COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue

Denver, Colorado 80203





















COURT USE ONLY
________________________

Case Number: 13CA1561




District Court, J efferson County
The Honorable Christopher C. Zenisek
Civil Action No. 12-CV-3705


Plaintiffs-Appellees: JENNIFER ACKERMAN,
DAVID SCHEUERMANN, FORREST
HUDSPETH, and ADAM KINNARD,

v.

Defendant-Appellant: CITY AND COUNTY OF
DENVER.

Barry A. Schwartz, #17981
J amesy C. Owen, #44926
Assistant City Attorneys
Denver City Attorneys Office
Litigation Section
201 West Colfax Ave., Dept. No. 1108
Denver, CO 80202-5332
Telephone: (720) 913-3100
Facsimile: (720) 913-3182
Barry.Schwartz@denvergov.org
J amesy.Owen@denvergov.org
Attorneys for the Defendant-Appellant

REPLY BRIEF

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 those rules.
Specifically, I certify that this brief complies with C.A.R. 28(g) because it contains
no more than 5,700 words (it contains approximately 5,698 words).

s/ Jamesy C. Owen
J amesy C. Owen
Counsel for Defendant-Appellant,
City and County of Denver

i

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .......................................................................... iv, v, vi

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

A. Plaintiffs cannot demonstrate that their injuries were caused by a dangerous
condition as that phrase is defined by the CGIA ........................................... 2

1. The two incidents on which Plaintiffs rely do not support the district
courts conclusion that Denver had actual or constructive notice that
a natural rockfall might injure concertgoers ......................................... 3

a. Neither actual nor constructive notice is established by the
discovery of a rock in the Amphitheatre in 1999 or of the rocks
that fell into a construction zone there in 2007. ............................ 4

b. The case law Plaintiffs cite in support of their notice argument
is inapposite ................................................................................... 8

2. The district court erred in concluding that Denvers failure to
inspect Creation Rock in 2010 was the proximate cause of Plaintiffs
injuries ................................................................................................. 10

3. Plaintiffs injuries were not caused by negligent maintenance of the
Amphitheatre ....................................................................................... 14

4. The mere fact that the Amphitheatre was designed to be placed next to
Creation Rock does not render the combination of them a public
facility. ................................................................................................. 16



ii

B. Plaintiffs injuries were caused by the natural condition of unimproved
property, for which there is no waiver under the CGIA ................................ 18

1. Denver retains immunity under the natural condition of any
unimproved property provision of the CGIA because Creation
Rock is not integral and essential to the use and enjoyment of
Red Rocks Amphitheatre .................................................................... 19

2. Creation Rock is not improved property ......................................... 21

3. This Court should not disturb the balance embodied in the CGIA
between encouraging governments to provide public facilities in
natural surroundings, while preserving limited public resources ....... 23

CONCLUSION ........................................................................................................ 25

REQUEST FOR ATTORNEY FEES ...................................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Altairi v. Alhaj,
599 N.W.2d 537 (Mich. App. 1999) ....................................................................... 7

Aurora v. Loveless,
639 P.2d 1061 (Colo. 1981) .................................................................................. 11

Brady v. Southern R.R. Co.,
320 U.S. 476 (1943) .............................................................................................. 11

Branco Eastern Co. v. Leffler,
482 P.2d 364 (1971) ................................................................................................ 5

Burnett v. State Dept. of Natural Resources,
No. 11CA2141, 2013 WL 1245366 (Colo. App. March 28, 2013),
cert. granted (Nov. 12, 2013) .................................................................... 17, 20, 21

Curtis v. Hyland Hills Park & Rec. Dist.,
179 P.3d 81 (Colo. App. 2007) ............................................................................. 10

Dubray v. Intertribal Bison Coop.,
192 P.3d 604 (Colo. App. 2008) ........................................................................... 25

Johnson v. Town of Grand Lake,
No. 05-cv-1169-WDM, 2006 WL 686487 (D. Colo. March 17, 2006) .............. 4, 8

Luenberger v. City of Golden,
990 P.2d 1145 (Colo. App. 1999) ................................................................. 8, 9, 10

Martinez v. Weld County School Dist. RE-1,
60 P.3d 736 (Colo. App. 2002) ........................................................................... 4, 8

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


Mendoza v. White Stores, Inc.,
488 P.2d 90 (Colo. App. 1971) ............................................................................. 11

Padilla v. School Dist. No. 1,
25 P.3d 1176 (Colo. 2001) ................................................................................ 3, 15

Repka v. Rentalent,
477 P.2d 470 (Colo. App. 1970) ........................................................................... 11

Rosales v. City & Cnty. of Denver,
89 P.3d 507 (Colo. App. 2004) ....................................................................... 17, 19

Smith v. State Comp. Ins. Fund,
749 P.2d 462 (Colo. App. 1982) ........................................................................... 11

Smith v. Town of Snowmass Village,
919 P.2d 868 (Colo. App. 1996) ............................................................... 4, 7, 8, 10

Springer v. City & County of Denver,
13 P.3d 794 (Colo. 2000) .......................................................................... 10, 13, 14

Western & A. R.R. v. Henderson,
279 U.S. 639 (1929) .............................................................................................. 11

Westland v. Gold Coin Mines Co.,
101 F. 59 (8th Cir. 1900) ....................................................................................... 11











v

Statutes
C.R.S. 24-10-106(1)(e) .......................................................... 1, 2, 3, 18, 19, 21, 23
C.R.S. 24-10-103(1.3) ...................................................................1, 3, 8, 10, 14, 15
C.R.S. 24-10-103(2.5) ..................................................................................... 15, 16
C.R.S. 24-10-106.5(1) ........................................................................................... 22
C.R.S. 13-17-201 .................................................................................................. 25

Rules
C.R.C.P. 12(b) .......................................................................................................... 25

vi

INTRODUCTION
The issue before the Court is whether Denver retains governmental
immunity in the face of Plaintiffs claims for damages resulting from injuries they
sustained when rocks fell into the Red Rocks Amphitheatre (the Amphitheatre)
during a September 2011 concert. The CGIA waives immunity where the
dangerous condition of a public facility located in a park causes injury. C.R.S.
24-10-106(1)(e). But there is no waiver for injuries resulting from the natural
condition of unimproved property. Id.
The district court erred in denying Denvers Motion to Dismiss because the
evidence does not show that Plaintiffs injuries resulted from the dangerous
condition of a public facility as defined by the CGIA. See C.R.S. 24-10-
103(1.3). First, the record does not demonstrate that Denver had actual or
constructive notice of the allegedly dangerous condition of Creation Rock. Id.
Second, even if Denver could be deemed to have had notice of a dangerous
condition of Creation Rock, the record does not support the courts finding that
Denvers failure to inspect prior to the 2011 concert season proximately caused
Plaintiffs injuries. Third, Plaintiffs injuries resulted from the inherent risk in the
design of the Amphitheatre, rather than its negligent maintenance. See id. Fourth,
the district court erred in determining that Creation Rock is so essential to the
1

function of the Amphitheatre as to render it part of a public facility. For these
reasons, Plaintiffs arguments are fatally flawed because they have not met their
burden of establishing Creation Rock constitutes a dangerous condition.
Plaintiffs claims must also fail under the CGIA exception that retains
immunity where an injury is caused by the natural condition of unimproved
property. C.R.S. 24-10-106(1)(e). Despite the installation of minimal safety
devices, Creation Rock is unimproved property, and it is not essential to the
Amphitheatres purpose as a music venue.
For these reasons, Denver respectfully asks this Court to reverse the
judgment of the district court and remand with instructions to dismiss Plaintiffs
Complaints.
ARGUMENT
A. Plaintiffs cannot demonstrate that their injuries were caused by a
dangerous condition as that phrase is defined by the CGIA.

As relevant here, the CGIA waives governmental immunity only if the
dangerous condition of a public facility in a park causes an injury. C.R.S. 24-10-
106(1)(e). To establish a waiver of sovereign immunity because of a dangerous
condition, Plaintiffs must show that they were injured by a dangerous condition
that resulted from: (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
2

public entity knew existed or should have known existed in the exercise of
reasonable care, and (4) the negligent act or omission of the public entity
proximately caused such condition. C.R.S. 24-10-103(1.3); 24-10-106(1)(e);
Padilla v. School Dist. No.1, 25 P.3d 1176, 1180-81 (Colo. 2001). The record does
not support a finding that Plaintiffs have met any of the elements of the dangerous
condition definition in the CGIA. As a result, the district court erred in finding that
immunity is waived.
1. The two incidents on which Plaintiffs rely do not support the
district courts conclusion that Denver had actual or constructive
notice that a natural rockfall might injure concertgoers.
1

A dangerous condition cannot exist for CGIA purposes unless the public
entity knew or should have known of its existence. C.R.S. 24-10-103(1.3); see
Padilla, 25 P.3d at 1180. The record establishes neither actual nor constructive
notice of a dangerous condition of Creation Rock.
It is not knowledge of the condition, activities, or circumstances that gives
rise to liability; it is the danger of which the owner actually knew or should have
known. McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007).
Thus, for example, a defendants mere knowledge that ice and snow tend to
1
Denver does not concede that the September 2011 rockfall was natural.
Rather, as Plaintiffs allege in their Complaints, CF, pp.6, 91, 103, trespassers
who at least one of Plaintiffs saw on Creation Rock that night apparently caused
the rocks to fall.
3


accumulate does not satisfy the CGIAs requirement of actual or constructive
knowledge of a dangerous condition that injured plaintiff. Smith v. Town of
Snowmass Village, 919 P.2d 868, 871 (Colo. App. 1996)); accord Johnson v. Town
of Grand Lake, No. 05-cv-1169-WDM, 2006 WL 686487, slip op. at *2-3 (D.
Colo. March 17, 2006) (unpublished) (same; distinguishing Smith fromMartinez v.
Weld County School Dist. RE-1, infra, and finding that the town had no actual or
constructive notice of problems with the particular defective board on the boat
dock that broke, injuring plaintiff). Here, there is no evidence in the record upon
which notice of a dangerous condition might be found with respect to Creation
Rock and Denvers general knowledge that rocks tend to fall cannot suffice.
a. Neither actual nor constructive notice is established by the
discovery of a rock in the Amphitheatre in 1999 or of the rocks
that fell into a construction zone there in 2007.

As they did in the district court, Plaintiffs bank their argument on two events
that allegedly provided notice to Denver of a dangerous condition on Creation
Rock: (1) the discovery of a single rock on the stairs near Creation Rock in 1999,
and (2) several rocks that fell into an active construction zone near Creation Rock
while workers were using rock excavation equipment in 2007. Answer Brief at 9,
27-28. Their reliance on those events is misplaced.
4

As to the first incident, the origin of the single rock found lying on the stairs
near Creation Rock is unknown; indeed, it is uncontroverted that nobody saw it fall
or knew how it came to be there. R.Tr. (8/7/13), pp.141:22-142:19. Although
discovery of that single rock on the Amphitheatres stairs does not demonstrate a
dangerous condition of Creation Rock, see, e.g., Branco Eastern Co. v. Leffler, 482
P.2d 364, 367 (1971) (establishing elements of res ipsa loquitor, which elements
are not satisfied here) Red Rocks Facility Superintendant J oseph Davis, in an
excess of caution, directed his staff to check the area regularly so that Denvers
rock mitigation contractor, Yenter Companies, could be notified if a problem
presented itself. R.Tr. (8/7/13), pp.141:22-142:19. No such problem did present
itself, and indeed Plaintiffs presented no evidence whatsoever establishing (or even
suggesting) that any rocks fell from Creation Rock during the ensuing eight years.
Despite conceding that the single rock was found on the stairs beneath
Creation Rock, Plaintiffs ask this Court to speculate that the rock must have fallen
from Creation Rock, thereby providing notice to Denver that rocks could fall from
Creation Rock again. Answer Brief at 9, 27-28. But there simply is no evidence to
justify such speculation.
As for the 2007 incident, when several rocks fell into an active construction
zone near Creation Rock, the record establishes that at the time rocks fell, workers
5

were using vibration equipment and various things to excavate rock in that area
and by the very nature of the work to dislodge the rocks abutting Creation
Rock. R.Tr. (8/7/13), pp.136:22-141:15, 143:16-23; R.Ex. 53, pp.60, 141.
Contrary to Plaintiffs assertion, Answer Brief at 9, no one was hit by these rocks
or otherwise injured.
2
Id. More importantly, the only significance of this event is
that it establishes that rocks could become loose and fall into the Amphitheatre
when construction work is undertaken using vibration equipment. Thus, Plaintiffs
contention that the 2007 event should have put Denver on notice of a dangerous
condition of Creation Rock is not supported. See Answer Brief at 9-10, 28-29.
Again, although Mr. Davis concluded that the vibrating excavation
equipment caused the 2007 rockfall and contrary to Plaintiffs misrepresentation,
see Answer Brief at 11, 28-29 he again followed a precautionary approach and
called Yenter to inspect and perform mitigation work on Creation Rock to ensure
that there was no danger caused by the construction. R.Tr. (8/7/13), pp.140:23-
141:21, R.Ex. 53, pp. 60, 141.
2
Twice in their Answer Brief, Plaintiffs claim that 2007 event involved rocks
falling onto the RMA construction crew. Answer Brief at 9, 28. That is a gross
mischaracterization. Mr. Davis testified unequivocally that those rocks did not fall
on any people. R.Tr. (8/7/13), p.152:3-8. There is no evidence in the record to the
contrary.

6


Additionally, Denver had several mechanisms in place by which Red Rocks
employees monitored and reported any potential dangers or citizen injuries and by
which citizens themselves could report concerns or injuries at the Amphitheatre or
in Red Rocks Park. R.Tr. (8/7/13), pp.88:15-91:9, 92:1-95:2, 96:21-97:7, 99:21-
100:13, 108-114, 129:7-130-131:1. Notably, Denver never received any report of
any concern or injury related to rocks falling into the Amphitheatre through these
avenues prior to the September 2011 incident. Id. at 99:21-103:18, 110:6-114:12,
142:20-24, 163:20-164:3. See Smith, 919 P.2d at 871-72 (no actual or constructive
notice where government employees authorized to receive complaints did not
receive complaints of and did not know of dangerous condition at injury location).
Moreover, general knowledge that rocks tend to fall from natural geological
formations does not demonstrate notice under the CGIA. Id. (defendants mere
knowledge that ice and snow tend to accumulate does not constitute knowledge or
constructive knowledge of the ice build-up that injured plaintiff); accord Altairi v.
Alhaj, 599 N.W.2d 537, 543-44 (Mich. App. 1999) (Insofar as plaintiff seeks to
use general knowledge of local weather conditions to show that defendant should
have known that ice lay under the snow on his steps, the same knowledge can be
imputed to plaintiff.).
7

Denver did not have actual or constructive notice that a rockfall would injure
concertgoers in the Amphitheatre and, therefore, Plaintiffs have not satisfied a
required element of the CGIA dangerous condition definition. C.R.S. 24-10-
103(1.3). Thus, the district court erred, see Smith, 919 P.2d at 871, in finding and
concluding that the 1999 and 2007 occurrences put Denver on notice of a
dangerous condition. Denver therefore is entitled to sovereign immunity.
b. The case law Plaintiffs cite in support of their notice argument
is inapposite.

In support of their argument that Colorado law does not distinguish between
general and specific knowledge of a condition and its dangerous nature, Answer
Brief at 25, Plaintiffs rely on Luenberger v. City of Golden, 990 P.2d 1145 (Colo.
App. 1999) and Martinez v. Weld County School Dist. RE-1, 60 P.3d 736 (Colo.
App. 2002). That reliance is misplaced. In fact, the holding in Martinez
demonstrates directly contrary to Plaintiffs position here that courts may
distinguish between a public entitys general knowledge that a particular situation .
. . may give rise to a risk of harm and the entity's specific knowledge that such a
situation could arise in a particular area. Johnson, 2006 WL 686487, slip op. at
*3. Martinez involved a slip-and-fall case on an icy sidewalk. 60 P.3d at 738. In
affirming the trial courts denial of the school districts dismissal motion, the court
found that evidence existed establishing that the school district knew from prior
8

experience that ice would accumulate at that location and that the area of the
accident was a problem area where the build-up of ice was chronic and
continuing. Id. at 741. Such evidence is missing in this case.
Furthermore, Plaintiffs mischaracterize the holding in Luenberger, 990 P.2d
1145. Answer Brief at 25. In Luenberger, where the plaintiff sued the city for
injuries arising from the condition of a half-pipe in a city park, the trial court did
not make any findings regarding the CGIA arguments put forward by the city in its
motion to dismiss, deciding the case on other grounds. Id. at 1147-48. Therefore,
the court did not decide the notice issue but rather remanded to the district court for
findings under the CGIA. Id. In dicta, the Luenberger court did note that [t]he
mere fact that the City had not received prior notice of the precise harm that
occurred here does not compel the conclusion that the City did not have either
constructive or actual knowledge of the alleged dangerous condition of the half-
pipe. Id. at 1148 (emphasis added).
Luenberger is distinguishable because there the city did have notice of a
dangerous condition of the half-pipe because a previous injury was caused by the
half-pipe. Id. at 1146-1148. The city argued it did not have notice since it had not
received complaints of accidents similar to the plaintiffs accident; the earlier
injury was caused by the steel skin of the half-pipe and a different piece of the
9

half-pipe caused plaintiffs injury. Id. The court disagreed with this particular
argument, stating (in dicta) that notice of the precise injury-causing mechanism in
a park is not necessary to put the city on notice of a dangerous condition. Id. at
1148. Luenberger is inapposite in the instant case because Denver did not have
any notice that rocks may fall from Creation Rock, injuring Plaintiffs. Mere
general knowledge that rocks tend to fall from natural structures does not fulfill the
CGIA notice requirement. See Smith, 919 P.2d at 871-72.
2. The district court erred in concluding that Denvers failure to
inspect Creation Rock in 2010 was the proximate cause of
Plaintiffs injuries.

Relying on Springer v. City & County of Denver, 13 P.3d 794, 801 (Colo.
2000), the district court concluded that Denvers negligent failure to inspect
Creation Rock in 2011 was the proximate cause of Plaintiffs injuries in this case.
CF, pp. 785-786. It is well-settled that a plaintiff cannot prevail on a negligence
claim unless his or her injuries were proximately caused by the defendants
negligence. C.R.S. 24-10-103(1.3); Curtis v. Hyland Hills Park & Rec. Dist., 179
P.3d 81, 84 (Colo. App. 2007). Even if Denver was negligent in failing to inspect
Creation Rock annually, the district court clearly erred in finding that the
negligence proximately caused Plaintiffs injuries, for Plaintiffs did not prove that
any alleged failure to inspect caused the rocks to fall in September 2011.
10

The law is well settled in Colorado that the proprietor of a public place is
not an insurer of the safety of his patrons. Repka v. Rentalent, 477 P.2d 470, 471
(Colo. App. 1970) (nsop). The mere fact that an accident occurred does not imply
causation on the part of the defendant. See, e.g., Western & A. R.R. v. Henderson,
279 U.S. 639, 642-43 (1929) (The mere fact of collision between a railway train
and a vehicle at a highway grade crossing furnishes no basis for any inference as to
whether the accident was caused by negligence of the railway company, or of the
traveler on the highway, or of both, or without fault of any one. Reasoning does
not lead from the occurrence back to its cause.); Brady v. Southern R.R. Co., 320
U.S. 476, 484 (1943);
3
Westland v. Gold Coin Mines Co., 101 F. 59, 64-65 (8th
Cir. 1900) (applying Colorado law). Indeed, even [a] finding of negligence does
not create liability on the part of a defendant unless that negligence caused the
plaintiff's injury. Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App.
1982); see Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981). Accordingly,
even if Denver could have performed inspections as often as Yenter recommended,
the fact that annual inspections were not conducted does not demonstrate that the
failure to do so proximately caused Plaintiffs injuries. This is especially so, given
their allegations that the rockfall was caused by trespassers. CF, pp.6, 91, 103.
3
That proposition in Brady was adopted by this Court in Mendoza v. White
Stores, Inc., 488 P.2d 90, 92 (Colo. App. 1971).
11


It is uncontroverted that, prior to the 2011 rockfall, on only two occasions in
the history of the Amphitheatre the two occasions detailed above were rocks
found in the Amphitheatre. Resting on the 1999 and 2007 occurrences, and noting
that Denver did not perform maintenance on Creation Rock in 2006, Plaintiffs
expert, Brendan Shine, concluded that Denver should have been on notice that
when it failed to perform an inspection and mitigation one year, rocks were apt to
fall the next year. Answer Brief at 13, 34-35. Had Denver performed an
inspection and mitigation in 2011, he concluded, the rock fall, within a reasonable
degree of scientific probability, would have been prevented. R.Tr. (7/8/13)
p.77:16-23. Relying solely on that testimony, the district court found that, [i]n the
years that rockfall mitigation was performed by Yenter, there are no reported
incidents of rockfall. In years when mitigation has not been performed, incidents
have occurred. CF, pp.780-781. Based on those findings, the district court
concluded that Plaintiffs had satisfied their burden of proving causation. Id. at
785.
The district court erred in making those findings and conclusions. First, as
detailed above, it is uncontroverted that a natural rockfall did not occur in
2007; Plaintiffs presented no evidence credibly suggesting that the 2007
rockfall was caused by anything other than the use of vibrating rock excavation
12

equipment. Nor did Plaintiffs present any evidence tending to prove that an
inspection to prevent natural rockfall at that time would have prevented that
human-induced rockfall. And to the extent that Plaintiffs and the district court
equate the lack of inspection in 2006 and 2010 with rockfall the following
concert seasons, they do not explain the absence of rockfall in the other years in
which there was no inspection (i.e., all years prior to 2007 as well as 2008,
2009, and 2010). Furthermore, after Yenter completed the mitigation on
Creation Rock in 2007, no rockfall occurred in 2008, 2009, and 2010.
In the case relied on by the district court, Springer, the plaintiff fell from
her wheelchair after it struck a protruding threshold cover plate as she
attempted to enter the Buell Theatre. 13 P.3d at 797. She brought a premises
liability claim against Denver, which moved to dismiss under the CGIA
because the theatre was built and maintained by an independent contractor. Id.
at 797. The Supreme Court rejected that argument, holding that Denvers duty
to Springer was non-delegable and that, because her claim related to the
theatres construction rather than its design the architectural plans called for a
half-inch threshold, whereas the threshold plate protruded at approximately
twice that height. Id. at 797. And with respect to causation, the court affirmed
that a public entity can proximately cause a condition by failing to reasonably
13

discover and correct it, id. at 801, but immunity is waived only where the
public entity was or should have been aware of it. That requirement was
satisfied because Springer established that the particular threshold plate
remained at that height for over four years prior to the accident. Id. at 799.
Here, to the contrary, the record contains no evidence that Denver aware of the
unsafe condition that injured Plaintiffs, so Denvers failure to discover and
correct it did not proximately cause their injuries. There is no factual support
for the district courts finding to the contrary.
3. Plaintiffs injuries were not caused by negligent maintenance
of the Amphitheatre.

Nor do the facts presented to the district court demonstrate that Denver was
negligent in maintaining or constructing the Amphitheatre. C.R.S. 24-10-
103(1.3); Springer, 13 P.3d at 799-801. Plaintiffs rely heavily on their assumption
that Denvers allegedly deficient maintenance of the Amphitheatre led to their
injuries. E.g., Answer Brief at 32, 34. They go into great detail regarding what
portions of Creation Rock were inspected, when those inspections occurred, and
14

which recommendations suggest that Denver should have known of and prevented
a rockfall. E.g., id. at 11-14, 31, 35. None of this is relevant.
4

Instead, the facts show that the original design of the Amphitheatre for
which CGIA immunity is not waived allowed an inherent risk of rockfall into the
concert arena. C.R.S. 24-10-103(1.3); Padilla, 25 P.3d at 1180-81; R.Tr.
(8/7/13), p.18:12-22. CGIA immunity is not waived for injuries caused solely by
the design of a public facility, even if that design was inadequate and led to an
injury. Id. Nor does the CGIA require the government to upgrade, modernize,
modify, or improve a design or make it safer, even if the design is risky and even
if there are better alternatives. C.R.S. 24-10-103(2.5); Medina, 35 P.3d at 456-
57. Furthermore, a public entitys acceptance of the final design including the
level of risk remaining at the end of the design phase determines the general state
of being, repair, or efficiency of the [public facility] as initially constructed,
which is what must be maintained by the government. Medina, 35 P.3d at 456-57.
5

4
Even if this discussion were relevant, Plaintiffs claim that Denver was
negligent in maintaining the Amphitheatre, proximately causing the Plaintiffs
injuries, must fail for the reasons set forth in the proximate cause section, supra.

5
While Medina dealt with injuries caused by the dangerous condition of
roads, the same reasoning applies by analogy to dangerous conditions in all public
facilities. See Medina, 35 P.3d at 456.
15


A certain level of risk was necessarily inherent in the design of the
Amphitheatre from its inception, as would be the case for any facility situated in a
natural area. R.Tr. (8/7/13), p.18:12-22. It is undisputed that the Amphitheatre
was designed to be situated between two natural rock monoliths, Creation Rock
and Ship Rock, in a geological hazard zone where theres a potential for any kind
of natural rock fall to occur. Id. Plaintiffs presented no evidence to the
contrary. Denver had (and has) no duty to upgrade, modernize, modify, or improve
the design of the Amphitheatre to alleviate these inherent risks. C.R.S. 24-10-
103(2.5); Medina, 35 P.3d at 456-57. Indeed, Denver has not only preserved the
Amphitheatre as initially constructed, but has gone above and beyond its
obligations by making it even safer than it was originally designed to be. See, e.g.,
R.Tr. (8/7/13), 75:15-76:5.
Sovereign immunity is not waived for the risk of rockfall inherent in the
Amphitheatres design. Therefore, the district court erred in allowing Plaintiffs
claims against Denver to stand.
4. The mere fact that the Amphitheatre was designed to be placed
next to Creation Rock does not render the combination of them a
public facility.

The Amphitheatre is a public facility for purposes of the CGIA, but
Creation Rock is not, and Denvers decision to place the Amphitheatre next to
16

Creation Rock does not change that conclusion. This proposition is consistent with
the courts decision in Rosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.
App. 2004); and Burnett v. State Dept. of Natural Resources, No. 11CA2141, 2013
WL 1245366, at *2 (Colo. App. March 28, 2013), cert. granted (Nov. 12, 2013),
which examined whether a naturally occurring object such as a tree or rock
formation is a component of a public facility. In Rosales, this Court held that
if a public entity incorporates a tree into a facility in such a manner that it
becomes both integral to the facility and essential for the intended use of the
facility, that tree may become a component of the public facility. In Burnett,
this Court clarified, holding that the mere fact that a park and a pre-existing,
natural object that enhances attendees experiences in that park join to become a
functional system is not enough, slip op. at *2. The natural object must be truly
integral and essential.
Although Creation Rock certainly benefits the concertgoers experience, it is
not integral and essential to the music-listening experience indeed, concertgoers
enjoy music without a rock monolith nearby in thousands of music venues
worldwide. Certainly the monoliths add aesthetic value, but aesthetics alone are
not enough to render a natural feature essential to and an integral part of a man-
made facility. Id. Creation Rocks proximity next to the Amphitheatre does not
17

make it an essential component of the Amphitheatre, so it is not part of a public
facility.
B. Plaintiffs injuries were caused by the natural condition of
unimproved property, for which there is no waiver under the
CGIA.

Immunity is not waived for injuries caused by the natural condition of any
unimproved property. C.R.S. 24-10-106(1)(e). Plaintiffs argue that Creation
Rock is not the natural condition of unimproved property because it is integral to
the Amphitheatre, rendering it a public facility, and because it has been improved
through the installation of safety devices. Answer Brief at 22, 37. However, the
district court erred in finding that Creation Rock did not fall under the natural
condition of unimproved property provision because: (1) as detailed above,
Creation Rock is not an integral feature of the Amphitheatre because it is not
essential to the Amphitheatres intended purpose of hosting concerts, (2) the
installation of minimal safety devices does not render Creation Rock improved
property, and (3) the legislature enacted the provision to protect governments from
liability, while encouraging them to provide public facilities in natural
surroundings.

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1. Denver retains immunity under the natural condition of any
unimproved property provision of the CGIA because Creation
Rock is not integral and essential to the use and enjoyment of Red
Rocks Amphitheatre.

Creation Rock is the natural condition of unimproved property, and
therefore, immunity is not waived under the CGIA. See C.R.S. 24-10-106(1)(e).
In support of their argument to the contrary, Plaintiffs cite to the test enunciated in
Rosales, which provides that a natural feature that is incorporated into a public
facility such that it is an integral part of and essential to the intended use of the
facility may become a component of that facility for the purposes of the CGIA.
Rosales, 89 P.3d at 510; Answer Brief at 18-20. The Rosales test, however, is
inapplicable to the instant case for the reasons below.
Contrary to Plaintiffs characterizations, see Answer Brief at 4, 41-42,
Creation Rock and Ship Rock are not affixed to, nor are they a part of the
Amphitheatre. The Amphitheatre is a manmade facility that was placed between
two pre-existing, naturally occurring geological formations. Denver certainly does
not concede and the evidence in the record does not suggest that the
Amphitheatre would not exist without the walls created by the two monoliths.
Answer Brief at 14. Creation Rock and Ship Rock are two of many naturally
occurring rock features in Red Rocks Park, much like trees abutting a campground
are simply pieces of a larger, unimproved, natural park surrounding that manmade
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campground, but are not themselves part of it. See Burnett 2013 WL 1245366, at
*2.
Furthermore, Creation Rock and Ship Rock are not essential to the
Amphitheatres intended purpose of enjoying concerts. There is simply no
evidence in the record to demonstrate that Creation Rock and Ship Rock are
required in order for citizens to enjoy the Amphitheatre. There is no support for
Plaintiffs argument that [t]o enjoy an event at the Amphitheatre, music
reverberates between the two rock walls, such a proposition is not present at
the location Plaintiffs cite, nor is evidence of this proposition present elsewhere in
the record.
6
Answer Brief at 4, 21. Certainly the monoliths add aesthetic value,
but aesthetics alone are not enough to render a natural feature essential to and an
integral part of a man-made facility. See Burnett, 2013 WL 1245366, at *2.
Concertgoers do not need the geological features for the essential purpose of the
Amphitheatre, which is to enjoy concerts. Accordingly, Creation Rock cannot be
considered an integral part of the Amphitheatre and immunity is not waived for
Plaintiffs injuries. The trial court erred in finding otherwise.
6
Plaintiffs also cite Denvers Opening Brief for the proposition that even the
name of the public facility, Red Rocks Amphitheatre, refers to the two Red
Rocks, Creation Rock and Ship Rock. Answer Brief at 21. Denvers Opening
Brief neither states nor implies that this is the case, nor could it. Rather, the name
is based upon the red sandstone rocks found throughout Red Rocks Park.
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2. Creation Rock is not improved property

As a geological feature existing in nature, Creation Rock is unimproved
property subject to the natural conditions provision of the CGIA, and therefore,
immunity is not waived in the instant case. Resting on J udge Carparellis dissent
in Burnett, 2013 WL 1245366, Plaintiffs argue that Denver has improved
Creation Rock, subjecting itself to liability, by hiring a rock mitigation company to
inspect the rock formations and install certain safety devices. Answer Brief at 41.
They fail to note the balance of that dissent: Unimproved property usually
refers to real property that is in 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. Id. at *9 (Carparelli, J ., dissenting).
Here, the record demonstrates that Denver has gone to great lengths to keep
Creation Rock in its natural state; although some safety devices have been
installed, the shrubs, trees, rocks, cliffs and other features remain. By Plaintiffs
argument, Denver would have been better off doing nothing. By taking some
safety precautions it had no duty to take, Plaintiffs insist, Denver undertook a duty
to ensure the safety of all concertgoers and other visitors at the Amphitheatre.
Colorado law does not support that contention. E.g., C.R.S. 24-10-106(1)(e),
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24-10-106.5(1) (In order to encourage the provision of services to protect the
public health and safety and to allow public entities to allocate their limited fiscal
resources, a public entity or public employee shall not be deemed to have assumed
a duty of care where none otherwise existed by the performance of a service or an
act of assistance for the benefit of any person.).
Moreover, it is undisputed that the rocks that injured Plaintiffs came from
Creation Rock, Answer Brief at 2-3, but there is no evidence to show that any
safety device was installed on the rock surface from which the rocks fell; in fact,
Plaintiffs claim the opposite: that the rocks fell because they had not been
inspected or mitigated with safety devices prior to the 2011 concert season.
Answer Brief at 32.
Taken to its end, Plaintiffs logic would require Denver either to install
safety devices upon every rock surface near the Amphitheatre thereby destroying
the very natural beauty the public seeks to enjoy, let alone the public coffers or
permanently shut down Red Rocks Amphitheatre for fear of overwhelming
liability. There are few who would benefit from such an outcome.



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3. This Court should not disturb the balance embodied in the
CGIA between encouraging governments to provide public
facilities in natural surroundings, while preserving limited
public resources.

Incentives played an important role in the balance the Colorado General
Assembly undertook in codifying the CGIA. See Colorado Legislative Council
(commissioned prior to the passage of the CGIA), Report to the Colorado General
Assembly: Governmental Liability in Colorado, Research Publication No.134, at
xxi-xxii (1968); CF, pp. 674-677. Our society values the human relationship with
nature. Id. The General Assembly promotes this value by preserving and enhancing
the human experience in nature through creation of public parks and public
facilities set in natural areas. Id. The CGIA drafters recognized that governmental
efforts to encourage citizens relationship with nature should be supported. Id.
Thus, they created an exception to liability for injuries resulting from the natural
condition of any unimproved property. Id.; C.R.S. 24-10-106(1)(e). The General
Assembly explicitly limited liability in this context to encourage governments to
provide these special, natural places for citizens. Id. In its Report to the General
Assembly, the Colorado Legislative Council highlighted the incentives at play for
public facilities in natural surroundings:
[i]f immunity were waived with respect to injuries caused by the
natural condition of any unimproved property the burden and expense
of putting such property in a safe condition and the expense of
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defending claims for injuries would probably cause many public
entities to close such areas to public use. It is desirable to permit the
members of the public to use public property in its natural condition.
In view of the limited funds available for the acquisition and
improvement of property for recreational purposes, the committee
concluded that it is not unreasonable to expect persons who
voluntarily use unimproved property in its natural condition to assume
the risk of injuries arising therefrom.

Id. Plaintiffs ask the Court to tamper with the delicate balance of incentives that is
the province of the legislature in enacting statutes such as the CGIA. It should not
do so.
Significantly, the CGIA commission report even expressly lists Red Rocks
as an example of the natural condition of unimproved property for which there is
no waiver under the CGIA. Id. at xxi. (A distinction is made between (1) injuries
caused by negligence in the construction, maintenance, failure to maintain, etc. of
artificial, man-made objects (swing sets, buildings, etc.) and (2) injuries caused by
the natural conditions of a park (the Flat Irons in Boulder or the Red Rocks west
of Denver) (emphasis added). The Report clarifies: [i]n other words, ordinary
negligence is sufficient to impose liability for injuries caused by the dangerous
condition of artificial objects. For injuries caused by natural dangerous conditions,
immunity is retained. Id. It is undisputed that the General Assembly intended to
retain immunity for Red Rocks Park, Answer Brief at 38, and Creation Rock is a
natural feature within that park.
24

Therefore, Colorado law and policy both demonstrate that Denver is immune
from suit for injuries resulting from the dangerous condition of Creation Rock,
which is the natural condition of unimproved property. The trial court erred in
holding otherwise.
CONCLUSION
For the foregoing reasons, Denver respectfully requests that the Court
reverse the denial of Denvers Motion to Dismiss and remand this case to the trial
court with instructions to dismiss the lawsuit with prejudice.
REQUEST FOR ATTORNEY FEES
Denver reiterates its claim for attorney fees. C.R.S. 13-17-201 directs an
award of attorney fees in all personal injury actions dismissed on motion of the
defendant prior to trial under [C.R.C.P.] 12(b). If Denver prevails in this appeal
and the matter is remanded for an order dismissing it, then the requirements of that
statute will have been satisfied and Denver will be entitled to its fees, whether or
not that dismissal was directed by the district court or on appeal. E.g., Dubray v.
Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).
DATED this 8th day of August 2014.




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Respectfully submitted,

DENVER CITY ATTORNEYS OFFICE

By: s/ Jamesy C. Owen
J amesy C. Owen
Barry A. Schwartz
Assistant City Attorneys
Attorneys for Defendant-Appellant City and
County of Denver

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of August 2014, the foregoing REPLY
BRIEF was filed with the Court of Appeals and served on the following via
ICCES:

Daniel P. Gerash, Esq.
Gerash Steiner, P.C.
dan@gerashsteiner.net
Samuel Ventola, Esq.
Staggs Ventola Morris LLP
sventola@SVMlawfirm.com


Adrienne M. Tranel, Esq.
Geoffrey D. Petis, Esq.
Bachus & Schanker, L.L.C.
gpetis@coloradolaw.net
adrienne.tranel@coloradolaw.net
litigation@ColoradoLaw.net




s/ Barry A. Schwartz
Barry A. Schwartz
Denver City Attorneys Office


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