                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 18, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 MARTHA ATWOOD, as Personal
 Representative of the Estate of Charles
 Reed Atwood, deceased,

          Plaintiff - Appellee,
                                                        No. 09-1302
                                                (D.C. No. 09-CV-00604-RPM)
 v.
                                                          (D. Colo.)
 CITY AND COUNTY OF DENVER,
 d/b/a Denver International Airport,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before O’BRIEN, TYMKOVICH, and GORSUCH, Circuit Judges.



      This case asks us to decide whether a local government is immune from tort

liability under Colorado law. While Colorado law generally shields public

entities from liability, it permits suits to proceed if and when they negligently

“maintain” a public facility. Holding that this “maintenance” exception applied




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
to the facts of this case, the district court allowed this lawsuit to proceed. We are

obliged to reverse.

      The facts in this case are undisputed. Charles Atwood was traveling on a

“moving walkway” at the Denver International Airport. As a result of a

thunderstorm, the airport experienced a power outage and the walkway stopped.

When power returned a few seconds later, the walkway restarted and Mr. Atwood

fell and injured himself. In due course, Mr. Atwood brought this lawsuit against

the City and County of Denver, alleging negligence and premises liability. In

reply, Denver claimed state law immunity and moved to dismiss the case under

Rule 12(b)(1). The district court denied the motion, and Denver filed this

interlocutory appeal over which we now exercise jurisdiction. See Aspen

Orthopaedics & Sports Medicine, LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832,

837 (10th Cir. 2003).

      Under Colorado law, a public entity is immunized “from liability in all

claims for injury which lie in tort or could lie in tort . . . except as provided

otherwise in this section.” Colo. Rev. Stat. § 24-10-106(1). The parties before us

agree that this statute pertains to both of Mr. Atwood’s causes of action

(negligence and premises liability) because both “lie in tort or could lie in tort.”

The parties also agree that the only way Mr. Atwood might avoid dismissal is by

invoking a statutory exception that allows lawsuits to proceed if the plaintiff’s

injuries resulted from a “dangerous condition of any public building.” Colo. Rev.

                                           -2-
Stat. § 24-10-106(1)(c). A “dangerous condition,” in turn, is defined as a

condition of a facility that is “proximately caused by the negligent act or omission

of the public entity . . . in . . . maintaining such facility.” Colo. Rev. Stat. § 24-

10-103(1) (emphasis added); see also Springer v. City and Cnty. of Denver, 13

P.3d 794, 799 (Colo. 2000).

      We agree with Denver that, as a matter of law, this “maintenance”

exception doesn’t apply to this case. “Maintenance” is defined by statute to mean

the “act or omission of a public entity . . . in keeping a facility in the same

general state of repair or efficiency as initially constructed or in preserving a

facility from decline or failure.” Colo. Rev. Stat. § 24-10-103(2.5). Nowhere

does Mr. Atwood dispute that Denver kept the walkway in the same state “as

initially constructed.” Neither does he appear to suggest that Denver failed to

preserve the facility “from decline or failure.” Indeed, on the day of Mr.

Atwood’s accident it is undisputed that the walkway functioned exactly as it was

designed and intended; the walkway did not, in this sense, suffer from any decline

or failure. To be sure, Mr. Atwood contends that Denver failed to operate or use

the walkway properly — by failing to turn off the walkway during the

thunderstorm and then perhaps by failing to warn pedestrians before restarting the

walkway, or by failing to post signs alerting pedestrians to the risks associated

with the use of the walkway. But the negligent operation or use of a facility is

not the same as the negligent maintenance of a facility. Indeed, Colorado’s

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immunity statute makes clear that the “maintenance” and “operation” of a public

facility are two entirely different things. Compare Colo. Rev. Stat. § 24-10-

103(2.5) (defining “maintenance”) with § 24-10-103(3) (defining “operation”);

see also Colo. Rev. Stat. § 24-10-106(f) (waiving immunity for the “operation

and maintenance of any public water facility”) (emphasis added). And it is only a

failure to “maintain” — not to “operate” — that could serve to waive immunity in

this case.

      Any lingering worries we might have about the propriety of this statutory

interpretation as an initial matter are answered by cases that have come down this

way before us, in particular a pair of decisions issued by the Colorado Supreme

Court. In Medina v. State, the plaintiffs sued Colorado for its failure to close a

highway susceptible to falling boulders. 35 P.3d 443, 448 (Colo. 2001). Finding

immunity, the court held that “claims asserting a failure to warn, failure to close

the highway, or failure to suggest alternate routes” (that is, to warn users of latent

dangers) do not amount to an actionable failure to maintain the highway. Id. at

449 (emphasis added). Similarly, in Padilla ex rel. Padilla v. Sch. Dist. No. 1,

the Colorado Supreme Court found immunity where the plaintiff “merely alleged

that the government used the facility in an unsafe manner, thus only alleging that

the government was negligent in its use of the facility.” 25 P.3d 1176, 1183

(Colo. 2001) (emphasis added). Mr. Atwood’s case is analytically

indistinguishable from these cases. Mr. Atwood says Denver used the walkways

                                          -4-
in a dangerous manner when it neglected to turn them off during a thunderstorm;

he says Denver should have at least posted notices or otherwise alerted

pedestrians to the potential dangers associated with a power outage. But it is

patent that, as interpreted by the Colorado Supreme Court, none of this is

sufficient as a matter of law to suggest Denver failed to maintain the walkway

and so strip it of immunity. And of course the Colorado Supreme Court is the

definitive voice of Colorado law to whom we must listen when called upon, as

here, to apply a state statute.

      For these reasons, the order of the district court denying Denver’s Rule

12(b)(1) motion is reversed, and this matter is remanded to the district court for

entry of Rule 12(b)(1) judgment in favor of the defendant.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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