Glenwood seeks lawsuit dismissal in cemetery injury claim | AspenTimes.com

Glenwood seeks lawsuit dismissal in cemetery injury claim

John Gardner
Glenwood Springs correspondent
Aspen, CO Colorado

GLENWOOD SPRINGS – It appears that a civil lawsuit against the city of Glenwood Springs, filed by a woman who’s son lost an ear when a gravestone at Rosebud Cemetery fell on him, could be dismissed. The city’s attorney says the city is not liable.

According to the complaint filed in May, Leticia Alvarado of Battlement Mesa is suing the city for negligence, premises liability, and attractive nuisance, and claims for damages because, she claims, the city is responsible for the injury her son, Efrain Alvarado, sustained two years ago.

The complaint said Efrain has sustained “permanent bodily injuries and disfigurement” and had his ear “sliced off his body by a falling gravestone while visiting his sister’s grave at Rosebud Cemetery.” It also said Efrain “suffered a loss of hearing capacity” and that the “bodily injuries will result in permanent scaring and disability.”

Alvarado’s attorney, Denver-based attorney Richard Dally, argued that the city failed to exercise reasonable care to protect children and persons like Efrain from injury, according to the complaint.

However, Grand Junction attorney Gary Doehling, representing the city of Glenwood, said the city can’t be held liable for the incident because it does not own the gravestone, or the gravesite where the accident occurred.

“This is certainly an unusual set of circumstances,” Doehling said.

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While the city does own and maintain the cemetery property, the gravesites are sold to members of the community and transfers ownership of the piece of property by deed. The gravestones are privately purchased, privately installed, and require no maintenance by the city, according to Doehling.

According to Glenwood Parks and Recreation Director Tom Barnes, the city is not responsible for the maintenance of the plot or headstone.

“When someone purchases the plot, they are buying the piece of ground,” Barnes said. “So even the maintenance on the property is up to the owners.”

Doehling filed a motion to dismiss the suit in June, citing “a lack of subject matter jurisdiction.”

“In order to sue a public entity you need to establish government immunity has been waived,” Doehling said. “If it has not [been waived] under the Colorado Governmental Immunity Act, then the court does not have jurisdiction to hear the case.”

Dally wrote in response to the motion to dismiss, “The issue for the court is to determine whether a waiver of immunity applies in this case.”

Under the act, public entities are immune from liability for all tort claims, or claims that could lie in tort regardless of the action chosen by the plaintiff. However, Dally asserts that this immunity could be waived in this action because Efrain’s injuries resulted from “dangerous conditions” and the cemetery should be considered a public park or recreation area, which would allow the waiver of immunity under the act.

According to Doehling, the gravestone and cemetery do not fall within the category as “a public facility located in any park or recreation area,” in which Dally claims the injuries occurred.

“The premises where the accident occurred was privately owned. The gravesites premises is not ‘public’ and is not a ‘facility,'” Doehling wrote in a response to the plaintiff’s claim.

Doehling recently filed an order granting the motion to dismiss the case for that exact reason.

Dally did not return a phone call seeking comment on this case Thursday.

The case has not been dismissed, and a judge has yet to rule on this case.

jgardner@postindependent.com