In City and County of Denver v. Dennis, Sean Dennis, as conservator and on behalf of Doreen Heyboer, brought suit against the City and County of Denver following a motorcycle collision at the intersection of Mississippi Avenue and Broadway. Doreen Heyboer was a passenger on a motorcycle driven by Michael Veres on September 20, 2013.
As Veres and Heyboer traveled eastbound toward the intersection, a westbound vehicle turned left in front of them onto southbound Broadway. Veres attempted to brake but collided with the turning vehicle. Doreen Heyboer was thrown from the motorcycle and suffered permanent brain injuries. The driver of the turning vehicle was cited for careless driving and failure to yield the right-of-way.
Through her conservator, Doreen Heyboer filed claims for negligence and premises liability under section 13-21-115, C.R.S. She alleged that the deteriorated condition of the roadway contributed to the accident.
The City and County of Denver moved to dismiss the case under C.R.C.P. 12(b)(1), asserting immunity under the Colorado Governmental Immunity Act (CGIA). Because sovereign immunity is a jurisdictional issue, the district court conducted a Trinity hearing to determine whether immunity had been waived.
At the hearing, Doreen Heyboer presented testimony from William Kennedy, Denver’s Pavement Engineer. Kennedy testified that Denver used a Pavement Condition Index to assess road conditions. The index categorized roads as "excellent," "good," "fair," "poor," or "very poor" for maintenance prioritization, not safety. Internal analysis rated the Mississippi–Broadway intersection as "very poor." Eight days before the accident, Kennedy inspected the location in response to a 311 complaint and observed that the surface was cracked and somewhat rutted but did not require immediate repair.
The district court concluded that Doreen Heyboer failed to establish a waiver of immunity and dismissed the case. The court found that she had not shown that the roadway posed an unreasonable risk to the health or safety of the public as required under section 24-10-103(1.3).
The Colorado Court of Appeals reversed. The appellate court held that a plaintiff satisfies the "unreasonable risk" element when showing that a governmental entity failed to restore a road to the same state of repair or efficiency as initially constructed. Based on evidence that the road was not maintained in its original condition, the court concluded that the roadway constituted an unreasonable risk and that Denver had waived immunity.
The City and County of Denver sought review in the Colorado Supreme Court.
The Colorado Supreme Court examined whether the road condition met the statutory definition of a "dangerous condition" under the CGIA. The statute requires proof that a physical condition of the road constituted an unreasonable risk to the health or safety of the public, that the entity knew or should have known of the condition, that the condition was proximately caused by negligent construction or maintenance, and that the dangerous condition physically interfered with the movement of traffic.
The Court rejected the court of appeals’ definition of "unreasonable risk." It concluded that the statute does not impose liability merely because a road is not in the same condition as when it was first constructed. The Court defined "unreasonable risk" according to its plain meaning as a chance of injury, damage, or loss that exceeds the bounds of reason.
Applying that definition, the Court determined that although the intersection was cracked and worn, it did not contain deep potholes, sinkholes, raised lips, or features that forced drivers to make emergency maneuvers. Kennedy testified that the intersection did not require immediate repair and did not contain conditions that would redirect a vehicle. The Court concluded that the evidence did not establish that the roadway posed a risk exceeding the bounds of reason.
The Court then examined whether the condition physically interfered with the movement of traffic. It interpreted "interfere" to mean hindering or impeding and "physical" to refer to tangible conditions. The Court determined that the collision resulted from the actions of the third-party driver who turned left in front of the motorcycle. The record did not demonstrate that the roadway itself hindered or impeded traffic prior to the turning vehicle’s maneuver.
The Colorado Supreme Court reversed the judgment of the court of appeals and held that the City and County of Denver retained its immunity under the Colorado Governmental Immunity Act. The case was remanded for further proceedings consistent with the Court’s opinion.
If you were injured due to a hazardous property condition, Whitcomb, Selinsky PC, contact us to discuss your situation with our team.