
natural conditions exception ....................................................................... 40

CONCLUSION ........................................................................................................ 43

REQUEST FOR ATTORNEY FEES ...................................................................... 43




iii

TABLE OF AUTHORITIES

Cases

Broderick v. City and County of Denver,
727 P.2d 881 (Colo. App. 1986) ........................................................................... 28

Burnett v. Dept of Natural Resources,
No. 11CA2141, 2013 WL 1245366 (Colo. App. March 28, 2013),
cert. granted (Nov. 12, 2013) .................................................................... 23, 24, 40

City and County of Denver v. Crandall,
161 P.3d 627 (Colo. 2007) .................................................................................... 22

City of Colorado Springs v. Powell,
48 P.3d 561 (Colo. 2002) ...................................................................................... 41
Curtis v. Hyland Hills Park & Recr. Dist.,
179 P.3d 81 (Colo. App. 2007) ............................................................................. 31

Daniel v. City of Colorado Springs,
No. 12SC908, 2014 WL 2030375 (Colo. May 19, 2014) ..................................... 23

Geffen v. City of Los Angeles,
197 Cal.App.3d 188, 242 Cal. Rptr. 492 (1987) ................................................... 37

Grant v. People,
48 P.3d 543 (Colo. 2002) ...................................................................................... 41

Harjes v. State,
71 A.D.3d 1278, 896 N.Y.S.2d 248 (3d Dept 2010) ........................................... 28

Kowalsky v. Long Beach Township,
72 F.3d 385 (3d Cir. 1995) .............................................................................. 28, 37

Loveland v. St. Vrain Valley School Dist. RE-1J,
No. 11CA1019, 2012 WL 2581034 (Colo. App. J uly 5, 2014) ...................... 25, 41

iv

McIntire v. Trammell Crow, Inc.,
172 P.3d 977 (Colo. App. 2007) ........................................................................... 28

Medina v. State,
35 P.3d 443 (Colo. 2001) .......................................................................... 31, 32, 33

Mercer v. State,
197 Cal.App.3d 158, 242 Cal. Rptr. 701 (Cal. App. 2d Dist. 1987) ..................... 38

Padilla v. School Dist. No. 1,
25 P.3d 1176 (Colo. 2001) .................................................................. 26, 27, 31, 35

Rombalski v. City of Laguna Beach,
213 Cal.App.3d 842, 261 Cal.Rptr. 820 (1989) .................................................... 39

Rosales v. City and County of Denver,
89 P.3d 507 (Colo. App. 2004) ....................................................... 7, 20, 23, 24, 25

Schubert v. People,
698 P.2d 788 (Colo. 1985) .................................................................................... 41

Smith v. Town of Snowmass Village,
919 P.2d 868 (Colo. App. 1996) ............................................................... 28, 30, 43

Springer v. City & County of Denver,
13 P.3d 794 (Colo. 2000) ..................................................................................... 22

St. Vrain Valley School Dist. RE-1J v. A.R.L.,
No. 12SC631, 2014 WL 2042468 (Colo. May 19, 2014) ..................................... 41

State v. Moldovan,
842 P.2d 220 (Colo. 1992) .................................................................................... 24

State v. Nieto,
993 P.2d 493 (Colo. 2000) .................................................................................... 41

Swiekowski v. Ft. Collins,
934 P.2d 1380 (Colo. 1997) ............................................................................ 26, 33
v

Trinity Broadcasting of Denver, Inc. v. City of Westminster,
848 P.2d 916 (Colo. 1993) .......................................................................... 6, 13, 26

Troth v. State,
117 N.J . 258, 566 A.2d 515 (1989) ................................................................. 37, 38

Walton v. State,
968 P.2d 636 (Colo. 1998) .................................................................................... 35

Wark v. Bd. of County Commrs,
47 P.3d 711 (Colo. App. 2002) ............................................................................. 43

Willer v. City of Thornton,
817 P.2d 514 (Colo. 1991) .............................................................................. 31, 32

Statutes
C.R.S. 13-17-201 ................................................................................................... 43
C.R.S. 24-10-103(1.3) ................................................................4, 20, 29, 31, 32, 35
C.R.S. 24-10-103(2.5) ...................................................................................... 33, 34
C.R.S. 24-10-106(1)(d) .......................................................................................... 33
C.R.S. 24-10-106(1)(e) ...................................................................................passim
C.R.S. 24-10-106.5(1) ............................................................................................ 39
C.R.S. 24-10-108 ..................................................................................................... 3



vi

Rules
C.R.C.P. 12(b)(1) ............................................................................................. 3, 6, 43
C.A.R. 28..................................................................................................................... i
C.A.R. 28(e) ................................................................................................................ i
C.A.R. 28(g) ................................................................................................................ i
C.A.R. 28(k) ................................................................................................................ i
C.A.R. 32..................................................................................................................... i
Treatises
18 McQuillin Mun. Corp. 53:31 (3d ed. J uly 2013) ............................................. 37
vii

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Did the district court err in determining that Creation Rock a
massive, naturally-occurring rock formation that abuts the Amphitheatre in
Denvers Red Rocks Park and is neither public nor a facility became part of
a public facility for purposes of the Colorado Governmental Immunity Acts
(CGIA) immunity waiver provisions simply because Creation Rock is integral
to and an essential part of the Amphitheatre, which is a public facility?
2. Did the district court err in determining that the failure to inspect
Creation Rock annually created an unreasonable risk to public health and safety?
3. Did the district court err in finding that the presence of a rock inside
the Amphitheatre in 1999, a rockfall incident caused by construction near Creation
Rock in 2007, and Denvers general knowledge that rocks can fall from Creation
Rock and its concomitant decision to retain a rockfall mitigation consultant
provided actual and constructive knowledge of the dangerous condition of
Creation Rock sufficient to waive immunity under C.R.S. 24-10-106(1)(e)?
4. Did the district court err in concluding that Denvers failure to inspect
Creation Rock was the proximate cause of the dangerous condition of Creation
Rock?
1

5. Did the district court err in concluding that Denvers conduct in
creating a dangerous condition by failing to inspect Creation Rock more often
implicate a maintenance function rather than a design function for purposes of the
CGIA?
6. Did the district court err in concluding that Plaintiffs injuries were
not caused by the natural condition of unimproved property for purposes of
24-10-106(1)(e)?
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition Below.
Red Rocks Amphitheatre (the Amphitheatre) is a historic open-air concert
venue that is situated in Denvers Red Rocks Park (the Park). While attending a
concert in the Amphitheatre on September 10-11, 2011, Plaintiffs were struck by
rocks that originated from Creation Rock, a massive rock formation that abuts the
Amphitheatre.
On September 28, 2012, Plaintiffs J ennifer Ackerman and David
Scheuermann sued Denver, concert promoter Live Nation Worldwide, Inc., and
2

security services provider Argus Event Staffing, LLC. CF, pp.4-9.
2
The thrust of
their claims against Denver was that Denver negligently allowed trespassers to
cause the rockfall; that it negligently maintained the Amphitheatre by allowing
trespassers to kick [rocks] loose or otherwise cause them to fall into the
Amphitheatre from Creation Rock; and that it knew or should have known of the
risk of such rockfall. CF, pp.6-7.
On November 13, 2012, Denver moved to dismiss Plaintiffs claims under
C.R.C.P. 12(b)(1), arguing that C.R.S. 24-10-106(1)(e) of the CGIA immunizes it
from liability. As relevant here, 24-10-106(1)(e) provides as follows:
(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 facility located in any park
maintained by a public entity. Nothing in this paragraph (e) 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


2
This is an interlocutory appeal under C.R.S. 24-10-108. Plaintiffs
negligence claims against Live Nation and Argus remain in the District Court and
are stayed pending the resolution of this appeal.
3


As relevant here, C.R.S. 24-10-103(1.3) defines dangerous condition as
follows:
Dangerous condition means either a physical condition of a facility or the
use thereof that constitutes an unreasonable risk to the health or 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 act or omission of the public entity or public employee in
constructing or maintaining such facility. For the purposes of this
subsection (1.3), a dangerous condition should have been known to exist if it
is established that the condition had existed for such a period and was of
such a nature that, in the exercise of reasonable care, such condition and its
dangerous character should have been discovered. A dangerous condition
shall not exist solely because the design of any facility is inadequate.

Maintenance, for purposes of 24-10-103(1.3) means the act or omission
of a public entity or public employee 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. Maintenance does not include any duty to upgrade, modernize,
modify, or improve the design or construction of a facility.
Creation Rock, Denver argued in its Motion to Dismiss, is unimproved
property whose natural condition caused Plaintiffs injuries. It is therefore not a
public facility for purposes of 24-10-106(1)(e). Denver further argued that
Plaintiffs injuries did not result from a dangerous condition. Ackerman and
Scheuermann responded to Denvers Motion to Dismiss on J anuary 4, 2013. CF,
pp.69-74. They argued that immunity is waived with respect to their claims
4

because the Amphitheatre is a public facility for purposes of 24-10-106(1)(e)
(id. at pp. 70-71); their injuries were caused by improper maintenance of the
Amphitheatre (id. at pp. 71-72); and Denvers decision to construct the
Amphitheatre abutting Creation Rock constituted a physical or structural defect
for which Denver is not immune (id.). Denver filed its Reply Brief on J anuary 11,
2013. CF pp.75-78.
On J anuary 19, 2013, Plaintiffs Adam Kinnard and Forrest Hudspeth, who
were also struck by rocks that night, sued Denver and Argus. CF, pp. 89-100
(Hudspeth); CF, pp.101-111 (Kinnard). Like Ackerman and Scheuermann, they
alleged that Denver negligently failed to prevent trespassers from kicking [rocks]
loose.
On February 12, 2013, Denver moved to dismiss the Kinnard and Hudspeth
cases on the same grounds it advanced against Ackerman and Scheuermann.
3

Finding that each of the cases presented common issues of law and fact, the
District Court consolidated them on March 4, 2013. CF, p.149.
3
Because Denvers grounds for seeking dismissal were virtually identical as
to each of Plaintiffs, Denver will refer to those dismissal motions collectively as
the Motion to Dismiss.
5


On March 8, 2013, Hudspeth and Kinnard filed a joint response to Denvers
Motion to Dismiss. CF, pp.155-59. Four days later, Denver filed its Reply to
Kinnard and Hudspeths Response.
On J uly 5, 2013, Denver filed supplemental authority a 1968 report the
Colorado Legislative Counsel submitted to the General Assembly regarding the
1968 amendments to the CGIA. CF, p.674-677. That report distinguished
between injuries caused by artificial, man-made, objects (swing sets, buildings,
etc.), and injuries caused by the natural condition of a park (the Flat Irons in
Boulder or the Red Rocks west of Denver). CF, pp.674-677. It thus expressed
the Legislative Counsels clear and unequivocal intent that the CGIA be read to
immunize Denver for rockfall injuries occurring at Red Rocks.
An evidentiary hearing on Denvers Motion to Dismiss a so-called Trinity
hearing
4
commenced on J une 28, 2013.
After the Trinity hearing, Denver submitted extensive proposed findings of
Fact and Conclusions of Law. CF, 742-771.
4
See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916 (Colo. 1993). A Trinity hearing is an evidentiary hearing on the question of
whether a claim or claims must be dismissed for lack of subject matter jurisdiction
under C.R.C.P. 12(b)(1). See id. at 924-25.

6


The district court issued its order on Denvers Motion to Dismiss on August
23, 2013. CF, pp.777-787. With respect to the question whether Plaintiffs
injuries resulted from the dangerous condition of a public facility, the district
court concluded that the Amphitheatre is a public facility for purposes of 24-10-
106(1)(e). Id. at 782. Although Creation Rock is not a public facility, the court
further concluded, it was an integral and essential part of the Amphitheatre for
purposes of the rule announced by this court in Rosales, 89 P.3d at 510. Id. at 783.
Thus, Creation Rock is a component of that public facility such that a
dangerous condition of Creation Rock constitutes a dangerous condition of the
Amphitheatre, which waives Denvers immunity under 24-10-106(1)(e). Id.
The court next found that rock falls are inevitable without continuing
maintenance. Id. Knowing of that inevitability, the court found, Denver hired
Yenter to perform mitigation work, and Yenter submitted reports suggesting that
Creation Rock be inspected, at a minimum, on a yearly basis. Id. Those reports,
according to the court, expressly show dangerous conditions present on Creation
Rock, which conditions Denver did not remediate. Id. at 783-784. Despite
Yenters recommendations, the court found, Denver did not address these
conditions between the reports issuance and the incident in this case. Id. at 784.
7

For those reasons, the court concluded that Plaintiffs established that the physical
condition of the Amphitheatre including Creation Rock created an
unreasonable risk to the health or safety of the public. Id.
The court next found that Denver had actual and constructive knowledge of
the dangerous condition of Creation Rock by virtue of two prior events the
discovery of a rock on the steps beneath Creation Rock in 1999, and the 2007
incident involving the construction crew. Id. The court further found that
Denvers knowledge of the dangerous condition of Creation Rock was also
evidenced by the facts that it had retained Yenter to monitor the formations in the
Park and that Yenter generated reports, advising Denver to inspect those
formations annually. Id. Further, the court found that Denver undertook
mitigations efforts on Stage Rock (which rests above where the artists perform)
that surpassed those performed on Creation Rock. Id.
The court next found that Denvers fail[ure] to inspect for rockfall
created a dangerous condition of rocks that could land on concert attendees. Id. at
785. That failure, it concluded, was a maintenance matter[]. Id. Given Shines
testimony that, had Denver assigned Yenter to conduct yearly inspections, more
likely than not this would have prevented the rockfall that occurred in September
8

2011, the court concluded that Denvers failure to perform inspections as often as
Yenter recommended was the proximate cause of the dangerous condition. Id.
5

The court further found that rain, snow, wind, and weather contributed to
the rockfall, and that the cracks and erosion in the Amphitheatres rock
formations have increased since the Amphitheatres original design and
construction. Id. at 786. That fact rendered Denvers failure to conduct more
frequent inspections a maintenance issue rather than a design issue. Id.
Finally, the district court found that Creation Rock had been improved by
removing rocks, bolting rocks, chaining rocks, and other improvements. Id. For
those reasons, and because it found that Creation Rock was an integral and
essential component for the amphitheatre to exist as a public facility, it concluded
that Creation Rock is improved property that is not subject to the natural
condition of any unimproved property provision of 24-10-106(1)(e). Id.
Further, it concluded, the integration of Creation Rock into the Amphitheatre
prevents Creation Rock from being immunized as a natural condition of
unimproved property. Id.
5
Although the district court found that Denvers failure to inspect was the
proximate cause of the dangerous condition (i.e., the presence of rocks on
Creation rock that could land on concertgoers), it made no finding or conclusion as
to the proximate cause of Plaintiffs injuries.
9


For each of those reasons, the court concluded that immunity is waived
under 24-10-106(1)(e). It therefore denied Denvers Motion to Dismiss.
B. Statement of the Facts.
1. The Amphitheatre is a concert venue owned by Denver and located in
Golden, J efferson County, Colorado. It is located within and surrounded by Red
Rocks Park (the Park), which is a natural area owned by Denver. CF, p.496.
2. The Amphitheatre is a public facility for purposes of the CGIA. Id.
3. The Amphitheatre, which opened to the public in 1941, was originally
designed to be situated in between two large natural rock monoliths known as Ship
Rock (running the length of the seating area on the south side of the Amphitheatre)
and Creation Rock (running the length of the seating area on the north side of the
Amphitheatre). It was designed to be situated in a scenic, natural area that is also a
geological hazard zone.
4. Denvers Arts and Venues Department is responsible for the operation
and maintenance of the Amphitheatre, including all concerts and other events held
there. Denvers Parks and Recreation Department is responsible for the operation
and maintenance of the Park. The Plaintiffs in this case attended a concert at the
Amphitheatre on the night of September 10-11, 2011.
10

5. In the early morning hours of September 11, 2011, while still inside
the Amphitheatre, each of them was struck and injured by a rock that originated on
Creation Rock.
6. Plaintiff Ackerman sat at approximately Row 20. She was struck as
she returned to her seat from the north side of the Amphitheatre.
7. Plaintiff Scheuermann sat in Row 5 or 6, toward the middle of the
stage. As he walked up the stairs on the north side of the Amphitheatre somewhere
around Row 40 or 45, he, too, was struck by a rock.
8. Plaintiff Hudspeth was seated in Row 10 on the north side of the
Amphitheatre when he was struck.
9. Plaintiff Kinnard was between the Amphitheatres north inside
staircase and Creation Rock near Row 5 or 6 when he, too, was struck.
10. Denver implemented an extensive rockfall inspection and mitigation
program over the years, id. at 152:10-22; 167:10-21; 169:1-23; 170:20-171;
179:20-180:10. As part of that program, Yenter performed rock assessments in
2005, 2007, 2010, and 2011(after the rockfall incident at issue). Id. at 55:6-16
(2005); 173:17-174:3, 184:24-185:5 (2007); 173:17-174:3 (2010); 157:24-158:4
(2011). In addition to reported inspections, Yenter COO William Roberts testified
that Yenter went out to Red Rocks on emergency calls on numerous occasions. Id.
11

at 174:4-175:12. According to Roberts, Denver typically called Yenter whenever a
Denver employee had a concern, and someone from Yenter was sent to address the
concern; these events were often informal, undocumented, and unbilled. Id. at
176:12-177:20.
11. Dan Koehmstedt is a former project manager with Yenter. Id. at
195:23-196:5. While at Yenter, he inspected the Red Rocks formations by
vertically scaling their face from top to bottom, taking pictures, and measuring
anything thought to be a potential hazard. Id. at 197:7-14, 198:22-199. Loose or
dangerous rock materials that could be safely brought down by hand were brought
down during these inspections. Id. at 199. Mr. Robertss pictures and observations
were then compiled and studied, providing the basis for a report. Id. at 200:16-22;
201:21-202:2. Additionally, Yenter provided a quality control check of all
previously installed safety devices. Id. at 201:4-12, 202:8-203:10.
12. In his 2010 inspection of Red Rocks, Koehmstedt checked all of the
areas on the rock formations that were recommended to be checked in Yenters
2007 inspection report. Id. at 203:11-23. Mr. Koehmstedt did not identify Row 40
the origin point for the September 2011 rockfall, according to Shine as a
problem in the 2010 Yenter Report (R. Ex. K) because he did not notice a problem
there during his 2010 inspection. Id. at 222:19-223:14.
12

13. According to Denvers rockfall assessment and mitigation expert,
Richard Andrew, the Amphitheatre was specifically designed to be situated
between two massive rock formations.
6
Potential rockfall is inherent in the
Amphitheatres design because it was designed to be constructed, and was indeed
constructed, in a geological hazard zone. Id. at 18:12-22.
14. Although there is no generally accepted standard of practice
concerning the frequency of inspections that should occur to assess natural rockfall
hazards, id. at 28:17-29:3, Andrew testified that annual inspections are way more
than what would typically be done. Id. at 44-45. According to Andrew, there is
no tool that can predict when and where a rockfall will occur; although an expert
might be able to tell a general area where a rockfall is likely to occur, it would be
difficult to predict when and where. Id. at 24:13-25.
15. Andrew disagreed with the location posited by Plaintiffs expert,
Brendon Shine the area above Row 40 of the Amphitheatre. That location,
according to Andrew, is particularly unlikely because a rockfall originating there
6
Andrew is the president of Yeh and Associates, a geotechnical and
geological engineering firm. R. Tr. (8/7/13) p.6:1-4. At the Trinity hearing, the
court accepted him as an expert in rockfall assessment, mitigation, and engineering
geology because of his extensive experience, including 29 years working in
geotechnical engineering, engineering geology, and geomorphology, and 25 years
of experience in rockfall assessment and mitigation. Id. at 6:23-8:18; 11:24-12.
13


would not send rock pieces to Row 45 (a location above the alleged origin point),
where Scheuermann was struck. Id. at 29:17-30:11, 31:14-32:18.
16. Asked whether the September 2011 rockfall would have been
prevented by a rockfall assessment in spring 2011, Andrew opined that monitoring
and inspection alone cannot prevent rockfall, and it is unlikely that they would
have made any difference, especially if the rockfall was human-induced. Id. at
43:7-24. And if the rockfall was naturally-occurring, there is no way to know
whether an inspection would have prevented it. Id.
17. Benjamin Arndt is a geotechnical/geological engineer from Yeh and
Associates, and an expert in rockfall assessment and mitigation, geological
engineering, and geotechnical engineering, based on his 20-year career in
geotechnology and 13 years in rockfall assessment. Id. at 57:21-58, 62:4-9.
According to Arndt, in 2011, the standard for rockfall mitigation was typically to
evaluate the site, determine rockfall potential, and evaluate the hazard and risk. Id.
at 62:16-63:7.
18. Arndt accompanied Brendan Shine on his inspection of Creation Rock
and the surrounding areas at Red Rocks in J une 2013. Id. at 68:1-69:10. During
that inspection, he observed mitigation measures such as rock bolting, cable
lashing, and shotcrete on the rock formations during the inspection. Id. at 75:15-
14

76:5. Based on that inspection and his document review, he opined that the
rockfall mitigation program at Red Rocks was reasonable. Id. at 79:20-80.
19. Denver employs a service line for all citizen inquiries and non-
emergency service requests, including those arising at Red Rocks. Id. at 88-89,
91:7-9. When Denver 311 receives such requests, a trackable, searchable case or
ticket is opened. Id. at 92:1-95:2. Michael Major, the custodian of those records,
id. at 96:21-97:8, caused his staff to search the 311 call database for calls relating
to Red Rocks from 2006 to present. Id. at 99:21-100:13. That search revealed no
cases involving falling rocks. Id. at 99:21-103:18.
20. David Stewart is the Safety and Industrial Hygiene Administrator for
Denvers Parks and Recreation Department. Id. at 107:4-7. His responsibilities
include employee safety, emergency management, and security and safety
inspections of Denver facilities. Id. at 107:8-108:20. Those responsibilities also
include maintaining records of incident and accident reports for the parks systems.
Id.
21. Denver employees are at Red Rocks Park daily; if an employee learns
of an injury, he or she submits a report, which is sent to and maintained by
Stewarts office. Id. at 110:2-5. An employee apprised of an injury caused by
15

falling rocks at Red Rocks Park is required to complete an incident report. Id. at
112:21-25.
22. Rangers patrol the areas outside of the Amphitheatre daily to look for
concerns that could cause accidents or injuries. Id. at 113:7-10. Employees who
notice safety concerns with the rock formations are to report them to their
supervisors. Id. at 114:5-12. At the request of Denvers counsel, Mr. Stewart
caused a search to be made of the records of the Denver Mountain Parks System
including Red Rocks Park beginning in J anuary 2009; he found no reports of
rockfall-related injuries in Red Rocks Park. Id. at 110:6-113:20.
23. J oseph Davis has been the Facilities Superintendent for the
Amphitheatre for twenty-three years. Id. at 120:1-121:4. He oversees the
maintenance at the Amphitheatre and the areas immediately outside it. Id. at 121.
According to Davis, Red Rocks 24-hour security provider, Argus, is directed to
notify him of any safety problems that need to be addressed. Id. at 129:7-130:6.
Likewise, Red Rocks maintenance employees who are present at the
Amphitheater daily are required report any safety or maintenance problem to
him. Id. at 130:6-19.
24. Any work on the rock formations is performed by Yenter. Id. at
121:18-22. Yenter performed general inspections and maintenance of the rock
16

formations approximately every three years. Id. at 122:25-124:3. During these
inspections, it noted work that needed to be done and performed the work while
there when possible. Id. at 127:23-128:4. In addition to those scheduled
inspections, Denver contacted Yenter to inspect and remediate on an as-needed
basis. Id. at 122-125.
25. As for Yenters recommendation that it inspect Red Rocks annually,
Davis testified that he and his supervisor determined, based on the frequency of
problems and 20-plus years of experience and history at Red Rocks, that triennial
inspections are sufficient. Id. at 134:4-25. Davis and his supervisor found no
reason to increase the inspection frequency because no incidents were observed
that would have required more frequent inspections. Id. at 134:23-135:5.
26. According to Davis, several rocks fell in a construction zone where
rock was being excavated with vibration equipment in 2007. Id. at 138:14-18,
143:16-23; R. Ex. 53. After that construction-related rockfall was reported, Yenter
was called to do mitigation work, which it completed. Id. at 140:23-141:25.
27. In his career at Red Rocks, Davis never saw rockfall occurring inside
the Amphitheatre. Id. at 141:22-142:2. He did see people carry rocks as part of
their exercise regimen half a dozen times. Id. at 155:7-15. On one occasion
between 1999 and 2001 he found an orange-to-grapefruit sized rock on the stairs
17

below Creation Rock. Id. at 141:22-142:9. Upon finding that rock, he directed his
staff to be vigilant and check the area regularly. Id. at 142:10-17. If any further
problems were found and they were not, id. at 142:18-19 Yenter would be
called to assess them. Id. at 142:10-17. Prior to the September 2011 incident, and
in his 20-plus years at Red Rocks, Davis received no report of any patron injured
by falling rocks inside the Amphitheatre. Id. at 142:20-24.
28. Tad Bowman is the Venue Director for Red Rocks Amphitheatre. Id.
at 156:7-12. He has worked in some capacity for the agency that manages Red
Rocks for 26 years, with 15-16 years of Red Rocks-specific responsibilities. Id. at
156:17-18, 163:15-19. His responsibilities over the years included overseeing Red
Rocks event operations and the provision of other services such as security, police,
and paramedics at events. Id. at 157. In his career at Red Rocks, Bowman never
observed a rockfall inside the Amphitheatre. Id. at 163:20-23. Nor was he ever
apprised of any reports of people inside the Amphitheatre being injured by falling
rocks prior to the 2011 incident. Id. at 163:24-164:3. He did, however, see
numerous animals on the rock formations there. Id. at 158:11-19.
29. The Yenter reports contain evaluations of immediate dangers at the
time, problem areas to be monitored, and recommendations for future remediation.
18

30. Although not every rock that was inspected was mentioned in
Yenters reports, every rock was inspected and all recommendations for
monitoring or scaling were followed. If a certain rock was mentioned in one
report, but not in subsequent reports, the absence of the rock in the report simply
meant that there was nothing problematic to note regarding that rock.
31. Extensive and comprehensive safety devices have been installed on
the natural features of Creation Rock and Ship Rock. Yenter designed and utilized
many of those safety devices, which include bolting, shotcrete buttressing, cable-
lashing, rock pins installation, soil nail installation, rockfall fences, and mesh.
32. Denver required that Yenter design and install the safety devices in
such a way as not to disturb the aesthetics and functionality of the natural features
of Red Rocks Park. That means that the vast majority of those safety devices are
not visible to the public.
33. As demonstrated by the Radio Log for the September 2011 concert,
two people were seen in the cave atop Creation Rock during the concert. Plaintiff
Kinnard saw people climbing on Creation Rock during the concert.
34. The rocks that fell from Creation Rock during the September 2011
concert hit the ground on or near the stairs located on the north side of the
Amphitheatre, below Creation Rock.
19

SUMMARY OF THE ARGUMENT
1. In Rosales, 89 P.3d at 510, this court held that objects that are not
themselves public or facilities can be deemed public facilities for purposes of
24-10-106(1)(e) if they are integral to and incorporated into objects that are
public facilities. Rosales was wrongly decided, and the district court here erred
in determining that Creation Rock became part of a public facility for purposes
of 24-10-106(1)(e), thereby rendering it a public facility, because of its
integral and essential connection with the Amphitheatre. Given that error, the
district court erred in concluding that Plaintiffs injuries resulted from a
dangerous condition of [a] public facility.
2. Denvers immunity is waived here only if Plaintiffs prove that the
physical condition of the public facility constitutes an unreasonable risk to the
health or safety of the public. C.R.S. 24-10-103(1.3). The district court erred in
concluding that Denver created such an unreasonable risk simply by failing to
inspect Creation Rock as often as Yenter suggested.
3. The evidence in this case suggested that, in 1999, a Denver employee
found a loose rock on the stairway near Creation Rock, that a rockfall incident
occurred on Creation Rock in 2007 when heavy construction equipment was in
use near Creation Rock, and that Denver knew generally that rocks can fall from
20

Creation Rock and therefore chose to retain Yenter to perform rockfall mitigation
services. It is well settled that general knowledge of a potentially dangerous
condition such as general knowledge that water will turn to ice in a freeze is
insufficient. The district court therefore erred in concluding that the facts listed
above, standing alone, gave Denver actual and constructive notice that rocks were
likely to fall onto concertgoers from Creation Rock.
4. The district court erred in concluding that Denvers failure to inspect
Creation Rock proximately caused the dangerous condition of Creation Rock.
5. Assuming that Creation Rock is not a public facility for purposes of
24-10-106(1)(e) (because it is neither public nor a facility) and that only the
Amphitheatre is, the district court erred in concluding that Denvers conduct in
creating a dangerous condition on Creation Rock implicated the maintenance
function rather than the design function for purposes of the CGIA. Insofar as the
Amphitheatre is concerned, Plaintiffs injuries could not have been caused by a
failure to maintain the Amphitheatre, but rather by Denvers design-related
decision to construct it between Creation Rock and Ship Rock.
6. Because the rocks that struck Plaintiffs uncontrovertedly originated on
Creation Rock, the district court erred in concluding that Plaintiffs injuries were
21

not caused by the natural condition of unimproved property for purposes of
24-10-106(1)(e).
7. Having improperly concluded that Creation Rocks integration into
the Amphitheatre rendered Creation Rock a public facility for purposes of 24-
10-106(1)(e), the district court compounded its error by concluding as a matter of
law that the integration of unimproved property into a public facility nullifies
24-10-106(1)(e)s exception for injur[ies] caused by the natural condition of
any unimproved property located in a park.
ARGUMENT
A. The district court erred in determining that Creation Rock is a
component of a public facility and that immunity under the CGIA
is therefore waived.

1. Standard of Review.

A trial courts findings of fact will not be reversed unless they are clearly
erroneous. City and County of Denver v. Crandall, 161 P.3d 627, 633 (Colo.
2007). However, the issue of whether a trial court has subject matter jurisdiction
over a claim under the CGIA is a question of statutory interpretation that is
reviewed de novo. Springer v. City and County of Denver, 13 P.3d 794, 798 (Colo.
2000).
22

2. The facts do not establish that Creation Rock was incorporated
into the Amphitheatre such that it became an integral part of, and was
essential for the intended use of, the Amphitheatre.

Denvers immunity is waived in this case only if Plaintiffs demonstrate that
their injuries resulted from [a] dangerous condition of [a] ... public facility located
in [a] park. 24-10-106(1)(e). The first inquiry in that calculus is whether
Plaintiffs injuries resulted from a dangerous condition of a public facility.
Daniel v. City of Colorado Springs, No. 12SC908, 2014 WL 2030375, at *3 (Colo.
May 19, 2014). A facility is deemed public for purposes of 24-10-106(1)(e) if
it is both accessible to the public and operated for the public benefit. Id.
(examining 24-10-106(1)(e)s recreation area waiver).
The district court did not find that Creation Rock is a public facility.
Rather, relying upon Rosales, 89 P.3d at 510, and Burnett v. State Dept. of Natural
Resources, No. 11CA2141, 2013 WL 1245366 (Colo. App. March 28, 2013), cert.
granted (Nov. 12, 2013),
7
the district court concluded that Creation Rock is
integrated with the Amphitheatre, thereby rendering it a public facility under the
integral and essential test announced in Rosales. CF, pp.782-783.
7
The issue upon which the supreme court granted certiorari is [w]hether the
court of appeals erred in concluding that the government did not waive immunity
under [24-10-106(1)(e)] for injuries caused by a tree limb that fell on a camper in
an improved campsite in a state park.

23


In Rosales, the City argued that a tree or tree branch in a city park did not
constitute a public facility for the purpose of the CGIA. 89 P.3d at 508. The court
agreed that the tree was not a public facility because it is a natural object not built
or constructed to serve some public purpose. Id. at 509-10. Citing State v.
Moldovan, 842 P.2d 220, 224-25 (Colo. 1992),
8
however, the court concluded that
if a public entity incorporates a tree into a facility [i.e., the man-made picnic area
of a park] 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. Rosales, 89 P.3d at 510. Consequently, the case was remanded to
the trial court to make this determination. Id.
Another falling tree branch reignited this issue in Burnett, supra. There, a
branch fell on Plaintiff while she was sleeping in her tent in an improved,
designated, campground in a state park. 2013 WL 1245366, at *1. The trial court
applied the Rosales test and determined that the tree adjacent to the campground
was not a public facility. Id. at *9. The appellate court agreed, finding that:


8
In Moldovan, the court held that a fence adjacent to a highway was a safety
device that was an integral part of the highway.

24


Trees are not integral to the use and enjoyment of a campsite merely
because they provide shade, protection, and aesthetic values, and trees
are not essential to the use of a campsite because campers do not need
to use trees for camping. Indeed, the record reflects that some
campsites in Cherry Creek State Park do not have adjacent trees.

Id.
9

Like a tree, Creation Rock is a natural occurring condition of Red Rocks
Parks and is not an integral part of the Amphitheatre. It is not integral to the use
and enjoyment of the Amphitheatre merely because the Amphitheatre was
designed and constructed between Creation Rock and Ship Rock. Visitors to the
Amphitheatre do not need to use Creation Rock or Ship Rock to attend and enjoy
an event at the Amphitheatre. Therefore, the trial court incorrectly determined that
Creation Rock is an integral part of the Amphitheatre and is essential for its
intended use. Accordingly, Denver is immune from liability for the injuries
allegedly resulting from rocks falling from Creation Rock in the Amphitheatre.


9
In making this determination, the court relied on the holdings in Rosales and
Loveland v. St. Vrain Valley School Dist. RE-1J, No. 11CA1019, 2012 WL
2581034 (Colo. App. J uly 5, 2012), affd on other grounds (2014 WL 2042468)
(Colo. May 19, 2014).
25


B. The evidence presented at the Trinity hearing does not support the
conclusion that Plaintiffs injuries were caused by a dangerous
condition as that phrase is defined by the CGIA.

1. Standard of Review.
The applicable standard of appellate review is the same as that in section A.,
supra.
2. Rocks falling from Creation Rock do not meet the definition of
dangerous condition under the CGIA.

Even assuming Creation Rock could be considered a component of the
Amphitheatre, Plaintiffs can establish the existence of a dangerous condition only
if they show that: (1) rocks falling from Creation Rock constituted an
unreasonable risk to the health or safety of the public; (2) Denver knew or should
have known of that risk in the exercise of reasonable care; and (3) the rockfall was
proximately caused by Denvers negligent act or omission in constructing or
maintaining the Amphitheatre. See, e.g., Padilla v. School Dist. No. 1, 25 P.3d
1176, 1180 (Colo. 2001). Additionally, to establish a dangerous condition,
Plaintiffs must demonstrate that the rockfall was caused by construction or
maintenance of the Amphitheatre, not solely its design. Id. (citing Swiekowski v.
Ft. Collins, 934 P.2d 1380, 1386 (Colo. 1997)). Because the evidence presented at
the Trinity hearing did not support a finding that Plaintiffs met elements two and
26

three and that the falling rocks were caused by construction or maintenance as
opposed to design, the district courts order must be reversed.
C. The evidence does not support a finding that Denver had actual or
constructive knowledge of a dangerous condition.

To prove the existence of a dangerous condition, Plaintiffs must show that
Denver actually knew or should have known of the condition and its dangerous
nature. Padilla, 25 P.3d at 1180. Plaintiffs did not meet that burden and therefore
the district courts finding that a dangerous condition existed was clearly
erroneous.
1. There is no evidence of actual notice.

The district court found that Denver had actual knowledge of a dangerous
condition because of two incidents prior to September 2011. CF, p.784. The first
incident involved the discovery of a rock on the Amphitheatres stairs in 1999.
CF, p.784-85. That event, however, was not a rockfall; rather, a rock of
unknown origin was simply discovered on the stairs below Creation Rock. R. Tr.
(8/7/13), 141:22-142. The second incident occurred in 2007 when a construction
company was demolishing and rebuilding the north concession stand between
Rows 1 and 15 in the section of the Amphitheatre located below Creation Rock.
Id. at 136-39. During the construction, Denver was notified by the construction
27

company that small rocks fell into the Amphitheatre. Id. The construction
company was using vibration equipment to excavate rock, making it probable that
the construction, rather than natural rockfall, caused the rocks to fall into the
Amphitheatre at that time. Id. at 138:14-18, 143:16-23. The mere presence of one
rock found on the Amphitheatre stairs in 1999, coupled with notification from a
construction company that small rocks fell into the Amphitheatre during
excavation in 2007 is not sufficient to demonstrate actual notice of a dangerous
condition.
At best, these two incidents show that rocks can fall from natural formations.
However, general knowledge that rocks tend to fall, or even of rockfall events in
Red Rocks Park will not suffice. See, e.g., McIntire v. Trammell Crow, Inc., 172
P.3d 977, 980 (Colo. App. 2007) ([i]t is not knowledge of the condition, activities,
or circumstances that gives rise to liability; it is the danger of which the owner
actually knew or should have known.); Smith v. Town of Snowmass Village, 919
P.2d 868, 871 (Colo. App. 1996) (defendants mere knowledge that ice and snow
tend to accumulate does not constitute knowledge or constructive knowledge of the
condition that injured Plaintiff); Broderick v. City and County of Denver, 727 P.2d
881, 882 (Colo. App. 1986); accord Kowalsky v. Long Beach Township, 72 F.3d
385, 389 (3d Cir. 1995); Harjes v. State, 71 A.D.3d 1278, 896 N.Y.S.2d 248 (3d
28

Dept 2010) (mere knowledge that a winter storm is taking place in the general
area did not establish constructive notice of a specific dangerous condition at the
site of the accident). The district court therefore erred in relying on these two
incidents to establish actual knowledge of a dangerous condition.
2. Nor was there any evidence of constructive notice.

The district court also made no specific findings as to the facts that would
have given Denver constructive notice and the record does not support such a
finding. CF, p. 784. A dangerous condition should have been known to exist
only if it is established that the condition had existed for such a period and was of
such a nature that, in the exercise of reasonable case, such condition and its
dangerous character should have been discovered. 24-10-103(1.3).
Certainly, for the reasons discussed above, the 1999 and 2007 incidents are
not sufficient to demonstrate constructive notice. Accordingly, the only potential
source of constructive notice identified by the court is the fact that Denvers rock
mitigation contractor, Yenter, completed reports addressing the risks associated
with Creation Rock and advised Denver to inspect the rock formations in the Park
yearly, which did not occur. Id. However, without more, these facts do not
support a finding of constructive notice.
29

In finding that Denver had constructive notice of a dangerous condition, it
appears the district court relied upon the fact that Yenter had advised Denver to
inspect the rock formations yearly. CF, p.784. But both Yenter and Denvers
experts testified that no tools exist that can accurately predict when and where a
rockfall will occur. R. Tr. (8/7/13), 24:13-15. However, the testimony is
uncontroverted that regular monitoring and scaling of a rock face will not prevent a
rockfall because rockfall is sporadic and unpredictable; inspections will never be
able to catch every potential rockfall hazard. Id. at 43. Consequently, merely
advising Denver to inspect the rock formations yearly is insufficient to demonstrate
constructive notice because a naturally occurring condition such as rockfall, which
is sporadic and unpredictable, is insufficient to demonstrate constructive
knowledge of a dangerous condition. See, e.g., Smith, 919 P.2d at 871.
Even if the September 2011 rockfall did originate at the location vertically
above row 40 as suggested by Plaintiffs expert, see R. Tr. (7/8/13), 48:2-20, it is
undisputed that the area had never previously been identified as a source of
potential rockfall hazard in any of the Yenter reports. See id. at 120:1-121:1.
Indeed, the Yenter reports did not mention the area vertically above row 40
because the inspections did not detect any rockfall hazards that were associated
with that area during any of the inspections performed in the years prior to the
30

September 2011 rockfall. Id.; see also id. at 222:19-223:14. As a result, neither
the Yenter reports nor Plaintiffs expert opinion demonstrate that Denver had
constructive notice. Therefore, it was erroneous for the district court to determine
the evidence was sufficient to demonstrate constructive notice.
D. The district court erred in finding that Denvers negligent construction
or maintenance of the Amphitheatre proximately caused a dangerous
condition.

To demonstrate waiver under the CGIA, a plaintiff must prove that the
dangerous condition was proximately caused by the public entitys negligence in
constructing or maintaining the public facility. 24-10-103(1.3); Padilla, 25 P.3d
at 1180. Negligent design or operation will not suffice. Curtis v. Hyland Hills
Park & Recr. Dist., 179 P.3d 81, 84 (Colo. App. 2007); see Padilla, 25 P.3d at
1181.
Under the CGIA, a condition cannot be deemed a dangerous condition
solely because the design of any facility is inadequate. 24-10-103(1.3); see
Medina v. State, 35 P.3d 443 (Colo. 2001) (immunity is not waived with respect to
inadequate, and even risky, designs); accord Padilla, 25 P.3d at 1180-81;
Willer v. City of Thornton, 817 P.2d 514, 518 (Colo. 1991).
Also for the purposes of the CGIA, a public entitys acceptance of the final
design including the level of risk remaining at the end of the design phase
31

determines the general state of being, repair, or efficiency of the road as initially
constructed. Medina, 35 P.3d at 457. Where an allegedly flawed design is
properly constructed, the negligence lies not in the construction, but rather in the
design. E.g., Willer, 817 P.2d at 518.
As noted above, the Amphitheatre was designed to be situated between two
large natural rock monoliths, Creation Rock and Ship Rock, in a geological hazard
zone subject to natural and unpredictable rockfall events. R. Tr. (8/7/13), 18:12-
22. Plaintiffs do not contend that the construction of the Amphitheatre was
improper. The location of the Amphitheatre and the configuration of the seats is an
design matter for which immunity is not waived. 24-10-103(1.3). Therefore, the
district court erred in finding that the dangerous condition related to the
maintenance of the Amphitheatre, rather than its design.
Instead, the district court erroneously found that because Denver did not
perform yearly inspections as advised by Yenter, that maintenance was somehow
negligent and proximately caused the September 2011 rockfall. CF, p.785. In
reaching that conclusion, the court found persuasive Shines opinion that the
rockfall would not have occurred had an inspection been performed earlier in 2011.
Id.
32

As defined in the CGIA, [m]aintenance means the act or omission of a
public entity or public employee 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. C.R.S. 24-10-103(2.5). It does not include any duty to upgrade,
modernize, modify, or improve the design or construction of a facility. Id.
By analogy in the context of C.R.S. 24-10-106(1)(d) (immunity for injuries
caused by the dangerous condition of a public highway, road or street), [i]t is the
development of a dangerous condition . . . subsequent to the initial design and
construction . . . that creates in the [public entity] a duty to return the road to the
same general state of being, repair or efficiency as initially constructed. Medina,
35 P.3d at 448 (quoting Swiekowski, 934 P.2d at 1385)).
Because the scope of this duty and, consequently, the scope of the
waiver of immunity for its breach under the CGIA is measured in
relation to the original condition of the road, it is imperative that the
first step in the courts analysis be to determine the general state of
being, repair, or efficiency of the road as initially constructed. Only
after making this determination can the trial court ascertain whether
the dangerous condition ... causing the injury developed through a
lack of maintenance subsequent to the initial design and
construction..., and thus, whether immunity has been waived.
Id.
Here, the record establishes that the general state of being, repair, or
efficiency of the Amphitheatre in September 2011, was the same as its condition
33

when initially constructed. It is undisputed that the Amphitheatre was designed to
be situated between Creation Rock and Ship Rock, in a geological hazard zone
subject to natural and unpredictable rockfall events. R. Tr. (8/7/13), 18:12-22.
Because the Amphitheatres original design placed it within a geological hazard
zone, Denver had no duty to upgrade, modernize, modify its location, or to
improve the design or construction of the Amphitheatre. See 24-10-103(2.5).
As a result, Plaintiffs did not and could not demonstrate that Denver failed to
maintain the Amphitheatre under the CGIAs definition of maintenance. See
24-10-103(2.5). Indeed, the only testimony or other evidence presented on this
issue demonstrated that, at least with respect to the mitigation of rockfall affecting
the Amphitheatre, Denver has kept the facility in a better state of general repair or
efficiency as it was in when initially constructed and has otherwise preserved it
from decline or failure. R. Tr. (7/8/13), 167:10-21; 169:1-23; 170:20-171; R. Tr.
(8/7/13), 75:15-76:5.
Even the Plaintiffs own allegations undermine the district courts proximate
cause finding, for each of them alleged in no uncertain terms that their injuries
were caused by the loosening or throwing of the rocks by trespassers on Creation
Rock. See CF, p.6, 91, 103. Indeed, plaintiff Kinnard testified that he saw the
trespassers on Creation Rock during the concert. R. Tr. (6/28/13), 70:7-71:5. As
34

detailed above, the definition of dangerous condition must be proximately
caused by the negligent act or omission of the public entity or public employee in
constructing or maintaining the facility. 24-10-103(1.3). Here, by plaintiffs own
admission, the dangerous condition was proximately caused by a third party and
not the City and as a result subject matter jurisdiction cannot be established. See
City of Colorado Springs v. Powell, 48 P.3d 561, 567 n.6 (Colo. 2002); accord
Padilla, 25 P.3d at 1181 ([T]o be actionable, the state of the building or use of a
state of the building and the injury resulting therefrom ... must have occurred in
connection with a negligent act or omission of the governmental entity, not a third
party.); Walton v. State, 968 P.2d 636, 642 (Colo. 1998). Accordingly, the
record does not support the district courts finding that Plaintiffs injuries were
proximately caused by Denvers negligence in maintaining Creation Rock.
E. The Natural Condition Exception to the Waiver of Immunity for
Dangerous Conditions Applies to Creation Rock Because it is a
Natural Condition of an Unimproved Property.

1. Standard of Review
The applicable standard of appellate review is the same as that in section A.,
supra.

35

2. Immunity is not waived because Creation Rock is the natural
condition of unimproved property.

The CGIA waives sovereign immunity for a dangerous condition of any ...
public facility located in any park or recreation area maintained by a public
entity.... 24-10-106(1)(e). Importantly, however, the CGIA provides an
exception to that waiver where an injury is caused by the natural condition of
unimproved property:
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.

See id. (emphasis added). Accordingly, Plaintiffs cannot prevail if their injuries
were caused by the natural condition of any unimproved property. Id.
The record establishes that Creation Rock is the natural condition of an
unimproved property. CF, p. 786. For this reason as well, Denver is entitled to
sovereign immunity.
3. The installation of minimal safety features did not alter the
natural condition of Creation Rock.

Creation Rock is a geological formation located in Red Rocks Park, a natural
mountain park. Denver retained its rock mitigation contractor, which installed all
safety devices on Creation Rock with the specific understanding that any work
36

done there must preserve natural conditions. Id. at 142:25-143:3, 144:25-145:5.
While certain safety features, for example bolts to hold the rocks in place, have
been installed on portions of Creation Rock, it is not improved land. R. Tr.
(8/7/13), 75:15-76:5.
The key to determining whether land qualifies as unimproved is whether
the public entity has made changes in the condition of the land that make it
reasonable to believe that the public entity has made itself responsible for risk
management there. 18 McQuillin Mun. Corp. 53:31 (3d ed. 2013). A change in
one spot on a larger tract does not necessarily render the entire tract improved.
See id.
The majority of the appellate courts that have examined this issue have held
that public property loses its unimproved status only when there has been
substantial physical modification of the property from its natural state and when
the physical change creates hazards that did not previously exist and that require
management by the public entity. Troth v. State, 117 N.J . 258, 566 A.2d 515, 521
(1989); Kowalsky, 72 F.3d at 388 (beach nourishment / modification project did
not change the unimproved nature of a beach notwithstanding that it was a
manmade modification; the changes did not create that hazard that injured
Plaintiff); Geffen v. City of Los Angeles, 197 Cal.App.3d 188, 242 Cal. Rptr. 492
37

(1987) (holding that the presence of a building, lifeguard towers, parking lots, food
concessions, a promenade, a breakwater, a pier, signs and a rock groin do not
render unimproved property improved for governmental immunity purposes if the
improvements themselves did not cause the injuries).
Moreover, in order to change the unimproved character of property for
governmental immunity purposes, the physical change in the condition of the
property must occur at the location of the injury, which justifies the conclusion
that the public entity is responsible for reasonable risk management in that area.
See, e.g., Troth, 566 A.2d at 521. In other words, there is no waiver of immunity
for injuries caused by the condition of improved property without a causal
connection between the improvement and the alleged injury. Id.
Nor, as a general rule, do changes made to land to improve safety turn
otherwise unimproved land into improved land. In order for such changes to
constitute an improvement for immunity purposes, the changes must change the
physical nature of characteristics of the property at the location of the injury to the
extent that it can no longer be considered in a natural condition. Mercer v. State,
197 Cal.App.3d 158, 242 Cal. Rptr. 701, 704 (Cal. App. 2d Dist. 1987). The
government does not become a guarantor of public safety by providing certain
38

services on unimproved property in its natural condition. Rombalski v. City of
Laguna Beach, 213 Cal.App.3d 842, 862, 261 Cal.Rptr. 820 (1989).
The law does not support the district courts finding that Creation Rock had
been improved by removing rocks, bolting rocks, chaining rocks, and other
improvements. CF, p.786. The safety devices installed on Creation Rock did not
change its unimproved nature, were installed for safety purposes, and did not lead
to the injuries that occurred. Plaintiffs presented no evidence to the contrary.
Furthermore, the General Assemblys edicts that a public entity or public
employee shall not be deemed to have assumed a duty of care where none
otherwise existed by the performance of a service or an act of assistance for the
benefit of any person, and that [t]he adoption of a policy or a regulation to
protect any persons health or safety shall not give rise to a duty of care on the part
of a public entity or public employee where none otherwise existed, C.R.S. 24-
10-106.5(1), demonstrate the policy values and positive incentives behind allowing
and implicitly encouraging a government entity to invest resources in increasing
public safety on natural property, rather than punishing those entities by waiving
immunity for undertaking such safety measures.
39

For each of these reasons, the district court erred in its determination that the
safety measures installed on Creation Rock rendered it improved property, and
the determination should be revered.
F. Even assuming that Creation Rock could be considered an integral
component of the Amphitheatre, immunity is not waived under the
natural conditions exception.

The CGIA simply states: Nothing in this paragraph shall be construed to
prevent a public entity from asserting sovereign immunity for an injury caused by
the natural condition of any unimproved property. 24-10-106(1)(e) (emphasis
added). It does not list any exceptions to this rule. The district court therefore
erred in determining that Creation Rock did not meet the natural conditions
exception based upon its finding that Creation Rock was a component of the
Amphitheatre. CF, p. 786.
As recognized by the court in Burnett, [i]f the General Assembly intended
to waive immunity for all dangerous conditions in public parks, it would not have
limited that waiver to public facilities in parks or expressly retained immunity for
natural conditions in unimproved areas. Burnett, 2013 WL 1245366, at *2.
Moreover, the legislative history of the CGIA demonstrates the legislatures
specific intent to place Red Rocks and similar natural places under the natural
condition of unimproved property exception. As an initial matter, the phrase
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public facility is not defined in the CGIA and is ambiguous. St. Vrain Valley
School Dist. RE-1J v. A.R.L., No. 12SC631, 2014-WL-2042468, at *9 (Colo. May
19, 2014) (finding the phrase ambiguous and examining its meaning in the context
of 24-10-106(1)(e)s recreation area waiver) (citing State v. Nieto, 993 P.2d 493,
500-01 (Colo. 2000)). Because it is ambiguous, this court must look beyond the
plain meaning of that phrase and determine its meaning by reference to other tools
of statutory interpretation. Id. at *7 (citing Grant v. People, 48 P.3d 543, 546
(Colo. 2002)). Legislative intent is the polestar of statutory construction.
Schubert v. People, 698 P.2d 788, 793 (Colo. 1985).
The Court should look to legislative history to ascertain legislative intent of
the CGIA regarding the meaning of public facility. Loveland, 2012 WL 2581034,
at *3. As it is relevant here, legislative history includes the Colorado Legislative
Council Report (commissioned prior to the passage of the CGIA), Report to the
Colorado General Assembly: Governmental Liability in Colorado, Research
Publication No. 134, at xxi-xxii (1968), which stated the following with regard to
Red Rocks:
The defense of immunity is waived with respect to injuries resulting
from a dangerous condition of any public facility located in parks and
recreation areas and maintained by a public entity. A distinction is
made between (1) injuries caused by negligence in the construction,
maintenance, failure to maintain, etc. of artificial, man-made objects
(swing sets, buildings, etc.) and (2) injuries caused by the natural
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conditions of a park (the Flat Irons in Boulder or the Red Rocks west
of Denver). In other words, ordinary negligence is sufficient to
impose liability for injuries caused by the dangerous condition of
artificial objects. For injuries caused by natural dangerous
conditions, immunity is retained.

(Emphasis added). Giving insight into the policy considerations for enactment of
the relevant provision, the committee concluded that:
[i]f 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 public
entities to close such areas to public use. It is desirable to permit the
members of the public to use public property in its natural condition.
In view of the limited funds available for the acquisition and
improvement of property for recreational purposes, the committee
concluded that it is not unreasonable to expect persons who
voluntarily use unimproved property in its natural condition to assume
the risk of injuries arising therefrom.

Colorado Legislative Council, Report to the Colorado General Assembly:
Governmental Liability in Colorado, Research Publication No. 134, at pages 140-
144 (1968).
This legislative history demonstrates that no waiver of governmental
immunity was intended for the natural condition of the unimproved property of
Red Rocks including Creation Rock and therefore, Plaintiffs claims must be
dismissed for a lack of subject matter jurisdiction. Furthermore, the reasons above
demonstrate that the District Court erred in finding that Creation Rock was
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improved through the installation of safety devices, and in its finding that Creation
Rock is integral to the functioning of Red Rocks Amphitheatre. Because Creation
Rock is the natural condition of an unimproved property, there is no waiver of
governmental immunity in the instant case.
CONCLUSION
For the foregoing reasons, Denver respectfully requests that the Court
remand this case to the district court with instructions to dismiss the lawsuit with
prejudice.
REQUEST FOR ATTORNEY FEES
C.R.S. 13-17-201 provides in relevant part as follows:

In all actions brought as a result of a death or an injury to person or
property occasioned by the tort of any other person, where any such
action is dismissed on motion of the defendant prior to trial under rule
12(b) of the Colorado rules of civil procedure, such defendant shall
have judgment for his reasonable attorney fees in defending the
action.

Pursuant to this statute, an award of attorney fees is mandatory when a trial court
dismisses an action under C.R.C.P. 12(b). Smith, 919 P.2d at 872-73. An award of
attorney fees incurred upon appeal which results in the dismissal of an action
pursuant to C.R.C.P. 12(b)(1) is also mandatory. Wark v. Bd. of County Commrs,
47 P.3d 711, 717 (Colo. App. 2002). Accordingly, if Denver prevails on this
43

appeal, it respectfully requests that this Court remand this matter to the District
Court to enable it to file a motion for its reasonable attorney fees incurred in
responding to Plaintiffs Complaints and on appeal.
DATED this 5th day of J une 2014.
Respectfully submitted,
DENVER CITY ATTORNEYS OFFICE


By: s/ Barry A. Schwartz
Barry A. Schwartz, Esq.
J amesy C. Owen, Esq.
Assistant City Attorneys
Attorneys for Defendant-Appellant City and
County of Denver


















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CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of J une 2014, the foregoing
CORRECTED OPENING BRIEF was filed with the Court of Appeals and
served on the following via ICCES:

Daniel P. Gerash, Esq.
Gerash Steiner, P.C.
dan@gerashsteiner.net
Samuel Ventola, Esq.
Staggs Ventola Morris LLP
sventola@SVMlawfirm.com

Adrienne M. Tranel, Esq.
Geoffrey D. Petis, Esq.
Bachus & Schanker, L.L.C.
gpetis@coloradolaw.net
adrienne.tranel@coloradolaw.net
litigation@ColoradoLaw.net





s/ Barry A. Schwartz
Barry A. Schwartz
Denver City Attorneys Office
45