Colorado Supreme Court Deals Blow To Defective Sidewalk Lawsuits

Pedestrians in Colorado who trip and fall on municipal sidewalks now have an even higher burden than they did previously, thanks to a decision by the Colorado Supreme Court in Maphis v City of Boulder, Colorado, 2022 CO 10 (decided 22 Feb 2022).

On 8 April 2017, Joy Maphis tripped over a two and a half inch difference in elevation in a concrete sidewalk in the City of Boulder and fell, fracturing both elbows and injuring her face. The City had identified the sidewalk as needing repair just weeks earlier and was only a few days away from making those repairs at the time of her fall.

The City moved to dismiss, alleging immunity from suit because the deviation in the sidewalk was not “unreasonably dangerous” under the standard for what constitutes a “dangerous condition” under Colorado law.

During an evidentiary hearing at the trial court level, plaintiff testified that the sidewalk defect was "invisible." A City engineer testified that the defect was identified and “marked for repair” during a field visit by the City’s engineering technician shortly before the previously scheduled repairs for the zone were going to take place. The engineer further testified that “a deviation greater than three quarters of an inch constitutes a hazard” under the City’s sidewalk repair program and that such a deviation indicates the sidewalk is unsafe as “a potential tripping hazard.” He also explained that when the sidewalk repair program was “conceived in 2010, the thought was that there would be sufficient funding to address all the sidewalk repair needs within a geographic zone on a yearly basis.” However, “budget limitations" mean that that the City needs “a couple of years” to work through each zone.

The trial court ruled that because the City conceded that a height differential of more than 3/4" was a hazard, and this sidewalk defect was 2 1/2", the City waived its statutory immunity from suit. On appeal, the Court of Appeals reversed, finding that this sidewalk did not constitute a "dangerous condition" which would waive the City's immunity because the hazard "did not exceed the bounds of reason." As part of the Appeals court reasoning, it recited the fact that uneven sidewalks are common in Boulder.

The Supreme Court affirmed. Under the Colorado Governmental Immunity Act (CGIA), municipalities enjoy qualified immunity from certain negligence actions. "At issue in this case is the provision that waives immunity in an action for injuries resulting from the “dangerous condition of a sidewalk.” The CGIA expressly defines a “dangerous condition” as “a physical condition that constitutes an unreasonable risk to the health or safety of the public.” The Supreme Court continued to explain that "because the term “unreasonable” modifies the word “risk,” the CGIA requires "more than a foreseeable risk of harm.”

"In other words, there are situations when there is a chance the condition could cause an injury, or it is foreseeable that it could cause an injury, but the government nonetheless does not waive its immunity. This balance is necessary because the CGIA waives governmental immunity in a narrower class of circumstances than those that might subject a private entity to liability."

The fact that a sidewalk or a road may have a defect in it that causes an accident is not enough to overcome governmental immunity, held the Court. It cited cases where deteriorated roadway surfaces contributed to an accident but the road was found not to be unreasonably risky.

"We reiterate today that to prove the dangerous condition element of the immunity waiver, a plaintiff must show that the condition created a chance of injury, damage, or loss which exceeded the bounds of reason. Assessing whether the plaintiff has met this burden requires examining the totality of the circumstances presented by the undisputed evidence as to whether that particular condition presented an unreasonable risk."

The Supreme Court then examined the sidewalk at issue to determine whether or not it constituted an "unreasonable risk." First, the fact that the sidewalk deviation exceeded the three-quarters of an inch that the City of Boulder considered "hazardous" was not enough to put the defect into the unreasonably risky category. Nor were the facts that the City was already aware of the defect and had scheduled it for repair.

What other factors did the Supreme Court cite in finding that the defect was not an unreasonable risk? (1) deviations in slab sidewalks are commonplace throughout Colorado due to the harsh climate and other environmental factors; (2) the deviation was located in a residential area without any heightened safety concerns; and (3) the City had not received any citizen reports through its reactive program about the sidewalk.

The Court rejected Plaintiff's argument that the fact that sidewalk defects are common in Colorado should not benefit the municipalities. “No municipal sideewalk system is perfectly hazard-free at all times,” held the Court, "and local governments seeking to maintain their sidewalks are constrained not only by budgetary limitations, but also by the availability of contractors who can do the needed repairs."

Finally, the Court took into account the burden on taxpayers in widening municipal liability. "We cannot ignore the realities that Colorado’s local governments face in trying to maintain roads and sidewalks... doing so would impose an impossibly high standard whereby state and local governments must keep sidewalks like new at all times. This would significantly increase -- not reduce -- potential burdens on taxpayers."

The suit was dismissed based on governmental immunity.

Comment: Under Colorado law, the common-law bases for premises liability are abrogated by the CGIA. In other States, like New York, the government's premises liability is akin to that of a private owner: actual or constructive notice of a hazard triggers liability (except in those instances where the government creates the hazard or is rendered immune by a "prior written notice" law).

In Colorado, actual negligence is not enough. The risk must go above and beyond ordinary, and that will depend on the circumstances.

Lawrence N. Rogak

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