     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
                                                                June 20, 2019

                                2019COA91

No. 18CA0534, Martinez v. CSG Redevelopment — Government
— Colorado Governmental Immunity Act — Immunity and
Partial Waiver — Public Entity — Instrumentality

     A division of the court of appeals addresses whether an entity

— CSG Redevelopment Partners, LLLP (CSGR) — is an

“instrumentality” of a public entity entitled to immunity under the

Colorado Governmental Immunity Act, §§ 24-10-103, -106, C.R.S.

2018. In holding that it is, the division determines that, despite its

inclusion of a private entity and partial reliance on funding from a

private investor, CSGR’s public purpose and the Denver Housing

Authority’s extensive control over it renders it an instrumentality of

a public entity. The division also addresses the limits of the waiver

of immunity for “[a] dangerous condition caused by an

accumulation of snow and ice which physically interferes with
public access on walks leading to a public building open for public

business,” § 24-10-106(1)(d)(III), and concludes that a low-income

housing facility is not a “public building open for public business”

because it is not generally accessible to members of the public.
COLORADO COURT OF APPEALS                                        2019COA91


Court of Appeals No. 18CA0534
City and County of Denver District Court No. 16CV31344
Honorable Jay S. Grant, Judge


Guadalupe P. Martinez,

Plaintiff-Appellant,

v.

CSG Redevelopment Partners LLLP, a Colorado limited liability limited
partnership,

Defendant-Appellee.


                           JUDGMENT AFFIRMED

                                  Division V
                         Opinion by JUDGE J. JONES
                         Terry and Grove, JJ., concur

                          Announced June 20, 2019


DiGiacomo, Jaggers & Perko, LLP, Douglas J. Perko, Arvada, Colorado, for
Plaintiff-Appellant

Harris, Karstaedt, Jamison & Powers, P.C., Susan M. Stamm, Englewood,
Colorado, for Defendant-Appellee
¶1    Guadalupe P. Martinez, a resident of the low-income housing

 facility Casa Loma Apartments, slipped and fell on a walkway

 leading to the apartment building. Seeking to recover for his

 injuries, Mr. Martinez sued CSG Redevelopment Partners, LLLP

 (CSGR), Casa Loma’s management company and the building’s

 owner, under the Premises Liability Act, § 13-21-115, C.R.S. 2018,

 and (alternatively) for negligence, alleging that CSGR had allowed

 snow and ice to accumulate on the walkway.

¶2    CSGR moved to dismiss the complaint, arguing that, as an

 “instrumentality” of a public entity — the Denver Housing Authority

 (DHA) — it is immune from tort liability under the Colorado

 Governmental Immunity Act (CGIA), § 24-10-106, C.R.S. 2018. It

 also argued that the exception to governmental immunity in section

 24-10-106(1)(d)(III) for a dangerous condition on a walkway “leading

 to a public building open for public business” doesn’t apply because

 Casa Loma isn’t such a building. Mr. Martinez opposed the motion.

 After a Trinity Broadcasting of Denver, Inc. v. City of Westminster,

 848 P.2d 916 (Colo. 1993), hearing, the district court granted

 CSGR’s motion, ruling that CSGR is an instrumentality of the DHA

 and that the public building exception doesn’t apply.


                                    1
¶3    We conclude that, because of both DHA’s extensive control

 over CSGR and CSGR’s public purpose, CSGR is an instrumentality

 of a public entity within the meaning of the CGIA, and therefore a

 public entity itself entitled to governmental immunity. We also

 conclude that the record supports the district court’s finding that

 Casa Loma isn’t a public building open for public business, and

 that Mr. Martinez’s alternative contention that immunity doesn’t

 apply because the walkway is part of a “public facility located in [a]

 recreation area maintained by a public entity,” see § 24-10-

 106(1)(e), is, on this record, unavailing. The upshot is we affirm the

 district court’s judgment.

                              I.   Background

¶4    The following facts were found by the district court with record

 support or are otherwise undisputed.

¶5    In 1987, DHA created the Denver Housing Corporation (DHC),

 a nonprofit entity that DHA completely owns and controls. For

 nearly thirty years, DHC (and, by extension, DHA), has owned and

 operated the Casa Loma Apartments. In 2013, to finance the

 renovation of Casa Loma and two other low-income housing

 properties, DHA created CSGR and CSG Housing, Inc. CSG


                                     2
 Housing served as CSGR’s general partner, and another of DHA’s

 instrumentalities, DHA Limited Partner, served as CSGR’s limited

 partner. At that point, CSGR was made up of, and controlled

 entirely by, DHA instrumentalities.1

¶6    But in 2014, as part of CSGR’s effort to secure more funding

 for the renovations, Wincopin Circle LLLP joined CSGR as a limited

 partner. 2 It functions mainly as an investor, having contributed

 approximately $12.5 million in equity financing. CSG Housing and

 DHA Limited Partner each contributed $90 and $10, respectively.

 As a result, CSG Housing, as the general partner, retained a 0.01%

 ownership interest in CSGR; DHA Limited Partner, a special limited

 partner, retained a 0.001% ownership interest in CSGR; and the

 investor, the limited partner, received a 99.989% ownership interest

 in CSGR and qualified for tax credits through the Low-Income

 Housing Tax Credit (LIHTC) program — a federal program that




 1 The parties stipulated that DHA is a public entity and that DHC
 and CSG Housing are instrumentalities of DHA within the meaning
 of the CGIA.
 2 American Express - West Equity Fund Limited Partnership later

 replaced Wincopin. For simplicity’s sake, we’ll refer to them
 collectively as “the investor.”

                                   3
 offers federal tax credits to private investors as an incentive to

 invest in low-income housing projects. See 26 U.S.C. § 42 (2018).

 The partnership is governed by a restated partnership agreement

 (more about which we’ll discuss below).

¶7    Around the same time the investor joined CSGR, DHC leased

 the land under Casa Loma to CSGR for sixty-five years; DHC

 transferred its ownership of the structural improvements on the

 property to CSGR (this was also so the investor could qualify for

 LIHTC); and DHA lent CSGR approximately $45.3 million, $21

 million of which was a construction loan that DHA funded by

 issuing private activity bonds (about $15 million was cash directly

 from DHA). CSG Housing, acting in its capacity as the general

 partner, hired DHA as the manager of the property under a written

 management agreement (another agreement about which we’ll talk

 more below).

¶8    Several years later, Mr. Martinez slipped and fell on an

 allegedly icy walkway leading to the building. He sued CSGR,

 claiming over $400,000 in medical expenses. As noted, the district

 court dismissed his complaint based on governmental immunity.




                                    4
                              II.   Discussion

¶9     Mr. Martinez contends that the district court erred by (1)

  concluding that CSGR is an instrumentality of DHA; (2) ruling that

  the “public building” exception doesn’t apply; and (3) failing to

  address his argument that the “recreation area” waiver in section

  24-10-106(1)(e) applies.

                         A.    Standard of Review

¶ 10   To the extent historical facts relevant to the issues Mr.

  Martinez raises on appeal were disputed, we review the district

  court’s findings of fact for clear error, Medina v. State, 35 P.3d 443,

  452 (Colo. 2001); such a finding is clearly erroneous only if there’s

  no support for it in the record, M.D.C./Wood, Inc. v. Mortimer, 866

  P.2d 1380, 1384 (Colo. 1994). But to the extent all such facts

  relevant to a particular issue weren’t disputed, we review the issue

  de novo. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 10. And

  to the extent that CSGR’s claim to immunity implicates questions of

  law, including statutory interpretation or application of a proper

  legal standard, we review the district court’s conclusions de novo.

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




                                      5
                                B.   Analysis

           1.   CSGR is an Instrumentality of a Public Entity

¶ 11   First, Mr. Martinez contends that his claim isn’t barred by the

  CGIA because CSGR’s status as a private partnership precludes its

  treatment as a “public entity.” He points to the investor’s

  significant capital contributions, the investor’s approval power over

  some of CSGR’s operations, and that much of DHA’s investment

  came from the sale of private activity bonds. While these facts have

  some force, we ultimately conclude that they don’t carry the day.

                           a.    Applicable Law

¶ 12   The CGIA gives public entities immunity from claims “which lie

  in tort or could lie in tort,” subject to certain express exceptions.

  See § 24-10-106(1). It defines “public entity” as

             the state, the judicial department of the state,
             any county, city and county, municipality,
             school district, special improvement district,
             and every other kind of district, agency,
             instrumentality, or political subdivision thereof
             organized pursuant to law and any separate
             entity created by intergovernmental contract or
             cooperation only between or among the state,
             county, city and county, municipality, school
             district, special improvement district, and
             every other kind of district, agency,
             instrumentality, or political subdivision
             thereof.


                                     6
  § 24-10-103(5), C.R.S. 2018.

¶ 13   Though no statute defines the term “instrumentality,” several

  cases shed light on its meaning. In Robinson v. Colorado State

  Lottery Division, a division of this court held that by including the

  term “instrumentality” with other entities that are public in nature,

  the General Assembly intended that covered instrumentalities be

  “governmental in nature.” 155 P.3d 409, 414 (Colo. App. 2006),

  aff’d in part, rev’d in part on other grounds, 179 P.3d 998 (Colo.

  2008). The division concluded that Texaco, a private corporation

  that was licensed by the State of Colorado to sell lottery tickets,

  wasn’t an instrumentality since there was “no indication that the

  General Assembly intended to expand the scope of the [C]GIA to

  include any private person or corporation that entered into some

  type of agreement with a public entity.” Id.

¶ 14   Similarly, in Moran v. Standard Insurance Co., 187 P.3d 1162

  (Colo. App. 2008), another division of this court, relying heavily on

  the division’s decision in Robinson, held that Standard Insurance

  Company, a private company, wasn’t an instrumentality merely

  because a public entity, the Public Employees’ Retirement

  Association (PERA), was statutorily required to contract with a


                                     7
  private insurance company (and it chose Standard). “Standard’s

  status as a private corporation,” the division wrote, “even one that

  has entered a contract with a public entity, precludes its treatment

  as a public entity under the CGIA.” Id. at 1166.

¶ 15   Several years later, in Colorado Special Districts Property &

  Liability Pool v. Lyons, 2012 COA 18, another division leaned on

  Robinson and Moran in holding that County Technical Services, Inc.

  (CTSI) was an instrumentality, for four reasons: (1) CTSI was a

  nonprofit corporation formed by Colorado counties “exclusively for

  the purpose of lessening the burden on Colorado county

  governments”; (2) it was founded and maintained by public entities;

  (3) those public entities were involved in CTSI’s management or

  control; and (4) the supreme court had said in another case that

  public corporations like CTSI “are created as subdivisions of the

  state as an expedient device to carry out the functions of

  government.” Id. at ¶¶ 40-43 (quoting Colo. Ass’n of Pub. Emps. v.

  Bd. of Regents of Univ. of Colo., 804 P.2d 138, 143 (Colo. 1990)).

¶ 16   Each of these cases also drew on the CGIA’s “central legislative

  purpose” of limiting liability to lessen the burden on taxpayers.

  See, e.g., Robinson, 155 P.3d at 414.


                                    8
                               b.   Analysis

¶ 17   It appears to be undisputed that CSGR is a private

  partnership. But we conclude that fact isn’t dispositive. What is

  dispositive, as Robinson tells us, is that the entity must be

  “governmental in nature.” Id. And Lyons shows us that an entity

  can be governmental in nature if a governmental entity controls it

  and it serves a public purpose. See Lyons, ¶¶ 40-43; accord Walker

  v. Bd. of Trs., 69 F. App’x 953, 957 (10th Cir. 2003) (board of

  trustees of a pension plan wasn’t an instrumentality of the Denver

  Regional Transportation District (RTD) where it was independent

  from RTD, RTD had no authority over it, and it didn’t have any

  obligation to act in RTD’s interests); Plancher v. UCF Athletics Ass’n,

  175 So. 3d 724, 728 (Fla. 2015) (the UCF Athletics Association was

  entitled to governmental immunity because the University of

  Central Florida, a state agency, created the association and

  controlled its board of directors, operations, activities, and

  “continued existence”); Daughton v. Md. Auto. Ins. Fund, 18 A.3d

  152, 163-65 (Md. Ct. Spec. App. 2011) (insurance fund controlled

  by public entities and which provided for the public’s welfare was




                                     9
  an instrumentality of the state despite having a private financial

  and corporate identity). Those elements are present here.

¶ 18   Notwithstanding the investor’s high ownership percentage,

  DHA controls most of CSGR’s operations. Pursuant to CSGR’s

  amended partnership agreement, DHA’s instrumentality, CSG

  Housing (as the sole general partner and manager), has “full and

  exclusive power and right to manage and control the business and

  affairs of the partnership.” And DHA itself acts as CSGR’s property

  manager for Casa Loma. The management agreement requires it to

  maintain, repair, and operate the property — in short, to run Casa

  Loma on a day-to-day basis. It was DHA that oversaw and carried

  out the renovation project, selecting the architect and general

  contractor, supervising the renovation work, monitoring compliance

  with the construction documents, and sponsoring the work.

¶ 19   The partnership agreement also provides that the investor, as

  a limited partner, “shall not take part in the management or control

  of the business of the partnership[.]” Nonetheless, we acknowledge

  that that doesn’t mean the investor has no authority at all. The

  investor has approval power over a number of subjects, including

  CSGR’s budget, quarterly financial reports, annual financial


                                   10
  statements, and renovation plans. It also has the right to remove

  the general partner — CSG Housing — for any one of twelve stated

  reasons. And CSG Housing must seek the investor’s consent before

  withdrawing as general partner.

¶ 20   CSGR downplays these provisions, arguing that “such

  purported limitations are meaningless” and that the investor has

  “never technically approved any of the budgets” or “questioned any

  expenditures contained in the proposed budgets.” We reject the

  notion that we should disregard the investor’s contractual power to

  disapprove certain matters merely because the investor hasn’t

  exercised it.

¶ 21   All that said, however, considering that the investor’s

  authority is mostly limited to certain approval rights, CSG Housing

  manages CSGR, and DHA makes all of the day-to-day operational

  decisions, we conclude that public entities essentially control

  CSGR.3




  3It also appears undisputed that taxing authorities treat CSGR as a
  governmental entity.

                                    11
¶ 22   And CSGR serves a public purpose: providing low-income

  housing. This is a function typically carried out by governmental

  entities, and the use of some private funding doesn’t negate that.

  See Griffin v. City of Detroit, 443 N.W.2d 406, 407 (Mich. Ct. App.

  1989) (ownership and operation of a low-income housing project

  was a “governmental function”).

¶ 23   Until CSGR brought in the investor as a limited partner, it was

  entirely made up of, and controlled by, DHA and its

  instrumentalities. The investor only became involved because DHA

  wanted to limit its debt and needed more money to renovate and

  operate its properties. One way to do so was to attract private

  investors using the incentive of low-income housing tax credits. We

  decline to hold that any public entity that receives private funds

  through LIHTC, in addition to public funds, thereby loses its status

  as a public entity, particularly when the private investor exercises

  minimal control over the entity’s operations. 4



  4We note that CSGR’s structure appears to be typical for entities
  seeking to take advantage of LIHTC: a project sponsor (generally a
  housing authority or other governmental entity) partners with a
  private investor in a limited partnership. The housing authority
  acts as a general partner, maintaining authority over the project,

                                    12
¶ 24   Our conclusion that CSRG is an instrumentality doesn’t

  conflict with Robinson or Moran. The division in Robinson said that

  instrumentalities must be “governmental in nature,” but it did so in

  the context of holding that Texaco, a purely private corporation,

  wasn’t an instrumentality. See Robinson, 155 P.3d at 414. Moran

  involved similar reasoning. See Moran, 187 P.3d at 1166.

¶ 25   CSGR has never been “private” in the same sense — as noted,

  it was made up entirely of public entities when founded, and it only

  became a “private” partnership when the investor joined as a

  limited partner. That’s very different from Texaco, whose only

  relationship with a public entity was a license to sell lottery tickets,

  or Standard Insurance Company, which only provided services to

  state employees because of a contract with PERA. And, of course,

  no public entity controlled Texaco or Standard Insurance Company.

¶ 26   We would be remiss, however, if we failed to address Acevedo

  v. Musterfield Place, LLC, 98 N.E.3d 673 (Mass. 2018), on which Mr.




  while the investor steps in as a limited partner and has a “passive
  role” despite its high ownership percentage. Mark P. Keightley,
  Cong. Research Serv., RS22389, An Introduction to the Low-Income
  Housing Tax Credit 4 (2019).

                                     13
  Martinez relies. Acevedo addressed a question similar to the one we

  consider today — whether an entity created to take advantage of

  LIHTC, made of (1) a managing member controlled by a housing

  authority and (2) a private investor with over a 99% ownership

  interest but little management power, is entitled to governmental

  immunity. The court ultimately concluded that the entity in that

  case, Musterfield Place, wasn’t a “public employer” under

  Massachusetts’ Tort Claims Act, and therefore wasn’t entitled to

  immunity. Id. at 677.

¶ 27   Acevedo is distinguishable. The Massachusetts Tort Claims

  Act differs from the CGIA in a few key ways. Unlike the CGIA, the

  Massachusetts Tort Claims Act doesn’t grant immunity to “public

  entities.” Instead, it limits immunity to “public employers.” Mass.

  Gen. Laws Ann. ch. 258, § 2 (West 2009). And while

  instrumentalities are included in the CGIA’s definition of “public

  entity,” they aren’t included in the Massachusetts statute’s

  definition of “public employer.”

¶ 28   The Massachusetts Supreme Judicial Court relied on the

  Massachusetts statute’s language, including the absence of the

  term “controlled affiliate” (a term used in the LIHTC statute) in


                                     14
  concluding that Musterfield Place and its managing entity,

  Musterfield Manager, weren’t entitled to immunity. See id. at

  676-77. The CGIA’s definition of “public entity,” however, is

  broader, and, as discussed, contemplates entities controlled by

  other public entities. In addition, the managing member of the

  limited liability company — Musterfield Manager — wasn’t itself a

  public employer, but was instead a private contractor. In contrast,

  the entities with management authority over CSGR — DHA and

  CSG Housing — are public entities.

¶ 29   We also reject Mr. Martinez’s contention that since some of

  DHA’s loans to CSGR were funded by issuing private activity bonds,

  CSGR can’t be a public entity under the CGIA. Under the Internal

  Revenue Code (IRC), a certain percentage of the proceeds from these

  types of bonds must be for “private business use” or must be to

  “persons other than governmental units.” 26 U.S.C. § 141(a), (b), (c)

  (2018). Private business use is defined as “use (directly or

  indirectly) in a trade or business carried on by a person other than

  a governmental unit.” § 141(b)(6)(A).

¶ 30   But a “governmental unit” under the IRC and a “public entity”

  or “instrumentality” under the CGIA aren’t the same thing. The


                                    15
  Code of Federal Regulations defines a governmental unit as “a

  State, territory, a possession of the United States, the District of

  Columbia, or any political subdivision thereof[.]” 26 C.F.R.

  § 1.103-1(a) (2018). The term “political subdivision” is further

  defined as “any division of any State or local governmental unit

  which is a municipal corporation or which has been delegated the

  right to exercise part of the sovereign power of the unit.” Id. This is

  much more specific than the term “instrumentality,” which, while

  not defined under the CGIA, encompasses more than states and

  their political subdivisions. See, e.g., Lyons, ¶ 45 (concluding that

  CTSI, a corporation, was an instrumentality).

¶ 31   We also acknowledge that another relevant consideration is

  whether the taxpayers would bear the burden of any liability

  imposed on the entity. See, e.g., Robinson, 155 P.3d at 414. But

  the record before us is devoid of evidence as to who would bear the

  burden of any liability imposed on CSGR. Mr. Martinez argues on

  appeal that any liability would be covered by CSGR’s insurance

  policy, so no burden would reach the taxpayers; CSGR contends

  that DHA would ultimately be responsible for any liability. The

  district court made no findings on this issue. Given that it was Mr.


                                     16
  Martinez’s burden to show subject matter jurisdiction, see Medina,

  35 P.3d at 452, we can’t conclude that this consideration weighs in

  his favor. 5

¶ 32    In sum, we conclude that CSGR is an instrumentality of a

  public entity because of DHA’s extensive control over its operations

  and because of its public purpose. It is therefore itself a public

  entity entitled to governmental immunity, unless some statutory

  exception applies. We now turn to two such exceptions invoked by

  Mr. Martinez.

                 2.   Public Building Open for Public Business

¶ 33    Next, Mr. Martinez contends that even if CSGR is a public

  entity under the CGIA, we should deem its immunity waived

  because Casa Loma is a “public building open for public business.”

  See § 24-10-106(1)(d)(III) (immunity is waived in an action for

  injuries resulting from “[a] dangerous condition caused by an

  accumulation of snow and ice which physically interferes with




  5Mr. Martinez argues that CSGR should have the burden of proving
  governmental immunity applies. But that position seems to be
  contrary to controlling authority.

                                      17
  public access on walks leading to a public building open for public

  business”). We aren’t persuaded.

¶ 34   The term “public building open for public business” isn’t

  defined in the CGIA, nor have any Colorado cases directly

  addressed this term as it is used in this exception. CSGR urges us

  to apply the plain and ordinary meaning of the term, as the district

  court did. See Young, ¶ 11 (“We look first to the language of the

  statute, giving words their plain and ordinary meaning[s].”).

  Looking to dictionary definitions, the district court found that Casa

  Loma can’t be considered a “public building open for public

  business” since only residents and staff have key cards to enter the

  building, no public events take place on the premises, and no

  public business is conducted there. 6 We agree, based on these

  findings, that Casa Loma isn’t a public building open for public

  business. Though it’s owned and operated by DHA

  instrumentalities, it functions as private residences, not a public

  building.




  6In fact, residents are prohibited by their lease agreements from
  allowing anyone they don’t know into the building.

                                    18
¶ 35   Other states’ case law on the same issue informs our

  conclusion. For example, the Michigan Supreme Court held, in

  addressing a claim by a student’s mother who had fallen outside a

  University of Michigan dormitory while visiting her daughter, that

  the dormitory wasn’t “open for business by members of the public”

  under the state’s public building exception to governmental

  immunity. Maskery v. Bd. of Regents of the Univ. of Mich., 664

  N.W.2d 165, 166 (Mich. 2003). In so holding, the court articulated

  the following test:

             To determine whether a building is open for
             use by members of the public, the nature of
             the building and its use must be
             evaluated. . . . If the government has
             restricted entry to the building to those
             persons who are qualified on the basis of some
             individualized, limiting criteria of the
             government’s creation, the building is not open
             to the public.

  Id. at 169 (footnote omitted).

¶ 36   Other cases, taking a similar approach, have held that

  low-income housing facilities don’t qualify under the exception.

  See, e.g., White v. City of Detroit, 473 N.W.2d 702, 704 (Mich. Ct.

  App. 1991) (the plaintiff fell on a publicly accessible patio outside a

  low-income housing facility; that facility wasn’t a “public building”


                                     19
  under the governmental immunity exception); Griffin, 443 N.W.2d at

  407-08 (unit in low-income housing facility wasn’t “open for use by

  members of the public” under the immunity exception because it

  wasn’t used for public offices or for a public purpose). But see

  Moore v. Wilmington Hous. Auth., 916 A.2d 1166, 1174-75 (Del.

  1993) (public housing authority apartment building was a “public

  building” for purposes of public building exception to governmental

  immunity). 7

¶ 37   The reasoning of these cases is persuasive, and so we

  conclude that Casa Loma isn’t a public building open for public

  business.

¶ 38   The parties cite cases addressing the meaning of “public

  facility” and “public water facility,” parts of two other exceptions to

  governmental immunity. § 24-10-106(1)(e), (f). These cases

  variously construe “public” in that context as “a place accessible or



  7 The court in Moore relied in part on the Michigan Supreme Court’s
  decision in Green v. State Corrections Department, 192 N.W.2d 491
  (Mich. 1971), which it thought conflicted with the Michigan Court of
  Appeals’ later decisions in White and Griffin. But the Michigan
  Supreme Court subsequently approved of both White and Griffin in
  Maskery, without even mentioning Green, in adopting the test we
  recite above.

                                     20
visible to all members of the community,” Rosales v. City & Cty. of

Denver, 89 P.3d 507, 509 (Colo. App. 2004) (quoting Webster’s

Third New International Dictionary 1836 (1986)), overruled on other

grounds by Burnett v. State Dep’t of Nat. Res., 2015 CO 19;

“something that is built or constructed to serve some public

purpose,” id.; “being accessible and beneficial to members of the

general public,” City & Cty. of Denver v. Gallegos, 916 P.2d 509, 511

(Colo. 1996), disapproved of on other grounds by Corsentino, 4 P.3d

1082; or “for the benefit of the general public,” id. They appear to

share in common a requirement of public access, and, to that

extent, though not directly on point, they support our conclusion.8

In any event, the “public building” exception, unlike the public




8 The parties cite two other cases dealing with the public building
exception. In Smokebrush Foundation v. City of Colorado Springs,
2015 COA 80, ¶ 32, aff’d in part, rev’d in part on other grounds,
2018 CO 10, the parties conceded that a building housing the
administrative operations of a city’s gas department was a public
building, and the division concluded that the record supported the
district court’s finding that the building was public. Springer v. City
& Cty. of Denver, 13 P.3d 794, 797 (Colo. 2000), involved a
city-owned theater; its status as a public building wasn’t at issue.
Both cases, unlike this case, involved buildings open to the public.

                                  21
  facility exception, is limited to such buildings “open for public

  business.” As discussed, Casa Loma isn’t open for public business.

                       3.   Recreation Area Waiver

¶ 39   Lastly, Mr. Martinez contends that the district court erred by

  failing to address his argument that the “recreation area” waiver to

  CGIA immunity applies in this case. See § 24-10-106(1)(e)

  (immunity is waived in cases claiming injury resulting from a

  dangerous condition of a “public facility located in any park or

  recreation area maintained by a public entity”). We don’t see any

  reversible error.

¶ 40   Mr. Martinez didn’t present any evidence showing that Casa

  Loma is a “public facility located in a park or recreation area[.]”

  Casa Loma is a low-income housing facility; it’s not in a park, and,

  although it includes an area with picnic tables and grills, those

  amenities are for private use by Casa Loma residents and their

  guests only. Those amenities don’t turn this into a facility “located

  in a recreation area.” Accordingly, we discern no reversible error in

  the district court’s failure to address this argument.

                             III.   Conclusion

¶ 41   The district court’s judgment is affirmed.


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JUDGE TERRY and JUDGE GROVE concur.




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