Oral arguments in the appeal of the Red Rocks amphitheater rockfall case have been postponed. The delay will allow lawyers for the injured concertgoers and for the City of Denver, which owns Red Rocks, to respond to a recent Colorado Supreme Court decision that could have a big impact on whether Denver can be held liable for the injuries caused by the 2011 rockfall.
In March, the state's high court ruled that a woman who was injured when a tree branch fell on her campsite in Cherry Creek State Park does not have the right to sue. The fallen branch was a "natural condition ... of unimproved property," the justices found, and state law says that governmental entities, such as state parks departments and cities, are not liable for injuries caused by such conditions.
Lawmakers passed the law "to encourage governmental entities to open primitive, government-owned property to the public by limiting the entities’ exposure to liability," the ruling says. "To make the State a guarantor of the public’s safety from dangerous natural conditions of this sort would discourage it from opening and improving park lands for the public to enjoy."
The high court rejected an argument by the injured woman that the tree was not a "natural condition" because Colorado's parks department occasionally pruned its branches. Under the law, the justices wrote, "the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them once it chose to do so."
That finding could impact the outcome of the Red Rocks case, in which four people are suing the City of Denver for failing to "reasonably maintain" the amphitheater. All four were injured when rocks fell during a September 2011 Sound Tribe Sector 9 concert.
Their lawsuit, which was the subject of a Westword cover story, alleges that the city was lax in its efforts to prevent rockfalls: Even though engineers recommended that Red Rocks be inspected and maintained every year, city officials decided to do that every three years instead.
Fans at a concert at Red Rocks in 2010.
So if a limb from a pruned tree is considered a "natural condition," should rocks at Red Rocks that have been stabilized with bolts, cables, fences and mesh be considered natural, too? If Coloradans can't sue over a fallen branch, can they sue over fallen rocks?
We'll have to wait until the Colorado Court of Appeals hears the Red Rocks case to find out. But it's worth noting that not all of the justices agreed in the tree-branch case. Three dissented, arguing that once the state built the campsite, the branch that fell "was no longer a natural condition of unimproved property."
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"Campers who pay to use campsites in state parks like Cherry Creek State Park expect the sites to be improved with basic features and free of the risks inherent to unimproved property," the dissenting justices wrote. "Here, the State’s decision to build an improved campsite at this location, amid a grove of trees, created the risk that a camper using the site could be struck by an overhanging tree branch — and that risk required management by the public entity in charge."
Below, read the entire ruling in the case, Burnett v. Department of Natural Resources.