VanMeveren Law Group May 2018

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 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.


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1 zucchini

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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


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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