Baugh v. Town of Walden

24CA0101 Baugh v Walden 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0101
Jackson County District Court No. 23CV30001
Honorable Stephen J. Jouard, Judge

Waylon Baugh, as personal representative for the Estate of Leslie Baugh,

Plaintiff-Appellee,

v.

Town of Walden, Colorado,

Defendant-Appellant.

ORDER VACATED AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE SULLIVAN
J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 2, 2024

Bachus & Schanker, LLC, Brian C. Petroff, Scot C. Kreider, Denver, Colorado,
for Plaintiff-Appellee

Tucker Holmes, P.C., Bradley D. Tucker, Michael T. Sullivan, Centennial,
Colorado, for Defendant-Appellant
¶1 Defendant, the Town of Walden, appeals the district court’s

order denying its C.R.C.P. 12(b)(1) motion to dismiss plaintiff Leslie

Baugh’s negligence and premises liability claims under the

Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,

C.R.S. 2024. We vacate the court’s order and remand the case with

directions.1

I. Background

¶2 In September 2021, Baugh, a Walden resident, sustained

injuries when he fell after stepping in a pothole in the middle of a

paved street in Walden. Baugh brought claims for negligence and

premises liability against Walden, alleging it was liable for his

injuries because the pothole constituted a “dangerous condition”

under the CGIA. Walden moved to dismiss Baugh’s claims for lack

of subject matter jurisdiction under Rule 12(b)(1), asserting

immunity from suit under the CGIA.

1 Leslie Baugh died while this appeal was pending. The personal
representative for Baugh’s estate subsequently moved to substitute
himself as the appellee under C.R.C.P. 25(a) and section 13-20-101,
C.R.S. 2024. We granted the personal representative’s motion on
November 1, 2024.

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¶3 The district court held a Trinity hearing to determine whether

Walden had waived its immunity. See Trinity Broad. of Denver, Inc.

v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993). Based on

the evidence presented at the Trinity hearing, the court made the

following findings of fact in a detailed written order:

• The pothole was seven feet long and approximately four

feet wide, with a depth of more than two-and-a-half

inches.

• The pothole was located near the middle of the street, in

the street’s traveled portion.

• The evidence conflicted regarding whether Walden had

notice of the pothole before Baugh’s fall. Walden’s town

clerk had never received a complaint regarding the

pothole before Baugh’s fall. But at a town meeting

shortly after Baugh’s fall, community members

complained about the pothole, saying it had been there

for three years. The mayor responded by saying, “yeah I

know about that.”

• Community members commented at the town meeting

shortly after Baugh’s fall that the streets were a

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“disaster,” and suggested that Walden would be better off

having dirt roads.

• Walden’s streets department developed a pothole plan for

2021 that identified areas in need of street repair. But

the plan didn’t identify the area of the pothole as one of

the areas in need of street repair.

• Walden inspected the town’s roads annually to identify

“problem areas” in need of repair.

¶4 The court concluded that the pothole fell within one of the

CGIA’s immunity waiver provisions — “[a] dangerous condition of a

public highway, road, or street which physically interferes with the

movement of traffic on the paved portion, if paved . . . .” § 24-10-

106(1)(d)(I), C.R.S. 2024. The court therefore denied Walden’s

motion to dismiss and ordered it to file an answer to Baugh’s

complaint.

¶5 Walden now appeals the court’s denial of its motion to

dismiss, bringing this interlocutory appeal under section 24-10-

108, C.R.S. 2024. Walden contends that the court erred by

determining that the pothole constituted a dangerous condition for

which it had waived immunity under the CGIA. In support, Walden

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leans heavily on Maphis v. City of Boulder, 2022 CO 10, a recent

CGIA case from our supreme court that Walden cited in its

dismissal motion but which the district court didn’t address in its

order. Walden also requests an award of its reasonable attorney

fees under section 13-17-201, C.R.S. 2024.

II. Standard of Review

¶6 “Questions of sovereign immunity — including whether it has

been waived — implicate a district court’s subject matter

jurisdiction under C.R.C.P. 12(b)(1).” Bilderback v. McNabb, 2020

COA 133, ¶ 6; see Trinity, 848 P.2d at 924. We review the district

court’s findings of fact for clear error. Medina v. State, 35 P.3d 443,

452 (Colo. 2001). A finding of fact is clearly erroneous only when it

has no support in the record. Martinez v. CSG Redevelopment

Partners LLLP, 2019 COA 91, ¶ 10. Once questions of fact are

resolved, we review questions of law de novo. City & Cnty. of Denver

v. Dennis, 2018 CO 37, ¶ 12. The plaintiff shoulders the burden of

proving that the government waived its immunity. Id. at ¶ 11.

¶7 Because the CGIA derogates Colorado’s common law, we

strictly construe its grant of immunity but construe its waiver

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provisions broadly. Maphis, ¶ 17; Corsentino v. Cordova, 4 P.3d

1082, 1086 (Colo. 2000).

III. CGIA Law

¶8 The CGIA grants public entities immunity for claims that lie in

tort or could lie in tort. § 24-10-108; Maphis, ¶ 17. But the CGIA

contains exceptions. One such exception says that immunity is

waived for claims of injuries resulting from “[a] dangerous condition

of a public highway, road, or street which physically interferes with

the movement of traffic on the paved portion, if paved, . . . of any

public highway, road, street, or sidewalk within the corporate limits

of any municipality . . . .” § 24-10-106(1)(d)(I). The CGIA defines a

“dangerous condition” as

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.

§ 24-10-103(1.3), C.R.S. 2024 (emphasis added).

¶9 To show an unreasonable risk to the public’s health or safety,

the plaintiff must prove that the condition created “a chance of

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injury, damage, or loss which exceeded the bounds of reason.”

Dennis, ¶ 23; accord Maphis, ¶ 22. A court must examine the

totality of the circumstances to determine whether a particular

condition presented an unreasonable risk. Maphis, ¶ 22; see also

Dennis, ¶ 23 (determining whether a condition constitutes an

unreasonable risk will “necessarily be a fact-specific inquiry”).

¶ 10 In Maphis, the supreme court considered whether the City of

Boulder had waived its sovereign immunity under circumstances

somewhat analogous to the facts presented in this case. The

plaintiff in Maphis argued that a largely imperceptible two-and-a-

half-inch deviation in a sidewalk that caused her to trip and suffer

injuries constituted an unreasonable risk for which immunity was

waived. Id. at ¶¶ 3-4, 8. The supreme court disagreed, determining

that the sidewalk deviation, while perhaps a foreseeable risk, didn’t

rise to a dangerous condition that created a chance of injury that

exceeded the bounds of reason. See id. at ¶¶ 23-30. In assessing

the totality of the circumstances, the Maphis court looked to certain

nonexhaustive factors, explaining that (1) sidewalk deviations “are

commonplace throughout Colorado due to the harsh climate and

other environmental factors”; (2) the sidewalk deviation wasn’t

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located in a high foot-traffic area, but rather in a residential area

“without any heightened safety concerns” that might apply to places

such as the entrance to an assisted-living facility, hospital, school,

or daycare; and (3) the city hadn’t received any citizen reports

concerning the sidewalk. Id. at ¶¶ 27-28. As a result, the Maphis

court concluded that the plaintiff failed to establish the existence of

a dangerous condition for which the city had waived immunity. See

id. at ¶ 30.

IV. Analysis

¶ 11 Applying the Maphis framework and construing the CGIA’s

waiver provisions broadly, as we must, we conclude that Baugh

failed to establish that the pothole created a chance of injury,

damage, or loss to a pedestrian that exceeded the bounds of reason.

Baugh therefore didn’t prove that Walden waived its immunity

under the CGIA.

A. Commonplace Condition

¶ 12 We first address whether the pothole was a “commonplace”

street condition due to harsh climate, other environmental factors,

or other reasons. Id. at ¶ 27; see also id. at ¶ 29 (“[T]he purposes of

the CGIA suggest that the frequency with which a particular

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condition occurs is an appropriate consideration when evaluating

whether governmental immunity has been waived.”).

¶ 13 The court found that Walden residents commented at a

community meeting shortly after Baugh’s fall that the town’s streets

were a “disaster,” suggesting potholes are common in Walden.

However, relying on Baugh’s expert’s testimony, the court found

that the pothole’s dimensions fell on the large side, measuring “7

feet long and approximately 4 feet wide with a depth of more than

[2.5] inches.” Photographs admitted into evidence show that the

pothole was two-and-a-half inches deep at its deepest point.

¶ 14 Based on the court’s findings, we conclude that, although

potholes may be pervasive in Walden, see id. at ¶ 27, we can’t say

on this record that a seven-foot by four-foot pothole that goes down

to a depth of two-and-a-half inches constitutes a “commonplace,”

“widespread,” or “frequen[t]” condition, id. at ¶¶ 27, 29. At the

same time, we can’t say that a pothole of this size was so rare and

unexpected in Walden that it necessarily created a risk of injury,

damage, or loss that exceeded the bounds of reason. See id. at ¶ 24

(sidewalk deviation that exceeded the city’s criteria for a tripping

hazard by “three fold” wasn’t necessarily a “dangerous condition”

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under the CGIA). Accordingly, we conclude this factor is neutral,

weighing neither in favor of nor against waiving Walden’s immunity.

B. Condition in Location of Heightened Safety Concern

¶ 15 Next, we turn to Maphis’s second factor — whether the pothole

was located in “a high foot-traffic area or an area of heightened

public concern.” Id. at ¶ 28.

¶ 16 The court found that, “[a]lthough the precise location of the

pothole in the street was not entirely clear, [Baugh’s expert] testified

that he believed the pothole was located somewhere near the middle

of the street in the traveled portion of the road.” The court didn’t

find that the pothole was located in a high foot-traffic area or an

area of heightened public safety concern, nor would we expect such

a finding for a pothole located in the middle of a street. Notably, the

largely imperceptible concrete deviation in Maphis occurred on a

sidewalk, not a street, and yet the supreme court still held that the

plaintiff hadn’t shown a condition creating a chance of injury that

exceeded the bounds of reason. See id. at ¶ 27. Consistent with

the Maphis court’s analysis, we conclude that this second factor

weighs in Walden’s favor.

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C. Reports Regarding the Condition

¶ 17 We next look to Maphis’s third factor — whether Walden had

received any citizen reports about the pothole. Id. The supreme

court explained that, under this factor, “frequent citizen reporting

would be additional evidence that might help a plaintiff meet the

burden of proof.” Id. at ¶ 28.

¶ 18 The court found that Walden’s town clerk had never received a

complaint regarding the pothole before Baugh’s fall, even though

the pothole was in close proximity to the Walden town hall and the

homes of town board members. The court also found that Walden’s

pothole repair plan for 2021 didn’t include the area in which the

pothole was located, providing further corroboration that citizens

hadn’t alerted the town to the pothole. Based on these findings, we

conclude that Maphis’s third factor weighs in Walden’s favor.

¶ 19 We aren’t persuaded otherwise by Baugh’s argument that

Maphis’s third factor is inconsistent with the CGIA. According to

Baugh, requiring proof that citizens have complained about a

potentially risky condition runs contrary to the CGIA’s definition of

“dangerous condition,” which states that the public entity’s

knowledge can be established through constructive knowledge. See

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§ 24-10-103(1.3) (defining “dangerous condition,” in part, as a

condition “which is known to exist or which in the exercise of

reasonable care should have been known to exist”). But the Maphis

factors, including its reporting factor, zero in on a different part of

the definition — whether the condition “constitutes an

unreasonable risk” — not whether the public entity knew or should

have known about the condition. Id.; see Maphis, ¶ 27. Although

the same evidence may be relevant to both parts of the statutory

definition, evidence that the public entity knew or should have

known of the condition may or may not be enough to prove that the

condition amounted to an unreasonable risk. In Maphis, for

example, unlike in this case, the city had identified the sidewalk

deviation as needing repairs before the plaintiff suffered injuries.

See id. at ¶ 26. But the city’s advance knowledge still wasn’t

sufficient to render the deviation an unreasonable risk that

exceeded the bounds of reason.

D. Application

¶ 20 Applying the Maphis framework to the facts of this case as

found by the district court, two of the Maphis factors weigh in

Walden’s favor while one factor is neutral. On balance, we

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conclude, based on the totality of the circumstances, that Baugh

failed to prove that the pothole created a chance of injury, damage,

or loss that exceeded the bounds of reason. See id. at ¶ 22. Just as

the sidewalk deviation in Maphis didn’t constitute an unreasonable

risk, we can’t say that the pothole rose to an unreasonable risk

under the CGIA’s definition of “dangerous condition.” See § 24-10-

103(1.3). Thus, the court should have granted Walden’s Rule

12(b)(1) motion and dismissed the case for lack of subject matter

jurisdiction. See Bilderback, ¶ 6.

¶ 21 Baugh nevertheless argues that Maphis and its predecessor,

Dennis, reflect a “sea change” in how courts apply the CGIA and

that the two cases create “new and difficult questions.” Baugh also

asserts that whether a given risk is “beyond the bounds of reason”

is “inherently subjective,” and that each judge or justice up and

down the appellate ladder is now entitled to evaluate the

undisputed facts differently, imposing an onerous burden on a

plaintiff’s ability to present their case to a jury.

¶ 22 We recognize that judicial interpretations of the CGIA haven’t

remained static over the decades. But we are bound by the

supreme court’s decisions, including its recent holdings,

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interpreting and applying the CGIA. Bernal v. Lumbermens Mut.

Cas. Co., 97 P.3d 197, 203 (Colo. App. 2003) (court of appeals is

bound by the Colorado Supreme Court’s decisions). Moreover,

because the proper interpretation and application of the CGIA

implicates a court’s subject matter jurisdiction, we necessarily

apply a de novo standard of review and aren’t bound by the district

court’s legal determination. See City of Colorado Springs v. Conners,

993 P.2d 1167, 1171 (Colo. 2000). This standard of review under

the CGIA long predates Maphis and Dennis. See, e.g., Swieckowski

v. City of Fort Collins, 934 P.2d 1380, 1383-84 (Colo. 1997).

¶ 23 Accordingly, we vacate the court’s order denying Walden’s

motion to dismiss and remand the case with directions that the

court dismiss Baugh’s claims for lack of subject matter jurisdiction

under the CGIA.

V. Attorney Fees

¶ 24 Walden requests an award of its reasonable attorney fees,

including those incurred on appeal, under section 13-17-201.

Under that statute, the defendant in a tort action that is dismissed

under Rule 12(b) before trial “shall have judgment for his

reasonable attorney fees in defending the action.” § 13-17-201(1)

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(emphasis added); see also Smith v. Town of Snowmass Village, 919

P.2d 868, 873 (Colo. App. 1996) (“[A]n an award of attorney fees is

mandatory when a trial court dismisses an action under the [C]GIA

for lack of subject matter jurisdiction.”). Because we’ve concluded

that the court should have granted Walden’s Rule 12(b)(1) motion,

we agree that Walden is entitled to an award of its reasonable

attorney fees, including those incurred on appeal. However,

because the district court is best positioned to determine the

amount of Walden’s reasonable attorney fees, we remand the case

to the district court to determine the amount of those fees. See

C.A.R. 39.1.

VI. Disposition

¶ 25 We vacate the court’s order denying Walden’s motion to

dismiss and remand the case to the district court with instructions

to (1) dismiss Baugh’s claims for lack of subject matter jurisdiction

under the CGIA and (2) determine the amount of Walden’s

reasonable attorney fees.

JUDGE J. JONES and JUDGE LIPINSKY concur.

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