     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 12, 2018

                                2018COA97

No. 16CA1652 Lopez v. City of Grand Junction — Torts —
Negligence; Government — Colorado Governmental Immunity
Act — Immunity and Partial Waiver

     In this negligence case implicating the Colorado Governmental

Immunity Act, a division of the court of appeals applies the

analytical framework of Springer v. City & Cty. Of Denver, 13 P.3d

794 (Colo. 2000), to conclude that under section 24-10-106(1)(f),

C.R.S. 2017, a city’s immunity may be waived for the operation or

maintenance of a public facility performed by its independent

contractor.

     The division here concludes that plaintiffs met their burden to

establish a waiver of immunity as to its negligence claims against

the City of Grand Junction (City) for its independent contractor’s

maintenance work on a traffic light. Accordingly, it reverses the
district court’s C.R.C.P. 12(b)(1) dismissal of these claims. The

division, however, affirms the district court’s C.R.C.P. 12(b)(1)

dismissal of plaintiff’s negligence claims brought against the City

regarding its maintenance of a sewer line.
COLORADO COURT OF APPEALS                                       2018COA97


Court of Appeals No. 16CA1652
Mesa County District Court No. 13CV30147
Honorable Brian J. Flynn, Judge


Roberto Lopez, Jordan Pierson, and Kolby Gimmeson,

Plaintiffs-Appellants,

v.

City of Grand Junction, Colorado,

Defendant-Appellee.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                     Division I
                         Opinion by JUDGE LICHTENSTEIN
                         Taubman and Román, JJ., concur

                             Announced July 12, 2018


Killian Davis, P.C., J. Keith Killian, Damon Davis, Joseph Azbell, Grand
Junction, Colorado, for Plaintiffs-Appellants

Baldwin Morgan & Rider, P.C., Sophia H. Tsai, Kelly L. Kafer, Denver,
Colorado, for Defendant-Appellee
¶1    Underground maintenance of a public traffic light in Grand

 Junction breached a natural gas line. Leaking gas from the

 ruptured line migrated to a house, resulting in an explosion and

 injuries. As a matter of first impression, we must determine

 whether section 24-10-106(1)(f), C.R.S. 2017, can be applied to

 waive the immunity of the City of Grand Junction (City), even

 though the maintenance of the traffic light was performed by an

 independent contractor. We conclude that it can.

¶2    Roberto Lopez, Jordan Pierson, and Kolby Gimmeson

 (plaintiffs) brought negligence claims against the City for their

 resultant personal injuries and property damage. Plaintiffs’

 complaint alleges, among other things, that the City breached its

 duty of care to safely maintain its utility, electric, and sewer lines.1

¶3    As pertinent here, the complaint alleges that the City

 contracted with Apeiron Utility Construction (Apeiron) to upgrade



 1 Plaintiffs’ complaint asserted other negligence claims against the
 City and against other defendants, but those claims are not at issue
 here. This appeal challenges only their claims against the City for
 negligence in maintaining its utility and electric lines for the traffic
 light (including a vicarious liability theory for its independent
 contractor’s conduct on this project), and for negligence in
 maintaining its sewer line.

                                     1
 utility lines that powered a traffic light and that during this

 maintenance project Apeiron ruptured a gas line, and the leaking

 gas resulted in the house explosion. The complaint alleges that

 Apeiron’s conduct should be imputed to the City.

¶4    The City moved to dismiss these negligence claims for lack of

 jurisdiction under C.R.C.P. 12(b)(1), asserting governmental

 immunity under the Colorado Governmental Immunity Act (CGIA).

¶5    In response, plaintiffs argued that the City had waived its

 immunity pursuant to section 24-10-106(1)(f). This CGIA provision

 waives immunity for injuries resulting from the operation and

 maintenance of any public “sanitation [or] electrical facility.” After

 the district court held a Trinity hearing on the motion, it granted the

 City’s motion to dismiss.

¶6    Applying the analytical framework of Springer v. City & County

 of Denver, 13 P.3d 794 (Colo. 2000), we conclude that the waiver of

 immunity under section 24-10-106(1)(f) applies even if the

 operation or maintenance was performed by a public entity’s

 independent contractor.

¶7    Given this conclusion, and based on the facts found by the

 district court, we further conclude that the plaintiffs met their


                                    2
  burden to establish a waiver of immunity as to the negligence

  claims against the City for Apeiron’s maintenance work on the

  traffic light. Accordingly, we reverse the district court’s C.R.C.P.

  12(b)(1) dismissal of these claims for lack of jurisdiction and

  remand for further proceedings.

¶8     However, we affirm the district court’s dismissal of plaintiffs’

  negligence claim against the City as to its operation and

  maintenance of its sewer line, as plaintiffs’ evidence did not support

  an immunity waiver under section 24-10-106(1)(f).

¶9     Because we are reversing the dismissal of two of the

  negligence claims in the complaint, we deny the City’s request for

  attorney fees.

                   I.   Additional Factual Background

¶ 10   Following the Trinity hearing, the district court adopted the

  City’s nine-page proposed order of dismissal, which includes the

  following factual findings.

¶ 11   The City planned to install new electrical lines through an

  underground conduit to fix a malfunctioning traffic light. The City

  did not have the personnel or equipment to bore under the road to




                                     3
  place the conduit, so it hired Apeiron to do this underground

  drilling work.

¶ 12   Before selecting the location to bore the hole, and pursuant to

  an agreement between the City and Apeiron, Apeiron contacted the

  various utility owners to mark their utility lines. One of the utility

  owners, Xcel Energy, hired Safe Site to mark its gas lines. Safe Site

  marked two gas lines.

¶ 13   Once the utility lines were marked, Apeiron dug potholes to

  visualize the located utility lines and then began the directional

  drilling work. As it was drilling the pilot bore across the road,

  Apeiron’s crew foreman felt the drill strike something. He checked

  with a City employee, and they both determined that they were not

  aware of any additional utility lines in the area. Apeiron resumed

  its work. After drilling the pilot bore, Apeiron pulled a larger drill

  head back that also pulled the new conduit back through the hole.

  During this process, the drill struck a natural gas line that ran

  below the two lines located by Safe Site. After this breach, gas

  leaked into the surrounding ground and also into a sewer main

  located approximately fifteen to twenty feet away.




                                      4
¶ 14   There was disputed evidence as to the exact path that the gas

  travelled to the house, although it was not disputed that gas

  entered the house through its basement, where there was a

  nonfunctional toilet and unused shower. One or both of these had

  a dry P-trap that allowed the gas into the basement. The gas

  ignited and caused an explosion.

¶ 15   The court found that the sewer main was made of a commonly

  used porous vitrified clay pipe, not intended to keep gases or

  vegetation in or out. At the time of the incident, the pipe was intact

  and in good condition, and the sewer main “was functioning at or

  near the same efficiency as it had when it was installed.”

                             II.   The CGIA

¶ 16   The CGIA establishes governmental immunity from suit for

  public entities and their employees in tort cases, but it also waives

  immunity in certain circumstances. See § 24-10-106; Springer, 13

  P.3d at 798, 801 n.5; see also Daniel v. City of Colorado Springs,

  2014 CO 34, ¶ 13.

¶ 17   This statutory scheme serves the purpose of protecting the

  public against unlimited liability and excessive fiscal burdens, while

  allowing the common law of negligence to operate against


                                     5
  governmental entities except to the extent the statute has barred

  suit against them. Walton v. State, 968 P.2d 636, 643 (Colo. 1998);

  see Springer, 13 P.3d at 803; see also § 24-10-102, C.R.S. 2017.

¶ 18     Because governmental immunity from suit derogates the

  common law of negligence, courts must strictly construe the CGIA

  provisions that grant immunity. Springer, 13 P.3d at 798; Walton,

  968 P.2d at 642. For the same reason, courts must broadly

  construe the statute’s provisions that waive immunity in the

  interest of compensating victims injured by the negligence of

  government agents. Springer, 13 P.3d at 798; Walton, 968 P.2d at

  643.

¶ 19     As pertinent here, a public entity’s immunity from negligence

  claims will be waived for injuries “resulting from . . . [t]he operation

  and maintenance of any public . . . sanitation [or] electrical facility.”

  § 24-10-106(1)(f).2

¶ 20     “Resulting from” is construed broadly to require only a

  “minimal causal connection” between the injuries and the specified



  2 At the Trinity hearing and on appeal, the parties do not dispute
  that the City’s traffic light, conduit, and sewer main are public
  facilities as contemplated by this waiver provision.

                                      6
  conduct. Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75,

  86 (Colo. 2003). Because the required showing is minimal, and

  because discovery before a Trinity hearing is limited, the district

  court should afford a plaintiff the favorable inferences of his

  allegations and need not reach so far as to determine whether the

  injuries were “caused by” the specified conduct. Id.

¶ 21   “Operation” means “the act or omission of a public entity or

  public employee in the exercise and performance of the powers,

  duties, and functions vested in them by law with respect to the

  purposes of any public” power or sanitation facility. § 24-10-

  103(3)(a), C.R.S. 2017.

¶ 22   This broad definition of “operation” includes the concept of

  maintenance. City of Colorado Springs v. Powell, 48 P.3d 561, 565

  (Colo. 2002). “Maintenance” is defined as “the act or omission of a

  public entity or public employee 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.” § 24-10-103(2.5).

              III.   Trinity Hearing and Standard of Review

¶ 23   If governmental immunity is raised before trial, “the issue is

  properly addressed pursuant to a C.R.C.P. 12(b)(1) motion to


                                      7
  dismiss” for lack of jurisdiction. Corsentino v. Cordova, 4 P.3d

  1082, 1087 (Colo. 2000).

¶ 24   A trial court may hold a hearing and receive any competent

  evidence pertaining to the motion. Trinity Broadcasting of Denver,

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

  plaintiffs bear the burden of proving the court’s subject matter

  jurisdiction under the CGIA and that immunity has been waived.

  Tidwell, 83 P.3d at 85. Plaintiffs are afforded the reasonable

  inferences of their evidence supporting a waiver. Id.

¶ 25   On review, we defer to the district court’s factual findings

  unless they are clearly erroneous and unsupported by the record.

  City & Cty. of Denver v. Dennis, 2018 CO 37, ¶ 12; see Walton, 968

  P.2d at 645. Once questions of historical fact are resolved, the

  question whether a governmental entity is entitled to immunity is

  one of law, which we review de novo. Dennis, ¶ 12.

                  IV.   Maintenance of the Traffic Light

¶ 26   Plaintiffs contend that the district court erroneously concluded

  that Apeiron’s conduct in maintaining the traffic light was not

  attributable to the City for purposes of waiving the City’s immunity




                                    8
  under section 24-10-106(1)(f). For the reasons that follow, we

  agree.

                        A.   The Conduct at Issue

¶ 27   As an initial matter, we must address the “conduct” that

  plaintiffs argue is attributable to the City. The district court’s order

  characterized the plaintiffs’ argument as “seek[ing] to impute any

  act or omission related to locating and marking the gas lines to the

  City” ― an act performed by a third party, Safe Site.

¶ 28   But at the Trinity hearing and on appeal, plaintiffs have

  consistently argued that the conduct at issue was Apeiron’s act of

  striking (and breaching) the natural gas line with a directional drill.

  We will therefore review plaintiffs’ attribution argument as it was

  argued and with deference to the district court’s findings of fact.

¶ 29   As a logical matter, any attribution of Apeiron’s conduct to the

  City will only matter — for purposes of waiver — if the conduct

  would have waived the City’s immunity had the City itself

  committed this act.

¶ 30   The City’s immunity is waived if plaintiffs can show they had

  injuries “resulting from” the specified conduct. § 24-10-106(1)(f);

  Tidwell, 83 P.3d at 86. As noted above, the phrase “resulting from”


                                     9
  does not require a showing that the injuries were “caused by” the

  conduct. Tidwell, 83 P.3d at 86. But there must be at least a

  “minimal causal connection” between the injuries and the specified

  conduct. Id.

¶ 31   At the Trinity hearing, the district court found that the City’s

  project involved drilling a bore hole under the road to install a new

  conduit to hold additional electrical lines for its traffic light. During

  this project, the drill struck a natural gas line, breaching it. The

  court found that “it is undisputed that natural gas from the breach

  got into the sewer main and surrounding ground . . . [and] it is not

  disputed that the gas entered the home through the basement” and

  the house then exploded.

¶ 32   Construing the waiver provision broadly, and affording

  plaintiffs the favorable inferences from these undisputed facts, see

  id., we conclude the injuries “result[ed] from” the conduct of

  striking (and breaching) the natural gas line. Thus, this conduct

  would have waived the City’s immunity had the City itself

  committed this act.




                                     10
                    B.    Attribution of the Conduct

¶ 33   Because Apeiron — not the City — committed this act, we

  must determine whether its conduct is attributable to the City for

  purposes of the CGIA waiver.

¶ 34   The operation and maintenance waiver in section 24-10-

  106(1)(f) does not mention any party except the public entity.

  Nonetheless, plaintiffs argue that the supreme court, in Springer,

  has already construed a different CGIA waiver provision3 to

  encompass the conduct of a public entity’s independent contractor

  even though that waiver provision only mentions the public entity.

  Plaintiffs urge us to similarly construe the operation and

  maintenance waiver provision.

¶ 35   In Springer, the supreme court initially looked beyond the

  waiver’s language to other text in the CGIA, but did not find

  anything that would preclude the attribution of the independent

  contractor’s conduct to the public entity. See 13 P.3d at 801.4




  3 The provision at issue was section 24-10-106(1)(c), C.R.S. 2017
  (dangerous condition of any public building).
  4 To the extent the City relies on this other text in the CGIA and

  repeats the same arguments that did not prevail in Springer, we
  reject those arguments.

                                   11
¶ 36   The court then turned to other means of statutory

  construction to discern the legislative intent of the waiver provision

  so it could assess whether that intent is consistent with attributing

  the independent contractor’s conduct to the public entity.

¶ 37   First, it evaluated the waiver’s underlying rationale to analyze

  why the public entity lacks immunity. Id.; see § 2-4-203(1)(a),

  C.R.S. 2017. Second, it considered the alternative construction if

  the waiver provision were narrowly construed to apply solely to the

  acts or omissions of the public entity. Springer, 13 P.3d at 801-02;

  see § 2-4-203(1)(e). Third, it evaluated whether an expansive

  interpretation of the waiver — to attribute the independent

  contractor’s conduct to the public entity — is consistent with the

  legislative intent to comport with recognized common law negligence

  principles. Springer, 13 P.3d at 802; see § 2-4-203(1)(g).

¶ 38   The Springer court determined that a public entity lacks

  immunity because it is responsible for its acts (in creating), as well

  as its omissions (in failing to reasonably discover and correct), an

  unsafe condition in a public building. Springer, 13 P.3d at 801.

  Next, it observed that if the waiver were narrowly construed to

  exclude the acts or omissions of the independent contractor, a


                                    12
  public entity could simply avoid responsibility by contracting out its

  work to others, which would nullify the essential purpose and effect

  of the waiver. Id. at 801-02. Finally, it determined that an

  expansive reading of the General Assembly’s intent — to hold a

  public entity responsible for the acts of its independent contractor

  — is consistent with longstanding principles of tort liability. Id. at

  802 (citing Restatement (Second) of Torts § 422 (Am. Law Inst.

  1965)).

¶ 39   Applying this same analytical framework to the operation and

  maintenance waiver of section 24-10-106(1)(f), we are likewise

  persuaded that an independent contractor’s conduct is attributable

  to a public entity for purposes of waiving immunity.

¶ 40   As in Springer, the underlying rationale for waiving the public

  entity’s immunity from suit is that a public entity is in a position to

  avoid injury to the public when it engages in a public works project.

  See id. at 801. A public entity, while operating or performing

  maintenance on a public facility, is liable because it is in a position

  to avoid creating (“act”) or failing to prevent (“omission”) a

  circumstance resulting in injury. See id.




                                     13
¶ 41   We are not convinced by the City’s argument that the

  legislature intended a different outcome because the dangerous

  condition waiver focuses on a “condition,” whereas the operation

  and maintenance waiver focuses on “conduct.” Under both waivers,

  the governmental entity’s responsibility to avoid injury to the public

  stems from its conduct while engaging in a public works project.

  See § 24-10-103(1.3) (defining “dangerous condition” to be a

  physical condition caused “by the negligent act or omission of the

  public entity . . . in constructing or maintaining such facility”)

  (emphasis added); see also Springer, 13 P.3d at 799 (“[T]he

  dangerous condition must be associated with construction or

  maintenance, not solely design.”).

¶ 42   Next, as in Springer, the waiver’s underlying principle would

  be nullified if the public entity could escape liability by simply

  hiring an independent contractor for the operation and

  maintenance of its public facilities. See 13 P.3d at 801-02.

¶ 43   Finally, expansively reading the operation and maintenance

  waiver to attribute an independent contractor’s conduct to a public

  entity is consistent with common law principles as reflected in the

  Restatement (Second) of Torts. See id. at 802 (supporting its


                                     14
  interpretation of the CGIA with “longstanding principles of tort

  liability”).

¶ 44    Generally, a person hiring an independent contractor to

  perform work is not liable for the negligence of the independent

  contractor. Huddleston ex rel. Huddleston v. Union Rural Elec.

  Ass’n, 841 P.2d 282, 288 (Colo. 1992). However, there are widely

  recognized exceptions to this rule. Id.

¶ 45    For example, when a public entity retains possession of its

  premises during the independent contractor’s performance of

  maintenance on those premises, it essentially assumes the role of a

  landowner. Section 422 of the Restatement provides that the

  landowner is liable for injuries caused by the negligence of the

  independent contractor if the landowner retains possession of the

  land while the work is being done or once the landowner resumes

  possession of the land upon completion of the work. Restatement

  (Second) of Torts § 422, Westlaw (database updated June 2018).

¶ 46    Indeed, the Springer court relied on section 422 to conclude

  that attribution of an independent contractor’s work to a public

  entity is consistent with the rationale of the dangerous condition

  waiver of immunity provisions. 13 P.3d at 802. We perceive the


                                    15
  same consistency with the operation and maintenance waiver.

  Section 422 is not limited to dangerous conditions, but

  contemplates a landowner’s liability for injuries resulting from other

  acts or omissions of its independent contractor. See Restatement

  (Second) of Torts § 422 cmt. c.

¶ 47   Other widely recognized common law principles of liability

  attribute the conduct of the independent contractor to the employer

  based on the nature of the activity. Here, plaintiffs assert — and

  the City does not dispute — that the maintenance project involved

  inherently dangerous activity.

¶ 48   In this vein, we look to the common law principles based on

  the nature of the activity. Section 427 of the Restatement provides

  that an employer of an independent contractor is liable for injuries

  created during work which involves a special danger to others.

  Restatement (Second) of Torts § 427. Relatedly, section 416

  recognizes that an employer of an independent contractor is liable

  for injuries created during work which creates a “peculiar risk of

  physical harm to others unless special precautions are taken.” Id.

  at § 416.




                                    16
¶ 49   Thus, expansively reading the operation and maintenance

  waiver to attribute an independent contractor’s conduct to a public

  entity is consistent with these common law principles. Springer, 13

  P.3d at 802 (“Where the rationales underlying related legal

  provisions are consistent, the application of the provisions should

  likewise be consistent.”).

¶ 50   We therefore conclude that a public entity “maintains” a public

  facility, for purposes of the immunity waiver in section 24-10-

  106(1)(f), even if it hires an independent contractor to perform the

  maintenance. Given this conclusion, and based on the district

  court’s findings, plaintiffs met their burden to establish a waiver of

  immunity as to their negligence claims against the City.

¶ 51   Consequently, we reverse the district court’s order dismissing

  plaintiffs’ negligence claims against the City for Apeiron’s

  maintenance work on the traffic light.

             V.   The City’s Maintenance of the Sewer Main

¶ 52   Plaintiffs next assert that the district court erred when it

  dismissed their negligence claim against the City as to its operation




                                    17
  and maintenance of its sewer main.5 Plaintiffs argue that the

  explosion and consequent injuries resulted from the City’s failure to

  keep the sewer main in the same general state of repair as when it

  was initially constructed. We affirm the district court’s dismissal of

  this claim.

                A.   The “Operation and Maintenance” Waiver

¶ 53   Section 24-10-106(1)(f) waives governmental immunity in

  actions for injuries resulting from the operation and maintenance of

  a public sanitation facility. § 24-10-106(1)(f); Powell, 48 P.3d at

  563.6

¶ 54   Immunity is waived if an injury results from a public entity’s

  failure to keep the public facility “in the same general state of being,

  repair, or efficiency as initially constructed.” § 24-10-103(2.5)


  5 The court did not address plaintiffs’ argument that the operation
  and maintenance waiver applied to the City’s alleged failure to keep
  the sewer line in the same state of repair or efficiency. And the
  court did not rule on plaintiffs’ C.R.C.P. 59 motion, which requested
  the court to address this issue. Therefore, by operation of law, the
  court rejected this argument. See C.R.C.P. 59(j) (any post-trial
  motion that has not been decided within the allowable time period
  shall be deemed denied).
  6 A public “sanitation facility” includes the City’s sewer main. § 24-

  10-103(5.5), C.R.S. 2017 (including structures and related
  apparatus used in the collection or disposition of sewage of a liquid
  nature in the definition of public sanitation facility).

                                    18
  (defining maintenance). This determination focuses on what “the

  city did or did not do that is connected with the purpose of the

  [facility].” Powell, 48 P.3d at 565.

                             B.    Discussion

¶ 55   Plaintiffs argue that at the time of the explosion, the sewer

  main was not in the same general state of repair as when it was

  installed. Over time, plant roots had grown into the sewer main,

  creating gaps at the joints, which allowed the gas to enter the pipe.

  Thus, they assert, the City’s failure to keep the line free of these

  invasive roots was a failure to maintain which waived liability under

  the CGIA.

¶ 56   The district court found that the sewer main was a vitrified

  clay pipe, and that “vitrified clay pipe is porous and not intended to

  keep gases or vegetation in or out of the sewer main.”

¶ 57   It found that at the time of the explosion

              the sewer main was intact and in good
              condition. . . . [T]he City had maintained the
              sewer main, cleaning it approximately every
              2.5 years. The main in that area was last
              cleaned in February 2012, approximately 13
              months before this incident. At that time, the
              main was intact and in good condition.

¶ 58   The court also found that


                                     19
            [t]he sewer main was installed in the 1940s,
            and was made of vitrified clay pipe pursuant to
            the original design for the sewer main. . . . On
            March 19, 2013 [the day of the explosion], the
            sewer main was functioning at or near the
            same efficiency in 2013 as it had [been] when
            it was installed.

¶ 59   Testimony at the hearing supported these findings. Steven

  Guillory, the utility engineer for the City, acknowledged there was

  “some vegetation at some of the joints in the pipe” but agreed the

  pipe was in the same general state of repair or efficiency as when it

  was initially constructed:

            [City Attorney]: In your role as utility engineer
            can you say whether in March of 2013 the
            sewer main . . . was in the same general state
            of repair or efficiency as initially constructed?

            [Guillory]: Yes, I would say it was.

¶ 60   Similarly, Larry Brown, the maintenance and collections

  supervisor for the City’s wastewater system, testified that he looked

  at the video of the sewer main and did not remember “much in the

  way” of vegetation in the line. He testified that the line was in good

  condition, without any breaks, and that it was “[v]ery clean for a

  sewer line.” When the City’s attorney asked him if the sewer main

  was in the same general state of repair or efficiency as when it was



                                    20
  initially constructed, he testified that it was “fairly close. It looked

  pretty good.”

¶ 61   True, there was conflicting testimony from Zachary Jason,

  who testified that the sewer was “severely damaged and broken in

  several areas [because r]oots were penetrating the clay pipe.” But

  the court resolved the evidentiary dispute, finding that the “sewer

  main was intact and in good condition” and “was functioning at or

  near the same efficiency in 2013 as it had when it was installed.”

¶ 62   Based on this record, we agree with the district court that

  plaintiffs did not meet their burden to prove a waiver under section

  24-10-106(1)(f).

¶ 63   Plaintiffs nonetheless ask this court to remand for further

  findings because the district court only found that the sewer was in

  the same general state of efficiency, not the same general state of

  repair. We decline to do so.

¶ 64   Although the district court’s order did not expressly use the

  words “state of repair,” the court found that the City actively

  maintained the sewer line; it was intact, in good condition, and it

  functioned as it did when it was installed. See Powell, 48 P.3d at




                                     21
  562 (A waiver results from act or omission “connected with the

  purpose of the facility.”).

                                VI.   Attorney Fees

¶ 65   The City requests an award of attorney fees pursuant to

  section 13-17-201, C.R.S. 2017, which mandates an attorney fee

  award when an action is dismissed for lack of subject matter

  jurisdiction under the CGIA. Crandall v. City of Denver, 238 P.3d

  659, 663 (Colo. 2010) (The mandatory language of section

  13-17-201 applies to all tort actions, including “CGIA actions

  dismissed pursuant to a C.R.C.P. 12(b)(1) motion.”). But because

  we reverse that part of the judgment dismissing the traffic light

  claims for lack of subject matter jurisdiction, an award of attorney

  fees is not appropriate.

                                 VII. Conclusion

¶ 66   We reverse that part of the judgment dismissing the negligence

  claims against the City for Apeiron’s maintenance work on the

  traffic light, and the case is remanded to the district court. We

  affirm that part of the judgment dismissing plaintiffs’ negligence

  claim against the City as to its operation and maintenance of the

  sewer main.


                                        22
JUDGE TAUBMAN and JUDGE ROMÁN concur.




                     23
