UNDER THE COTTONWOODS
Anyone who has suffered through more than an hour of daytime television is familiar with personal injury lawyers’ ads. One of Ohio’s PI stars is Tim Misny, whose bald pate is immediately recognizable to any Buckeye State dweller with a TV set, along with his trademarked slogan, “I’ll make them pay.”
Tim cautions would-be clients that the slogan isn’t a guarantee. It’s too bad that Sara Burnett’s Colorado attorney – who was not Tim Misny, and for that matter, may not even have been bald – didn’t tell her as much. Sadly for her, after five years of litigation, she got nothing.
Sad for her, but not for the public, whose pain in the pocketbook is all too often forgotten. It seems that Sara and her friend Mackenzie went camping at a suburban Denver state park, just a pleasant July evening under the cottonwoods. Unfortunately for Sara, one of the cottonwoods she camped under picked that same night to shed a branch. A big branch. The falling limb demolished Sara’s tent and badly hurt her head and back. Fortunately, Mackenzie was able to drive both of the young women to the hospital.
Sara then embarked on a campaign to make the State of Colorado pay for her injuries. The State defended on the grounds that it was immune from suit.
The notion of governmental immunity, fully known as “sovereign immunity,” traces its origins from early English law. Back then, the sovereign – that is, the king – was deemed incapable of committing a legal wrong. Thus, his majesty (and by extension his entire government of officials, ministers, clerks and knaves) was immune from civil suit or criminal prosecution.
The doctrine survives today in the United States. The Federal government, all state governments and most political subdivisions thereof are immune from liability for the conduct of their officers, agents and employees acting within the scope of their employment. Unsurprisingly, there are exceptions, cases in which the government has permitted itself to be sued. A good example is the Federal Tort Claims Act, which permits certain types of actions (such as negligence) to be brought against Uncle Sam, subject to some limitations.
Colorado has a statute similar to the FTCA, known as the Colorado Governmental Immunity Act. Generally, courts require that statutes like the FTCA and CGIA be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires.
In Sara’s case, the Colorado Supreme Court observed at the outset that “governmental immunity is sometimes inequitable, but … governmental entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive … The balance between these two competing interests ‘is for the legislature alone to reach’.”
The CGIA held that the State retains immunity for “an injury caused by the natural condition of any unimproved property.” This seems to pretty much slam the door of Sara claiming that a branch falling out of a tree should open the Colorado treasury to her. But her lawyer was crafty. He learned that the Park employees sometimes trimmed trees that required it. Thus, he argued, the trees ceased being in “natural condition” because the State altered that condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, those trees became “incorporated” into improved property.
In a decision handed down last year, the Colorado Supreme Court rejected Sara’s claims. Parsing the voluminous history of the CGIA, the Court concluded that the Act did not permit the “spatial analysis” she proposed. In other words, it doesn’t matter how close to the improved facilities an unimproved natural object – like a cottonwood – might be. What matters is what caused the injury. Here, it was a branch from an unimproved tree in its natural condition. Its location next to a campground did not alter its natural state.
For that matter, neither did the State’s occasional cleanup of that tree and others like it when dangling limbs caused Park employees to trim and haul away detritus. The State had no duty to do so, the Court said, and the fact that it may trim on a volunteer basis did not convert what was not a duty into a legal obligation.
The Court’s decision is a interesting tutorial on governmental immunity, and on the balancing of competing interests in making unimproved land available for recreation and protecting the public from hazards created by governmental action. As well, it’s a reminder that sometimes, no lawyer is good enough to “make them pay.”
Burnett v. Dept. of Natural Resources, 346 P.3d 1005 (Supreme Court of Colorado, March 23, 2015). One summer night, Denver area residents Sara Burnett and Mackenzie Brady were camping at suburban Cherry Creek Park. The pair chose a campsite which included a utility hookup, a parking area, a picnic table, and a level dirt pad, pitching their tent under a canopy of four mature cottonwood trees that flanked the campground. Early the next morning, while Burnett and Brady were sleeping inside their tent, a tree limb from one of the cottonwoods fell on their tent. The blow seriously injured Sara. Mackenzie suffered minor injuries, but was able to drive Burnett to the hospital.
Due to the density of the canopy, Park employees who subsequently investigated the accident could not determine the source of the fallen tree limb.
Sara sued the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation for negligence. She relied on section 24-10-106(1)(e) of the Colorado Government Immunity Act to argue that the Park was a “public facility” and the branches overhanging the campsite constituted a “dangerous condition” of it. The State moved to dismiss, asserting sovereign immunity under a separate provision of the CGIA, by which a public entity retains immunity for “an injury caused by the natural condition of any unimproved property.” The parties agreed that the improved campsite was a “public facility” under the CGIA, and that the trees adjacent to it originated on unimproved property.
The trial court applied Rosales v. City & County of Denver, 89 P.3d 507, 510 (Colo. App. 2004), determining that the sole issue was whether the trees adjacent to Sara’s campsite constituted a “public facility.” The trial court conducted a two-part Rosales analysis, concluding that the trees were not integral or essential to the campsite and thus could not constitute part of a “public facility” under § 24-10-106(1)(e). The court of appeals agreed, holding as well that because the trees were a “natural condition of … unimproved property,” § 24-10-106(1)(e) precluded Sara’s suit.
Sara appealed to the Supreme Court of Colorado.
Held: The State is immune from liability under the CGIA.
In the CGIA, a public entity waives its immunity to suit for an injury arising from a “dangerous condition of any .. public facility located in any park” it maintains. But the public entity retains immunity for injuries “caused by the natural condition of any unimproved property, whether or not such property is located in a park …” Therefore, the Supreme Court said, “irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.”
The CGIA does not define “natural condition of any unimproved property.” Sara argued that, the trees were in their “natural condition” until the State altered their condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, the State “incorporated” the trees into improved property. Therefore, she argued, the trees ceased to be a natural condition of unimproved property. The State, on the other hand, reasoned that where trees are native flora to property, their character as a “natural condition of unimproved property” remains regardless of incidental maintenance or their proximity to improvements on the land. Because the statute lacked a definition, the Court looked at the substantial amount of CGIA legislative history.
Prior to 1971, Colorado had no governmental immunity statute. Rather, immunity existed only as a court-made doctrine. That year, the Colorado Supreme Court “held that judicially imposed sovereign immunity was inappropriate and abolished such immunity at every level of government.” The legislature responded the next year with the CGIA.Fourteen years later, municipal insurance rates had skyrocketed. In response, the General Assembly rewrote the statute to afford the government greater protection against liability. A report supporting the amended law illustrated the legislative intent: first, it distinguished between dangerous conditions arising from man-made objects and natural objects; second, it explained that immunity should turn on the precise mechanism of the injury; third, it expressed the intent to exempt public entities from a duty to maintain any natural conditions; and fourth, it stated the policy goal of encouraging public entities to make unimproved, government-owned property open to the public without exposing those entities to the expense of defending claims brought by people injured while using the property.
Based on the CGIA’s legislative history, the Court concluded that “the legislature intended to retain immunity for injuries caused by native trees originating on unimproved property regardless of their proximity to a public facility …” Applying its interpretation to this case, the Court concluded that because a branch from trees originating on unimproved property caused Sara’s injuries, the natural condition provision of the CGIA precludes her suit. As for Sara’s argument that the statute can be interpreted that the State waives immunity for injuries caused by natural objects that are contiguous to improved property, the Court concluded that nothing in the legislative history indicated that the General Assembly intended the “spatial analysis” for which she was advocating. A rule that a public entity waives immunity for injuries that are caused by natural conditions and occur on improved property would create “a literal line drawing problem,” requiring courts to adopt an arbitrary rule to determine when natural objects – such as trees – sit on improved property and when they do not. The Court tersely noted, “We are not at liberty to create this third category.”
Because the CGIA retains immunity for injuries caused by a “natural condition of … unimproved property,” immunity turns on the mechanism of Sara’s injuries, not her location when the injuries occurred. The Court found that the cottonwoods bordering Sara’s campsite were “native vegetation of the unimproved property,” and the branch at issue fell from one of those cottonwoods. “Thus,” the Court held, Sara’s “injuries were caused by a natural condition of unimproved property, such that the natural condition provision precludes her suit.”
In reaching that holding, the Court rejected Sara’s argument that the State altered the natural condition of the trees by having previously pruned them. “Under the CGIA,” the Court ruled, “the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them once it chose to do so … An assumed duty would be contrary to the public health and safety, as it would discourage the State from undertaking any pruning whatsoever.” The Court refused to create a rule “that would transform natural conditions of unimproved property into improved property where, for the public health and safety, a public entity performs such incidental maintenance.”
In what was little more than a footnote at the end of the decision, the Colorado Supreme Court observed that “the trial court and court of appeals relied upon the two-part analysis delineated in Rosales … first, was the tree an “integral” part of the public facility …” and “second, was the tree “essential” for the public facility’s intended use?” Noting that “these questions do not originate in the CGIA,” the Court overruled its 11-year old Rosales rule.
The Court admitted that Sara’s “injuries are tragic,” but it concluded that “eliminating governmental immunity in this case would only compound the tragedy by sidestepping legislative intent and providing a disincentive for the government to facilitate access to public lands.”