The Colorado Governmental Immuntity Act
| Publication year | 1979 |
| Pages | 2358 |
1979, December, Pg. 2358. The Colorado Governmental Immuntity Act
The Colorado Governmental Immunity Act ("Act")(fn1) is perhaps one of the few Colorado statutes with which most practicing attorneys must have at least a nodding familiarity. The Act is applicable to all "public entities"(fn2) in the State of Colorado. Thus, any lawyer representing a county, municipality or special district of any kind must be familiar with its terms to advise correctly a governmental client of its potential liability to tort claimants, its insurance needs and the potential liability of its employees. In addition, an attorney doing any personal injury work at all must be aware of the notice provisions of the Act(fn3) lest, through inadvertence, a governmental tortfeasor is allowed to escape behind the shield of governmental immunity where that entity might otherwise be liable.
During the 1979 session of the Colorado General Assembly, the Act underwent substantial changes.(fn4) Most of these changes were in the nature of legislative reaction to a 1978 decision of the Colorado Supreme Court.(fn5) Other changes reflect present inflationary trends,(fn6) by increasing the amount recoverable from a public entity, and lengthen the time within which a person injured by a public entity must either give notice of a claim under the Act or lose the claim.(fn7) This article serves to reacquaint the practitioner with both the concept of governmental immunity and the general scheme of the Governmental Immunity Act. It then summarizes the 1979 amendments to the Act, with special emphasis on the insurance and notice provisions thereof and the changes regarding the potential liability of public employees.
Historically, both public entities and, to an extent, public officials have enjoyed immunity from tort liability.(fn8) This immunity could, however, be waived by the consent of the governmental entity to a suit in tort.(fn9)
Early on, the courts in Colorado recognized the essential unfairness of the doctrine of governmental immunity; i.e., that an injured party might be left without a remedy for an injury due to the governmental status of the potential defendant. Various forms of contrived legal fictions were adopted to avoid the harshness of absolute immunity from all actions sounding in tort. Colorado lawyers in practice prior to 1971 will recall the most commonly applied of these legal fictions: The governmental acts versus
nongovernmental or proprietary acts distinction. Under this theory, a governmental entity retained its immunity from liability for governmental or sovereign acts, but was held liable for injuries resulting from acts which were nongovernmental or proprietary in nature, just as would be any private corporation.(fn10)
Another similar fiction, applicable to public officials, allowed liability for tortious acts of government employees committed while performing "ministerial" acts as part of a nongovernmental or proprietary activity or where the public employee was acting outside of the scope of his employment. If, however, the act of the employee was "discretionary" and within the scope of his employment, immunity obtained.(fn11) Although the Colorado decisions do not seem to refer specifically to ministerial and discretionary acts, this distinction in fact seems to be the rationale behind several of the decisions prior to 1971.(fn12)
Yet a third exception to the general rule of governmental immunity from suit was the fiction of implied consent to such suits where a public entity obtained liability insurance. Under this theory, the implied waiver of immunity extended to all liabilities insured against up to the policy limits.(fn13) Although this rule was never adopted by the Colorado courts, it was incorporated into the Governmental Immunity Act.(fn14) In Colorado, until 1971, the harsh effects of the governmental immunity doctrine were modified only by the governmental-nongovernmental and discretionary-ministerial distinctions.(fn15)
With the case of Evans v. Board of County Commissioners(fn16) and two companion cases,(fn17) the Colorado Supreme Court abolished the doctrine of governmental immunity. The ruling, however, was made prospective only and was "effective only as to causes of action arising after June 30, 1972."(fn18) During the period provided by the Supreme Court in Evans, the legislature adopted the Colorado Governmental Immunity Act.(fn19)
The general scheme of the Act is to reinstitute governmental immunity,(fn20) except in certain instances which are set forth in great detail.(fn21) Thus, the rule is that public entities are immune from suit in tort except where such immunity is specifically waived.(fn22)
The Act essentially waives immunity for injuries resulting from: (1) the operation of motor vehicles by a public employee in the course of his employment; (2) dangerous conditions involving public buildings, certain public roads and public facilities; and (3) the operation of certain listed public facilities such as hospitals, penitentiaries, reformatories or jails, and public water, gas, sanitation, electrical, power and swimming facilities.(fn23)
In addition to the stated activities for which governmental immunity is waived, the Act provides that a public entity may waive its immunity to suit by procuring liability insurance. Immunity is waived, however, only as to those activities covered by the policy of liability insurance and only up to the policy limits.(fn24) Thus, by obtaining liability insurance covering liability for acts for which immunity is not waived under the Act, a public entity can actually expand its potential liability, albeit any damages arising from the expanded liability are recoverable solely from the public entity's insurer.(fn25)
Even after it is determined that the public entity is not immune from liability for its tortious act, the tort claimant must take steps to preserve the entity's potential liability. The Act requires that any person claiming to have been injured by a public entity, or its employees acting
within the scope of their employment, must file a written notice with the public entity to that effect.(fn26) The notice must be filed within 180 days after the date of discovery of the injury(fn27) and must contain the information specified by the Act.(fn28) The notice must be presented to the Attorney General if the claim is against the state.(fn29) As to other public entities, the notice may be presented to either the governing body of the public entity or the entity's attorney.(fn30)
Once it is determined that the public entity is not immune from suit and after compliance with the notice provisions of the Act, the "liability of the public entity shall be determined in the same manner as if the public entity were a private person."(fn31) There is, however, a major difference between the potential liability of private persons and public entities under the Act. Unlike a private person, the liability of a public entity in Colorado is limited to $150,000 for any injury to one person in any single occurrence and $400,000 for an injury to two or more persons in any single occurrence.(fn32) However, no one person may recover in excess of $ 150.000(fn33) and in no event may punitive or exemplary damages be assessed against a public entity.(fn34)
If a public entity obtains liability insurance, thus waiving immunity for acts which are not otherwise covered by the Act, the public entity is liable only to the extent of the...
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