The City of Denver is appealing a judge's decision that the city's "failure to reasonably maintain" Red Rocks amphitheater caused a rockfall that injured several people in 2011. Denver owns Red Rocks and had asked the judge to dismiss a lawsuit filed by four people who were injured in the rockfall. But the judge refused. This week, the city's attorney filed an appeal of the judge's decision with the Colorado Court of Appeals.
As explained in our recent cover story, "Rocks and Roll," four people are suing the city of Denver after they were injured by falling rocks during a Sound Tribe Sector 9 concert in September 2011. Some of their injuries were serious: Three of the four people were struck in the head and required hospitalization and stitches to mend their wounds.
In their lawsuit, they claim that the city was lax in its efforts to prevent such incidents. Even though engineers repeatedly recommended that Red Rocks be inspected and maintained every year, city officials decided to do that every three years instead.
The city asked Jefferson County District Court Judge Christopher Zenisek to dismiss the lawsuit. (Red Rocks is located in JeffCo.) Denver shouldn't be held liable, the city's attorney argued, because it's protected under a law known as the Colorado Governmental Immunity Act. There are exceptions to those protections, however, including if a city knew about a "dangerous condition" at a "public facility" and didn't fix it.
Zenisek issued his ruling in August 2013. He found that Red Rocks is a "public facility" and that Creation Rock, where the rockfall originated, is an integral part of it. Although the law says that governments are immune from liability when injuries are caused by the "natural condition" of a property, Zenisek determined that Creation Rock is no longer natural due to the rock removal and rock bolting that's taken place over the years.
Furthermore, he ruled that because falling rocks had been reported in the past, Denver knew about the "dangerous condition" and should have addressed it.
The city's appeal (on view below) argues that Zenisek's conclusions are wrong.
Continue for more on the city's Red Rocks appeal. For one, city attorney Barry Schwartz wrote in the appeal, the previously reported rockfalls -- which include the discovery of a rock on the stairs below Creation Rock in 1999 and reports from a construction crew using vibration equipment that rocks fell in 2007 -- are "not sufficient to demonstrate actual notice of a dangerous condition."
Plus, the city argues that experts testified at a hearing in the summer of 2013 that "no tools exist that can accurately predict when and where a rockfall will occur."
Furthermore, the rockfall was not caused by a "dangerous condition," Schwartz wrote in the appeal, but rather was the result of Red Rocks' design. "It is undisputed that the Amphitheatre was designed to be situated between Creation Rock and Ship Rock, in a geological hazard zone subject to natural and unpredictable rockfall events," the appeal says. "Denver had no duty to upgrade, modernize or modify its location, or to improve the design of construction of the Amphitheatre."
The appeal also takes issue with Zenisek's finding that Creation Rock is no longer "natural." "While certain safety features -- for example, bolts to hold the rocks in place -- have been installed on portions of Creation Rock, it is not improved land," Schwartz wrote. Holding governments liable when they install safety measures on natural properties punishes those governments for making their properties safer, the appeal says -- which the city argues is not the intent of the law.
The plaintiffs -- the four people who were injured in the rockfall -- have 35 days to file an answer to the city's appeal (although the deadlines in cases such as these often get extended). The city will then have 21 days to respond. The case will likely be scheduled for oral arguments, after which the Court of Appeals will issue its ruling.
Read the city's opening appeal brief in its entirety below.
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More from our Follow That Story archive: "Red Rocks: Could loud EDM music cause rocks to fall?"Follow me on Twitter @MelanieAsmar or e-mail me at email@example.com