Joy Maphis v. City of Boulder, Colorado

2022 CO 10

Joy Maphis , Petitioner v. City of Boulder, Colorado , Respondent

No. 20SC646

Supreme Court of Colorado

February 22, 2022

Certiorari to the Colorado Court of Appeals Court of Appeals

Case No. 19CA203

Attorneys for Petitioner : Randall J. Paulsen &

Associates, P.C. Randall J. Paulsen , O'Brien Law Firm,

LLC , Shauna O'Brien .

Attorneys for Respondent : Office of the City Attorney Sandra

M. Llanes Luis A. Toro .

Attorney for Amicus Curiae Colorado Intergovernmental Risk

Sharing Agency : Samuel J. Light

Attorneys for Amicus Curiae Colorado Municipal League: David

W. Broadwell Laurel Witt .

Attorney for Amicus Curiae Colorado Trial Lawyers

Association : Just Law Group, LLC John F. Poor .

JUSTICE HART delivered the Opinion of the Court , in which

CHIEF JUSTICE BOATRIGHT , JUSTICE HOOD , and JUSTICE

BERKENKOTTER joined . JUSTICE MÁRQUEZ , joined by

JUSTICE GABRIEL and JUSTICE SAMOUR , dissented.

OPINION

HART ,

JUSTICE.

¶1

After tripping over a deviation in a sidewalk in the City of

Boulder ( " City " ) , Joy Maphis sued the City for her

injuries under the Colorado Governmental Immunity Act

( "CGIA" ) . The City moved to dismiss for lack of

subject matter jurisdiction, arguing that it was immune from

suit as the sidewalk did not constitute a "dangerous

condition" under section 24-10-106 (1) (d) (1) , C.R.S.

( 2021 ) , of the CGIA . The district court denied the City's

motion based on its finding that the deviation was

"difficult to detect" and was larger than what the

City classified as a "hazard" warranting repair.

The City appealed, and the court of appeals reversed,

concluding that the undisputed evidence failed to establish

that the sidewalk presented the type of dangerous condition

for which the City had waived its immunity from

suit. [1]

¶2

We agree with the court of appeals that Maphis failed to

establish a waiver of immunity. Reviewing de novo the legal

question of whether the sidewalk constituted a dangerous

condition under the CGIA , we hold that Maphis's evidence

did not establish that the sidewalk deviation presented a

risk that "exceeded the bounds of reason." City

& Cty. of Denver v. Dennis , 2018 CO 37 , ¶ 23 ,

418 P.3d 489 , 497 . Accordingly, we affirm the court of

appeals and hold that the City retained its immunity from

suit under the CGIA .

I.

Facts and Procedural History

¶3

On April 8, 2017 , Maphis tripped over a two-and-a-half-inch

deviation in a concrete sidewalk in the City and fell,

fracturing both elbows and injuring her face. The City had

identified the sidewalk as needing repair just weeks earlier

and was only a few days away from making those repairs at the

time of her fall.

¶4

Maphis filed suit against the City to recover for her

injuries, alleging that the City was liable because it knew

of the dangerous condition of the sidewalk yet failed to

correct the condition or warn pedestrians of its

existence. [2] The City moved to dismiss Maphis's

claim for lack of subject matter jurisdiction under

section 24-10-106 (1) (d) (1) , which waives governmental

immunity for a "dangerous condition." It alleged,

in part, immunity from suit because the deviation in the

sidewalk was not "unreasonably dangerous" under the

standard for what constitutes a "dangerous

condition," as articulated by this court in

Dennis , ¶ 23 , 418 P.3d at 497 .

¶5

To determine whether the City had waived its immunity, the

district court held an evidentiary hearing pursuant to

Trinity Broadcasting of Denver, Inc. v. City of

Westminster , 848 P.2d 916 ( Colo. 1993 ) . Both Maphis and

the City's Principal Transportation Projects Engineer,

Gerrit Slatter , testified. Maphis testified to the extent of

her injuries and to the fact that the deviation "was

invisible. You couldn't see it when you were

walking." She further testified that, in her opinion,

the deviation was unreasonably dangerous.

¶6

Slatter testified about the City's sidewalk repair

program and the condition of the sidewalk. He first explained

that the City runs both a proactive and a reactive repair

program. Through the proactive program, the City

independently identifies and repairs damaged sidewalks as it

works through geographic zones; while through the reactive

program, the City receives a complaint or concern about a

particular sidewalk and fixes it. Under the proactive

program, Slatter explained, the City (1) "consults with

an engineering consultant [who] goes through the zone to

identify areas that are in need of repair . . . and . . .

develop [s]

an exhibit and a cost estimate" ; (2) "use [s] that

to work with a contractor to develop a scope of work and get

a construction estimate" ; (3) has "a public

engagement effort" to "notify the neighborhood . .

. that there will be sidewalk repair work happening over the

coming year or two" ; (4) "send [s] individual

letters . . . indicating whether a repair will be implemented

in front of their property" ; and (5) has an

"engineering technician [ ] . . . field visit and field

edit the recommendations from the consultant to make sure

that there is concurrence with the recommendations" and,

"if they identify other repairs that may be needed

within the zone, they . . . mark those locations and then

notify the adjacent property owners." Here, Slatter

testified, the sidewalk deviation was not identified in the

initial review of the geographic zone in 2015 . It was

identified and "marked . . . for repair" during the

field visit by the City's engineering technician shortly

before the previously scheduled repairs for the zone were

going to take place.

¶7

Slatter further agreed to the fact that "a deviation

greater than three quarters of an inch constitutes a

hazard" under the City's sidewalk repair program and

that such a deviation indicates the sidewalk is unsafe as

"a potential tripping hazard." He also explained

that when the sidewalk repair program was "conceived in

2010 , the thought was that there would be sufficient funding

to . . . address all the sidewalk repair needs within a

geographic zone on a yearly basis." However,

"budget limitations and being able to address the

repairs that are needed" mean that the City needs

"a couple of years" to work through each zone.

¶8

After the Trinity hearing , the district court issued

a minute order concluding that the City waived its immunity

because the sidewalk deviation "constituted a

'dangerous condition.' " It specifically found

that:

• "a sidewalk deviation greater than [three

quarters] of an inch constitutes a 'hazard' by the

City's own definition" ;

• the deviation of the sidewalk was approximately

two-and-a-half inches in height at the time of Maphis's

fall; and

• the deviation was "largely imperceptible."

On these facts , the district court reasoned that because

"the coloring of the sidewalk ma [de] the deviation

difficult to detect, increase [d] the degree of the tripping

hazard, and thus the risk to the walking public," it

constituted an "unreasonable risk of harm to the health

and safety of the public, such that [Maphis] . . . over [came]

her burden to prove that the City . . . waived its

immunity."

¶9

The City appealed the district court 's order, and, in a

divided opinion, a division of the court of appeals reversed.

Maphis v. City of Boulder , No. 19CA0203 ( June 25,

2020 ) . Reviewing de novo the question of whether the

deviation in the sidewalk constituted a "dangerous

condition," the division majority concluded that while

"there is little doubt that the sidewalk's condition

created some risk" as

a tripping hazard, that risk was not one that "exceeded

the bounds of reason" under the standard set forth by

this court in Dennis . Maphis at ¶ 26 .

In particular, the division noted that the undisputed facts

showed (1) the City had received no citizen complaints about

this sidewalk deviation; (2) the deviation had not been

identified as needing repair during the City engineer's

assessment of the zone in 2015 but had instead been

identified during a routine area inspection just weeks before

the accident; and (3) undisputed testimony and exhibits at

the Trinity hearing demonstrated that uneven

sidewalks are commonplace in Boulder. Id. at ¶

26 . Given these facts , the division majority concluded that

the sidewalk deviation did not constitute a "dangerous

condition" for purposes of waiving the City's

immunity under the CGIA . This conclusion, the division

explained, aligns with the "General Assembly's

intent to lessen potential burdens on taxpayers, and to

permit municipalities to prioritize repairs."

Id. at ¶ 32 .

¶10

Judge Richman , dissenting , reasoned that the City

"created a dangerous condition and its failure to act

[was] unreasonable" because it had identified the

sidewalk for repair but had not yet repaired it at the time

of Maphis's fall. Id. at ¶ 44 . ¶11

Maphis petitioned this court for certiorari, and we granted

review.

II.

Analysis

¶12

We begin by explaining that questions of sovereign immunity

under the CGIA present mixed questions of fact and law, with

jurisdictional facts reviewed for clear error and the

question of whether those facts constitute a "dangerous

condition" for purposes of the CGIA reviewed de novo. We

then review de novo whether the sidewalk deviation in this

case constituted a dangerous condition under the standard for

"unreasonable risk" announced in Dennis .

We conclude that it did not.

A.

Standard of Review

¶13

Whether the CGIA applies to protect the government from suit

is a question of subject matter jurisdiction governed by the

standard for dismissal pursuant to C.R.C.P. 12 (b) (1) .

Dennis , ¶¶ 9-10 , 418 P.3d at 494 ; St.

Vrain Valley Sch. Dist. RE-1J v. Loveland , 2017 CO 54 ,

¶ 10 , 395 P.3d 751 , 754 . As such, the plaintiff carries

the burden of proof to show that the government waived its

immunity. Dennis , ¶ 11 , 418 P.3d at 494 ;

see also City & Cty of Denver v. Crandall , 161

P.3d 627, 632 ( Colo. 2007 ) ( explaining that "in a

Trinity hearing on a C.R.C.P. 12 (b) (1) motion to

dismiss, the plaintiff must carry the burden of proving

jurisdictional facts adequate to support subject matter

jurisdiction" ) . But "this burden is relatively

lenient" in the CGIA context "as the plaintiff is

afforded the reasonable inferences from [their] undisputed

evidence." Dennis , ¶ 11 , 418 P.3d at 494 .

¶14

It is well-established that the application of sovereign

immunity presents a mixed question of fact and law. See

id. at ¶ 12 , 418 P.3d at 494 ( explaining the

standard of review for determining whether sovereign immunity

applies ) ; St. Vrain Valley Sch. Dist. RE-1J , ¶

10 , 395 P.3d at 754 (same) ; Crandall , 161 P.3d at

633 (same) ; Tidwell ex rel. Tidwell v. City & Cty. of

Denver , 83 P.3d 75, 81 ( Colo. 2003 ) (same) . The district

court makes "factual findings about its ability to hear

the case ," Dennis , ¶ 9 , 418 P.3d at 494 ,

and resolves "any factual dispute [s] upon which the

existence of jurisdiction may turn," Swieckowski v.

City of Ft. Collins , 934 P.2d 1380, 1384 ( Colo. 1997 ) .

On appellate review, we defer to the district court 's

factual findings unless they are clearly erroneous.

Dennis , ¶ 12 , 418 P.3d at 494 .

¶15

"Once the questions of fact are resolved, we review

questions of governmental immunity de novo,"

id. , as the only remaining question "is one of

statutory interpretation," St. Vrain Valley Sch.

Dist. RE-1J , ¶ 10 , 395 P.3d at 754 . When

interpreting a statute , our goal is to give effect to

legislative intent . Elder v. Williams , 2020 CO 88 ,

¶ 18 , 477 P.3d 694 , 698 . In doing so, we look at the

statute "as a whole, giving consistent, harmonious, and

sensible effect to all of its parts." Dennis ,

¶ 12 , 418 P.3d at 494 .

¶16

Applying these principles, we now review de novo whether the

condition of the sidewalk on which Maphis tripped constitutes

a "dangerous

condition" -and whether the City thus waived its

governmental immunity under section 24-10-106 (1) (d) (1) of the

CGIA .

B.

A "Dangerous

Condition" Under

the CGIA Is a

Physical Condition that Constitutes an Unreasonable

Risk

¶17

The CGIA provides immunity to public entities in claims for

injuries that lie in or could lie in tort but waives this

immunity in certain limited circumstances. § 24-10-106 .

Responding to this court 's prior abrogation of sovereign

immunity, the General Assembly enacted the CGIA with the

purposes of (1) protecting governments from unlimited

liability that could "disrupt or make prohibitively

expensive the provision of . . . essential public

services," § 24-10-102, C.R.S. ( 2021 ) ; (2)

protecting taxpayers "against excessive fiscal

burdens" as they would "ultimately bear the fiscal

burdens of unlimited liability," id. ; and (3)

"permit [ting] a person to seek redress for personal

injuries caused by a public entity" in circumstances

identified in the statute , State v. Moldovan , 842

P.2d 220, 222 ( Colo. 1992 ) . Because the CGIA derogates the

common law, we construe its immunity provisions strictly but

waiver provisions broadly. Elder , ¶ 20 , 477

P.3d at 698 .

¶18

At issue in this case is the provision that waives immunity

in an action for injuries resulting from the "dangerous

condition of a . . . sidewalk." §

24-10-106 (1) (d) (1) . The CGIA expressly defines a

"dangerous condition" as "a physical condition

. . . that constitutes an unreasonable risk to the

health or safety of the public." § 24-10-103 (1.3) ,

C.R.S. ( 2021 ) ( emphasis added ) .

¶19

In Dennis , we held that " 'unreasonable'

in this context means 'exceeding the bounds of reason or

moderation.' " ¶ 23 , 418 P.3d at 497 (quoting

Unreasonable , Webster's Third New International

Dictionary (unabr. ed. 2002 ) ) . We explained that because the

term "unreasonable" modifies the word

"risk," the CGIA requires " more than

a foreseeable risk of harm." Id. at

¶ 22 , 418 P.3d at 497 ( emphases added ) . In other words,

there are "situations when there is a chance the

[condition] could cause an injury, or it is foreseeable that

[it] could cause an injury" but the government

nonetheless does not waive its immunity. Id. This

balance is necessary because the CGIA waives governmental

immunity in a narrower class of circumstances than those that

might subject a private entity to liability.

¶20

Applying this standard in Dennis , we held that the

condition of a road, though somewhat deteriorated, was not

unreasonable. There, a passenger on a motorcycle was injured

at an intersection in Denver when the driver of a car turned

in front of the motorcycle and "effectively [cut]

off" the motorcycle. Id. at ¶ 3 , 418 P.3d

at 493 . The driver of the motorcycle attempted to stop before

hitting the car but was unable to, and the passenger was

flung from the motorcycle and suffered severe injury.

Id. The passenger sued the City and County of Denver

( "Denver" ) alleging that the condition of the road

at the intersection prevented the driver from effectively

stopping the motorcycle. Id. at ¶ 4 , 418 P.3d

at 493 .

¶21

Reviewing whether the condition of the road constituted a

"dangerous condition," we found that the plaintiff

presented evidence showing a "deteriorated

road" -i.e., "cracked and rutted" - "but not

a road which was unreasonably risky on which to

drive." Id. at ¶ 26 , 418 P.3d at 498

( emphasis added ) . We explained that "while [the

plaintiff ] is afforded the inferences of her undisputed

evidence, she nevertheless bore the burden of proving that

the road constituted an unreasonable risk." Id.

And we concluded that the plaintiff had not met that burden.

Thus, Denver had not waived its governmental immunity.

¶22

We reiterate today that to prove the "dangerous

condition" element of the immunity waiver, a plaintiff

must show that the "condition created a chance of

injury, damage, or loss which exceeded the bounds of

reason." Id. at ¶ 23 , 418 P.3d at 497 .

Assessing whether the plaintiff has met this burden requires

examining the totality of the circumstances presented by the

undisputed evidence as to whether that particular condition

presented an unreasonable risk. Id.

C.

The Sidewalk Deviation Did Not Constitute a Dangerous

Condition

¶23

Turning to the present case , we now consider whether Maphis

met her burden to show that the sidewalk condition created a

chance of injury, damage, or loss which exceeded the bounds

of reason, such that the City could be liable for her

injuries.

¶24

Maphis contends that the sidewalk condition constituted an

unreasonable risk because the two-and-a-half-inch deviation

exceeded the City's criteria for a tripping hazard by

three fold and its coloration made it hard to see. On the

undisputed facts at the Trinity hearing , we agree

with the division that these factors alone do not outweigh

the evidence demonstrating that this sidewalk condition-while

undeniably significant for Maphis-did not constitute the type

of "dangerous condition" for which the CGIA waives

governmental immunity.

¶25

First, we note that the condition was not unreasonable merely

because the deviation exceeded the City's criteria for a

"hazard" needing repair and the City had therefore

marked it for repair. "Hazard" is synonymous with

"risk." Hazard , Merriam-Webster Online,

https:/ / www.merriam- webster.com/dictionary/hazard

[ https://perma.cc/6QRY-M39T ] . And, as we observed in

Dennis , the term "unreasonable" modifies

the word "risk" in the CGIA . ¶ 23 , 418 P.3d at

497 . Thus, the mere fact that the City was aware of the

deviation and had scheduled it for repair because they

classified it as a hazard is not enough to qualify it as an

"unreasonable risk." The statutory language

requires looking beyond the City's criteria to determine

whether the acknowledged hazard is one that exceeded the

bounds of reason.

¶26

Further, the fact that the City had identified the deviation

as needing repair does not make the risk it presents an

unreasonable one. Certainly, once the City

had identified the deviation for repair-just weeks before the

accident-the risk was foreseeable. But, as we explained in

Dennis , a waiver of immunity requires more than

foreseeable risk. ¶ 22 , 418 P.3d at 497 .

¶27

Giving Maphis the benefit of all reasonable inferences from

the undisputed evidence, the coloration of the sidewalk here

did make the two-and-a-half-inch deviation "difficult to

detect." And the fact that the deviation was three times

the height of the City's "hazard" criteria

might also have increased the risk it presented. But the

degree of risk still did not exceed the bounds of reason as

(1) deviations in slab sidewalks are commonplace throughout

Colorado due to the harsh climate and other environmental

factors; (2) the deviation was located in a residential area

without any heightened safety concerns; and (3) the City had

not received any citizen reports through its reactive program

about the sidewalk. [3]

¶28

Of course, in examining the totality of the circumstances

shown by the undisputed facts in a different case, there

certainly could be instances where a two-and-a-half-inch

sidewalk deviation would constitute a dangerous

condition. For example, the location of such a deviation in a

high foot-traffic area or an area of

heightened public safety concern-such as at the entrance of

an assisted-living facility, hospital, school, or daycare-or

frequent citizen reporting of the condition would be

additional evidence that might help a plaintiff meet the

burden of proof. But none of these facts is present here. The

City did not receive any complaints about this sidewalk

deviation and only identified it independently for proactive

repair on a second review of the neighborhood sidewalks just

weeks before it was repaired.

¶29

Maphis argues that the relative frequency of sidewalk

deviations should not influence our reasonableness analysis

as it lets municipalities off the hook for dangerous

conditions just because those conditions are widespread. But

the purposes of the CGIA suggest that the frequency with

which a particular condition occurs is an appropriate

consideration when evaluating whether governmental immunity

has been waived. As the amicus brief submitted by the

Colorado Municipal League explained, "no municipal

sidewalk system is perfectly hazard-free at all times,"

and local governments seeking to maintain their sidewalks are

constrained not only by budgetary limitations, but also by

the availability of contractors who can do the needed

repairs. See Brief Amici Curiae, the Colorado Municipal

League and the Colorado Intergovernmental Risk Sharing

Agency , in Support of the City of Boulder , at

2 . We cannot ignore the realities that

Colorado's local governments face in trying to maintain

roads and sidewalks. As we explained in

Dennis , doing so would impose an "impossibly

high standard" whereby "state and local governments

[must] keep [sidewalks] like new at all times." ¶

19 , 418 P.3d at 496 . This would significantly

increase-not reduce-potential burdens on taxpayers. We

described in Dennis , and we emphasize here:

The [City] could not simultaneously fix every [sidewalk] ;

some [sidewalks] would be prioritized and renovated before

others. And when a [pedestrian] was injured on one of the

non-prioritized [sidewalks] that were awaiting renovation,

the government would be potentially liable for not fixing the

[sidewalk] . Thus, the taxpayers would be footing both the

costs of making [sidewalks] like new and the costs of

potential lawsuits.

Id .

¶30

Thus, based on the totality of the circumstances presented by

the undisputed evidence in this case , we hold that Maphis

failed to establish that the sidewalk deviation created a

chance of injury, damage, or loss which exceeded the bounds

of reason.

III.

Conclusion

¶31

Reviewing de novo whether Maphis established that the

sidewalk deviation created an unreasonable risk to the health

and safety of the public, we agree with the court of appeals

that she did not. Therefore, we affirm that the City's

governmental immunity has not been waived under the

"dangerous condition" provision of the CGIA .

JUSTICE MÁRQUEZ , joined by JUSTICE GABRIEL and JUSTICE

SAMOUR , dissented.

¶32

The General Assembly has expressly waived governmental

immunity for injuries resulting from a "dangerous

condition" of a sidewalk. § 24-10-106 (1) (d) (I) ,

C.R.S. ( 2021 ) . For that waiver to be given a meaningful

effect, it must apply to conditions as severe as the sidewalk

deviation at issue here: a nearly imperceptible,

two-and-a-half-inch vertical deviation that was known to the

City of Boulder , deemed an unsafe "hazard" under

its own standards, and was scheduled for repair. I disagree

with the majority's conclusion that the sidewalk

deviation here did not, as a matter of law, constitute a

"dangerous condition" as contemplated by the

Colorado Governmental Immunity Act ( "CGIA" ) .

Because the majority opinion effectively narrows the scope of

the CGIA 's waiver of immunity and creates an unjust

result under the circumstances of this case , I respectfully

dissent.

I.

Factual Background

¶33

Joy Maphis was seriously injured when she tripped over a

deviation in a residential sidewalk a few blocks from a

commercial area in Boulder, Colorado. She fell, landing on

her elbows and her face. Her left elbow was broken, and her

right elbow was shattered. Maphis required sutures to repair

her lip, and she underwent two surgeries to regain a

meaningful range of motion in her right

elbow. At the time of the Trinity hearing in this

case , Maphis testified that she still could not straighten

her left arm and was in constant pain.

¶34

The City was aware of the specific sidewalk deviation that

caused Maphis's fall because workers had identified it

during a routine inspection a month prior to Maphis's

injury. Under the City's guidelines, a deviation greater

than three quarters of an inch is considered a

"hazard." The City's engineer acknowledged at

the Trinity hearing that such deviations make the

sidewalk "unsafe." The two-and-a-half-inch

deviation here was more than three times that size. City

workers had marked the sidewalk and scheduled it for repair.

Unfortunately, the City did not complete those repairs until

two days after Maphis tripped and fell.

¶35

The deviation here was not only serious, but the district

court also found that it was "largely

imperceptible." Maphis testified that she could not see

the deviation because the coloring of the concrete on the

vertical face of the slab blended in with the coloring of its

top surface. Photographs of the sidewalk admitted into

evidence at the Trinity hearing confirmed her

testimony. Although the City had identified the deviation and

scheduled it for repair, it did not mark the area (with

orange paint or cones, for example) to make the hazard more

visible to pedestrians.

II.

The Sidewalk Deviation Constituted a "Dangerous

Condition"

¶36

The CGIA expressly waives a public entity's immunity from

suit in an action seeking compensation for injuries resulting

from a "dangerous condition" of any public sidewalk

within the corporate limits of a 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. ( 2021 ) .

¶37

To establish a "dangerous condition" -and thus, a

waiver of immunity under section 24-10-106 (1) (d) (I) -a

plaintiff must show that her injury resulted from (1) the

physical condition of a facility or the use thereof; (2)

which constituted an unreasonable risk to the health or

safety of the public; (3) which was known to exist or should

have been known to exist in the exercise of reasonable care;

and (4) which was proximately caused by the negligent act or

omission of the public entity in constructing or maintaining

the facility. Medina v. State , 35 P.3d 443, 454

( Colo. 2001 ) ; see also St. Vrain Valley Sch. Dist. RE-1J

v. Loveland , 2017 CO 54 , ¶ 16 , 395 P.3d 751 , 755 .

Here, there is no dispute that Maphis's injuries resulted

from the physical condition of the sidewalk; that the City

knew about this specific

sidewalk deviation; and that the condition of the sidewalk

was a result of the City's failure to maintain it. The

only dispute is whether the condition of the sidewalk

constituted "an unreasonable risk to the health or

safety of the public." § 24-10-103 (1.3) .

¶38

To prove that a condition poses an "unreasonable

risk," the plaintiff must show that the condition

"created a chance of injury, damage, or loss which

exceeded the bounds of reason." City & Cty. of

Denver v. Dennis , 2018 CO 37 , ¶ 23 , 418 P.3d 489 ,

497 . Although I agree with the majority that the ultimate

determination of whether the City has waived its governmental

immunity is a question of law reviewed de novo, maj. op.

¶ 16 , the determination of whether a particular

condition presents an unreasonable risk "will

necessarily be a fact-specific inquiry."

Dennis , ¶ 23 , 418 P.3d at 497 .

¶39

The facts here show that Maphis carried her burden of

establishing that the sidewalk deviation presented an

unreasonable risk. The two-and-a-half-inch vertical deviation

that caused Maphis to trip was more than three times the size

of a deviation the City itself considered to render a

sidewalk unsafe. While not every deviation exceeding the

City's three-quarter-inch standard automatically

constitutes a dangerous condition, the deviation here far

exceeded what the City itself deemed to require repair given

the risk of injury it created. Moreover, the City had

actually flagged and scheduled this particular sidewalk

deviation for

repair. In addition, the deviation here was also largely

imperceptible, even during daylight hours, because the

coloring of the slab's vertical plane matched the

slab's top surface-yet the City did not visibly mark the

deviation or otherwise take action to reduce pedestrians'

risk of injury while repairs were pending. [1] In short, the

known hazard in this case created a chance of injury that

exceeded the bounds of reason.

¶40

Our reasoning in Dennis actually supports the trial

court 's conclusion here. We held in Dennis that

the deteriorated condition of the road there carried

" some risk," but that the risk was not

unreasonable. Id. at ¶ 25 , 418 P.3d at 497 . In

reaching that conclusion, however, we pointed to the absence

of certain factors that are clearly present in this case .

¶41

First, there was conflicting testimony in Dennis as

to whether the condition of the road caused the collision (by

preventing the motorcycle from stopping quickly enough to

avoid the car that had turned in front of it) . Id.

at ¶ 24 , 418 P.3d at 497 . In other words, there were

unresolved questions regarding whether the deteriorated road

condition played a role in causing the accident. Id .

Here, there

is no such question. The vertical deviation in the sidewalk

clearly caused Maphis to trip and fall, resulting in her

serious injuries.

¶42

Second, in Dennis , the city's pavement engineer

testified that he had inspected the road at that intersection

a week before the accident and determined that it did not

require immediate repair. Id. at ¶ 25 , 418 P.3d

at 498 . Moreover, although the intersection was rated as

"very poor" under the city's internal analysis,

the city's rating system was "not related to how

safe or dangerous a road is" but served only to assist

the city in determining maintenance needs and priorities.

Id. at ¶ 5 , 418 P.3d at 493 . Here, by contrast,

the City had identified and scheduled this sidewalk deviation

for repair (and completed those repairs, albeit two days

after Maphis's accident) . In addition, the City's

engineer acknowledged that under the City's standards, a

sidewalk deviation greater than three quarters of an inch is

considered a hazard that makes the sidewalk

"unsafe."

¶43

Third, we emphasized in Dennis that the road, while

cracked and rutted, did not contain potholes or sinkholes

"or any other road characteristics such as a raised

pavement lip that could damage a vehicle and lead to an

accident." Id. at ¶ 26 , 418 P.3d at 498

( emphasis added ) . For this reason, we concluded that although

the road was deteriorated, it was not a road on which it was

unreasonably risky to drive. Id. Yet the vertical

sidewalk deviation here presented the very type of hazard to

a pedestrian that was missing from the facts evaluated in

Dennis .

¶44

In sum, the analysis in Dennis should lead us to

affirm the district court 's conclusion here that the

sidewalk deviation was a "dangerous condition" for

purposes of the CGIA . In holding otherwise, the majority

misapplies Dennis .

¶45

The majority concedes that "there certainly could be

instances where a two- and-a-half-inch sidewalk deviation

would constitute a dangerous condition"

sufficient to waive immunity. Maj. op. ¶ 28 . However,

the majority apparently would limit such circumstances to

"high foot-traffic area [s] ," "area [s] of

heightened public safety concern," and sidewalk

conditions that citizens have frequently reported.

Id. Although such circumstances are certainly

relevant to determining whether a sidewalk deviation

constitutes a dangerous condition, they cannot serve to

restrict the CGIA 's waiver of immunity. See

Dennis , ¶ 14 , 418 P.3d at 495 ( "Because the

CGIA derogates common law, we construe its waivers of

immunity broadly." ) .

¶46

I fear the majority's ruling today effectively precludes

any tort claim against a municipality for the dangerous

condition of a sidewalk-even a known hazardous condition that

poses an unreasonable risk of injury-unless the condition

occurs in a "high foot-traffic area" or "an

area of heightened public safety concern." Nothing in

the CGIA suggests that we must construe the waiver of

immunity for the dangerous condition of a public sidewalk so

narrowly. A known, physical condition capable of causing the

serious injuries sustained here

cannot be deemed within the bounds of reason simply

because it was located in an area of the city with lighter

pedestrian traffic. As the facts of this case demonstrate,

tripping over a sidewalk deviation (regardless of its

location within a municipality) can result in serious,

long-term injuries. True, the CGIA is aimed, in part, at

preventing unlimited liability of the government, but its

waivers of sovereign immunity are intended to allow

individuals to seek redress for injuries caused by the

government. Indeed, this is "one of the basic but often

overlooked" purposes of the CGIA . Daniel v. City of

Colo. Springs , 2014 CO 34 , ¶ 13 , 327 P.3d 891, 895

( quoting State v. Moldovan , 842 P.2d 220, 222 ( Colo.

1992 ) ) . In my view, today's ruling overlooks that

purpose.

III.

Conclusion

¶47

A finding that immunity has been waived does not mean that

Maphis wins; it means only that she may bring her case to

trial, where she would still have to prove the City's

negligence to prevail. But the majority's opinion today

precludes her from even having that opportunity.

¶48

The CGIA clearly waives immunity for claims seeking

compensation for injuries resulting from the dangerous

condition of a public sidewalk. Because I believe Maphis

established that the sidewalk deviation here constituted a

"dangerous condition" sufficient to establish the

waiver of immunity under section 24-10-106 (1) (d) (I) , I

respectfully dissent.

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Notes:

[1] We granted certiorari to review the

following issues:

1. Whether the court of appeals erred by reviewing the

trial court 's findings of fact for clear error and its

legal conclusion-that the sidewalk did not constitute such a

dangerous condition as to waive Boulder's immunity-de

novo.

2. Whether the court of appeals erred by holding that

the sidewalk did not constitute a dangerous condition for

purposes of waiving Boulder's immunity pursuant to the

Colorado [Governmental] Immunity Act, section

24-10-106 (1) (d) (1) , C.R.S. ( 2020 ) .

[2] Maphis also brought a negligence per

se claim against a private party , Moreland Family LTD

Partnership , for failure to maintain the sidewalk adjacent to

their property pursuant to Boulder Municipal Code §

8-2-6 . That claim is not at issue on appeal.

[3] The City might have done well to more

clearly mark this deviation while it was awaiting repair.

However, " [n] egligent failure to warn" does not

"trigger [] a waiver of immunity under the CGIA ."

Medina v. State , 35 P.3d 443, 449 ( Colo.

2001 ) .

[1] While I acknowledge that a claim under

the CGIA cannot be predicated solely on a failure to warn,

see Medina , 35 P.3d at 449 , the failure to call

attention to the hazard here, particularly given how

difficult it was to perceive, is relevant to determining

whether it was unreasonably dangerous.

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