COLORADO COURT OF APPEALS                                        2016COA140


Court of Appeals No. 15CA1572
City and County of Denver District Court No. 14CV33332
Honorable Elizabeth A. Starrs, Judge


Sean Dennis, as conservator and on behalf of
Doreen Heyboer,

Plaintiff-Appellant,

v.

City and County of Denver, Colorado,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                         Opinion by JUDGE FREYRE
                       Taubman and Plank*, JJ., concur

                        Announced September 22, 2016


Bachus & Schanker, LLC, David Krivit, Scot C. Kreider, Denver, Colorado, for
Plaintiff-Appellant

Cristal Torres DeHerrera, Interim City Attorney, Wendy J. Shea, Assistant City
Attorney, Jamesy C. Owen, Assistant City Attorney, Denver, Colorado, for
Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1       In this case, we address whether the defendant, the City and

 County of Denver,1 waived its immunity for injuries Doreen Heyboer

 sustained as a passenger on a motorcycle that could not timely

 brake when a car unexpectedly turned left in front of it. The

 answer depends on whether a deteriorated roadway is an

 “unreasonable risk to the health or safety of the public” under

 § 24-10-103(1.3) C.R.S. 2016 of Colorado’s Governmental Immunity

 Act (CGIA), a precursor to establishing a “dangerous condition”

 under § 24-10-106(1)(d)(I), C.R.S. 2016. This is a novel question.

 Plaintiff Sean Dennis, as conservator and guardian for Heyboer,

 brought this negligence and premises liability action against the

 City.

¶2       The complaint alleged that the City had a duty to maintain the

 roadway free from dangerous conditions that physically interfered

 with the movement of traffic, that it breached this duty by allowing

 the roadway to fall into disrepair, that it knew of the deteriorated

 1The complaint also named the motorcycle driver, Michael Veres,
 as a defendant, however, the allegations against Veres were settled
 before the hearing. Heyboer also settled with the driver of the car
 without litigation.

                                     1
 state of the road from prior complaints, and that Heyboer’s injuries

 resulted from the City’s breach of its duty of care.

¶3    In response, the City moved to dismiss under C.R.C.P.

 12(b)(1). It asserted immunity and denied Heyboer’s allegations.

 The district court conducted a hearing under Trinity Broadcasting of

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

 issued a judgment granting the City’s motion. It concluded that the

 City was immune from suit because “[t]he Plaintiff produced no

 evidence, either through a witness or an exhibit, that this

 dangerous condition posed “an unreasonable risk to the health and

 safety of the public” as required by § 24-10-103(1.3).” (Emphasis

 added.) It further concluded that Heyboer failed to sustain her

 burden of proof.

¶4    We conclude that the court clearly erred in its factual finding

 that the record contained no evidence of an unreasonable risk to

 the health or safety of the public because the record contradicts

 that finding.2 Indeed, both the record and the court’s factual


 2 We note that Heyboer contends the court failed to make any
 “factual findings” in its written judgment. We disagree and
 construe the court’s “Discussion” section of the judgment, which

                                    2
 findings show the City’s knowledge of the road’s poor conditions,

 the City’s admission that road surface conditions raised a public

 safety risk, and the City’s determination that the road was

 dangerous but not dangerous enough to fix. These facts

 demonstrate that the City failed to maintain the road as required

 under § 24-10-103(2.5), thereby creating an unreasonable risk to

 the health or safety of the public. In reaching this conclusion, we

 necessarily find that Heyboer satisfied her burden of proof.

¶5    We further conclude that because the record contains evidence

 of an unreasonable risk to the health or safety of the public, the

 court erred as a matter of law in finding no waiver of immunity

 under § 24-10-106(1)(d)(I). Accordingly, we reverse the court’s

 judgment and remand the case for reinstatement of the complaint.

                       I.     Court’s Findings

¶6    The facts of the accident are not disputed. On September 20,

 2013, while riding as a passenger on the back of a motorcycle

 driven by Veres, Heyboer was thrown from the motorcycle when

 Veres suddenly braked to avoid a collision. Veres was traveling


 specifically details the hearing evidence and the facts the City
 conceded, as the court’s factual findings.

                                   3
 eastbound on Mississippi Avenue, and as he neared the intersection

 with Broadway, a car suddenly turned left across traffic in front of

 him. He applied the brakes, but he was unable to avoid the

 accident and hit the right rear panel of the car. Heyboer suffered

 permanent brain injuries from the accident.

¶7    At the hearing, the City conceded knowledge of the road’s

 deteriorated condition, conceded that Heyboer was injured at the

 intersection, and conceded that it had a duty to maintain the road

 at that intersection. However, it denied that the condition of the

 road posed an unreasonable risk to the health or safety of the

 public, a requisite showing under § 24-10-103(1.3), which defines

 “dangerous condition.”

¶8    In its judgment, the court found that Veres examined the

 pavement after the crash and determined that it had played a role

 in his inability to stop. Veres described more than fifteen years of

 experience as a motorcycle driver and said he regularly maintained

 his motorcycle.

¶9    The court found Heyboer’s accident reconstruction and vehicle

 dynamics expert, David Bilek, reliable, and he opined that the

 collision would not have occurred if the road surface had been

                                   4
  smooth, that the road’s condition interfered with the movement of

  traffic, and that the road’s uneven surface interfered with Veres’

  braking ability.

¶ 10   The court’s judgment extensively recited the testimony of

  William Kennedy, the City’s Pavement Engineer. Kennedy admitted

  that road surface condition was a factor in determining public

  safety risk, that the intersection where the accident occurred was

  well worn and in very poor condition, and that he was never fiscally

  constrained in repairing potholes.

¶ 11   Kennedy described a Pavement Condition Index (PCI) the City

  used to rate road conditions from excellent to very poor. Kennedy

  used this index to prioritize his repair work and said the PCI of this

  intersection was “very poor.” He clarified that the PCI was not a

  measure of dangerousness, but he said that it provided an objective

  and rational basis for determining maintenance and repair needs

  and priorities. He admitted that this intersection was dangerous at

  the time of the accident but opined that it was not dangerous

  enough to fix. He said he had never found an intersection in

  Denver to be dangerous.



                                    5
¶ 12   The court’s judgment recited testimony from the City’s two

  witnesses. The officer who investigated the crash, Stephanie

  Linkus, did not find that the road conditions played a role in this

  accident. Similarly, the City’s accident reconstruction and

  mechanical engineering expert, Guy Barbera, opined that the road’s

  surface did not interfere with braking and that the collision would

  still have occurred if the road conditions had been smooth. No

  witness opined on whether the road condition posed an

  “unreasonable risk.”

                         II.   CGIA Jurisdiction

¶ 13   Governmental immunity is an issue of subject matter

  jurisdiction. City of Colorado Springs v. Powell, 48 P.3d 561, 563

  (Colo. 2002); Springer v. City & Cty. of Denver, 13 P.3d 794, 798

  (Colo. 2000). The General Assembly enacted the CGIA in response

  to three cases abrogating Colorado’s common law of governmental

  immunity. Padilla in Interest of Padilla v. Sch. Dist. No. 1, 25 P.3d

  1176, 1180 (Colo. 2001) (listing cases and statutory response);

  § 24-10-102, C.R.S 2016. The CGIA establishes governmental

  immunity from suit in tort actions, but it waives immunity under

  specific circumstances, including, as relevant here, when there

                                     6
  exists “[a] dangerous condition of a public highway, road, or street

  which physically interferes with the movement of traffic.”

  § 24-10-106(1)(d)(I).

¶ 14   The CGIA’s purpose is twofold: (1) to protect the public from

  unlimited liability and excessive fiscal burdens; and (2) to allow the

  common law of negligence to operate against governmental entities,

  subject to the exceptions barring specific suits. See State v.

  Moldovan, 842 P.2d 220, 222 (Colo. 1992) (The purposes of CGIA

  include “permit[ting] a person to seek redress for personal injuries

  caused by a public entity.”). Because the CGIA derogates

  Colorado’s common law, we strictly construe the statute’s immunity

  provisions. Springer, 13 P.3d at 798. Conversely, we broadly

  construe the CGIA’s waiver provisions in favor of victims injured by

  the negligence of governmental agents. Id.; Walton v. State, 968

  P.2d 636, 643 (Colo. 1998).

                          A.   Standard of Review

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

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

  dismiss.” Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo. 2000).

  Under C.R.C.P. 12(b)(1), the injured plaintiff bears the burden of

                                     7
  proving the court’s subject matter jurisdiction under the CGIA and

  that immunity has been waived. Tidwell ex rel. Tidwell v. City &

  Cty. of Denver, 83 P.3d 75, 85 (Colo. 2003); Powell, 48 P.3d at 563.

  Any factual dispute upon which the existence of jurisdiction may

  turn is for the district court to resolve after weighing the evidence,

  finding facts, and entering conclusions of law. Swieckowski v. City

  of Fort Collins, 934 P.2d 1380, 1384 (Colo. 1997); see also Walton,

  968 P.2d at 641.

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

  unless they are clearly erroneous and unsupported by evidence in

  the record. See Walton, 968 P.2d at 645. A finding is clearly

  erroneous if there is no support for it in the record. See Cont’l W.

  Ins. Co. v. Jim’s Hardwood Floor Co., 12 P.3d 824, 828 (Colo. App.

  2000), as modified on denial of reh’g (May 18, 2000).

¶ 17   Once questions of historical fact are resolved, the question of

  whether a governmental entity is entitled to immunity is one of law,

  which we review de novo. Jordan v. Panorama Orthopedics & Spine

  Ctr., PC, 2013 COA 87, ¶ 11, aff’d, 2015 CO 24; Douglas v. City &

  Cty. of Denver, 203 P.3d 615, 618 (Colo. App. 2008).



                                     8
¶ 18   Similarly, the interpretation of statutory definitions is a

  question of law that we review de novo. Douglas, 203 P.3d at 618.

  Therefore, in reviewing a district court’s determination of whether a

  dangerous condition exists under the CGIA, we review the court’s

  findings of historical fact for clear error, deciding only whether there

  is any evidence in the record to support those findings. Jordan, ¶

  11. We review the court’s ultimate legal conclusion de novo,

  applying principles of statutory interpretation. Id. at ¶ 13.

         B.   Burden of Proof in Establishing Immunity Waiver

¶ 19   Heyboer raises two issues on appeal. First, she contends the

  court factually erred in finding there was no evidence in the record

  of an “unreasonable risk” and that in doing so, it erred as a matter

  of law in refusing to find a waiver of immunity. Second, she

  contends that she satisfied her burden of proving an “unreasonable

  risk to the health or safety of the public” under the standard set

  forth in Tidwell. Because the parties dispute the appropriate

  standard that applies to the plaintiff’s burden of proof in

  establishing a waiver of immunity, we address this issue first and

  then review the facts developed at the hearing and found by the

  court under that standard.

                                     9
¶ 20   Relying on Tidwell, Heyboer contends that we should apply

  C.R.C.P. 12(b)(5) and the summary judgment standard of

  C.R.C.P. 56 because the court conducted a Trinity hearing and

  considered evidence outside the pleadings. In contrast, the City

  contends that Tidwell does not apply because it involved a different

  section of the immunity statute (emergency vehicle exception) and

  because the court “inappropriately intermixed a summary judgment

  inquiry with the immunity inquiry.” Instead, the City asks us to

  apply the preponderance of the evidence standard and argues that

  Heyboer failed to prove, by a preponderance of the evidence, that

  her injuries resulted from the dangerous road conditions, rather

  than from the illegal actions of the car’s driver.

¶ 21   In Trinity, the supreme court held that the issue of state

  immunity under the CGIA is a question of subject matter

  jurisdiction that must be determined according to C.R.C.P. 12(b)(1)

  and that the plaintiff bears the burden of proving jurisdiction.

  Trinity Broad., 848 P.2d at 924-25. The court further held that

  when jurisdictional facts are disputed, the district court should

  allow the parties latitude in discovering or introducing evidence at a



                                     10
  hearing tending to prove or disprove jurisdiction. Id. at 924. It did

  not, however, specify how a plaintiff could meet this burden.

¶ 22   The court in Tidwell addressed this unanswered question. It

  reaffirmed Trinity’s holding that C.R.C.P. 12(b)(1) governs the issue

  of immunity and that the plaintiff bears the burden of proof. It

  further concluded that because statutes granting immunity must be

  narrowly construed (and those waiving immunity must be broadly

  construed), the plaintiff should be afforded the reasonable

  inferences from his or her evidence. Tidwell, 83 P.3d at 85. It

  described this burden as “a relatively lenient one.” Id. at 86.

¶ 23   Similar to this case, the facts related to jurisdiction in Tidwell

  were intertwined with the merits of the case (causation element),

  making the application of the standard more difficult for the district

  court. Citing the requirement that waiver of immunity be construed

  broadly, and applying inferences favorably to the plaintiff, the court

  concluded that a plaintiff need only prove a “minimal causal

  connection” between the injuries and the specified conduct to

  satisfy his or her burden. Id. Implicit in this finding is that proof of

  causation under the preponderance of the evidence standard is

  reserved for the trial on the merits. Accordingly, we reject the City’s

                                     11
  argument that the preponderance standard applies in a Trinity

  hearing.

¶ 24   Following Tidwell, the court, in Finnie v. Jefferson County

  School District R-1, 79 P.3d 1253 (Colo. 2003), rejected the

  argument Heyboer makes here that Rule 12(b)(5) applies and

  requires a court to covert a motion to dismiss into a motion for

  summary judgment. Id. at 1259. It ruled that the text of

  § 24-10-108, C.R.S. 2016, requires courts to resolve jurisdictional

  issues before trial, and that “[b]ecause summary judgment

  procedures sometimes fail to definitely resolve issues of fact before

  trial, . . . summary judgment procedures pursuant to C.R.C.P.

  12(b)(5) are inconsistent with the requirements” of the statute. Id.

  at 1258-59. The court therefore, expanded the Trinity hearing

  procedures under C.R.C.P. 12(b)(1) to include all issues of

  immunity, including facts not directly disputed by the parties. Id.

  at 1260; see also Martinez v. Estate of Bleck, 2016 CO 58, ¶ 27

  (“trial courts must resolve all issues pertaining to sovereign

  immunity prior to trial, including factual issues, regardless of

  whether those issues pertain to jurisdiction”). It reaffirmed that

  although the plaintiff must prove jurisdiction, this burden is

                                    12
  “relatively lenient,” and the plaintiff must be afforded the

  reasonable inferences from his or her evidence. Finnie, 79 P.3d at

  1261. Therefore, we reject Heyboer’s argument that the standards

  of C.R.C.P. 12(b)(5) and C.R.C.P. 56 should be applied in Trinity

  hearings.

¶ 25    In sum, we conclude that when a plaintiff sues a governmental

  entity and that entity moves to dismiss for lack of jurisdiction, the

  plaintiff has the burden of proving jurisdiction under

  C.R.C.P. 12(b)(1). The court may conduct a Trinity hearing at which

  the parties may present evidence related to all issues of immunity,

  including facts not in dispute. Finnie, 79 P.3d at 1260. After the

  hearing, the court must “weigh the evidence and decide the facts” to

  satisfy itself of its power to hear the case. Trinity Broad., 848 P.2d

  at 925 (quoting Boyle v. Governor’s Veterans Outreach & Assistance

  Ctr., 925 F.2d 71, 74 (3d Cir. 1991)). In doing so, it must afford the

  plaintiff the reasonable inferences from his or her evidence.

  Tidwell, 83 P.3d at 86. This same lenient standard applies to facts

  related to both the jurisdictional issue and the merits of the case.

  Id.

¶ 26

                                    13
                          C.    Unreasonable Risk

¶ 27   Heyboer contends that the district court erred in finding that

  she produced no evidence of an unreasonable risk and that the

  record demonstrates the City failed to maintain the road in its

  original condition, thereby creating an unreasonable risk to the

  public. Alternatively, she asks this court to remand for further

  factual development if necessary.

¶ 28   The City, relying on the absence of evidence of an

  unreasonable risk or an opinion of unreasonableness, contends

  that the court’s order is supported by the record and that no

  evidence of an unreasonable risk exists. It further contends that

  the accident resulted from the other car’s traffic violation rather

  than the road’s surface condition, and asks us to affirm the court’s

  dismissal. Thus, our resolution of the immunity question under

  § 24-10-106(1)(d)(I) requires us to interpret the meaning of

  “unreasonable risk to the health or safety of the public” in

  § 24-10-103(1.3).

¶ 29   As noted above, a public entity is generally “immune from

  liability in all claims for injury which lie in tort or could lie in tort.”

  § 24-10-106(1). As relevant here, governmental immunity is

                                       14
  explicitly waived for “[a] dangerous condition of a public highway,

  road, or street which physically interferes with the movement of

  traffic.” § 24-10-106(1)(d)(I). The phrase “interferes with the

  movement of traffic” modifies “[a] dangerous condition” in that

  section. Thus, immunity is waived only when a dangerous

  condition both exists and interferes with the movement of traffic.

  See Bloomer v. Bd. of Cty. Comm’rs, 799 P.2d 942, 946 (Colo. 1990)

  (holding that “of a public highway, road, or street which physically

  interferes with the movement of traffic” “merely modifies”

  “dangerous condition”), overruled on other grounds by Bertrand v.

  Bd. of Cty. Comm’rs, 872 P.2d 223 (Colo. 1994)), superseded by

  statute, Ch. 262, sec. 1, § 24-10-103(2.7), 2007 Colo. Sess. Laws

  1025.

¶ 30   To establish that a dangerous condition exists under

  § 24-10-103(1.3), an injured party must show that an injury

  resulted from (1) a physical condition of a public 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

                                    15
  the public entity in constructing or maintaining such facility.

  Medina v. State, 35 P.3d 443, 454 (Colo. 2001); Springer, 13 P.3d at

  799; Walton, 968 P.2d at 644.

¶ 31   This, in turn, requires us to define the phrase “unreasonable

  risk to the health or safety of the public,” which is not defined in

  the CGIA. Accordingly, we apply the rules of statutory

  interpretation to determine its meaning. We must give effect to the

  General Assembly’s intent, recognizing that provisions that waive

  immunity should be broadly construed. Tidwell, 83 P.3d at 81. We

  look first to the plain language of the statute and give words and

  phrases their ordinary meanings. Id. If the plain language of the

  statute demonstrates a clear legislative intent, we look no further in

  conducting our analysis. See Jones v. Cox, 828 P.2d 218, 221

  (Colo. 1992); see also Springer, 13 P.3d at 799.

¶ 32   The term “unreasonable,” as it appears in the statute, is an

  adjective that modifies “risk.” Unreasonable means “[n]ot guided by

  reason; irrational or capricious.” Black’s Law Dictionary 1772 (10th

  ed. 2014). In the context of tort law, reasonableness is defined as

  acting in accordance with the duty of care owed to another.

  Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412, 417 (Colo.

                                    16
  App. 2011); see also CJI-Civ. 4th 9:8 (2016) (“Reasonable care is

  that degree of care which a reasonably careful person would use

  under the same or similar circumstances.”). Thus,

  unreasonableness is the failure to act reasonably with regard to a

  particular risk or duty of care.

¶ 33   To determine what constitutes an unreasonable risk, we must

  identify what constitutes a risk. “Risk” is defined as “the existence

  and extent of the possibility of harm” or “the chance of injury,

  damage, or loss.” Black’s Law Dictionary 1524 (10th ed. 2014).

  Section 24-10-103(1.3) narrows the class of applicable risks to

  those “known to exist” and those caused by the failure to

  “construct[] or maintain[] [a] facility.” A risk that exists only

  because “the design of any facility is inadequate” is explicitly

  excluded. Id.

¶ 34   The statute defines “maintenance” as “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.” § 24-10-103(2.5). Thus, “maintain” means

  a duty to restore a facility to the “same general state of being,

  repair, or efficiency as initially constructed.” Swieckowski, 934

                                     17
  P.2d at 1385; see Martinez v. Weld Cty. Sch. Dist. RE-1, 60 P.3d

  736, 739 (Colo. App. 2002) (school liable for failure to maintain

  sidewalks free from ice and snow); see also Moldovan, 842 P.2d at

  224-25 (government liable for failure to repair damaged fence that

  allowed cow to enter roadway); Wheeler in Interest of Wheeler v. Cty.

  of Eagle, 666 P.2d 559, 561 (Colo. 1983) (government liable for

  failure to clear trees and bushes that had obstructed road); Stephen

  v. City & Cty. of Denver, 659 P.2d 666, 668 (Colo. 1983)

  (government liable for failure to repair stop sign that had been

  turned to face wrong direction); Hallam v. City of Colorado Springs,

  914 P.2d 479, 482-83 (Colo. App. 1995) (government liable for

  failure to replace barriers that someone had removed); Schlitters v.

  State, 787 P.2d 656, 657-58 (Colo. App. 1989) (government liable

  for failure to secure loose boulders above road).

¶ 35   The duty to maintain, however, “does not include any duty to

  upgrade, modernize, modify, or improve the design or construction

  of a facility.” § 24-10-103(2.5); Walton, 968 P.2d at 645; see also

  Estate of Grant v. State, 181 P.3d 1202, 1206-07 (Colo. App. 2008)

  (government not liable for failure of design on temporary road to

  provide for median barrier); Lyons v. City of Aurora, 987 P.2d 900,

                                    18
  903 (Colo. App. 1999) (government not liable for failure of traffic

  signal design to provide sufficient time for pedestrians to cross

  intersection); Karr v. City & Cty. of Denver, 677 P.2d 1384,1385

  (Colo. App. 1984) (holding that an increase in vehicle-pedestrian

  accidents, after an increase in pedestrian traffic where the City had

  not installed a stoplight at an intersection, was not a dangerous

  condition because the public entity was not required to improve the

  intersection based upon its changed use).

¶ 36   The failure to keep a road in the same general state of repair

  or efficiency as it was initially constructed, therefore, constitutes an

  unreasonable risk because it could “increase the risk of injury

  above that deemed to be acceptable during the design stage.”

  Medina, 35 P.3d at 448-49, 457. As our supreme court has

  explained, the reasoning behind a waiver of immunity in this

  context is “not because [the City] necessarily causes a dangerous

  condition, but because it is in a position to discover and correct the

  condition.” Springer, 13 P.3d at 801. Accordingly, reading the plain

  language of the immunity statute and interpreting it broadly as we

  must, we conclude that a plaintiff satisfies his or her burden of

  proving an “unreasonable risk to the health or safety of the public”

                                     19
  under § 24-10-103(1.3) when he or she shows that a governmental

  entity failed to restore a damaged road to its “same state of

  efficiency or repair as initially constructed.” This showing alone,

  however, is insufficient to establish jurisdiction. A plaintiff must

  still prove that the governmental entity knew of the condition, that

  the road is a public facility, and that the road’s condition interfered

  with the movement of traffic. Springer, 13 P.3d at 799; see also

  § 24-10-106(1)(d)(I).

                             D.   Application

¶ 37   We reject the City’s argument and the district court’s

  conclusion that Heyboer presented no evidence of an unreasonable

  risk. The City conceded that the road’s surface condition was a

  factor in determining the safety risk to the public, that the road was

  in poor condition, and that it knew of the road’s deteriorated

  condition. Moreover, the City failed to produce any evidence of

  repairs (beyond pothole repairs not at issue here) that it had

  conducted to restore the road’s uneven surface to “its same general

  state of repair or efficiency as initially constructed” and instead

  admitted, through its City Engineer, that the road was dangerous,

  but not dangerous enough to fix. Indeed, photographs taken after

                                     20
  the accident and relied on by the expert witnesses show the

  deteriorated state of the road and its uneven surface.

¶ 38     Additionally, though not recited in the court’s judgment, the

  hearing evidence included:

             Veres’ testimony that numerous ruts and cracks caused

               his motorcycle to “skip” and lose contact with the

               ground;

             Bilek’s statement that the non-uniformity of the tire

               marks led him to conclude that the motorcycle’s tires

               were not in full contact with the pavement when Veres

               applied the brakes, thereby impacting Veres’ ability to

               decelerate and handle the motorcycle;

             Kennedy’s description of numerous 3113 calls concerning

               the condition of this intersection in the months before the

               accident and citizens’ reports that the road was cracked,

               worn, rutted, and potholed; and

             Barbera’s opinion that the last eleven feet of the road

               before the motorcycle struck the car created “some


  3   311 is a citizen hotline used to report road conditions to the City.

                                      21
             influence” in the accident, and that for at least fifty

             percent of this distance, the motorcycle’s rear tire was

             not in contact with the road.

¶ 39   Accordingly, we conclude that Heyboer presented competent

  evidence of the City’s failure to maintain the road in the same state

  of repair or efficiency as initially constructed under

  § 24-10-103(2.5) and that this failure established an unreasonable

  risk to the health or safety of the public under § 24-10-103(1.3).

  Thus, we conclude that Heyboer established the existence of a

  “dangerous condition.”

¶ 40   Because the court’s factual findings demonstrate that the road

  conditions physically interfered with the movement of traffic on a

  road designed for public travel, and because that finding is not

  contested on appeal, we further conclude that Heyboer established

  that the road constituted a “dangerous condition” for purposes of

  waiving the City’s immunity under §24-10-106(1)(d)(I) of the CGIA.

  Thus, the court erred as a matter of law in finding no waiver of

  immunity. Whether the road’s conditions, the car’s traffic

  violations, or a combination of these factors caused the accident are

  questions to be determined on remand. Accordingly, we reverse the

                                     22
  court’s order granting the City’s motion to dismiss and conclude

  that Heyboer established a waiver of immunity under the CGIA.

                      III.    III.   Conclusion

¶ 41   We reverse the district court’s judgment granting the City’s

  motion to dismiss and remand the case for reinstatement of

  Heyboer’s complaint.

       JUDGE TAUBMAN and JUDGE PLANK concur.




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