red rocks concertgoers' answer brief

8/11/2019 Red Rocks Concertgoers' Answer Brief

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COURT OF APPEALS, STATE OF COLORADO2 East 14

thAvenue

Denver, Colorado 80203

District Court, Jefferson County

The Honorable Christopher ZenisekCivil Action No. 2012-CV-3705

Plaintiffs-Appellees:Jennifer Ackerman, David Scheuermann, Forrest

Hudspeth, and Adam Kinnard,

vs.

Defendant-Appellant:

City and County of Denver

Court Use Only

Attorney or Party Without Attorney:Adrienne M. Tranel, Atty. Reg. #40968

Bachus & Schanker, L.L.C.1899 Wynkoop Street, Suite 700

Denver, Colorado 80202Telephone: (303)893-9800

E-mail: [email protected] on behalf of Hudspeth and Kinnard

Daniel P. Gerash, Atty. Reg. # 18071

Gerash Steiner, P.C.Samuel Ventola, Atty. Reg. # 18030Law Office of Samuel Ventola

1775 Sherman Street, Suite 1650Denver, Colorado 80203

Telephone (Gerash): 303-830-0630Email: [email protected]

Telephone (Ventola): (303) 864-9797Email: [email protected]

Attorneys on behalf of Ackerman and Scheuermann

Court of Appeals

Case No.: 2013CA1561

PLAINTIFF-APPELLEES JOINT ANSWER BRIEF


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).

Choose one:X It contains 9,425 words.

It does not exceed 30 pages.

The brief complies with C.A.R. 28(k).

For the party raising the issue:It contains under a separate heading (1) a concise statement of the applicable

standard of appellate review with citation to authority; and (2) a citation tothe precise location in the record (R. , p. ), not to an entire document,where the issue was raised and ruled on.

X For the party responding to the issue:

It contains, under a separate heading, a statement of whether such partyagrees with the opponents statements concerning the standard of review and

preservation for appeal, and if not, why not.

s/ Adrienne M. Tranel

Signature of attorney or party


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TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE.................................................................... ii

TABLE OF CONTENTS ................................................................................... iii

TABLE OF AUTHORITIES .............................................................................. vi

ISSUES PRESENTED FOR REVIEW ................................................................ 1

STATEMENT OF THE CASE ............................................................................ 2

A.

Nature of the case, course of proceedings, and disposition below............ 2

B.

Statement of Facts ................................................................................ 2

a.

Background of Red Rocks Amphitheater ..................................... 3

b.

Denver is responsible for maintenance of Red Rocks Amphitheaterand hires expert engineers to perform maintenance....................... 5

i.

Yenters work schedule ..................................................... 6

ii.

The experts at Yenter Companies recommended, at a

minimum, annual inspections and rock fall mitigation of theAmphitheater, advice Denver ignored ................................ 7

c.

Denver knew the physical condition of the Amphitheater created

the potential for rock fall because the Facility Superintendentfound an orange to grapefruit-size rock in the Amphitheater in

1999 and because grapefruit to watermelon-size rocks fell on crewworkers in 2007 .......................................................................... 9

d.

Denver did not perform rock fall mitigation in 2011 before rocksfell on the concert-goers in this case .......................................... 11


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e.

Because Denver failed to perform any maintenance of theAmphitheater in 2011 before concert season, the rocks fell in

September, injuring the concert-goers ........................................ 12

SUMMARY OF THE ARGUMENT ................................................................. 14

ARGUMENT ................................................................................................... 16

A.The District Court correctly determined Red Rocks Amphitheater is apublic facility and the waiver of governmental immunity applies ...... 18

a.

Standard of review .................................................................... 18

b.

The District Court correctly determined Creation Rock is an

integral and essential part of Red Rocks Amphitheater ............... 18

B.

The District Court correctly determined the physical condition of RedRocks Amphitheater, including the integrated wall of Creation Rock, is a

dangerous condition............................................................................ 22

a.


b.

The physical condition of Red Rocks Amphitheater constitutes an

unreasonable risk to the health and safety of the public ............... 22

c.

Denver had actual notice of the physical condition of Red Rocks

Amphitheater prior to September 2011....................................... 24

i.

The law does not distinguish between general andspecific actual knowledge ............................................ 25

ii.

The record shows Denver knew the physical condition of

Red Rocks Amphitheater created the potential for rock fallin the Amphitheater based on two prior occurrences ......... 27

d.

Denver also had constructive notice of the physical condition of

the Amphitheater prior to September 2011 ................................. 29


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e.

Denvers negligent maintenance of the Amphitheater proximatelycaused rocks to fall ................................................................... 32

i. The District Court correctly found Denvers function with

respect to the Amphitheater was maintenance, not design,based .............................................................................. 32

ii.

Denvers maintenance of the Amphitheater was

negligent ......................................................................... 34

C.

The District Court correctly determined the concert-goers injuries werenot caused by the natural condition of any unimproved property........... 36

a.


b.

The District Court correctly determined the natural condition

clause does not apply to this case because the public facility atissue is Red Rocks Amphitheater, which is improved property.... 36

c.

The District Court correctly determined even if the public

facility at issue is Creation Rock, and even if the natural condition

clause applies, Creation Rock is improved property and no longerin its natural condition............................................................... 39

CONCLUSION ................................................................................................ 42

OPPOSITION TO REQUEST FOR ATTORNEY FEES .................................... 42

SIGNATURE BLOCK...................................................................................... 43

CERTIFICATE OF SERVICE .......................................................................... 44


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TABLE OF AUTHORITIES

Cases

Bodensieck v. Industrial Claims Office,183 P.3d 684 (Colo. App. 2008).................................................................... 35

Broderick v. City and County of Denver,

727 P.2d 881 (Colo. App. 1986).................................................................... 26

Burnett v. State of Colorado, Department of Natural Resources,2013 WL 1245366 (Colo. App. 2013) .................... 18, 20, 21, 38, 39, 40, 41, 42

Burnett v. State Department of Natural Resources,

2013 WL 5984594 (Colo. 2013) ................................................................... 20

Harjes v. State,

71 A.D.3d 1278 (N.Y. 2010)......................................................................... 27

Kowalsky v. Long Beach Township,72 F.3d 385 (3

rdCir. 1995) ........................................................................... 27

Luenberger v. City of Golden,

990 P.2d 1145 (Colo. App. 1999) ............................................................ 25, 27

Martinez v. Weld County School District RE-1,60 P.3d 736 (Colo. App. 2002) .................................................... 25, 27, 31, 32

McIntire v. Trammell Crow, Inc.,172 P.3d 977 (Colo. App. 2007).................................................................... 26

Medina v. State,35 P.3d 443 (Colo. 2001) ............................................................. 18, 20, 33, 34

Padilla v. Sch. Dist. No. 1 in the City and County of Denver,25 P.3d 1176 (Colo. 2001) ........................................................... 18, 19, 31, 32


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Rosales v. City and County of Denver,89 P.3d 507 (Colo. App. 2004) ...............................................18, 19, 20, 21, 31

Smith v. Town of Snowmass Village,

919 P.2d 868 (Colo. App. 1996).................................................................... 26

Springer v. City & County of Denver,13 P.3d 794, 799 (Colo. 2000) ...................................................................... 18

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

848 P.3d 916 (Colo. 1993) .............................................................................. 3

Statutes

C.R.S. 13-20-601 ........................................................................................... 36

C.R.S. 24-10-103(1.3) ................................................................... 17, 22, 24, 30

C.R.S. 24-10-103 (2.5) ................................................................................... 33

C.R.S. 24-10-106(1) ....................................................................................... 16

C.R.S. 24-10-106(1)(e) ................................................. 16, 17, 19, 22, 36, 37, 39

Rules

C.A.R. 28(c) ..................................................................................................... 23

C.R.C.P. 8(a) .................................................................................................... 36

C.R.C.P. 8(e) .................................................................................................... 36

C.R.C.P. 12(b) .................................................................................................. 42

Other

Oxford English Dictionary (2006) ..................................................................... 24


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Plaintiffs-Appellees Adam Kinnard and Forrest Hudspeth, by and through

their attorneys, Bachus & Schanker, L.L.C., and Jennifer Ackerman and David

Scheuermann, by and through their attorneys, Gerash Steiner, P.C., and the Law

Office of Samuel Ventola, hereby submit their Joint Answer Brief, stating as

follows:

ISSUES PRESENTED FOR REVIEW

1.

Whether the District Court properly found Red Rocks Amphitheater,

including the integrated wall of Creation Rock, is a public facility under

the Colorado Governmental Immunity Act (CGIA)?

2.

Whether the District Court properly found the physical condition of the

Amphitheater, including the integrated wall of Creation Rock, is a dangerous

condition because it constitutes an unreasonable risk to the health or safety

of the public?

3.



condition because Denver had actual and constructive knowledge of the

dangerous condition?

4. Whether the District Court properly found the physical condition of the



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condition because of Denvers maintenance function with respect to the

Amphitheater?

5.



condition because Denvers negligent maintenance of the Amphitheater

proximately caused the rocks to fall on the concert-goers?

6.

Whether the District Court properly found the concert-goers injuries were

not caused by the natural condition of any unimproved property under

C.R.S. 24-10-106(1)(e)?

STATEMENT OF THE CASE

A.

Nature of the Case, Course of Proceedings, and Disposition Below.

Plaintiffs-Appellees will not respond directly to Denvers statement

regarding the nature of the case, course of proceedings, and disposition below, to

the extent Denvers statement outlines the procedural posture and the District

Courts findings. The concert-goers do dispute Denvers description and selection

of certain facts.

B.

Statement of Facts

On the night of September 10 11, 2011, during the final minutes of Sound

Tribe Sector 9s (STS9) concert at Red Rocks Amphitheater, rocks fell from the


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north interior wall of the Amphitheater (Creation Rock) and struck concert-goers

Ms. Ackerman, Mr. Scheuermann, Mr. Hudspeth, and Mr. Kinnard. CF, p. 778.

The concert-goers were either sitting or standing on the north side of the

Amphitheater under Creation Rock, each somewhere between Row 5 and Row 45,

when rocks hit them. Denvers Opening Brief, p. 11. The rocks struck Ms.

Ackerman, Mr. Scheuermann, and Mr. Hudspeth in the head; none saw the rocks

before the impact. R. Tr. 6-28-2013, 45:9-23; Id., 53:22 54:1;Id., 62:7-11. The

rock that struck Mr. Kinnards leg was twelve inches long, eight inches wide, and

four inches thick, definitely bigger than a football. R. Tr. 6-28-2013, 67:6-12.

Because of Denvers negligence in maintaining the Amphitheater, the

concert-goers filed this lawsuit. CF, pp. 89-117. In response, Denver asserted

governmental immunity from liability. CF, pp. 81-86. Following briefing on

Denvers motion to dismiss and a five-day Trinity hearing, Trinity Broadcasting of

Denver, Inc., v. City of Westminster, 848 P.3d 916 (Colo. 1993), Jefferson County

District Court Judge Christopher Zenisek denied Denvers motion. CF, pp. 777

787. Denvers appeal followed. CF, p. 827.

a.

Background of Red Rocks Amphitheater.

Red Rocks Amphitheater is a man-made structure situated between two

large rocks, Creation Rock and Ship Rock, which form the walls of the


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Amphitheater, R. Tr. 7-8-2013, 142:14-24, much like the walls of an indoor

theater. Creation Rock forms the north wall of the Amphitheater; Ship Rock, the

south. Denvers Opening Brief, p. 10. Without Creation and Ship Rocks, there

would be no Amphitheater. R. Tr. 7-8-2013, 142:14- 24. Indeed, the Red Rocks

of Red Rocks Amphitheater are Creation Rock and Ship Rock. Denvers

Opening Brief, p. 10. The walls create the perfect structure for music to

reverberate between them. Creation Rock, and other large rock structures

surrounding the Amphitheater, are an integral component of the facility and are

essential for the intended use of the facility. CF, p. 778.

The beauty and structure of Creation and Ship Rocks make the Amphitheater

a world-renowned concert venue where each year, thousands of visitors attend

music concerts, which are held between June and September concert season.

CF, pp. 574, 913; R. Tr. 7-8-2013, 138:6-12. The Amphitheater houses all the

necessities for concerts rows of seats, stages, concession stands, restaurants, and

stairs which are directly affixed to and integrated with the Rocks. R. Tr. 7-8-

2013, 37:10-16; CF, pp. 574, 913. The rock formations provide acoustics, as well

as aesthetics, for the musical performances at the Amphitheater. CF, p. 777.

The man-made Amphitheater sits within Red Rocks Park, Denvers Opening

Brief, p. 10, which is primarily used for hiking, walking, biking, and other outdoor


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leisure activities. CF, p. 743. It is undisputed the Amphitheater is a public

facility for purposes of the Colorado Governmental Immunity Act (CGIA).

Denvers Opening Brief, p. 10.

b.

Denver is responsible for maintenance of Red RocksAmphitheater and hires expert engineers to perform

maintenance.

Denvers Arts and Venues agency is responsible for the operation and

maintenance of Red Rocks Amphitheater. CF, p. 777. In contrast, Denvers Parks

and Recreation Department is responsible for the operation and maintenance of

Red Rocks Park. Id.

As part of its maintenance responsibilities for the Amphitheater, Denver

hires expert engineers, Yenter Companies (hereinafter Yenter), to perform

maintenance work on the Amphitheater walls and to mitigate the risk of rock fall

onto visitors in the Amphitheater. CF, p. 744. Yenters services are necessary

because over time, freeze-thaw cycles, geological shifts, and other weather

conditions have contributed to the occurrence of rock fall in the Amphitheater. For

example, each spring the geological constitution of the rocks change and shift,

necessitating inspection after the freeze-thaw cycle and before concert season. R.

Tr. 7-8-2013, 68:10-19; Id., 161:11-19. A harsh winter can change the geological

conditions and increase the potential risk for rock fall. CF, p. 856. Cracks and


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erosion in the Amphitheaters rock formations have also developed and increased

since the original construction. Yenter reported a change in conditions between

2007 and 2010, stating, Over the years the erosion has taken its toll. CF, p. 842.1

In working to mitigate rock fall and still preserve the rocks aesthetic

characteristics, Yenter modifies Creation and Ship Rocks through shotcreting

(binding the rocks with concrete), bolting and pinning (drilling through rocks and

adding rebar reinforcement), buttressing, adding grout and plates, scaling

(removing loose rocks),2fencing with heavy cable nets, cable lashing (securing

rocks with anchors drilled into the rocks and cables) and blasting, thereby making

the Amphitheater safe for concert-goers. R. Tr. 7-8-2013, 168:2 172:25; CF, p.

779. This work leaves the rock formations in an unnatural condition.

i.

Yenters work schedule.

Over the years, Yenter has performed rock fall mitigation at the

Amphitheater, scaling the rocks from top to bottom, taking pictures and

measurements, and identifying hazards. R. Tr. 7-8-2013, 197:8-12. Denver agrees

1Yenters reports invert Creation and Ship Rock. Where the Yenter report

references Creation Rock on the south side, the report actually speaks to Ship

Rock. Likewise, references to Ship Rock on the north side speak to Creation Rock.2Scaling rocks means both to climb the rocks and to remove the rock. R. Tr. 7-

8-2013, 169: 6-16.


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because people attending concerts are frequently present in the area below the

rocks. Id., 148:16-21. Yenter repeated this advice in its 2010 report. CF, pp. 849.

Yenter also notified Denver of the imprecise science of rock fall and that rocks

could fall into the Amphitheater below if mitigation measures were not taken. CF,

pp. 849, 879. Yenter recommended the annual inspection occur after the changes

caused by the freeze/thaw cycle and before concert season. R. Tr. 7-8-2013,

161:11-19.

Likewise, in 2007, engineers from RMA Group advised Denver to perform

annual inspections. CF, pp. 779-780. At the Trinity hearing, Denvers retained

expert agreed an annual inspection should occur prior to the event season. R. Tr.

8-7-2013, 50:16-18.

Despite these recommendations to inspect the Amphitheater walls annually,

Denver elected not to do so. Without consulting with any engineer or expert, even

though Denver relies on Yenter companies to be its rock mitigation experts,Id.,

146:19-25, Denver decided to inspect the rocks and mitigate problems once every

three years instead of every year. Id., 145:7 148:2.

was in 2007, when there are expenditures on May 19 and June 17, although the2007 report is undated. CF, p. 880.


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c.

Denver knew the physical condition of the Amphitheater createdthe potential for rock fall because the Facility Superintendent

found an orange to grapefruit-size rock in the Amphitheater in1999 and because grapefruit to watermelon-size rocks fell on crew

workers in 2007.

Denver knew the physical condition of the Amphitheater, including Creation

Rock, created the potential for rock fall because Denver knew about two other rock

fall incidents that occurred prior to September 2011. Joe Davis, the Facility

Superintendent for Red Rocks Amphitheater, whose duties include oversight of the

maintenance for the Amphitheater, testified:

Q. Now, during your onsite inspection at the

amphitheater over 20 plus years, have you everobserved any large rock fall occurring inside of the

amphitheater?A. I have seen one I have never seen a rock fall

itself. I have seen one rock from anywhere froman orange to a grapefruit size laying on the stairs

one time.Q. Do you recall approximately when that occurred?

A. Twelve fourteen years ago, if I have to pick anumber.

Q. where was it that you saw this actual rock?A. It was on the north stairs between the planters and

Creation Rock.

R. Tr. 8-7-2013, 141:22 142:9. Mr. Davis did not request any inspection to

determine the source of the rock fall, nor did he direct any maintenance work be

done. Id., 142:10-12. The District Court specifically discredited Mr. Davis


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speculation that a visitor, using the rock as an exercise weight, left the rock on the

stairs. CF, p. 779.

In early 2007, a construction crew, RMA engineers, was building a

concession stand near rows 1 15 of the Amphitheater, below Creation Rock. CF,

p. 850. While RMA was working, they had additional small rocks come down

today (2/14/07). CF, p. 850 (emphasis added).5 The rocks were grapefruit to

watermelon size. R. Tr. 8-7-2013, 140:6-11.

RMA notified the city, [I]t appears to have been some time since any work

has been done on Creation Rock. It is vital that the City inspect this area at least

annually to determine the condition both of the measures all ready [sic] in place

and to look for new risks that may have appeared over the previous months. R.

Tr. 7-8-2013, 154:3-16. RMA asked Denver to perform additional rock

stabilization to protect its crew and the public. CF, p. 850.6 RMA identified

certain rocks as high risk on Creation Rock and said both RMA and Yenter

believed the rocks posed an imminent danger and should be addressed before the

5The word additional implies rocks fell before2/14/07 also. Because of the

limited nature of discovery prior to the Trinity hearing, this question has not yetbeen posed to RMAs witnesses.6Denvers argument that neither Mr. Davis nor Mr. Tad Bowman knew about

rocks falling and injuring people inside the Amphitheater, prior to the subject

incident, is disingenuous. At least four Denver officials received the e-mail fromRMA, CF, p. 850, and Mr. Davis testified he knew about the incident. R. Tr. 8-7-

2013, 140.


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public comes back into the theater. CF, p. 856. Clearly Denver appreciated that

risk since it hired Yenter to perform work in April and to complete a report in

2007. CF, p. 858-879. However, the record is void of any proof Denver inspected

the area to determine the exact cause and location of the rock fall. CF, p. 850-

858.7

d.

Denver did not perform rock fall mitigation in 2011beforerocks fell on the concert-goers in this case.

Denver hired Yenter companies to do scaling and assessment in the spring of

2010. CF, pp. 832-849; 880. In May/June 2010, Yenters report noted several

issues of fragile and dangerous rock on Creation Rock which needed to be

addressed promptly. R. Tr. 8-7-2013, 149:12 151:22. The report further

recommended inspections and mitigation occur every year. R. Tr. 7-8-2013, 76:15

77:5.

Despite the recommendation for annual inspections, Denver did not hire

Yenter to do any work the next year (2011) until September 26, 2011 afterthe

7Denvers references to an alleged lack of reported rock fall incidents, both in the

Amphitheater and in Red Rocks Park (Denvers Opening Brief, p. 15-16) areirrelevant. First, the evidence clearly refutes any alleged lack of 311 calls

regarding rock fall in the Amphitheater. CF, p. 850-856; R. Tr. 8-7-2013, 141-142.Second, rock fall in the surrounding Park is irrelevant to this case where the

concert-goers were injured while attending a concert inside the man-madeAmphitheater. The District Court found this evidence to be of little significance;

instead, the evidence showed Denver knew of a dangerous condition. CF, p. 781.


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rock fall incident on September 10-11, 2011. R. Tr. 8-7-2013, 149:1-11; CF, p.

880. Denver did nothing in 2011 before the concert season to address the specific

deficiencies noted in the 2010 report. Id., 149:12151:22; CF, p. 880.

Plaintiffs geological expert, Brendan Shine, testified Denvers rock fall

mitigation was inadequate at the time of the September 10th

incident. R. Tr. 7-8-

2013, 55:7-19. Mr. Shine noted several issues with Creation Rock in Yenters

2010 report which needed to be addressed, and were not. Id., 73:18 76:14.

Denver did nothing after receiving the 2010 report, or in 2011 before the incident

at issue, to mitigate the existing problems or to inspect. Id., 77:6-10; Id., 157:6

158:4;Id., 166:6-8.

e.

Because Denver failed to perform any maintenance of the

Amphitheater in 2011 before concert season, the rocks fell inSeptember, injuring the concert-goers.

The source of the rock fall was on Creation Rock, in the area vertically

above Row 40, without human involvement, when likely a large rock fell from one

ledge to another, shattered, and sprayed rocks to various locations both above Row

40 (i.e., to as far as Row 45 where Mr. Scheuermann sat) and below Row 40 (i.e.,

to as far as Row 5 where Mr. Kinnard stood). CF, pp. 778, 779; R. Tr. 7-8-2013,

49:1-19. Mr. Shines opinion, which the District Court credited, is consistent with


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Mr. Scheuermanns testimony that he first heard a loud bang and then, in the

next moment, he was hit on the head. R. Tr. 6-28-2013, 52:7-12.

8

Denver could have easily avoided the injuries to the concert-goers in this

case by following the clear recommendations of its own experts and conducting an

inspection of the Amphitheater in 2011 prior to the concert season. Had Yenters

recommended inspection and mitigation taken place in the spring of 2011, the rock

fall incident would have been prevented. R. Tr. 7-8-2013, 77:16-23.9 Mr. Shine

reached this conclusion based, in part, on the fact when inspections were not done

in the past, rock fall incidents occurred. Specifically, Mr. Shine noted Denvers

billing records showed Yenter did no maintenance in 2006, and a rock fall incident

then occurred in early 2007. Id., 57:6 59:15. He further noted a Yenter report

from May or June 2007 identified several areas requiring attention as well as issues

8While Denver argues the concert-goers have admitted the rock fall came from

trespassers kicking rocks loose, the concert-goers themselves are not experts

charged with rendering such an opinion, nor did any of the concert-goers testify tocausation. R. Tr. 6-28-2013, 45:24-25; Id., 54:4-5; Id., 62:14-15; Id., 69:24 70:1.

The isolated fact Mr. Kinnard saw people with flashlights in the area of CreationRock,Id., 70:25 71:1, in conjunction with Plaintiffs-Appellees Complaints, is

not proof of what caused the rocks to fall nor did Plaintiffs offer it as such.9To meet the notice requirement, the concert-goers are not charged with proving

Denver knew of the exact location of the rock fall in this case. See infra.However, if this were the applicable standard, the evidence shows had Denver

performed an inspection in 2011, given Yenters good performance, it is morelikely than not that Yenter would have found and identified a concern vertically

above row 40. R. Tr. 7-8-2013, 77:16-23.


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that needed to be addressed each spring because of freeze/thaw cycles. Id., 63:4

71:16. Denvers own witness, Mr. Koehmstedt, testified when inspections occur,

Denver and Yenter are able to discern whether any problems exist by analyzing

current photographs of the rocks and comparing those to previous years

photographs. R. Tr. 7-8-2013, 203:1-10.

SUMMARY OF THE ARGUMENT

1.

The District Court correctly found Creation Rock is integral and essential to

the use of Red Rocks Amphitheater. Implicit in Denvers summary of the

argument is the knowledge the Amphitheater would not exist without the

walls created by Ship and Creation Rocks; conceding this, Denver argues

Rosales was wrongly decided. However,Rosales is a correct statement of

law and the facts support the District Courts finding that Red Rocks

Amphitheater, and the integrated wall of Creation Rock, is a public facility

under C.R.S. 24-10-106(1)(e).

2. The District Court correctly found the concert-goers proved the physical

condition of the Amphitheater, and the integrated wall of Creation Rock,

constituted an unreasonable risk to the health and safety of the public where

Denver ignored the advice of its own experts and failed to inspect the

Amphitheater prior to opening the theater to the public in 2011.


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3.

The District Court correctly found Denver had both actual and constructive

knowledge the physical condition of the Amphitheater created the potential

for rock fall, where the evidence showed Denver hired Yenter Companies to

mitigate rock fall risk, and Denver knew about two instances of rock fall in

the Amphitheater prior to September 2011.

4.

The District Court correctly found Denvers function with respect to Red

Rocks Amphitheater was one of maintenance and not design, where Denver

maintained the property due to changes in the propertys condition over

time.

5.

The District Court correctly found Denvers maintenance of the

Amphitheater was negligent since Denver received expert recommendations,

and Denvers retained expert agreed, that annual rock fall inspection and

mitigation was necessary advice Denver expressly ignored and the

evidence showed the rock fall incident occurred in September 2011 because

no annual inspection was performed before concert season that year.

6.

The District Court correctly found the natural condition exception to the

governmental immunity exception is inapplicable in this case since Red

Rocks Amphitheater is improved property; even if the public facility at


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issue is Creation Rock as Denver argues, the District Court correctly found

Creation Rock is likewise improved property.

ARGUMENT

This Court should deny Defendant-Appellant Denvers appeal because the

District Court correctly determined Denver waived governmental immunity when

Denver failed to maintain Red Rocks Amphitheater, thereby causing rocks to fall

from Creation Rock onto concert-goers in the Amphitheater on the night of

September 10-11, 2011. Because Denver negligently maintained the Amphitheater

and allowed the dangerous condition (specifically, the physical condition of the

Amphitheater) to occur, Denver is responsible for the concert-goers injuries.

Denver asserts governmental immunity against the concert-goers claims

because [a] public entity shall be immune from liability in all claims for injury

which lie in tort or could lie in tort. C.R.S. 24-10-106(1). The concert-goers

allege immunity is waived by a public entity in an action for injuries resulting

froma dangerous condition of anypublic facility located in any park or

recreation area maintained by a public entity. C.R.S. 24-10-106(1)(e)

(hereinafter park and recreation exception).

The legislature has defined the terms dangerous condition as:

[E]ither a physical condition of a facility or the usethereof that constitutes an unreasonable risk to the health


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or safety of the public, which is known to exist or whichin the exercise of reasonable care should have been

known to exist and which condition is proximatelycaused by the negligent act or omission or the public

entityin constructing or maintaining such facility[A]dangerous condition should have been known to exist if it

is established that the condition had existed for such aperiod and was of such a nature that, in the exercise of

reasonable care, such condition and its dangerouscharacter should have been discovered. A dangerous

condition shall not exist solely because the design of anyfacility is inadequate.

C.R.S. 24-10-103(1.3).

The park and recreation exception to governmental immunity contains a

further exception-to-the-exception which, if applicable, allows Denver to retain

immunity. Nothing in this paragraph (e)shall be construed to prevent a public

entity from asserting sovereign immunity for an injury caused by the natural

condition of any unimproved property. C.R.S. 24-10-106(1)(e).

The concert-goers established the application of the waiver of governmental

immunity because when rocks fell and struck them, the physical condition of the

Amphitheater, including the integrated wall of Creation Rock, was a dangerous

condition of [a]public facility. Id. Further, the facts established the concert-

goers injuries were not caused by the natural condition of any unimproved

property. Id. For these and the following reasons, the Court of Appeals should

uphold the District Courts findings.


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A.

The District Court correctly determined Red Rocks Amphitheater is apublic facility and the waiver of governmental immunity applies.

a. Standard of Review

This Court shall consider de novoquestions of law regarding the waiver of

governmental immunity. See Medina v. State, 35 P.3d 443, 452 (Colo. 2001).

However, the District Courts findings of fact are subject to reversal on appeal only

if they are clearly erroneous. Id.; Springer v. City & County of Denver, 13 P.3d

794, 799 (Colo. 2000).

Even when employing de novo review of the case, the Court of Appeals

must broadly construe the provisions waiving immunity in the interest of

compensating victims of governmental negligence. Rosales v. City and County of

Denver, 89 P.3d 507, 509 (Colo. App. 2004) (citing Padilla v. Sch. Dist. No. 1, 25

P.3d 1176 (Colo. 2001)). Likewise, the Court of Appeals must strictly construe the

statutory provisions retaining governmental immunity. Burnett v. State of

Colorado, Department of Natural Resources, 2013 WL 1245366 at *2 (Colo. App.

2013).

b.

The District Court correctly determined Creation Rock is anintegral and essential part of Red Rocks Amphitheater.

To prove governmental immunity under the park and recreation exception,

the concert-goers must first show the existence of a public facility located in any


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park or recreation area maintained by a public entity. C.R.S. 24-10-106(1)(e).

Denver does not dispute Red Rocks Amphitheatre is a public facilitylocated in

any park or recreation area maintained by a public entity. Id. However, Denver

argues Creation Rock is not a public facility because it is not integral or essential to

the Amphitheater. Thus, the Court must determine whether the concert-goers in

this case establish the existence of a public facility.10

The CGIA does not define public facility. C.R.S. 24-10-106(1)(e). The

Court of Appeals has defined public as a place accessible or visible to all

members of the community, and a public facility is somethingbuilt or

constructed to serve some public purpose. Rosales, 89 P.3d at 509 (citations

omitted).

Here, the District Court correctly found the public facility at issue is the

Amphitheater, andCreation Rock is an integral and essential part of the facility.

CR, p. 783. Relying onBurnettandRosales, the trial court made a factual

determination based on the circumstances that Creation Rock is integral to Red

Rocks Amphitheater; there is no dispute Red Rocks Amphitheater is a public

10The determination of a public facility must also be made within the statutory

definition of dangerous condition. CF, p. 783; Padilla, 25 P.3d at 1180-81. TheDistrict Courts analysis evaluated the terms public facility concurrently under

the park and recreation exception and the statutory definition of dangerouscondition. CF, p. 782-783. Since the requirements of both statutes are the same,

Plaintiff-Appellees likewise dispense of both discussions here.


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facility; ergo, Creation Rock is a part of the public facility. Since the District

Courts finding is not clearly erroneous, this Court should uphold this factual

finding. Medina, 35 P.3d at 452.

InBurnett, the tree that hurt the camper was adjacent to and overhanging the

campsite, and the public entity did not plant or grow the tree. Burnett, 2013 WL

1245366 * 2.11

The Court noted that while the campground and campsite were in

an improved area of the park (where the camper was when she was hurt), the trees

adjacent to the campsite were in an unimproved part of the park. Id. Further, the

Court of Appeals found, Trees are not integral to the use and enjoyment of a

campsiteand trees are not essential to the use of a campsite. Id.(emphasis

added).

InRosales, a tree branch fell off and hit a woman in a park. Rosales, 89

P.3d 507. The woman argued the tree branch was the public facility located in

any park or recreation area. Id. The Court of Appeals remanded the case to

determine whether the City had incorporated the tree into a public facility in such

a manner that it became an integral part of the facility and was essential for the

11Burnett is currently pending before the Colorado Supreme Court as to [w]hether

the court of appeals erred in concluding that the government did not waiveimmunity under section 24-10-106(1)(e), C.R.S. (2013), of the Colorado

Government Immunity Act, for injuries caused by a tree limb that fell on a camperin an improved campsite in a state park. Burnett v. State Department of Natural

Resources, 2013 WL 5984594 (Colo. 2013).


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facilitys intended use. Id.at 510. Because if a public entity incorporates a tree

into a facility in such a manner that it becomes an integral part of the facility and is

essential for the intended use of the facility, the tree may be a component of the

public facility. Id.(citations omitted) (emphasis added). Thus, Creation Rock is a

component of the public facility if it is integral to the public facility and essential

for the use of the facility. Id.

The District Court found Creation Rock is an integral part, and essential for

the intended use, of the public facility (Red Rocks Amphitheater), a finding that

should not be disturbed since it is not clearly erroneous. CF, p. 783. The

Amphitheater was built not just between Creation and Ship Rocks. Denvers

Opening Brief, p. 25. Creation and Ship Rock compose the walls of the

Amphitheater, R. Tr. 7-8-2013, 13:4-5, much like the walls of an indoor theater.

To enjoy an event at Red Rocks Amphitheatre, music reverberates between the two

rock walls, and the Rocks are essential to the use of the facility. Id. Indeed, even

the name of the public facility, Red Rocks Amphitheatre, refers to the two Red

Rocks Creation Rock and Ship Rock. Denvers Opening Brief, p. 10. Creation

and Ship Rocks create the Amphitheater for the purpose of music concerts, the

very purpose of the concert-goers in this case. CF, p. 783. InBurnett the campsite


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would still exist without a tree. Here, without Creation Rock, there would be no

Amphitheater. R. Tr. 7-8-2013, 142:14-24.

B.

The District Court correctly determined the physical conditionof Red Rocks Amphitheater, including the integrated

wall of Creation Rock, is a dangerous condition.

a. Standard of Review

Plaintiffs-Appellees outlined the standard of review above in section A.a.

b.

The physical condition of Red Rocks Amphitheater constitutesan unreasonable risk to the health and safety of the public.

Next, the concert-goers must establish the physical condition of Red Rocks


condition. C.R.S. 24-10-106(1)(e). A dangerous condition is (1) the physical

condition of a public facility, (2) which constitutes an unreasonable risk to the

health or safety of the public, (3) which the public entity knew or should have

known existed in the exercise of reasonable care, and (4) the negligent act or

omission of the public entity proximately causes such condition. C.R.S. 24-10-

103(1.3). Since the first element regarding public facility is discussed above, the

argument turns to elements two, three, and four of dangerous condition, as

follows.

Denver does not dispute the factual finding that the physical condition of the

Amphitheater, including the integrated wall of Creation Rock, constitutes an


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unreasonable risk to the health or safety of the public. Denvers Opening Brief, p.

26- 27. While Denver presents an issue for review of whether the District Court

erred in determining that the failure to inspect Creation Rock annually created an

unreasonable risk to public health and safety,Id., p. 1, Denver failed to brief the

issue. Thus, Denver should be precluded from making any new arguments on this

point in any Reply Brief. C.A.R. 28(c).

However, should the Court allow Denver to discuss the issue on Reply,

Plaintiffs-Appellees contend the District Court correctly found the physical

condition of Red Rocks Amphitheater, including the integrated wall of Creation

Rock, constituted an unreasonable risk to the health and safety of the public. CF,

p. 783-784. Denver received a recommendation from Yenter, Denvers own

experts, to inspect the Amphitheater annually in order to mitigate the risk for rock

fall. CF, pp. 849, 879. Despite this recommendation, Denver decided to inspect

the Amphitheater once every three years instead. R. Tr. 8-7-2013, 145:7-148:2.

Denver directly ignored the advice of its experts in the face of knowledge of

dangerous threats for rock fall. Thus, the District Court correctly found the

condition of the Amphitheater created an unreasonable risk to the health and safety

of the public, CF, p. 784, a finding that is not clearly erroneous and should be

upheld on appeal.


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c.

Denver had actual notice of the physical condition of Red RocksAmphitheater prior to September 2011.

The District Court correctly found Denver was aware of the physical

condition of Red Rocks Amphitheater, and the potential for rock fall, prior to

September 2011 because rocks had fallen into the Amphitheater on two other

occasions. To establish a dangerous condition, the concert-goers must prove

Denver had either actual or constructive knowledge of the dangerous condition.

C.R.S. 24-10-103(1.3). In the absence of the CGIA defining actual

knowledge, the Court of Appeals may look to the plain, everyday meaning of

knowledge: [A]wareness or familiarity gained by experience (of a person, fact,

or thing); a persons range of information; specific information, facts or

intelligence about something. Oxford English Dictionary (2006).

Denvers argument i.e., general knowledge of rocks falling does not

establish actual knowledge is legally and factually incorrect. First, the law does

not require the concert-goers to show Denver knew about the propensity for rock

fall in the area vertically above Row 40, where Mr. Shine opined the fall

originated. Second, the record shows Denver had ample notice of the condition of

the Amphitheater that created the risk for rock fall.


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i.

The law does not distinguish betweengeneral and specific actual knowledge.

The law does not distinguish between general and specific knowledge of

an event. InLuenberger v. City of Golden, the City claimed it had received

complaints regarding the steel skin of the half pipe, but it had not received any

complaints similar to the bicyclists involving the half-pipe; therefore, the City

argued, it did not have actual or constructive knowledge of the dangerous condition

at issue. Luenberger v. City of Golden, 990 P.2d 1145, 1146 (Colo. App. 1999).

The Court of Appeals rejected the Citys argument, concluding when there was not

specific notice of the precise harm, actual or constructive notice was an issue of

fact for the trial court to decide, and the City need not have notice of the precise

harm to have actual or constructive knowledge. Id.at 1148.

Likewise, inMartinez v. Weld County School District, RE-1, the Court of

Appeals upheld the finding that the school district had notice of a snowy and icy

walkway because the area where Ms. Martinez fell was a chronic problem for ice

build-up. Martinez v. Weld County School District, RE-1, 60 P.3d 736, 739 (Colo.

App. 2002). Even though the school district did not know about the condition on

that particular day, the Court of Appeals found the school district had notice to

satisfy this element of the CGIA waiver. Id.


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McIntire v. Trammell Crow, Inc., is distinguishable from the instant matter.

McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007). McIntire

interprets the Premises Liability Act and the knowledge incumbent upon a

landowner when an invitee is on her premises. Id.; CF, p. 784. McIntire does not

discuss the CGIA, the statutory definition of dangerous condition controlling in

this case, or what actual knowledge means in such a context. McIntire, 172 P.3d

at 980.

Denvers string-cited cases are likewise distinguishable. These are slip-and-

fall cases in snowy and icy conditions where the governmental entity had no notice

of any prior falls in that particular area. See Smith v. Town of Snowmass Village,

919 P.2d 868, 871 (Colo. App. 1996) (upholding dismissal where no complaints

about the ice were received, nor was there any evidence about how long the ice had

been present, when it accumulated, or under what conditions it appeared, and no

one testified the ice was present before Ms. Smiths fall); see also Broderick v.

City and County of Denver, 727 P.2d 881, 882 (Colo. App. 1986) (upholding

dismissal where particular sidewalk was icy for not more than two days, and there

was evidence it had been plowed nearly clean just two hours prior to the fall); see


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also Harjes v. State, 71 A.D.3d 1278 (N.Y. 2010) (finding State had no prior

knowledge of icy condition recurring on stretch of the highway).

12

Following the applicable standard inLuenbergerandMartinez, the District

Court correctly found the law requires knowledge of the dangerous condition (i.e.,

the physical condition of Red Rocks Amphitheater), not specific knowledge of the

exact dangerous condition on that particular day.

ii.

The record shows Denver knew the physical condition ofRed Rocks Amphitheater created the potential for rock fall

in the Amphitheater based on two prior occurrences.

The District Court correctly found two prior occurrences of rock fall put

Denver on notice of a dangerous condition, a factual finding subject to the clearly

erroneous standard. The first rock fall incident in 1999 did not involve merely the

discovery of a rock on the Amphitheatres stairs. Denvers Opening Brief p. 27.

The Amphitheater Superintendent, Mr. Davis, testified he found a rock on the

north stairs, below Creation Rock, the size of an orange [or] a grapefruit. R. Tr.

8-7-2013, 141:25 142:9. Mr. Davis testimony of this discovery was in direct

response to Denvers questioning about Denvers knowledge of rock falls in the

12Denvers citation to Kowalsky v. Long Beach Township, 72 F.3d 385, 389 (3

rd

Cir. 1995) is misplaced. That case discusses the meaning of improved propertyin the context of the New Jersey Tort Claims Act, in a case involving swimmers

injured while bodysurfing at public beaches. The case does not discuss the actualor constructive knowledge element, it pertains to New Jerseys particular

legislation, and it concerns an inapposite set of facts.


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Amphitheater prior to September 2011. Id., 141:22 142:9. When Mr. Davis

speculated the rock was left behind by a visitor using it to lift weights, the District

Court found the explanation incredible. CF, p. 779. Denver knew from at least as

early as 1999 that the physical condition of the Amphitheater was such rocks could

fall into the Amphitheater.

The second incident in 2007 was even more significant. Mr. Davis testified

he learned in 2007 rocks grapefruit to watermelon size fell from Creation Rock

onto the RMA construction crew, which was building a concession stand below

Creation Rock, inside the Amphitheater. R. Tr. 8-7-2013, 140:9; Id., 138:14

139:1; CF, p. 850. RMA asked Denver to perform additional rock stabilization to

protect its crew and the public. CF, p. 850. RMA identified certain rocks as

high risk on Creation Rock and said both it and Yenter believed the rocks posed

an imminent danger and should be addressed before the public comes back into

the theater. CF, p. 856.

Denver conjectures vibration equipment, rather than natural rock fall,

caused the rocks to fall onto the RMA employees. Denver Opening Brief, p. 28.

However, no one inspected to determine the exact cause and location of the rock

fall. CF, p. 850 858. Thus, Denver received notice a second time the physical

condition of the Amphitheater was such rocks could fall from Creation Rock into


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the Amphitheater. Denvers decision not to inspect or address either the 1999 or

the 2007 rock falls does not entitle Denver to claim lack of notice.

Further, Denver retained Yenter for the very purpose of monitoring rock fall

at Red Rocks Amphitheater because Denver knew rocks could fall into the

Amphitheatre and hurt people. R. Tr. 8-7-2013, 146:19-25. In each and every

report, Yenter advises Denver of the imprecise science of rock fall and that rocks

could fall into the Amphitheatre below if mitigation measures were not undertaken.

CF, pp. 849, 879. Yenter recommends, in each and every report, annual

inspections and mitigation to lessen the risk that rocks could fall onto people and

hurt them. Id. Thus, when Denver explicitly ignored the advice of Yenter and

decided not to perform annual inspections, and instead to perform inspectionsonce

every three years, Denver knew the risk it was taking and the harm it was creating.

R. Tr. 8-7-2013, 144:8 148:2; CF, p. 842.

d.

Denver also had constructive notice of the physical condition of

the Amphitheater prior to September 2011.

Even if Denver did not have actual knowledge of the fact rocks could fall

from Creation Rock into the Amphitheatre below, given the physical condition of

the Amphitheater, Denver undoubtedly should have known of the potential for

rock fall from Creation Rock, had Denver exercised reasonable care. The

condition had existed for such a period and was of such a nature that, in the


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exercise of reasonable care, such condition and its dangerous character should have

been discovered. C.R.S. 24-10-103(1.3).

Denvers argument that it lacked constructive notice is without support.

Denver had actual notice of the physical condition of the Amphitheater and the

potential for rock fall into the Amphitheatre based on the two prior rock falls. See

supra. These same facts put Denver on constructive notice. Id.

Denver dismisses the fact Yenter recommended annual inspections of

Creation Rock, which did not occur. Denver Opening Brief, p. 29. Denver

argues, without more, the fact Denver openly chose to ignore the advice of its

own experts, without any basis in fact, expertise, inspection, or otherwise, is not

tantamount to constructive notice. Id. The Court should reject these arguments.

In the exercise of reasonable care, Denver should have followed Yenters

advice and inspected Red Rocks Amphitheater annually. Denvers own experts

agree an annual inspection is reasonable and necessary. R. Tr. 8-7-2013, 50:16-18.

Even RMAs engineers told Denver to inspect annually. CF, pp. 779-780.

Denvers decision to ignore expert advice, knowing of the potential for rock fall,

was not reasonable care. Had Denver exercised reasonable care and inspected in

2011 before concert season, Denver should have discovered the physical condition

of the Amphitheater and the potential for rock fall. R. Tr. 7-8-2013, 77:16-23.


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Without inspections, Denver took a greater risk rocks would fall in the

Amphitheater. Two times out of three, when Yenter did not inspect, Denver knew

rocks would fall and endanger people in the theater below. Yenters records show

it performed an inspection in 2005, but not in 2006 or in 2007 until after the rock

fall incidents in February 2007. CF, p. 880. Likewise, Yenter performed no

inspection in 2011 until after the September 10th

incident giving rise to this

lawsuit. Id. Had Yenter performed an inspection in 2011, it is more likely than not

that Denver could have prevented the 2011 rock fall incident. R. Tr. 7-8-2013,

77:16-23.

Denver argues even if the concert-goers expert is correct the rock fall

source was somewhere vertically above row 40, that area was not previously

identified as an area of concern. Denvers Opening Brief p. 30. The concert-goers

are not charged with proving Denver had notice of the precise harm on this

particular day. See supra.13

Even if that was the legal standard, the concert-goers

13As a matter of public policy, if Denver was correct, then Denver would be

absolved of liability every time rocks fall and injure people in the Amphitheater

because Denver did not have notice of the potential for rock fall from thatparticular location. Indeed, any entity would be absolved of notice unless it knew

a prior incident occurred on that particular day at that particular location, anargument this Court has already rejected. Martinez, 60 P.3d at 739. Further, such

an argument would create absurd results and is contrary to this Courts intent thatwaivers of governmental immunity be broadly construed in favor of compensating

victims. Rosales, 89 P.3d at 509 (citing Padilla, 25 P.3d 1176).


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proved that had Denver acted with reasonable care, it would have discovered the

potential rock fall in the area vertically above row 40. R. Tr. 7-8-2013, 77:16-23.

It is irrelevant whether or not the 2007 and 2010 Yenter reports specifically discuss

the area vertically above row 40 as a place of concern because Denver performed

no inspection in 2011. CF, p. 880. Had Denver performed an inspection in 2011,

it is more likely than not that Yenter would have found and identified a concern in

the area vertically above row 40. R. Tr. 7-8-2013, 77:16-23.

e. Denvers negligent maintenance of the Amphitheatreproximately caused rocks to fall.

To prove a dangerous condition, the concert-goers must show Denvers

negligent maintenance of Red Rocks Amphitheater proximately caused the

physical condition of the Amphitheater and the potential for rock fall. Martinez,

60 P.3d at 739 (citations omitted). In order for the concert-goers to fulfill this

element, they must prove the dangerous condition is the result of the construction

or maintenance of the facility, and not the design. Padilla, 25 P.3d at 1180-81.

i. The District Court correctly found Denvers function with

respect to the Amphitheater was maintenance, not design,

based

Denvers negligent maintenance of Red Rocks Amphitheater proximately

caused the physical condition of the Amphitheater and the potential for rock fall.

Maintenance is the act or omission of a public entityin keeping a facility in


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the same general state of repair or efficiency as initially constructed or in

preserving a facility from decline or failure. Maintenance does not include any

duty to upgrade, modernize, modify, or improve the design or construction of a

facility. C.R.S. 24-10-103(2.5).

Denver argues Red Rocks Amphitheater was designed to be located between

Creation and Ship Rocks, and Denver had no duty to upgrade, modernize, modify

or improve that design. Denvers Opening Brief, p. 33-34. Denver concludes

because the rock fall into the Amphitheater is a design issue, and not maintenance

or construction, the District Court erred in finding the concert-goers met this

element of a dangerous condition. Id., p. 32. The Court of Appeals may reject

these arguments because the District Courts findings were not clearly erroneous.

Denver hired Yenter for the express purpose of performing rock fall

mitigation and maintenance of Creation and Ship Rock. R. Tr. 8-7-2013, 146:19-

25. Denver preserved the Amphitheater from decline or failure by hiring Yenter to

scale rocks, remove rocks by hand, buttress and shot-crete rocks, and otherwise

maintain Creation Rock so as to prevent rocks from falling on concert-goers. R.

Tr. 7-8-2013, 168:2 172:25.

Following Medina v. State, the District Court looked to the temporal

distinction between design and maintain to reject Denvers design argument:


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[A]n injury results from a failure to maintain when it iscaused by a condition of the road that develops

subsequent to the roads initial design. An injury resultsfrom inadequate design, in contrast, when it is caused by

a condition of the road that inheres in the design andpersists to the time of the injury.

Medina, 35 P.3d at 448. Here, Denver built an entire Amphitheater between Ship

and Creation Rocks. As time has worn on, freeze-thaw cycles, geological shifts,

and other weather conditions contribute to the occurrence of rock fall in the

Amphitheater. R. Tr. 7-8-2013, 68:10-19. Cracks and erosion in the

Amphitheaters rock formations have developed and increased since the original

construction. CF, pp. 842, 786. Since the dangerous condition (i.e., cracks,

erosion, and rock fall) developed subsequent to the Amphitheaters initial design,

Denvers maintenance (not design) of the Amphitheater caused the dangerous

condition. CF, p. 786;Medina, 35 P.3d at 448.

ii.

Denvers maintenance of the Amphitheater was negligent

Having found the inspections were a maintenance function, the District

Court correctly found Denver failed to maintain the Amphitheater adequately. The

District Courts factual finding should not be disturbed on appeal as it is not

clearly erroneous. Medina, 35 P.3d at 452.

As discussed above, rock fall was more likely than not to occur when Yenter

did not perform yearly inspections. See supra. Denver had specific and repeated


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recommendations from its own experts to perform inspections annually. CF, p.

849, 879. Even Denvers own expert agreed at hearing that annual inspections

should occur before concert season. R. Tr. 8-7-2013, 50:16-18. Denver knowingly

made the decision not to follow those recommendations. Id., 145:7 148:2.

Instead two employees, with no expertise or understanding of rock fall mitigation,

decided inspections shall occur only once every three years knowing when they

did so, that rock fall is sporadic and unpredictable, and that such a choice was

in direct contravention of Denvers own experts recommendations. Id., 144:8

148:2; CF, p. 842.

After hearing the testimony of the witnesses and making credibility

determinations, the District Court found the concert-goers expert credible in his

opinion, had Denver assigned Yenter to conduct yearly inspections, more likely

than not this would have prevented the rockfall that occurred in September 2011.

CF, p. 785. Appellate courts are to give strong deference to a trial courts

credibility determinations. See, e.g., Bodensieck v. Industrial Claim Appeals

Office, 183 P.3d 684, 687 (Colo. App. 2008).

Denver ultimately claims upon the concert-goers Complaints, which pled

the rocks were thrown or loosened by third-party trespassers, are evidence and

an admission the rocks were caused by a third party and not Denver. Denvers


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Opening Brief p. 34-35. The concert-goers are not experts none of them testified

they knew what caused the rocks to fall from Creation Rock; they do not know and

would not be expected to know. R. Tr. 6-28-2013, 45:24-25; Id.54:4-5; Id., 62:14-

15;Id., 69:24 70:1. Further, only a Complaint of professional negligence need

be certified by an expert. C.R.S. 13-20-601. These Complaints do not include

expert conclusions and are not an admission of what caused the rocks to fall;

rather, the Complaints are merely the concert-goers good faith basis alleging what

happened, not why it happened. See, e.g., C.R.C.P. 8(a) (primary purpose of a

complaint is to provide notice of claims); see also C.R.C.P. 8(e) (When a pleader

is without direct knowledge, allegations may be made upon information and

belief.).

C.The District Court correctly determined the concert-goers injuries

were not caused by the natural condition of any unimproved property.

a.

Standard of Review

Plaintiffs-Appellees outlined the standard of review above in section A.a.

b. The District Court correctly determined the natural condition

clause does not apply to this case because the public facility at

issue is Red Rocks Amphitheater, which is improved property.

The CGIA allows governmental immunity to be waived when there is a

dangerous condition of anypublic facility located in any park or recreation area

maintained by a public entity. C.R.S. 24-10-106(1)(e). However, Nothing in


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and events, CF, p. 783), Denver is not immune from liability under the natural

condition clause because the Amphitheater is not a natural condition. CF, p. 786.

Denver argues even if the public facility is Red Rocks Amphitheater,

legislative intent shows Red Rocks Amphitheater is considered a natural

condition of unimproved property. Denvers Opening Brief, p. 40. The

legislative report distinguishes between injuries caused from man-made structures

and injuries caused by the natural conditions of a park, such as the Red Rocks

west of Denver. Id., p. 40-41 (emphasis added).

Denvers reliance on this legislative report is misplaced. The report refers

to parks when discussing Red Rocks. Colorado Legislative Council Report, Report

to the Colorado General Assembly: Governmental Liability in Colorado, Research

Publication No. 134, p. xxii (1968). The legislature intended to retain immunity

for Red Rocks Park, since that is what the legislature said, natural conditions of

a park, like Red Rocks. Id. The legislature did not intend to retain immunity for

Red Rocks Amphitheater.

AsBurnett and the legislative history suggest, there is a distinction to be

made between injuries which occur in and are caused by the Amphitheater (and the

integrated walls of the Amphitheater), versus injuries that occur in the greater Red


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Rocks Park.14

Burnett, 2013 WL 1245366. Here, the concert-goers were inside

the Amphitheater when they were injured by rocks falling from a wall of the

Amphitheater. The concert-goers were not injured, for example, by tripping over a

rock on a trail while hiking in the greater Red Rocks Park. In the hiking example,

the concert-goers injuries would have been caused by a natural condition in an

unimproved area of the park. Since that is not the case here, and the concert-goers

were hurt by a dangerous condition [the physical condition of the Amphitheater

that created the potential for rock fall] of the public facility [Red Rocks

Amphitheater] located in any park or recreation area [Red Rocks Park] maintained

by a public entity [Denver], immunity is waived. C.R.S. 24-10-106(1)(e).

c.

The District Court correctly determined even if the public

facility at issue is Creation Rock, and even if the naturalcondition clause applies, Creation Rock is improved property and

no longer in its natural condition.

Even if the public facility at issue is Creation Rock, and even if the natural

condition clause applies, the District Court correctly found Creation Rock is

improved property no longer in its natural condition, a factual determination that

should not be disturbed on appeal unless clearly erroneous. Creation Rock had

14Even though Red Rocks Amphitheater is located within the greater Red Rocks

Park, the two entities are separate and distinct legally and factually. Denver usesdifferent departments to operate and maintain each entity, Denvers Opening Brief,

p. 10, and they have vastly distinct purposes and landscapes.


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been improved by removing rocks, bolting rocks, chaining rocks, and other

improvements. CF, p. 786. Creation Rock, despite maintaining a natural

appearance, is improved property. CF, p. 786.

The CGIA does not define unimproved property or improved property.

In the absence of a statutory definition of unimproved property, the Court shall

assume the terms have their usual and ordinary meaning. Burnett, 2013 WL

1245366 (dissent) (citations omitted). While Denver cites New Jersey and

California case law to define unimproved and to conclude the concert-goers

injuries must be caused bythe improvement on the land, the CGIA requires no

such causal link, nor does Colorado case law.

As the dissent notes inBurnett, [u]nimproved property usually refers to

real propertyin its natural state. Unimproved property typically contains a

variety of features such as shrubs, trees, rocks, ruts, ditches, cliffs, and

watercourses. When property is unimproved, these natural features have not been

disturbed. Burnett, 2013 WL 1245366 (dissent). After considering the definition

of improvements for property tax purposes, theBurnett dissent states,

[P]roperty is unimproved when no structures or fixtures are built on or affixed to

the land. Id.


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TheBurnett dissent goes on to explain the example of a public entity that

builds and maintains a playground knowing a dead, rotting tree is in the middle of

the playground; the entity fails to remove the tree, and the tree falls and hurts

someone. Id.TheBurnett dissent opines that to allow the governmental entity to

assert immunity in such a case much like the instant one would be contrary to

the obligation to construe the immunity waivers in favor of compensating victims

and would lead to absurd results. Id.

Here, Red Rocks Amphitheater (the public facility at issue) is not a

natural condition. See supra. Even if the public facility at issue is Creation

Rock standing alone, Creation Rock is no longer in its natural condition as it has

undergone numerous improvements. CF, p. 786. Creation Rock, in its natural

condition, did not have thousands of people below it each summer, in an enclosed

space, standing in one centralized theater while music is being performed. CF, pp.

574, 913. In addition, Denver has improved and altered Creation Rock. For

example, Yenter removes rocks by hand from the face of Creation Rock; puts up

buttresses, fencing, pins, rebar, wedges, cable-anchoring, and shot-creting to

prevent rocks from falling; and generally changes the landscape of Creation Rock

to make it safer for concert-goers in the theater. R. Tr. 7-8-2013, 168:2 172:25;

CF, p. 779. The Amphitheaters rows of seats, stage, stairs, and other structures


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are all affixed to Creation Rock. CF, p. 913; R. Tr. 7-8-2013, 142:14-24. These

improvements qualify as structures or fixturesbuilt or affixed to the land,

Burnett, 2013 WL 1245366 (dissent), to render Creation Rock improved under

this statutory clause.

CONCLUSION

For the foregoing reasons, Plaintiffs-Appellees respectfully request this

Court affirm the District Courts denial of Denvers 12(b)(1) motion to dismiss and

allow the case to proceed pursuant to the District Courts jurisdiction.

OPPOSITION TO REQUEST FOR ATTORNEY FEES

Plaintiffs-Appellees do not dispute the statute regarding attorney fees when a

trial court dismisses an action under C.R.C.P. 12(b) and based on governmental

immunity. However, since Denver did not prevail before the trial court, and

should this Court uphold the trial courts findings, Denver is not entitled to

attorney fees since the action is not dismissed.

DATED this 18th

day of July, 2014.


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Respectfully Submitted,

BACHUS & SCHANKER, LLC

/s/ Adrienne M. Tranel /s/ Samuel Ventola

Adrienne M. Tranel, #40968 Samuel Ventola, #18030BACHUS & SCHANKER, LLC Law Office of Samuel Ventola

1899 Wynkoop Street, Suite 700 1775 Sherman Street, Suite 1650Denver, Colorado 80202 Denver, Colorado 80203

Phone: (303) 893-9800 Telephone: (303) 864-9797E-mail: [email protected] Email: [email protected]

Attorneys for Plaintiffs-AppelleesForrest Hudspeth and Adam Kinnard

/s/ Daniel P. GerashDaniel P. Gerash, Atty. Reg. # 18071

Gerash Steiner, P.C.1775 Sherman Street, Suite 1650

Denver, Colorado 80203Telephone: 303-830-0630

Email: [email protected] for Plaintiffs-Appellees

Jennifer Ackerman and DavidScheuermann


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CERTIFICATE OF SERVICE

I hereby certify that on this 18

th

day of July, 2014, the foregoing JOINTANSWER BRIEF was filed with the Court of Appeals and served on the following

via ICCES:

Barry A. Schwartz, Esq.Jamesy C. Owen, Esq.

Assistant City AttorneysDenver City Attorneys Office

Litigation Section201 West Colfax Ave., Dept. No. 1108

Denver, CO 80202-5332Attorneys for Defendant-Appellant Denver

/s/ Adrienne M. TranelAdrienne M. Tranel

red rocks concertgoers' answer brief

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