The Colorado Supreme Court ruled on Monday that plaintiffs suing the government for injuries caused by a dangerous condition in a public building must demonstrate at the outset they can likely succeed in proving the government’s negligence.

In doing so, the justices rejected the Court of Appeals’ belief that it was not necessary for a plaintiff to show early on that a public entity had reasonable time to correct a hazard. The question mattered because the Colorado Governmental Immunity Act, which broadly shields public employees and entities from injuries they cause, provides an exception to that immunity for the “dangerous condition” of a public building.

To get into court, a plaintiff needs to show the condition posed an unreasonable risk to the public, that the government knew or should have known it existed, and that the condition was caused by the government’s “negligent act or omission.”

“If the reasonableness of a public entity’s response were irrelevant, a plaintiff could overcome immunity and proceed to trial despite being injured by a condition only seconds after the public entity learned of it,” wrote Justice William W. Hood III in the June 9 opinion. “Such a result is not only illogical, it’s antithetical to the CGIA’s purpose to ‘protect the taxpayers against excessive fiscal burdens’ that could arise from ‘unlimited liability.'”

Krista Dozier was inside the Jefferson County courts and administration building in March 2019 when she slipped on a puddle of water and injured herself. Although employees in the building were aware of the spill and had requested a cleanup, Dozier’s fall happened within minutes of the request. 

After a hearing to address whether Jeffco was entitled to governmental immunity, District Court Judge Tamara S. Russell dismissed Dozier’s lawsuit. She found Dozier had not shown the county had a reasonable opportunity to clean up the spill. Therefore, it was not negligent in its maintenance and there was no dangerous condition. Consequently, the county kept its immunity.

But a three-judge panel for the Court of Appeals concluded Dozier did not yet need to show the county had enough time to respond to the water spill and acted negligently with its delay. Instead, the allegation that her injuries were caused by Jeffco’s failure to address the dangerous condition was sufficient for the case to proceed.

“To require this greater burden of proof, at this stage of the proceedings, would be tantamount to requiring Dozier to prove that the County was negligent and liable for her injuries,” wrote Chief Judge Gilbert M. Román.

During oral arguments in March, the Supreme Court generally felt plaintiffs’ allegations of negligence are not enough to override immunity, but also that plaintiffs do not have to necessarily prove negligence at the outset, either.

“So, it’s something in the middle. And I’m having trouble figuring out what the middle is,” observed Justice Richard L. Gabriel.

In the opinion, Hood identified three potential standards for overcoming immunity:

• A “light” burden in which judges take the plaintiff’s undisputed allegations as true and resolve disputes over evidence in the plaintiff’s favor

• Requiring plaintiffs to prove their case by a preponderance of the evidence — the same standard as a full-blown trial

• The “middle ground” of a plaintiff showing she has a “reasonable probability” of succeeding at trial — the standard judges use when deciding whether to grant preliminary injunctions

Hood wrote that the third option of proving a likelihood of success was the best fit for cases like Dozier’s. Therefore, Dozier had to show Jeffco likely caused her injuries by failing to address the water spill in a reasonable time.

“(A)ccepting the district court’s factual finding that only a few minutes had passed between the County learning of the spill and Dozier’s fall, we agree with the district court’s legal conclusion that the County didn’t have a reasonable time to warn of or to clean up the spill before Dozier fell,” Hood concluded.

The Supreme Court reversed the Court of Appeals’ decision and dismissed Dozier’s lawsuit.

County Attorney Kym Sorrells said the jurisdiction was grateful to the court for “providing the parties and courts with a clear rule to follow when analyzing whether a public entity waived immunity for a dangerous condition of a public building.”

“By adopting this standard for government buildings that evaluates the ‘reasonableness’ of the government’s response,” countered Dozier’s attorney, Jonathan S. Willett, “it gives the government many more opportunities to get cases dismissed at the beginning of the litigation.”

The case is Jefferson County v. Dozier.

Editor’s note: This story has been updated with additional comments.