Colorado-Real-Estate-Journal_400264

May 15-June 4, 2024 - Page 29 www.crej.com Law & Accounting To look forward and rise to the challenges ahead requires welcoming change with optimism. It’s how Moss Adams uplifts 1,650 real estate businesses to plan for, and go, where they want to be next. Discover how our industry-focused advisory solutions can help elevate your performance. MOSSADAMS.COM/UPWARD ACCOUNTING – CONSULTING – WEALTH MANAGEMENT U P WA R D Assurance, tax, and consulting offered through Moss Adams LLP. ISO/IEC 27001 services offered through Moss Adams Certifications LLC. Investment advisory offered through Moss Adams Wealth Advisors LLC. ©2023 Moss Adams LLP E arlier this year in County of Jefferson v. Stickle, the Colorado Supreme Court held that a parking garage outside the Jefferson County Courts and Administration Building fits the definition of “build- ing” as used in the Colorado Governmental Immunity Act. Based on this holding, the court went on to conclude that the plaintiff’s personal inju- ry claims against the county could proceed under the prem- ises liability exception to CGIA immunity. Denver area residents are likely familiar with the Jef- ferson County Building even if they do not know what it is. Anyone returning to the area from a ski trip has seen the large, ornate building just north of the highway almost as soon as they emerge from the Foothills. In Stickle, the plaintiff fell when stepping down from a walkway to a parking garage at that facility. The plaintiff subsequently sued the county, claiming the fall caused her to break her arm. The county moved to dismiss, asserting that the CGIA barred the plain- tiff’s suit. As the reader may know, the CGIA generally bars tort claims, such as personal inju- ry suits, against governmen- tal entities in Colorado unless the stat- ute expressly provides an exception. One such excep- tion is for personal inju- ries sustained because of a danger- ous condi- tion on the government’s land. In other words, generally, no immunity exists for premises liability suits against Colorado governments. In the district court, the coun- ty had asserted this exception to CGIA immunity did not apply for two reasons: 1) a parking garage is not a “build- ing”; and 2) even if the parking garage were a building, the plaintiff’s alleged injuries were the result of a choice in the “design” of the parking garage. The district court held a hear- ing, known as a Trinity hear- ing, on the county’s motion. After the hearing, the district court denied the county’s motion finding that the park- ing garage is a “building” and thus the exception to CGIA immunity for premises liability suits applied. The county then appealed to the Colorado Court of Appeals, which affirmed. The Colorado Supreme Court then agreed to review the Court of Appeals’ decision. The Supreme Court affirmed, finding that the parking garage is a “building,” and the alleg- edly dangerous condition was not solely a “design” choice. Because the CGIA does not define “building,” the Supreme Court turned to dictionaries and precedent to determine the definition of “building.” Of particular importance, the Supreme Court reiterated its nearly 65-year-old precedent holding that “all stationary structures within Colorado, no matter of what substance they may be constructed, are within the term building, so long as they are designed for use in the position in which they are fixed.” The Stickle court also emphasized that this definition is not limited to a “structure with walls and a roof” and is broad enough to capture every “structure which has a capac- ity to contain and is designed for the habitation of man or animals, or the sheltering of property.” The Supreme Court then easily found that the Jefferson County Building’s parking garage fell within this defini- tion because, although the top level of the garage had no roof, it was designed to shelter prop- erty – namely, vehicles. Addi- tionally, the court noted that the garage has “electricity for lighting and vehicle charging and a sprinkler system” and its “lower level is completely covered and is enclosed by a knee-high wall.” Turning to the second issue the county raised, that the allegedly dangerous condi- tion was part of a “design” choice and thus not subject to the CGIA’s premises liabil- ity exception, the Stickle court found that the choice made was part of a long-term main- tenance project. The court found that although an aspect of this maintenance program may have involved a design choice, it was nonetheless the result of facility maintenance, at least in part. Thus, because a dangerous condition must be solely because of design to avoid a finding of CGIA immu- nity waiver, the Stickle court affirmed the district court’s and Court of Appeal’s finding that the CGIA’s premises liabil- ity waiver applied. The Supreme Court’s deci- sion in Stickle has obvious application in the context of governmental liability. The court’s opinion makes clear that the premises liability exception to CGIA immunity applies to a broad swath of government-owned structures, not just habitable buildings like offices. Beyond that context, the Stickle decision could have broad ramifications for many other areas, such as land use law, where many statutes and ordinances refer to and affect “buildings.” Real estate professionals should keep this ruling in mind when seeking development approvals and the like. For instance, local land use codes often do not define what consti- tutes a “building,” which often leads to some confusion as to what types of structures may be capture under any given code provision. When build- ers seek permission to build a structure that is not common- ly thought of as a “building,” they may wish to give that word its narrowest meaning if doing so would reduce the bur- den of the permitting process. On the other hand, however, local governments will likely point to the Stickle decision to support a more expansive reading of the word “building” to assert greater control over approvals for structures they traditionally have not included under that term. s jhollars@spencerfane.com Waiver of CGIA immunity: What structures are a ‘building’? Jacob Hollars Partner, Spencer Fane