CU Boulder students

Students stroll across campus at the University of Colorado Boulder.

The state's second-highest court has reversed a Boulder County judge and decided the University of Colorado's failure to warn a student about a recently-mopped and slippery staircase means the institution cannot claim immunity from being sued.

The lawsuit involving then-freshman Jordan Galef is one of multiple plaintiff-friendly rulings from the Court of Appeals in recent weeks interpreting the state's governmental immunity law. Since late July, the appellate court has allowed litigation to go forward against Jefferson County for injuries sustained in a public parking garage and the town of Olathe for a police officer's deadly collision while pursuing a suspect.

"The government is providing public services to people and they need to be thinking about safety, as well, and they shouldn't get a free pass because they're the government," Ross Ziev, the lawyer for Galef, told Colorado Politics.

A custodian was mopping the staircase inside CU-Boulder's Farrand Hall dormitory on Feb. 28, 2020. The dark coloring of the floor allegedly made it difficult to notice the stairs were wet. When Galef descended the staircase, he slipped and fell, dislocating his shoulder and requiring surgery. Surveillance video showed that only after Galef fell did the custodian place a yellow "wet floor" sign on the staircase.

Galef sued the university, claiming his injuries stemmed from CU's unreasonable failure to warn of the wet, slippery stairs. The university moved to dismiss the lawsuit pursuant to the Colorado Governmental Immunity Act, which broadly insulates public entities from civil liability. The purpose of governmental immunity is to prevent lawsuits from disrupting public services and to limit the diversion of tax dollars spent to defend against litigation.

However, there are exceptions to the immunity, including for the "dangerous condition of any public building" caused by construction or maintenance.

In an order from January 2021, District Court Judge Andrew Hartman ruled that CU qualified for immunity. Galef needed to show the university's actions or failure to act led to an unreasonable risk that CU knew about. A failure to post signs or otherwise warn about the wet floor, Hartman reasoned, did not create a dangerous condition.

"Plaintiff has pled no facts and has presented no evidence that simply cleaning the stairs presented a risk 'exceeding the bounds of reason or moderation' or that the University was in any way negligent (other than allegedly failing to warn) in carrying out its cleaning activities," he wrote. "Therefore, there has been no waiver of immunity as the wet stairs during cleaning do not constitute a 'dangerous condition.'"

Galef appealed, arguing Hartman had misapplied prior court precedent. In saying the failure to warn of a hazard did not amount to a dangerous condition, Galef noted the judge had relied on cases involving highway injuries, not slips-and-falls.

"Maintenance of public highways are more difficult to control," contended Ziev to the Court of Appeals. "Conversely, this case features a dangerous condition caused by the daily maintenance of the defendant in a highly controlled indoor space."

While Galef's appeal was pending, the Colorado Supreme Court handed down a 4-3 decision in Maphis v. City of BoulderIn a similar set of circumstances, a woman tripped and injured herself on a sidewalk misalignment in Boulder that the city knew about, but had not yet fixed nor alerted pedestrians to. The majority of the court believed the hazard did not qualify as a dangerous condition and Boulder was immune from liability.

"We cannot ignore the realities that Colorado’s local governments face in trying to maintain roads and sidewalks," Justice Melissa Hart explained, adding that if the concrete deviation had existed on a busier sidewalk or outside a senior citizen home, the hazard could rise to a dangerous condition under those circumstances.

A three-judge panel of the Court of Appeals analyzed Galef's case in light of the Maphis ruling. The slip-and-fall hazard was on a descending surface in a high-traffic area for a school. As such, the panel concluded, a failure to warn about the wet floor created an unreasonable risk to students.

"Unlike for a commonplace sidewalk hazard, exposing the university to liability for the wet stairs would not impose an 'impossibly high standard' on the university," wrote Judge W. Eric Kuhn in the Aug. 4 opinion. "A wet floor will dry on its own and there is a cheap and available solution to mitigate the risk posed by wet flooring — posting a wet-floor sign."

Kuhn elaborated that the wet staircase met the legal definition of a dangerous condition, as mopping the stairs falls into the category of maintenance. Although the appeals panel believed a failure to warn about a hazard in a public building could still result in immunity, the key distinction was whether a governmental entity did something to create the hazard.

CU "made the stairs more hazardous by subsequently introducing a wet, slippery substance onto them," Kuhn wrote.

Ziev said he was happy about the decision but feared after the Supreme Court's Maphis ruling that Galef's appeal would fare worse than it did.

"That decision was really hard. The burden of 'exceeds the bounds of reason' is a really hard one to overcome, and it leaves that decision in the hands of district court judges to make when really these cases need to be decided by juries," he said.

The case is Galef v. University of Colorado.

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