VanMeveren Law Group May 2018

May 2018 Foundations 9 7 0 Hiking, Rock Climbing, Camping, and theColoradoGovernmental ImmunityAct

The Colorado Governmental Immunity Act (CGIA), CRS §§24-10-101 et seq., bars lawsuits against Colorado governmental agencies and their employees except under rare circumstances. Even when injured victims are allowed to move forward with a lawsuit, damages are limited by statute. There are two schools of thought on the usefulness of the CGIA. One view is that the state provides essential public services that would be disrupted if all lawsuits were allowed to go forward, and the “taxpayers would ultimately bear the fiscal burdens of unlimited liability.” The other view is that a denial or reduction of the ability of injured victims to recover monetarily leads to unfair results. Most Coloradoans don’t give much thought to governmental immunity until extraordinary circumstances occur. For example, the recent school shooting in Parkland, Florida, or the Gold King mine disaster in Silverton, Colorado, in 2015 leave many to wonder who should pay. For some, the issue hits closer to home because friends or relatives have been injured or killed in one of Colorado’s state parks. Since 2010, 54 people have died attempting to climb the peaks of Colorado’s 14ers. The start of the outdoor season always brings with it injuries caused by rock climbing and hiking. Again, who bears financial responsibility? Before looking at each of these scenarios individually, it is helpful to understand what the CGIA is and what and whom it covers. The CGIA provides immunity to government entities and their employees in certain personal injury cases.

Government entities can waive immunity, thereby waiving immunity for their employees, as well. In the example of a school shooting, Colorado is one of a few states that waives governmental immunity on acts of school violence and allows civil lawsuits to be filed. In 2015, state lawmakers passed the Claire Davis School Safety Act, named for a girl who was killed at Arapahoe High School in 2013. The law took full effect on July 1, 2017, and permits victims to sue districts for liability if they fail to ensure student and staff safety on school property or at district- sponsored events. Parents can recover monetary damages from the state of Colorado rather than be faced with the impossible task of attempting to adequately compensate victims through the defendant or defendant’s family who, in all likelihood, could not foot the bill. Despite the waiver, the cap on damages remains the same as in all cases against the government. Before 2013, that cap was $150,000 per injured party in one incident. In 2013, the cap was increased to $350,000 per injured party. In contrast, the EPA did not waive governmental immunity for its role in the Gold King mine disaster. In 2015, an EPA team was working at the Gold King mine when they accidentally triggered a 3-million- gallon deluge of acidic, heavy-metals-laden drainage into the Animas River in southwestern Colorado. The damage prompted 73 claims against the EPA, ranging from clean water concerns and contaminated wells to lost tourism wages and local

government expenses for the cleanup. In declining to pay the estimated $1.2 billion in damages, the EPA did not deny its role in the disaster, but cited its legal right not to pay based on governmental immunity. The CGIA defines certain terms differently from their common definitions, and that’s pivotal in the determination of whether the government entity is immune to a suit. “Dangerous condition” in terms of governmental immunity means a physical condition of a facility that was constructed and maintained by the facility. The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition. Under CRS §24-10-106(1)(e), a public entity retains immunity for injuries caused

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Road Trips Don’t Have to Be Painful

Summer is right around the corner, which means you’ll soon pile the whole family into the car, ready to brave the road for a vacation. Everyone knows that riding in the car for hours can be torture. But with a little creativity, you can turn the worst part of a long trip into a fun event. Pack a Travel Game When the excitement of the family vacation starts to wear off, keep the peace and entertain your kids with a travel game. Many board game manufacturers offer travel-sized versions that are easy to pack and play in the car. Before your next road trip, consider purchasing digital Yahtzee, which packs all the fun of the classic game without the dice, or IQ Fit, a logic game with over 100 challenges. Both games cost around $10 and can provide hours of entertainment. Include the Whole Family Once the travel games no longer pique anyone’s interest, try an activity that can be fun for the whole family: a traditional road trip game. If you have a car full of storytellers, try “Fortunately, Unfortunately.” The rules are simple. The first

person starts by saying, “fortunately,” and mentioning something good about the road trip or the destination. The next person (moving clockwise) then follows by saying something “unfortunate” about the previous person’s statement. Take turns with every passenger in the car. If someone stumbles, they get a strike; three strikes and you’re out. The last passenger standing wins. Play an Audiobook or Podcast We get it. Sometimes passengers don’t want to play games. Occasionally, they’d rather relax or take a nap. However, your listening material doesn’t have to be limited to Dad’s favorite music. Instead, consider listening to a family-friendly audiobook or podcast, which can make the longest and most boring parts of your trip an entertaining or educational experience. Almost any popular book is available in audio form, but it can be hard to find an enjoyable podcast. “Transistor” is a science- focused podcast that explores subjects kids and adults will find fascinating. Or if you’re looking for something fictional, try “Storynory,” in which the narrator tells fairy tales and legends from all over the globe.

TESTIMONIALS

“Bryan and his team are top-notch. If you need a firm that is strong enough to get the job done yet sincere enough to understand the things you are going through, look no further. These guys are the real deal.”

–David B. “Bryan and his associates showed empathy and compassion in the way they treated me personally, as well as in howmy case was handled. His honesty, patience, and dedication to the law showed in his emails and conversations. I was informed on a constant basis and never felt left out of even the smallest decisions. When all was said and done, and the outcome of my particular case was presented, I felt justice was served.” –Personal injury client

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by the natural condition of any unimproved property, whether or not such property is located in a park owned by the governmental agency.

“Unimproved property” usually refers to real property that is in its natural state. Unimproved property typically contains a variety of features, such as shrubs, trees, rocks, ruts, ditches, cliffs, and watercourses. When property is unimproved, these natural features have not been disturbed. Indiana takes a different view than Colorado. In McKenna v. Ft. Wayne, the court points out that things like mowed grass, a picnic table, and a playground would lead a person to “perceive himself as being in relative safety and not in a ‘wilderness.’” Immunity was not preserved for the city in that case when a tree branch fell and injured the plaintiff, because “growing trees are part of the real estate upon which they stand until they are severed … assuming the hackberry tree was in a ‘natural condition.’” The trier of fact, nevertheless, could have concluded it was part of the improved property at the time McKenna was injured (McKenna v. Ft. Wayne, 429 N.E.2d 662, 666, 1981 Ind. App. LEXIS 1802). In his dissent in Burnett v. State Dep’t of Natural Res, Judge Fox echoes a similar sentiment. The judge argues that applying the natural condition provision to permit a public entity to assert sovereign immunity when there’s been a negligent failure to maintain the safety of a public facility is contrary to the interest of compensating victims of governmental negligence. He believes it also leads to an absurd and illogical result. Should Colorado courts follow the example set by Indiana, or does that just open the door to a floodgate of litigation that taxpayers cannot afford? –Bryan VanMeveren

Therefore, irrespective of what constitutes a public facility, the government retains immunity if the condition at issue falls within the ambit of the natural-condition property limitation. So, in the example of Colorado natural areas, the Colorado Supreme Court has specifically excluded natural conditions of unimproved property in cases where tree branches or falling rocks have caused injury. (See Burnett v. State Dep’t of Natural Res., Div. of Parks & Outdoor Rec., 2015 CO 19, 346 P.3d 1005, 2015 Colo. LEXIS 216 and Ackerman v. City & Cnty. of Denver, 2016 Colo. LEXIS 615, 2016 WL 3453472). In Burnett, a camper was injured when she was hit by a branch from a tree bordering a campsite in a state park. The court held that the state was immune from suit under the “natural condition of any unimproved property.” The court stated that trees are native flora to the property and the fact that they abut a manufactured area does not make them man-made. In Ackerman, plaintiffs were attending a concert at Red Rocks Amphitheater when they were injured by rocks that fell from Creation Rock, a natural rock formation that abuts the facility. The court again held that rocks are a natural condition despite their proximity to an improved property and applied governmental immunity. Coloradoans are pretty savvy when it comes to the outdoors. Most of us take the proper precautions when traveling out into the wilderness to avoid injury by tree branches and loose rocks on “unimproved property.”

Sautéed Zucchini

Inspired by thekitchn.com Zucchini and summer squash are arriving on grocery store shelves. Here is a great way to take these humble, delicious vegetables to the next level. This easy dish is perfect for early summer.

Ingredients

• • • •

1 zucchini

• • •

2 teaspoons fresh thyme 1/4 cup crumbled feta cheese

1 summer squash

1/2 medium red onion 2 tablespoons extra-virgin olive oil

Salt and pepper to taste

Directions

1. Cut zucchini into 1/4-inch-thick semicircles. Dice onion. 2. Heat a large skillet to medium high. Add olive oil, onion, and thyme.

3. Once onion is soft (about 2 minutes), add zucchini and squash. Season with salt and pepper; cook 4–5 minutes until squash barely begins to caramelize. 4. Place in serving bowl and top with feta.

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Inside

jams, meats, and more. And be sure to check out the Colorado Crop Calendar on their website so you can plan your visits and stock up on your favorite seasonal fruits and vegetables. For more information about this dog-friendly market, see larimercountyfarmersmarket.org. Fort Collins Spring Shopping Expo Saturday, May 19

chance to win a variety of prizes from the many vendors. Visit fortcollinsspringshoppingexpo. godaddysites.com for more details. 39th Annual Colorado Run Monday, May 28 Spring Canyon Park Another month, another run! Head out to Spring Canyon Park on Memorial Day for a 10K run along Dixon Canyon Road and Centennial Drive. The run is about 5K uphill and 5K downhill. Take in all the classic Fort Collins views around Horsetooth Reservoir. For complete details and to register, visit coloradorun.com. 3156 S. Overland Trail Fort Collins, CO 80526

Larimer County Farmers’ Market Saturday, May 19 Larimer County Courthouse 200 W. Oak St. Fort Collins, CO 80521 The spring season of the Larimer County Farmers’ Market kicks off on Saturday, May 19, at 8 a.m. On every Saturday through Oct. 28, browse the market for farm-fresh produce, breads, beverages,

The Lincoln Center 417 W. Magnolia St. Fort Collins, CO 80521

Once you have your fresh veggies, head over to the Spring Shopping Expo at The Lincoln Center (10 a.m. to 4:30 p.m.). Browse clothing, jewelry, books, and more. There’s something for just about everyone. The expo is free, but you can purchase raffle tickets at the door for a

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