DENVER (Legal Newsline) – A two-and-a-half-inch deviation in a sidewalk isn’t a big enough issue to hold the City of Boulder liable for the injuries of someone who tripped over it.
The Colorado Supreme Court made that ruling Feb. 22 in Joy Maphis’ lawsuit against Boulder, turning away arguments by lawyers Randall Paulsen and Shauna O’Brien that sought to make Boulder pay for injuries to her elbows and face.
The case drew the attention of the Colorado Trial Lawyers Association and the Colorado Municipal League, who both filed amicus briefs. The court was split 4-3 on the issue, with Justice Melissa Hart authoring the majority opinion.
Maphis’ lawyers said the deviation was a “dangerous condition” under the Colorado Governmental Immunity Act, which would have waived the immunity provided to Boulder under it. She broke her left elbow in the fall, as well as shattering her right arm and requiring two surgeries.
Boulder argued “dangerous condition” means an “unreasonable risk to the health and safety of the public” and that definition didn’t apply to such a small height difference. It was scheduled to fix the sidewalk days after Maphis’ fall.
“(W)e note that the condition was not unreasonable merely because the deviation exceeded the city’s criteria for a ‘hazard’ needing repair and the City had therefore marked it for repair,” Hart wrote. “’Hazard’ is synonymous with ‘risk.’
“The statutory language requires looking beyond the City’s criteria to determine whether the acknowledged hazard is one that exceeded the bounds of reason.”
The Colorado Municipal League argued no sidewalk system is hazard-free at all times and that cities and towns are limited by their budgets to keep up repairs.
“We cannot ignore the realities that Colorado’s local governments face in trying to maintain roads and sidewalks,” Hart wrote.
Justice Monica Marquez wrote the opinion for the dissenters. They considered the hazard “a dangerous condition,” under the CGIA, and said the majority narrows the scope of the waiver of immunity in that law.
“Although the City had identified the deviation and scheduled it for repair, it did not mark the area (with orange paint or cones, for example) to make the hazard more visible to pedestrians,” she noted.