COURT OF APPEALS, STATE OF COLORADO

2 East 14
th
Avenue
Denver, Colorado 80203
District Court, Jefferson County
The Honorable Christopher Zenisek
Civil Action No. 2012-CV-3705


Plaintiffs-Appellees:
Jennifer Ackerman, David Scheuermann, Forrest
Hudspeth, and Adam Kinnard,

vs.

Defendant-Appellant:
City and County of Denver




Court Use Only



Attorney or Party Without Attorney:
Adrienne M. Tranel, Atty. Reg. #40968
Bachus & Schanker, L.L.C.
1899 Wynkoop Street, Suite 700
Denver, Colorado 80202
Telephone: (303)893-9800
E-mail: adrienne.tranel@coloradolaw.net
Attorneys on behalf of Hudspeth and Kinnard

Daniel P. Gerash, Atty. Reg. #18071
Gerash Steiner, P.C.
Samuel Ventola, Atty. Reg. #18030
Law Office of Samuel Ventola
1775 Sherman Street, Suite 1650
Denver, Colorado 80203
Telephone (Gerash): 303-830-0630
Email: dan@gerashsteiner.com
Telephone (Ventola): (303) 864-9797
Email: sam@samventola.com
Attorneys on behalf of Ackerman and Scheuermann


Court of Appeals
Case No.: 2013CA1561




PLAINTIFF-APPELLEES JOINT ANSWER BRIEF

ii

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 these rules.
Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).
Choose one:
X It contains 9,425 words.
It does not exceed 30 pages.


The brief complies with C.A.R. 28(k).
For the party raising the issue:
It contains under a separate heading (1) a concise statement of the applicable
standard of appellate review with citation to authority; and (2) a citation to
the precise location in the record (R. , p. ), not to an entire document,
where the issue was raised and ruled on.

X For the party responding to the issue:
It contains, under a separate heading, a statement of whether such party
agrees with the opponents statements concerning the standard of review and
preservation for appeal, and if not, why not.




s/ Adrienne M. Tranel
Signature of attorney or party


iii

TABLE OF CONTENTS

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

TABLE OF CONTENTS ................................................................................... iii

TABLE OF AUTHORITIES .............................................................................. vi

ISSUES PRESENTED FOR REVIEW ................................................................ 1

STATEMENT OF THE CASE ............................................................................ 2

A. Nature of the case, course of proceedings, and disposition below............ 2

B. Statement of Facts ................................................................................ 2

a. Background of Red Rocks Amphitheater ..................................... 3

b. Denver is responsible for maintenance of Red Rocks Amphitheater
and hires expert engineers to perform maintenance....................... 5

i. Yenters work schedule ..................................................... 6

ii. The experts at Yenter Companies recommended, at a
minimum, annual inspections and rock fall mitigation of the
Amphitheater, advice Denver ignored ................................ 7

c. Denver knew the physical condition of the Amphitheater created
the potential for rock fall because the Facility Superintendent
found an orange to grapefruit-size rock in the Amphitheater in
1999 and because grapefruit to watermelon-size rocks fell on crew
workers in 2007 .......................................................................... 9

d. Denver did not perform rock fall mitigation in 2011 before rocks
fell on the concert-goers in this case .......................................... 11

iv

e. Because Denver failed to perform any maintenance of the
Amphitheater in 2011 before concert season, the rocks fell in
September, injuring the concert-goers ........................................ 12

SUMMARY OF THE ARGUMENT ................................................................. 14

ARGUMENT ................................................................................................... 16

A. The District Court correctly determined Red Rocks Amphitheater is a
public facility and the waiver of governmental immunity applies ...... 18

a. Standard of review .................................................................... 18

b. The District Court correctly determined Creation Rock is an
integral and essential part of Red Rocks Amphitheater ............... 18

B. The District Court correctly determined the physical condition of Red
Rocks Amphitheater, including the integrated wall of Creation Rock, is a
dangerous condition............................................................................ 22

a. Standard of review .................................................................... 22

b. The physical condition of Red Rocks Amphitheater constitutes an
unreasonable risk to the health and safety of the public ............... 22

c. Denver had actual notice of the physical condition of Red Rocks
Amphitheater prior to September 2011....................................... 24

i. The law does not distinguish between general and
specific actual knowledge ............................................ 25

ii. The record shows Denver knew the physical condition of
Red Rocks Amphitheater created the potential for rock fall
in the Amphitheater based on two prior occurrences ......... 27

d. Denver also had constructive notice of the physical condition of
the Amphitheater prior to September 2011 ................................. 29
v

e. Denvers negligent maintenance of the Amphitheater proximately
caused rocks to fall ................................................................... 32

i. The District Court correctly found Denvers function with
respect to the Amphitheater was maintenance, not design,
based .............................................................................. 32

ii. Denvers maintenance of the Amphitheater was
negligent ......................................................................... 34

C. The District Court correctly determined the concert-goers injuries were
not caused by the natural condition of any unimproved property........... 36

a. Standard of review .................................................................... 36

b. The District Court correctly determined the natural condition
clause does not apply to this case because the public facility at
issue is Red Rocks Amphitheater, which is improved property.... 36

c. The District Court correctly determined even if the public
facility at issue is Creation Rock, and even if the natural condition
clause applies, Creation Rock is improved property and no longer
in its natural condition............................................................... 39

CONCLUSION ................................................................................................ 42

OPPOSITION TO REQUEST FOR ATTORNEY FEES .................................... 42

SIGNATURE BLOCK...................................................................................... 43

CERTIFICATE OF SERVICE .......................................................................... 44




vi

TABLE OF AUTHORITIES

Cases

Bodensieck v. Industrial Claims Office,
183 P.3d 684 (Colo. App. 2008).................................................................... 35

Broderick v. City and County of Denver,
727 P.2d 881 (Colo. App. 1986).................................................................... 26

Burnett v. State of Colorado, Department of Natural Resources,
2013 WL 1245366 (Colo. App. 2013) .................... 18, 20, 21, 38, 39, 40, 41, 42

Burnett v. State Department of Natural Resources,
2013 WL 5984594 (Colo. 2013) ................................................................... 20

Harjes v. State,
71 A.D.3d 1278 (N.Y. 2010)......................................................................... 27

Kowalsky v. Long Beach Township,
72 F.3d 385 (3
rd
Cir. 1995) ........................................................................... 27

Luenberger v. City of Golden,
990 P.2d 1145 (Colo. App. 1999) ............................................................ 25, 27

Martinez v. Weld County School District RE-1,
60 P.3d 736 (Colo. App. 2002) .................................................... 25, 27, 31, 32

McIntire v. Trammell Crow, Inc.,
172 P.3d 977 (Colo. App. 2007).................................................................... 26

Medina v. State,
35 P.3d 443 (Colo. 2001) ............................................................. 18, 20, 33, 34

Padilla v. Sch. Dist. No. 1 in the City and County of Denver,
25 P.3d 1176 (Colo. 2001) ........................................................... 18, 19, 31, 32


vii

Rosales v. City and County of Denver,
89 P.3d 507 (Colo. App. 2004) ...............................................18, 19, 20, 21, 31

Smith v. Town of Snowmass Village,
919 P.2d 868 (Colo. App. 1996).................................................................... 26

Springer v. City & County of Denver,
13 P.3d 794, 799 (Colo. 2000) ...................................................................... 18

Trinity Broadcasting of Denver, Inc., v. City of Westminster,
848 P.3d 916 (Colo. 1993) .............................................................................. 3

Statutes

C.R.S. 13-20-601 ........................................................................................... 36

C.R.S. 24-10-103(1.3) ................................................................... 17, 22, 24, 30

C.R.S. 24-10-103 (2.5) ................................................................................... 33

C.R.S. 24-10-106(1) ....................................................................................... 16

C.R.S. 24-10-106(1)(e) ................................................. 16, 17, 19, 22, 36, 37, 39

Rules

C.A.R. 28(c) ..................................................................................................... 23

C.R.C.P. 8(a) .................................................................................................... 36

C.R.C.P. 8(e) .................................................................................................... 36

C.R.C.P. 12(b) .................................................................................................. 42

Other

Oxford English Dictionary (2006) ..................................................................... 24

1

Plaintiffs-Appellees Adam Kinnard and Forrest Hudspeth, by and through
their attorneys, Bachus & Schanker, L.L.C., and Jennifer Ackerman and David
Scheuermann, by and through their attorneys, Gerash Steiner, P.C., and the Law
Office of Samuel Ventola, hereby submit their Joint Answer Brief, stating as
follows:
ISSUES PRESENTED FOR REVIEW

1. Whether the District Court properly found Red Rocks Amphitheater,
including the integrated wall of Creation Rock, is a public facility under
the Colorado Governmental Immunity Act (CGIA)?
2. Whether the District Court properly found the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, is a dangerous
condition because it constitutes an unreasonable risk to the health or safety
of the public?
3. Whether the District Court properly found the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, is a dangerous
condition because Denver had actual and constructive knowledge of the
dangerous condition?
4. Whether the District Court properly found the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, is a dangerous
2

condition because of Denvers maintenance function with respect to the
Amphitheater?
5. Whether the District Court properly found the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, is a dangerous
condition because Denvers negligent maintenance of the Amphitheater
proximately caused the rocks to fall on the concert-goers?
6. Whether the District Court properly found the concert-goers injuries were
not caused by the natural condition of any unimproved property under
C.R.S. 24-10-106(1)(e)?
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition Below.
Plaintiffs-Appellees will not respond directly to Denvers statement
regarding the nature of the case, course of proceedings, and disposition below, to
the extent Denvers statement outlines the procedural posture and the District
Courts findings. The concert-goers do dispute Denvers description and selection
of certain facts.
B. Statement of Facts
On the night of September 10 11, 2011, during the final minutes of Sound
Tribe Sector 9s (STS9) concert at Red Rocks Amphitheater, rocks fell from the
3

north interior wall of the Amphitheater (Creation Rock) and struck concert-goers
Ms. Ackerman, Mr. Scheuermann, Mr. Hudspeth, and Mr. Kinnard. CF, p. 778.
The concert-goers were either sitting or standing on the north side of the
Amphitheater under Creation Rock, each somewhere between Row 5 and Row 45,
when rocks hit them. Denvers Opening Brief, p. 11. The rocks struck Ms.
Ackerman, Mr. Scheuermann, and Mr. Hudspeth in the head; none saw the rocks
before the impact. R. Tr. 6-28-2013, 45:9-23; Id., 53:22 54:1; Id., 62:7-11. The
rock that struck Mr. Kinnards leg was twelve inches long, eight inches wide, and
four inches thick, definitely bigger than a football. R. Tr. 6-28-2013, 67:6-12.
Because of Denvers negligence in maintaining the Amphitheater, the
concert-goers filed this lawsuit. CF, pp. 89-117. In response, Denver asserted
governmental immunity from liability. CF, pp. 81-86. Following briefing on
Denvers motion to dismiss and a five-day Trinity hearing, Trinity Broadcasting of
Denver, Inc., v. City of Westminster, 848 P.3d 916 (Colo. 1993), Jefferson County
District Court Judge Christopher Zenisek denied Denvers motion. CF, pp. 777
787. Denvers appeal followed. CF, p. 827.
a. Background of Red Rocks Amphitheater.

Red Rocks Amphitheater is a man-made structure situated between two
large rocks, Creation Rock and Ship Rock, which form the walls of the
4

Amphitheater, R. Tr. 7-8-2013, 142:14-24, much like the walls of an indoor
theater. Creation Rock forms the north wall of the Amphitheater; Ship Rock, the
south. Denvers Opening Brief, p. 10. Without Creation and Ship Rocks, there
would be no Amphitheater. R. Tr. 7-8-2013, 142:14- 24. Indeed, the Red Rocks
of Red Rocks Amphitheater are Creation Rock and Ship Rock. Denvers
Opening Brief, p. 10. The walls create the perfect structure for music to
reverberate between them. Creation Rock, and other large rock structures
surrounding the Amphitheater, are an integral component of the facility and are
essential for the intended use of the facility. CF, p. 778.
The beauty and structure of Creation and Ship Rocks make the Amphitheater
a world-renowned concert venue where each year, thousands of visitors attend
music concerts, which are held between June and September concert season.
CF, pp. 574, 913; R. Tr. 7-8-2013, 138:6-12. The Amphitheater houses all the
necessities for concerts rows of seats, stages, concession stands, restaurants, and
stairs which are directly affixed to and integrated with the Rocks. R. Tr. 7-8-
2013, 37:10-16; CF, pp. 574, 913. The rock formations provide acoustics, as well
as aesthetics, for the musical performances at the Amphitheater. CF, p. 777.
The man-made Amphitheater sits within Red Rocks Park, Denvers Opening
Brief, p. 10, which is primarily used for hiking, walking, biking, and other outdoor
5

leisure activities. CF, p. 743. It is undisputed the Amphitheater is a public
facility for purposes of the Colorado Governmental Immunity Act (CGIA).
Denvers Opening Brief, p. 10.
b. Denver is responsible for maintenance of Red Rocks
Amphitheater and hires expert engineers to perform
maintenance.

Denvers Arts and Venues agency is responsible for the operation and
maintenance of Red Rocks Amphitheater. CF, p. 777. In contrast, Denvers Parks
and Recreation Department is responsible for the operation and maintenance of
Red Rocks Park. Id.
As part of its maintenance responsibilities for the Amphitheater, Denver
hires expert engineers, Yenter Companies (hereinafter Yenter), to perform
maintenance work on the Amphitheater walls and to mitigate the risk of rock fall
onto visitors in the Amphitheater. CF, p. 744. Yenters services are necessary
because over time, freeze-thaw cycles, geological shifts, and other weather
conditions have contributed to the occurrence of rock fall in the Amphitheater. For
example, each spring the geological constitution of the rocks change and shift,
necessitating inspection after the freeze-thaw cycle and before concert season. R.
Tr. 7-8-2013, 68:10-19; Id., 161:11-19. A harsh winter can change the geological
conditions and increase the potential risk for rock fall. CF, p. 856. Cracks and
6

erosion in the Amphitheaters rock formations have also developed and increased
since the original construction. Yenter reported a change in conditions between
2007 and 2010, stating, Over the years the erosion has taken its toll. CF, p. 842.
1

In working to mitigate rock fall and still preserve the rocks aesthetic
characteristics, Yenter modifies Creation and Ship Rocks through shotcreting
(binding the rocks with concrete), bolting and pinning (drilling through rocks and
adding rebar reinforcement), buttressing, adding grout and plates, scaling
(removing loose rocks),
2
fencing with heavy cable nets, cable lashing (securing
rocks with anchors drilled into the rocks and cables) and blasting, thereby making
the Amphitheater safe for concert-goers. R. Tr. 7-8-2013, 168:2 172:25; CF, p.
779. This work leaves the rock formations in an unnatural condition.
i. Yenters work schedule.

Over the years, Yenter has performed rock fall mitigation at the
Amphitheater, scaling the rocks from top to bottom, taking pictures and
measurements, and identifying hazards. R. Tr. 7-8-2013, 197:8-12. Denver agrees

1
Yenters reports invert Creation and Ship Rock. Where the Yenter report
references Creation Rock on the south side, the report actually speaks to Ship
Rock. Likewise, references to Ship Rock on the north side speak to Creation Rock.
2
Scaling rocks means both to climb the rocks and to remove the rock. R. Tr. 7-
8-2013, 169: 6-16.
7

Yenter performs its duties well and comprehensively. Denvers Opening Brief, p.
12.
Yenters billing records show work performed on the following schedule:
3/7/2005 Rock fall assessment
5/9/2005 Rock fall inspection
6/19/2007 Removal of rock, engineering and
consulting
8/11/2008 Rock stabilization
7/23/2010 Rock fall assessment
7/25/2010 Rock fall scaling
10/17/2011 Rock slide evaluation

CF, p. 880. Yenter did not perform any work in 2006 or 2009, or in 2011 until
September 26, 2011, after the rock fall incident on September 10-11. Id. Yenter
wrote comprehensive reports of its inspections and scaling in 2007 and 2010. CF,
p. 859 879 (2007 report); CF, p. 832 849 (2010 report).
3

ii. The experts at Yenter Companies recommended, at a
minimum, annual inspections and rock fall mitigation of the
Amphitheater, advice Denver ignored.

Yenter first recommended (in writing) in 2007 that Denver inspect the
Amphitheater, at a minimum, each and every year, R. Tr. 7-8-2013, 148:13-15,
4


3
Yenters reports are not dated. However, the report found at Court File pages 859
879 constitutes the 2007 report based on the e-mail found at Court File page 858.
R. Tr. 7-8-2013, 63:4 64:3. The 2010 report is marked as such. R. Tr. 7-8-2013,
73:18-22.
4
Yenter performed an assessment in 2005, but issued no report. R. Tr. 7-8-2013,
155:6-16; CF, 880. Since Yenter did no assessment in 2006, the next assessment
8

because people attending concerts are frequently present in the area below the
rocks. Id., 148:16-21. Yenter repeated this advice in its 2010 report. CF, pp. 849.
Yenter also notified Denver of the imprecise science of rock fall and that rocks
could fall into the Amphitheater below if mitigation measures were not taken. CF,
pp. 849, 879. Yenter recommended the annual inspection occur after the changes
caused by the freeze/thaw cycle and before concert season. R. Tr. 7-8-2013,
161:11-19.
Likewise, in 2007, engineers from RMA Group advised Denver to perform
annual inspections. CF, pp. 779-780. At the Trinity hearing, Denvers retained
expert agreed an annual inspection should occur prior to the event season. R. Tr.
8-7-2013, 50:16-18.
Despite these recommendations to inspect the Amphitheater walls annually,
Denver elected not to do so. Without consulting with any engineer or expert, even
though Denver relies on Yenter companies to be its rock mitigation experts, Id.,
146:19-25, Denver decided to inspect the rocks and mitigate problems once every
three years instead of every year. Id., 145:7 148:2.


was in 2007, when there are expenditures on May 19 and June 17, although the
2007 report is undated. CF, p. 880.

9

c. Denver knew the physical condition of the Amphitheater created
the potential for rock fall because the Facility Superintendent
found an orange to grapefruit-size rock in the Amphitheater in
1999 and because grapefruit to watermelon-size rocks fell on crew
workers in 2007.

Denver knew the physical condition of the Amphitheater, including Creation
Rock, created the potential for rock fall because Denver knew about two other rock
fall incidents that occurred prior to September 2011. Joe Davis, the Facility
Superintendent for Red Rocks Amphitheater, whose duties include oversight of the
maintenance for the Amphitheater, testified:
Q. Now, during your onsite inspection at the
amphitheater over 20 plus years, have you ever
observed any large rock fall occurring inside of the
amphitheater?
A. I have seen one I have never seen a rock fall
itself. I have seen one rock from anywhere from
an orange to a grapefruit size laying on the stairs
one time.
Q. Do you recall approximately when that occurred?
A. Twelve fourteen years ago, if I have to pick a
number.
Q. where was it that you saw this actual rock?
A. It was on the north stairs between the planters and
Creation Rock.

R. Tr. 8-7-2013, 141:22 142:9. Mr. Davis did not request any inspection to
determine the source of the rock fall, nor did he direct any maintenance work be
done. Id., 142:10-12. The District Court specifically discredited Mr. Davis
10

speculation that a visitor, using the rock as an exercise weight, left the rock on the
stairs. CF, p. 779.
In early 2007, a construction crew, RMA engineers, was building a
concession stand near rows 1 15 of the Amphitheater, below Creation Rock. CF,
p. 850. While RMA was working, they had additional small rocks come down
today (2/14/07). CF, p. 850 (emphasis added).
5
The rocks were grapefruit to
watermelon size. R. Tr. 8-7-2013, 140:6-11.
RMA notified the city, [I]t appears to have been some time since any work
has been done on Creation Rock. It is vital that the City inspect this area at least
annually to determine the condition both of the measures all ready [sic] in place
and to look for new risks that may have appeared over the previous months. R.
Tr. 7-8-2013, 154:3-16. RMA asked Denver to perform additional rock
stabilization to protect its crew and the public. CF, p. 850.
6
RMA identified
certain rocks as high risk on Creation Rock and said both RMA and Yenter
believed the rocks posed an imminent danger and should be addressed before the

5
The word additional implies rocks fell before 2/14/07 also. Because of the
limited nature of discovery prior to the Trinity hearing, this question has not yet
been posed to RMAs witnesses.
6
Denvers argument that neither Mr. Davis nor Mr. Tad Bowman knew about
rocks falling and injuring people inside the Amphitheater, prior to the subject
incident, is disingenuous. At least four Denver officials received the e-mail from
RMA, CF, p. 850, and Mr. Davis testified he knew about the incident. R. Tr. 8-7-
2013, 140.
11

public comes back into the theater. CF, p. 856. Clearly Denver appreciated that
risk since it hired Yenter to perform work in April and to complete a report in
2007. CF, p. 858-879. However, the record is void of any proof Denver inspected
the area to determine the exact cause and location of the rock fall. CF, p. 850-
858.
7

d. Denver did not perform rock fall mitigation in 2011
before rocks fell on the concert-goers in this case.

Denver hired Yenter companies to do scaling and assessment in the spring of
2010. CF, pp. 832-849; 880. In May/June 2010, Yenters report noted several
issues of fragile and dangerous rock on Creation Rock which needed to be
addressed promptly. R. Tr. 8-7-2013, 149:12 151:22. The report further
recommended inspections and mitigation occur every year. R. Tr. 7-8-2013, 76:15
77:5.
Despite the recommendation for annual inspections, Denver did not hire
Yenter to do any work the next year (2011) until September 26, 2011 after the

7
Denvers references to an alleged lack of reported rock fall incidents, both in the
Amphitheater and in Red Rocks Park (Denvers Opening Brief, p. 15-16) are
irrelevant. First, the evidence clearly refutes any alleged lack of 311 calls
regarding rock fall in the Amphitheater. CF, p. 850-856; R. Tr. 8-7-2013, 141-142.
Second, rock fall in the surrounding Park is irrelevant to this case where the
concert-goers were injured while attending a concert inside the man-made
Amphitheater. The District Court found this evidence to be of little significance;
instead, the evidence showed Denver knew of a dangerous condition. CF, p. 781.
12

rock fall incident on September 10-11, 2011. R. Tr. 8-7-2013, 149:1-11; CF, p.
880. Denver did nothing in 2011 before the concert season to address the specific
deficiencies noted in the 2010 report. Id., 149:12151:22; CF, p. 880.
Plaintiffs geological expert, Brendan Shine, testified Denvers rock fall
mitigation was inadequate at the time of the September 10
th
incident. R. Tr. 7-8-
2013, 55:7-19. Mr. Shine noted several issues with Creation Rock in Yenters
2010 report which needed to be addressed, and were not. Id., 73:18 76:14.
Denver did nothing after receiving the 2010 report, or in 2011 before the incident
at issue, to mitigate the existing problems or to inspect. Id., 77:6-10; Id., 157:6
158:4; Id., 166:6-8.
e. Because Denver failed to perform any maintenance of the
Amphitheater in 2011 before concert season, the rocks fell in
September, injuring the concert-goers.

The source of the rock fall was on Creation Rock, in the area vertically
above Row 40, without human involvement, when likely a large rock fell from one
ledge to another, shattered, and sprayed rocks to various locations both above Row
40 (i.e., to as far as Row 45 where Mr. Scheuermann sat) and below Row 40 (i.e.,
to as far as Row 5 where Mr. Kinnard stood). CF, pp. 778, 779; R. Tr. 7-8-2013,
49:1-19. Mr. Shines opinion, which the District Court credited, is consistent with
13

Mr. Scheuermanns testimony that he first heard a loud bang and then, in the
next moment, he was hit on the head. R. Tr. 6-28-2013, 52:7-12.
8

Denver could have easily avoided the injuries to the concert-goers in this
case by following the clear recommendations of its own experts and conducting an
inspection of the Amphitheater in 2011 prior to the concert season. Had Yenters
recommended inspection and mitigation taken place in the spring of 2011, the rock
fall incident would have been prevented. R. Tr. 7-8-2013, 77:16-23.
9
Mr. Shine
reached this conclusion based, in part, on the fact when inspections were not done
in the past, rock fall incidents occurred. Specifically, Mr. Shine noted Denvers
billing records showed Yenter did no maintenance in 2006, and a rock fall incident
then occurred in early 2007. Id., 57:6 59:15. He further noted a Yenter report
from May or June 2007 identified several areas requiring attention as well as issues

8
While Denver argues the concert-goers have admitted the rock fall came from
trespassers kicking rocks loose, the concert-goers themselves are not experts
charged with rendering such an opinion, nor did any of the concert-goers testify to
causation. R. Tr. 6-28-2013, 45:24-25; Id., 54:4-5; Id., 62:14-15; Id., 69:24 70:1.
The isolated fact Mr. Kinnard saw people with flashlights in the area of Creation
Rock, Id., 70:25 71:1, in conjunction with Plaintiffs-Appellees Complaints, is
not proof of what caused the rocks to fall nor did Plaintiffs offer it as such.
9
To meet the notice requirement, the concert-goers are not charged with proving
Denver knew of the exact location of the rock fall in this case. See infra.
However, if this were the applicable standard, the evidence shows had Denver
performed an inspection in 2011, given Yenters good performance, it is more
likely than not that Yenter would have found and identified a concern vertically
above row 40. R. Tr. 7-8-2013, 77:16-23.
14

that needed to be addressed each spring because of freeze/thaw cycles. Id., 63:4
71:16. Denvers own witness, Mr. Koehmstedt, testified when inspections occur,
Denver and Yenter are able to discern whether any problems exist by analyzing
current photographs of the rocks and comparing those to previous years
photographs. R. Tr. 7-8-2013, 203:1-10.
SUMMARY OF THE ARGUMENT

1. The District Court correctly found Creation Rock is integral and essential to
the use of Red Rocks Amphitheater. Implicit in Denvers summary of the
argument is the knowledge the Amphitheater would not exist without the
walls created by Ship and Creation Rocks; conceding this, Denver argues
Rosales was wrongly decided. However, Rosales is a correct statement of
law and the facts support the District Courts finding that Red Rocks
Amphitheater, and the integrated wall of Creation Rock, is a public facility
under C.R.S. 24-10-106(1)(e).
2. The District Court correctly found the concert-goers proved the physical
condition of the Amphitheater, and the integrated wall of Creation Rock,
constituted an unreasonable risk to the health and safety of the public where
Denver ignored the advice of its own experts and failed to inspect the
Amphitheater prior to opening the theater to the public in 2011.
15

3. The District Court correctly found Denver had both actual and constructive
knowledge the physical condition of the Amphitheater created the potential
for rock fall, where the evidence showed Denver hired Yenter Companies to
mitigate rock fall risk, and Denver knew about two instances of rock fall in
the Amphitheater prior to September 2011.
4. The District Court correctly found Denvers function with respect to Red
Rocks Amphitheater was one of maintenance and not design, where Denver
maintained the property due to changes in the propertys condition over
time.
5. The District Court correctly found Denvers maintenance of the
Amphitheater was negligent since Denver received expert recommendations,
and Denvers retained expert agreed, that annual rock fall inspection and
mitigation was necessary advice Denver expressly ignored and the
evidence showed the rock fall incident occurred in September 2011 because
no annual inspection was performed before concert season that year.
6. The District Court correctly found the natural condition exception to the
governmental immunity exception is inapplicable in this case since Red
Rocks Amphitheater is improved property; even if the public facility at
16

issue is Creation Rock as Denver argues, the District Court correctly found
Creation Rock is likewise improved property.
ARGUMENT

This Court should deny Defendant-Appellant Denvers appeal because the
District Court correctly determined Denver waived governmental immunity when
Denver failed to maintain Red Rocks Amphitheater, thereby causing rocks to fall
from Creation Rock onto concert-goers in the Amphitheater on the night of
September 10-11, 2011. Because Denver negligently maintained the Amphitheater
and allowed the dangerous condition (specifically, the physical condition of the
Amphitheater) to occur, Denver is responsible for the concert-goers injuries.
Denver asserts governmental immunity against the concert-goers claims
because [a] public entity shall be immune from liability in all claims for injury
which lie in tort or could lie in tort. C.R.S. 24-10-106(1). The concert-goers
allege immunity is waived by a public entity in an action for injuries resulting
froma dangerous condition of anypublic facility located in any park or
recreation area maintained by a public entity. C.R.S. 24-10-106(1)(e)
(hereinafter park and recreation exception).
The legislature has defined the terms dangerous condition as:
[E]ither a physical condition of a facility or the use
thereof that constitutes an unreasonable risk to the health
17

or safety of the public, which is known to exist or which
in the exercise of reasonable care should have been
known to exist and which condition is proximately
caused by the negligent act or omission or the public
entityin constructing or maintaining such facility[A]
dangerous condition should have been known to exist if it
is established that the condition had existed for such a
period and was of such a nature that, in the exercise of
reasonable care, such condition and its dangerous
character should have been discovered. A dangerous
condition shall not exist solely because the design of any
facility is inadequate.

C.R.S. 24-10-103(1.3).
The park and recreation exception to governmental immunity contains a
further exception-to-the-exception which, if applicable, allows Denver to retain
immunity. Nothing in this paragraph (e)shall be construed to prevent a public
entity from asserting sovereign immunity for an injury caused by the natural
condition of any unimproved property. C.R.S. 24-10-106(1)(e).
The concert-goers established the application of the waiver of governmental
immunity because when rocks fell and struck them, the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, was a dangerous
condition of [a]public facility. Id. Further, the facts established the concert-
goers injuries were not caused by the natural condition of any unimproved
property. Id. For these and the following reasons, the Court of Appeals should
uphold the District Courts findings.
18

A. The District Court correctly determined Red Rocks Amphitheater is a
public facility and the waiver of governmental immunity applies.

a. Standard of Review

This Court shall consider de novo questions of law regarding the waiver of
governmental immunity. See Medina v. State, 35 P.3d 443, 452 (Colo. 2001).
However, the District Courts findings of fact are subject to reversal on appeal only
if they are clearly erroneous. Id.; Springer v. City & County of Denver, 13 P.3d
794, 799 (Colo. 2000).
Even when employing de novo review of the case, the Court of Appeals
must broadly construe the provisions waiving immunity in the interest of
compensating victims of governmental negligence. Rosales v. City and County of
Denver, 89 P.3d 507, 509 (Colo. App. 2004) (citing Padilla v. Sch. Dist. No. 1, 25
P.3d 1176 (Colo. 2001)). Likewise, the Court of Appeals must strictly construe the
statutory provisions retaining governmental immunity. Burnett v. State of
Colorado, Department of Natural Resources, 2013 WL 1245366 at *2 (Colo. App.
2013).
b. The District Court correctly determined Creation Rock is an
integral and essential part of Red Rocks Amphitheater.

To prove governmental immunity under the park and recreation exception,
the concert-goers must first show the existence of a public facility located in any
19

park or recreation area maintained by a public entity. C.R.S. 24-10-106(1)(e).
Denver does not dispute Red Rocks Amphitheatre is a public facilitylocated in
any park or recreation area maintained by a public entity. Id. However, Denver
argues Creation Rock is not a public facility because it is not integral or essential to
the Amphitheater. Thus, the Court must determine whether the concert-goers in
this case establish the existence of a public facility.
10

The CGIA does not define public facility. C.R.S. 24-10-106(1)(e). The
Court of Appeals has defined public as a place accessible or visible to all
members of the community, and a public facility is somethingbuilt or
constructed to serve some public purpose. Rosales, 89 P.3d at 509 (citations
omitted).
Here, the District Court correctly found the public facility at issue is the
Amphitheater, andCreation Rock is an integral and essential part of the facility.
CR, p. 783. Relying on Burnett and Rosales, the trial court made a factual
determination based on the circumstances that Creation Rock is integral to Red
Rocks Amphitheater; there is no dispute Red Rocks Amphitheater is a public

10
The determination of a public facility must also be made within the statutory
definition of dangerous condition. CF, p. 783; Padilla, 25 P.3d at 1180-81. The
District Courts analysis evaluated the terms public facility concurrently under
the park and recreation exception and the statutory definition of dangerous
condition. CF, p. 782-783. Since the requirements of both statutes are the same,
Plaintiff-Appellees likewise dispense of both discussions here.
20

facility; ergo, Creation Rock is a part of the public facility. Since the District
Courts finding is not clearly erroneous, this Court should uphold this factual
finding. Medina, 35 P.3d at 452.
In Burnett, the tree that hurt the camper was adjacent to and overhanging the
campsite, and the public entity did not plant or grow the tree. Burnett, 2013 WL
1245366 * 2.
11
The Court noted that while the campground and campsite were in
an improved area of the park (where the camper was when she was hurt), the trees
adjacent to the campsite were in an unimproved part of the park. Id. Further, the
Court of Appeals found, Trees are not integral to the use and enjoyment of a
campsiteand trees are not essential to the use of a campsite. Id. (emphasis
added).
In Rosales, a tree branch fell off and hit a woman in a park. Rosales, 89
P.3d 507. The woman argued the tree branch was the public facility located in
any park or recreation area. Id. The Court of Appeals remanded the case to
determine whether the City had incorporated the tree into a public facility in such
a manner that it became an integral part of the facility and was essential for the

11
Burnett is currently pending before the Colorado Supreme Court as to [w]hether
the court of appeals erred in concluding that the government did not waive
immunity under section 24-10-106(1)(e), C.R.S. (2013), of the Colorado
Government Immunity Act, for injuries caused by a tree limb that fell on a camper
in an improved campsite in a state park. Burnett v. State Department of Natural
Resources, 2013 WL 5984594 (Colo. 2013).
21

facilitys intended use. Id. at 510. Because if a public entity incorporates a tree
into a facility in such a manner that it becomes an integral part of the facility and is
essential for the intended use of the facility, the tree may be a component of the
public facility. Id. (citations omitted) (emphasis added). Thus, Creation Rock is a
component of the public facility if it is integral to the public facility and essential
for the use of the facility. Id.
The District Court found Creation Rock is an integral part, and essential for
the intended use, of the public facility (Red Rocks Amphitheater), a finding that
should not be disturbed since it is not clearly erroneous. CF, p. 783. The
Amphitheater was built not just between Creation and Ship Rocks. Denvers
Opening Brief, p. 25. Creation and Ship Rock compose the walls of the
Amphitheater, R. Tr. 7-8-2013, 13:4-5, much like the walls of an indoor theater.
To enjoy an event at Red Rocks Amphitheatre, music reverberates between the two
rock walls, and the Rocks are essential to the use of the facility. Id. Indeed, even
the name of the public facility, Red Rocks Amphitheatre, refers to the two Red
Rocks Creation Rock and Ship Rock. Denvers Opening Brief, p. 10. Creation
and Ship Rocks create the Amphitheater for the purpose of music concerts, the
very purpose of the concert-goers in this case. CF, p. 783. In Burnett the campsite
22

would still exist without a tree. Here, without Creation Rock, there would be no
Amphitheater. R. Tr. 7-8-2013, 142:14-24.
B. The District Court correctly determined the physical condition
of Red Rocks Amphitheater, including the integrated
wall of Creation Rock, is a dangerous condition.

a. Standard of Review

Plaintiffs-Appellees outlined the standard of review above in section A.a.

b. The physical condition of Red Rocks Amphitheater constitutes
an unreasonable risk to the health and safety of the public.

Next, the concert-goers must establish the physical condition of Red Rocks
Amphitheater, including the integrated wall of Creation Rock, is a dangerous
condition. C.R.S. 24-10-106(1)(e). A dangerous condition is (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 public entity knew or should have
known existed in the exercise of reasonable care, and (4) the negligent act or
omission of the public entity proximately causes such condition. C.R.S. 24-10-
103(1.3). Since the first element regarding public facility is discussed above, the
argument turns to elements two, three, and four of dangerous condition, as
follows.
Denver does not dispute the factual finding that the physical condition of the
Amphitheater, including the integrated wall of Creation Rock, constitutes an
23

unreasonable risk to the health or safety of the public. Denvers Opening Brief, p.
26- 27. While Denver presents an issue for review of whether the District Court
erred in determining that the failure to inspect Creation Rock annually created an
unreasonable risk to public health and safety, Id., p. 1, Denver failed to brief the
issue. Thus, Denver should be precluded from making any new arguments on this
point in any Reply Brief. C.A.R. 28(c).
However, should the Court allow Denver to discuss the issue on Reply,
Plaintiffs-Appellees contend the District Court correctly found the physical
condition of Red Rocks Amphitheater, including the integrated wall of Creation
Rock, constituted an unreasonable risk to the health and safety of the public. CF,
p. 783-784. Denver received a recommendation from Yenter, Denvers own
experts, to inspect the Amphitheater annually in order to mitigate the risk for rock
fall. CF, pp. 849, 879. Despite this recommendation, Denver decided to inspect
the Amphitheater once every three years instead. R. Tr. 8-7-2013, 145:7-148:2.
Denver directly ignored the advice of its experts in the face of knowledge of
dangerous threats for rock fall. Thus, the District Court correctly found the
condition of the Amphitheater created an unreasonable risk to the health and safety
of the public, CF, p. 784, a finding that is not clearly erroneous and should be
upheld on appeal.
24

c. Denver had actual notice of the physical condition of Red Rocks
Amphitheater prior to September 2011.

The District Court correctly found Denver was aware of the physical
condition of Red Rocks Amphitheater, and the potential for rock fall, prior to
September 2011 because rocks had fallen into the Amphitheater on two other
occasions. To establish a dangerous condition, the concert-goers must prove
Denver had either actual or constructive knowledge of the dangerous condition.
C.R.S. 24-10-103(1.3). In the absence of the CGIA defining actual
knowledge, the Court of Appeals may look to the plain, everyday meaning of
knowledge: [A]wareness or familiarity gained by experience (of a person, fact,
or thing); a persons range of information; specific information, facts or
intelligence about something. Oxford English Dictionary (2006).
Denvers argument i.e., general knowledge of rocks falling does not
establish actual knowledge is legally and factually incorrect. First, the law does
not require the concert-goers to show Denver knew about the propensity for rock
fall in the area vertically above Row 40, where Mr. Shine opined the fall
originated. Second, the record shows Denver had ample notice of the condition of
the Amphitheater that created the risk for rock fall.



25

i. The law does not distinguish between
general and specific actual knowledge.

The law does not distinguish between general and specific knowledge of
an event. In Luenberger v. City of Golden, the City claimed it had received
complaints regarding the steel skin of the half pipe, but it had not received any
complaints similar to the bicyclists involving the half-pipe; therefore, the City
argued, it did not have actual or constructive knowledge of the dangerous condition
at issue. Luenberger v. City of Golden, 990 P.2d 1145, 1146 (Colo. App. 1999).
The Court of Appeals rejected the Citys argument, concluding when there was not
specific notice of the precise harm, actual or constructive notice was an issue of
fact for the trial court to decide, and the City need not have notice of the precise
harm to have actual or constructive knowledge. Id. at 1148.
Likewise, in Martinez v. Weld County School District, RE-1, the Court of
Appeals upheld the finding that the school district had notice of a snowy and icy
walkway because the area where Ms. Martinez fell was a chronic problem for ice
build-up. Martinez v. Weld County School District, RE-1, 60 P.3d 736, 739 (Colo.
App. 2002). Even though the school district did not know about the condition on
that particular day, the Court of Appeals found the school district had notice to
satisfy this element of the CGIA waiver. Id.
26

McIntire v. Trammell Crow, Inc., is distinguishable from the instant matter.
McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007). McIntire
interprets the Premises Liability Act and the knowledge incumbent upon a
landowner when an invitee is on her premises. Id.; CF, p. 784. McIntire does not
discuss the CGIA, the statutory definition of dangerous condition controlling in
this case, or what actual knowledge means in such a context. McIntire, 172 P.3d
at 980.
Denvers string-cited cases are likewise distinguishable. These are slip-and-
fall cases in snowy and icy conditions where the governmental entity had no notice
of any prior falls in that particular area. See Smith v. Town of Snowmass Village,
919 P.2d 868, 871 (Colo. App. 1996) (upholding dismissal where no complaints
about the ice were received, nor was there any evidence about how long the ice had
been present, when it accumulated, or under what conditions it appeared, and no
one testified the ice was present before Ms. Smiths fall); see also Broderick v.
City and County of Denver, 727 P.2d 881, 882 (Colo. App. 1986) (upholding
dismissal where particular sidewalk was icy for not more than two days, and there
was evidence it had been plowed nearly clean just two hours prior to the fall); see
27

also Harjes v. State, 71 A.D.3d 1278 (N.Y. 2010) (finding State had no prior
knowledge of icy condition recurring on stretch of the highway).
12

Following the applicable standard in Luenberger and Martinez, the District
Court correctly found the law requires knowledge of the dangerous condition (i.e.,
the physical condition of Red Rocks Amphitheater), not specific knowledge of the
exact dangerous condition on that particular day.
ii. The record shows Denver knew the physical condition of
Red Rocks Amphitheater created the potential for rock fall
in the Amphitheater based on two prior occurrences.

The District Court correctly found two prior occurrences of rock fall put
Denver on notice of a dangerous condition, a factual finding subject to the clearly
erroneous standard. The first rock fall incident in 1999 did not involve merely the
discovery of a rock on the Amphitheatres stairs. Denvers Opening Brief p. 27.
The Amphitheater Superintendent, Mr. Davis, testified he found a rock on the
north stairs, below Creation Rock, the size of an orange [or] a grapefruit. R. Tr.
8-7-2013, 141:25 142:9. Mr. Davis testimony of this discovery was in direct
response to Denvers questioning about Denvers knowledge of rock falls in the

12
Denvers citation to Kowalsky v. Long Beach Township, 72 F.3d 385, 389 (3
rd

Cir. 1995) is misplaced. That case discusses the meaning of improved property
in the context of the New Jersey Tort Claims Act, in a case involving swimmers
injured while bodysurfing at public beaches. The case does not discuss the actual
or constructive knowledge element, it pertains to New Jerseys particular
legislation, and it concerns an inapposite set of facts.
28

Amphitheater prior to September 2011. Id., 141:22 142:9. When Mr. Davis
speculated the rock was left behind by a visitor using it to lift weights, the District
Court found the explanation incredible. CF, p. 779. Denver knew from at least as
early as 1999 that the physical condition of the Amphitheater was such rocks could
fall into the Amphitheater.
The second incident in 2007 was even more significant. Mr. Davis testified
he learned in 2007 rocks grapefruit to watermelon size fell from Creation Rock
onto the RMA construction crew, which was building a concession stand below
Creation Rock, inside the Amphitheater. R. Tr. 8-7-2013, 140:9; Id., 138:14
139:1; CF, p. 850. RMA asked Denver to perform additional rock stabilization to
protect its crew and the public. CF, p. 850. RMA identified certain rocks as
high risk on Creation Rock and said both it and Yenter believed the rocks posed
an imminent danger and should be addressed before the public comes back into
the theater. CF, p. 856.
Denver conjectures vibration equipment, rather than natural rock fall,
caused the rocks to fall onto the RMA employees. Denver Opening Brief, p. 28.
However, no one inspected to determine the exact cause and location of the rock
fall. CF, p. 850 858. Thus, Denver received notice a second time the physical
condition of the Amphitheater was such rocks could fall from Creation Rock into
29

the Amphitheater. Denvers decision not to inspect or address either the 1999 or
the 2007 rock falls does not entitle Denver to claim lack of notice.
Further, Denver retained Yenter for the very purpose of monitoring rock fall
at Red Rocks Amphitheater because Denver knew rocks could fall into the
Amphitheatre and hurt people. R. Tr. 8-7-2013, 146:19-25. In each and every
report, Yenter advises Denver of the imprecise science of rock fall and that rocks
could fall into the Amphitheatre below if mitigation measures were not undertaken.
CF, pp. 849, 879. Yenter recommends, in each and every report, annual
inspections and mitigation to lessen the risk that rocks could fall onto people and
hurt them. Id. Thus, when Denver explicitly ignored the advice of Yenter and
decided not to perform annual inspections, and instead to perform inspections once
every three years, Denver knew the risk it was taking and the harm it was creating.
R. Tr. 8-7-2013, 144:8 148:2; CF, p. 842.
d. Denver also had constructive notice of the physical condition of
the Amphitheater prior to September 2011.

Even if Denver did not have actual knowledge of the fact rocks could fall
from Creation Rock into the Amphitheatre below, given the physical condition of
the Amphitheater, Denver undoubtedly should have known of the potential for
rock fall from Creation Rock, had Denver exercised reasonable care. The
condition had existed for such a period and was of such a nature that, in the
30

exercise of reasonable care, such condition and its dangerous character should have
been discovered. C.R.S. 24-10-103(1.3).
Denvers argument that it lacked constructive notice is without support.
Denver had actual notice of the physical condition of the Amphitheater and the
potential for rock fall into the Amphitheatre based on the two prior rock falls. See
supra. These same facts put Denver on constructive notice. Id.
Denver dismisses the fact Yenter recommended annual inspections of
Creation Rock, which did not occur. Denver Opening Brief, p. 29. Denver
argues, without more, the fact Denver openly chose to ignore the advice of its
own experts, without any basis in fact, expertise, inspection, or otherwise, is not
tantamount to constructive notice. Id. The Court should reject these arguments.
In the exercise of reasonable care, Denver should have followed Yenters
advice and inspected Red Rocks Amphitheater annually. Denvers own experts
agree an annual inspection is reasonable and necessary. R. Tr. 8-7-2013, 50:16-18.
Even RMAs engineers told Denver to inspect annually. CF, pp. 779-780.
Denvers decision to ignore expert advice, knowing of the potential for rock fall,
was not reasonable care. Had Denver exercised reasonable care and inspected in
2011 before concert season, Denver should have discovered the physical condition
of the Amphitheater and the potential for rock fall. R. Tr. 7-8-2013, 77:16-23.
31

Without inspections, Denver took a greater risk rocks would fall in the
Amphitheater. Two times out of three, when Yenter did not inspect, Denver knew
rocks would fall and endanger people in the theater below. Yenters records show
it performed an inspection in 2005, but not in 2006 or in 2007 until after the rock
fall incidents in February 2007. CF, p. 880. Likewise, Yenter performed no
inspection in 2011 until after the September 10
th
incident giving rise to this
lawsuit. Id. Had Yenter performed an inspection in 2011, it is more likely than not
that Denver could have prevented the 2011 rock fall incident. R. Tr. 7-8-2013,
77:16-23.
Denver argues even if the concert-goers expert is correct the rock fall
source was somewhere vertically above row 40, that area was not previously
identified as an area of concern. Denvers Opening Brief p. 30. The concert-goers
are not charged with proving Denver had notice of the precise harm on this
particular day. See supra.
13
Even if that was the legal standard, the concert-goers

13
As a matter of public policy, if Denver was correct, then Denver would be
absolved of liability every time rocks fall and injure people in the Amphitheater
because Denver did not have notice of the potential for rock fall from that
particular location. Indeed, any entity would be absolved of notice unless it knew
a prior incident occurred on that particular day at that particular location, an
argument this Court has already rejected. Martinez, 60 P.3d at 739. Further, such
an argument would create absurd results and is contrary to this Courts intent that
waivers of governmental immunity be broadly construed in favor of compensating
victims. Rosales, 89 P.3d at 509 (citing Padilla, 25 P.3d 1176).
32

proved that had Denver acted with reasonable care, it would have discovered the
potential rock fall in the area vertically above row 40. R. Tr. 7-8-2013, 77:16-23.
It is irrelevant whether or not the 2007 and 2010 Yenter reports specifically discuss
the area vertically above row 40 as a place of concern because Denver performed
no inspection in 2011. CF, p. 880. Had Denver performed an inspection in 2011,
it is more likely than not that Yenter would have found and identified a concern in
the area vertically above row 40. R. Tr. 7-8-2013, 77:16-23.
e. Denvers negligent maintenance of the Amphitheatre
proximately caused rocks to fall.

To prove a dangerous condition, the concert-goers must show Denvers
negligent maintenance of Red Rocks Amphitheater proximately caused the
physical condition of the Amphitheater and the potential for rock fall. Martinez,
60 P.3d at 739 (citations omitted). In order for the concert-goers to fulfill this
element, they must prove the dangerous condition is the result of the construction
or maintenance of the facility, and not the design. Padilla, 25 P.3d at 1180-81.
i. The District Court correctly found Denvers function with
respect to the Amphitheater was maintenance, not design,
based

Denvers negligent maintenance of Red Rocks Amphitheater proximately
caused the physical condition of the Amphitheater and the potential for rock fall.
Maintenance is the act or omission of a public entityin keeping a facility in
33

the same general state of repair or efficiency as initially constructed or in
preserving a facility from decline or failure. Maintenance does not include any
duty to upgrade, modernize, modify, or improve the design or construction of a
facility. C.R.S. 24-10-103(2.5).
Denver argues Red Rocks Amphitheater was designed to be located between
Creation and Ship Rocks, and Denver had no duty to upgrade, modernize, modify
or improve that design. Denvers Opening Brief, p. 33-34. Denver concludes
because the rock fall into the Amphitheater is a design issue, and not maintenance
or construction, the District Court erred in finding the concert-goers met this
element of a dangerous condition. Id., p. 32. The Court of Appeals may reject
these arguments because the District Courts findings were not clearly erroneous.
Denver hired Yenter for the express purpose of performing rock fall
mitigation and maintenance of Creation and Ship Rock. R. Tr. 8-7-2013, 146:19-
25. Denver preserved the Amphitheater from decline or failure by hiring Yenter to
scale rocks, remove rocks by hand, buttress and shot-crete rocks, and otherwise
maintain Creation Rock so as to prevent rocks from falling on concert-goers. R.
Tr. 7-8-2013, 168:2 172:25.
Following Medina v. State, the District Court looked to the temporal
distinction between design and maintain to reject Denvers design argument:
34

[A]n injury results from a failure to maintain when it is
caused by a condition of the road that develops
subsequent to the roads initial design. An injury results
from inadequate design, in contrast, when it is caused by
a condition of the road that inheres in the design and
persists to the time of the injury.

Medina, 35 P.3d at 448. Here, Denver built an entire Amphitheater between Ship
and Creation Rocks. As time has worn on, freeze-thaw cycles, geological shifts,
and other weather conditions contribute to the occurrence of rock fall in the
Amphitheater. R. Tr. 7-8-2013, 68:10-19. Cracks and erosion in the
Amphitheaters rock formations have developed and increased since the original
construction. CF, pp. 842, 786. Since the dangerous condition (i.e., cracks,
erosion, and rock fall) developed subsequent to the Amphitheaters initial design,
Denvers maintenance (not design) of the Amphitheater caused the dangerous
condition. CF, p. 786; Medina, 35 P.3d at 448.
ii. Denvers maintenance of the Amphitheater was negligent

Having found the inspections were a maintenance function, the District
Court correctly found Denver failed to maintain the Amphitheater adequately. The
District Courts factual finding should not be disturbed on appeal as it is not
clearly erroneous. Medina, 35 P.3d at 452.
As discussed above, rock fall was more likely than not to occur when Yenter
did not perform yearly inspections. See supra. Denver had specific and repeated
35

recommendations from its own experts to perform inspections annually. CF, p.
849, 879. Even Denvers own expert agreed at hearing that annual inspections
should occur before concert season. R. Tr. 8-7-2013, 50:16-18. Denver knowingly
made the decision not to follow those recommendations. Id., 145:7 148:2.
Instead two employees, with no expertise or understanding of rock fall mitigation,
decided inspections shall occur only once every three years knowing when they
did so, that rock fall is sporadic and unpredictable, and that such a choice was
in direct contravention of Denvers own experts recommendations. Id., 144:8
148:2; CF, p. 842.
After hearing the testimony of the witnesses and making credibility
determinations, the District Court found the concert-goers expert credible in his
opinion, had Denver assigned Yenter to conduct yearly inspections, more likely
than not this would have prevented the rockfall that occurred in September 2011.
CF, p. 785. Appellate courts are to give strong deference to a trial courts
credibility determinations. See, e.g., Bodensieck v. Industrial Claim Appeals
Office, 183 P.3d 684, 687 (Colo. App. 2008).
Denver ultimately claims upon the concert-goers Complaints, which pled
the rocks were thrown or loosened by third-party trespassers, are evidence and
an admission the rocks were caused by a third party and not Denver. Denvers
36

Opening Brief p. 34-35. The concert-goers are not experts none of them testified
they knew what caused the rocks to fall from Creation Rock; they do not know and
would not be expected to know. R. Tr. 6-28-2013, 45:24-25; Id. 54:4-5; Id., 62:14-
15; Id., 69:24 70:1. Further, only a Complaint of professional negligence need
be certified by an expert. C.R.S. 13-20-601. These Complaints do not include
expert conclusions and are not an admission of what caused the rocks to fall;
rather, the Complaints are merely the concert-goers good faith basis alleging what
happened, not why it happened. See, e.g., C.R.C.P. 8(a) (primary purpose of a
complaint is to provide notice of claims); see also C.R.C.P. 8(e) (When a pleader
is without direct knowledge, allegations may be made upon information and
belief.).
C. The District Court correctly determined the concert-goers injuries
were not caused by the natural condition of any unimproved property.

a. Standard of Review

Plaintiffs-Appellees outlined the standard of review above in section A.a.

b. The District Court correctly determined the natural condition
clause does not apply to this case because the public facility at
issue is Red Rocks Amphitheater, which is improved property.

The CGIA allows governmental immunity to be waived when there is a
dangerous condition of anypublic facility located in any park or recreation area
maintained by a public entity. C.R.S. 24-10-106(1)(e). However, Nothing in
37

this paragraph (e).shall be construed to prevent a public entity form asserting
sovereign immunity for an injury caused by the natural condition of any
unimproved property, whether or not such property is located in a park or
recreation area. Id. Thus, having shown sovereign immunity is waived for a
dangerous condition of anypublic facility, the concert-goers must also show
the injury was not caused by the natural condition of any unimproved property.
Id.
The District Court made two findings: (1) as a matter of law, the natural
condition clause does not apply to this case since Creation Rock is integral to the
Amphitheater, which is improved property; and (2) even if the immunity clause
applies and even if the public facility is Creation Rock, Creation Rock is
improved property and no longer in its natural condition. These factual
determinations should not be disturbed on appeal as they are not clearly erroneous.
First, the District Court correctly found the natural condition clause does
not apply to this case. Creation Rock is a fundamental and integral part of Red
Rocks Amphitheater and perpetuates the Amphitheaters existence. CF, p. 786.
Since the public facility at issue is Red Rocks Amphitheater, CF, p. 783, and
since there is no question the Amphitheater is an unnatural condition of improved
property (it is a man-made structure built specifically for the purpose of concerts
38

and events, CF, p. 783), Denver is not immune from liability under the natural
condition clause because the Amphitheater is not a natural condition. CF, p. 786.
Denver argues even if the public facility is Red Rocks Amphitheater,
legislative intent shows Red Rocks Amphitheater is considered a natural
condition of unimproved property. Denvers Opening Brief, p. 40. The
legislative report distinguishes between injuries caused from man-made structures
and injuries caused by the natural conditions of a park, such as the Red Rocks
west of Denver. Id., p. 40-41 (emphasis added).
Denvers reliance on this legislative report is misplaced. The report refers
to parks when discussing Red Rocks. Colorado Legislative Council Report, Report
to the Colorado General Assembly: Governmental Liability in Colorado, Research
Publication No. 134, p. xxii (1968). The legislature intended to retain immunity
for Red Rocks Park, since that is what the legislature said, natural conditions of
a park, like Red Rocks. Id. The legislature did not intend to retain immunity for
Red Rocks Amphitheater.
As Burnett and the legislative history suggest, there is a distinction to be
made between injuries which occur in and are caused by the Amphitheater (and the
integrated walls of the Amphitheater), versus injuries that occur in the greater Red
39

Rocks Park.
14
Burnett, 2013 WL 1245366. Here, the concert-goers were inside
the Amphitheater when they were injured by rocks falling from a wall of the
Amphitheater. The concert-goers were not injured, for example, by tripping over a
rock on a trail while hiking in the greater Red Rocks Park. In the hiking example,
the concert-goers injuries would have been caused by a natural condition in an
unimproved area of the park. Since that is not the case here, and the concert-goers
were hurt by a dangerous condition [the physical condition of the Amphitheater
that created the potential for rock fall] of the public facility [Red Rocks
Amphitheater] located in any park or recreation area [Red Rocks Park] maintained
by a public entity [Denver], immunity is waived. C.R.S. 24-10-106(1)(e).
c. The District Court correctly determined even if the public
facility at issue is Creation Rock, and even if the natural
condition clause applies, Creation Rock is improved property and
no longer in its natural condition.

Even if the public facility at issue is Creation Rock, and even if the natural
condition clause applies, the District Court correctly found Creation Rock is
improved property no longer in its natural condition, a factual determination that
should not be disturbed on appeal unless clearly erroneous. Creation Rock had

14
Even though Red Rocks Amphitheater is located within the greater Red Rocks
Park, the two entities are separate and distinct legally and factually. Denver uses
different departments to operate and maintain each entity, Denvers Opening Brief,
p. 10, and they have vastly distinct purposes and landscapes.
40

been improved by removing rocks, bolting rocks, chaining rocks, and other
improvements. CF, p. 786. Creation Rock, despite maintaining a natural
appearance, is improved property. CF, p. 786.
The CGIA does not define unimproved property or improved property.
In the absence of a statutory definition of unimproved property, the Court shall
assume the terms have their usual and ordinary meaning. Burnett, 2013 WL
1245366 (dissent) (citations omitted). While Denver cites New Jersey and
California case law to define unimproved and to conclude the concert-goers
injuries must be caused by the improvement on the land, the CGIA requires no
such causal link, nor does Colorado case law.
As the dissent notes in Burnett, [u]nimproved property usually refers to
real propertyin 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. Burnett, 2013 WL 1245366 (dissent). After considering the definition
of improvements for property tax purposes, the Burnett dissent states,
[P]roperty is unimproved when no structures or fixtures are built on or affixed to
the land. Id.
41

The Burnett dissent goes on to explain the example of a public entity that
builds and maintains a playground knowing a dead, rotting tree is in the middle of
the playground; the entity fails to remove the tree, and the tree falls and hurts
someone. Id. The Burnett dissent opines that to allow the governmental entity to
assert immunity in such a case much like the instant one would be contrary to
the obligation to construe the immunity waivers in favor of compensating victims
and would lead to absurd results. Id.
Here, Red Rocks Amphitheater (the public facility at issue) is not a
natural condition. See supra. Even if the public facility at issue is Creation
Rock standing alone, Creation Rock is no longer in its natural condition as it has
undergone numerous improvements. CF, p. 786. Creation Rock, in its natural
condition, did not have thousands of people below it each summer, in an enclosed
space, standing in one centralized theater while music is being performed. CF, pp.
574, 913. In addition, Denver has improved and altered Creation Rock. For
example, Yenter removes rocks by hand from the face of Creation Rock; puts up
buttresses, fencing, pins, rebar, wedges, cable-anchoring, and shot-creting to
prevent rocks from falling; and generally changes the landscape of Creation Rock
to make it safer for concert-goers in the theater. R. Tr. 7-8-2013, 168:2 172:25;
CF, p. 779. The Amphitheaters rows of seats, stage, stairs, and other structures
42

are all affixed to Creation Rock. CF, p. 913; R. Tr. 7-8-2013, 142:14-24. These
improvements qualify as structures or fixturesbuilt or affixed to the land,
Burnett, 2013 WL 1245366 (dissent), to render Creation Rock improved under
this statutory clause.
CONCLUSION

For the foregoing reasons, Plaintiffs-Appellees respectfully request this
Court affirm the District Courts denial of Denvers 12(b)(1) motion to dismiss and
allow the case to proceed pursuant to the District Courts jurisdiction.

OPPOSITION TO REQUEST FOR ATTORNEY FEES

Plaintiffs-Appellees do not dispute the statute regarding attorney fees when a
trial court dismisses an action under C.R.C.P. 12(b) and based on governmental
immunity. However, since Denver did not prevail before the trial court, and
should this Court uphold the trial courts findings, Denver is not entitled to
attorney fees since the action is not dismissed.

DATED this 18
th
day of July, 2014.




43

Respectfully Submitted,

BACHUS & SCHANKER, LLC


/s/ Adrienne M. Tranel /s/ Samuel Ventola
Adrienne M. Tranel, #40968 Samuel Ventola, #18030
BACHUS & SCHANKER, LLC Law Office of Samuel Ventola
1899 Wynkoop Street, Suite 700 1775 Sherman Street, Suite 1650
Denver, Colorado 80202 Denver, Colorado 80203
Phone: (303) 893-9800 Telephone: (303) 864-9797
E-mail: adrienne.tranel@coloradolaw.net Email: sam@samventola.com
Attorneys for Plaintiffs-Appellees
Forrest Hudspeth and Adam Kinnard

/s/ Daniel P. Gerash
Daniel P. Gerash, Atty. Reg. #18071
Gerash Steiner, P.C.
1775 Sherman Street, Suite 1650
Denver, Colorado 80203
Telephone: 303-830-0630
Email: dan@gerashsteiner.com
Attorneys for Plaintiffs-Appellees
Jennifer Ackerman and David
Scheuermann



44

CERTIFICATE OF SERVICE

I hereby certify that on this 18
th
day of July, 2014, the foregoing JOINT
ANSWER BRIEF was filed with the Court of Appeals and served on the following
via ICCES:

Barry A. Schwartz, Esq.
Jamesy C. Owen, Esq.
Assistant City Attorneys
Denver City Attorneys Office
Litigation Section
201 West Colfax Ave., Dept. No. 1108
Denver, CO 80202-5332
Attorneys for Defendant-Appellant Denver





/s/ Adrienne M. Tranel
Adrienne M. Tranel