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Commentary and Analysis Regarding Colorado Law

Watch Out for Falling Tree Branches

Submitted by Blair Dickhoner.

We are all familiar with the age-old philosophical question – “If a tree falls in a forest and no one is around to hear it, does it make a sound?”

On March 23, 2015, the Colorado Supreme Court tackled a new spin on this question – “If a tree branch falls in the forest and lands on someone, does the Colorado Governmental Immunity Act (CGIA) protect the government?”

On July 18, 2010, Sara Burnett and her friend, Mackenzie Brady, were camped in a cottonwood grove in Cherry Creek State Park when a tree limb came crashing down on their tent. Ms. Burnett suffered several serious injuries, including fractures to her skull and vertebrae. As a result of her injuries, she brought a premises liability action against the Colorado Department of Natural Resources. In the case of Burnett v. State Department of Natural Resources, the Colorado Supreme Court was presented with the question of whether this tree branch created a “dangerous condition” under the CGIA.

Pursuant to Sec. 24-10-106(1)(e), CRS, a public entity waives its sovereign immunity under the CGIA in an action arising from a “dangerous condition of any…public facility located in any park.” The Department contended that it retained its immunity under Sec. 24-10-106(1)(e), CRS because Ms. Burnett’s injuries were caused by “the natural condition of any unimproved property…located in a park.” In a split decision, the Court ultimately concluded that the tree branch was a natural condition and the Department retained its immunity under the CGIA.

Putting aside the serious nature of the injuries suffered, it seems far-fetched that our Supreme Court would create a thirty page opinion to reach the conclusion that a tree branch in a state park is a “natural condition.” The depth of analysis in this decision demonstrates the complexity and confusion that surrounds issues involving the CGIA.

If you have questions about governmental immunity or claims against your local government, please contact one of our Government Practice Group attorneys for assistance.

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