Amendments to the Colorado Governmental Immunity Act
| Publication year | 1986 |
| Pages | 1193 |
| Citation | Vol. 15 No. 7 Pg. 1193 |
1986, July, Pg. 1193. Amendments to the Colorado Governmental Immunity Act
The Governmental Immunity Act ("Act")(fn1) originally was enacted in 1971 after the Colorado Supreme Court overruled the judicial doctrine of sovereign or governmental immunity in three separate decisions.(fn2) The Act reinstates governmental immunity from tort liability,(fn3) provides six specified exceptions when governments and officials are not immune(fn4) and sets monetary limitations on recovery.(fn5) The Act applies to all actions which lie in tort or could lie in tort.(fn6) All public entities,(fn7) officials and employees (whether elected or appointed)(fn8) are covered by the Act.
Legislation passed over the years has amended the Act in several areas. Most notably, during the General Assembly's 1985 special session, House Bill ("H.B.") 1001 conformed the immunities and liabilities of public officials and employees with those of public entities.(fn9) As a result of H.B. 1001, public officials and employees acting within the scope of their employment and not willfully and wantonly also are immune from tort liability, except when the specified exceptions for non-immunity apply.(fn10)
However, amendments to the Act over the years have been piecemeal and until H.B. 1196(fn11) was passed, no comprehensive review and update of the Act had been made. In addition, some court interpretations of the Act appeared inconsistent with the purposes of the Act or contrary to sound public policy and eroded the effectiveness of some provisions of the Act.
This article describes changes made to the Act as a result of H.B. 1196, which generally became effective July 1, 1986.
Two important goals of H.B. 1196 were to "clean up" the Act and address some judicial constructions which weakened the effectiveness of the Act.
The "insurance crisis" also was an important factor in the enactment of H.B. 1196. Newspaper articles chronicled the plight of local governments across the state experiencing cancellation or nonrenewal of insurance policies.(fn12) Where insurance was available, it often was unaffordable. The crisis prompted the governor to establish the Special Task Force on Tort Liability and Insurance to investigate the causes of the crisis and recommend solutions.(fn13) The Colorado Municipal League also established a committee to make recommendations on liability issues.
A third important goal of H.B. 1196 was to ensure that the Act adequately protects public entities and taxpayers from excessive or unpredictable liability, particularly in a time of unavailability or unaffordability of insurance. Many of the recommendations of the governor's Special Task Force and the Colorado Municipal League were incorporated into H.B. 1196.
Some of the significant features of H.B. 1196 are described below. However, this description is only a summary, and the entire bill must be read together with the existing statutes to obtain an accurate understanding.
Section 1 amends the legislative declaration to provide a public policy rationale for the Act.(fn14) Perhaps because the Act originally was enacted in response to the Colorado Supreme Court's invitation to "restore sovereign immunity and governmental immunity in whole or in part,"(fn15) the original legislative declaration contained little in the way of a legislative rationale for the existence of the Act. In recent years, some attorneys have expressed concerns about the ability of some provisions of the Act to withstand judicial scrutiny. H.B. 1196 buttresses the Act by adding the following legislative rationale for governmental immunity:
The General Assembly also recognizes that the state and its political subdivisions provide essential public services and functions, and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions. The General Assembly further recognizes that the taxpayers would ultimately bear the fiscal burdens of unlimited liability, and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens. It is also
recognized that public employees, whether elected or appointed, should be provided with protection from unlimited liability so that such public employees are not discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law.(fn16)
It should be noted that one area of particular concern from a constitutional perspective, the monetary liability limits in the Act,(fn17) recently was resolved by the Colorado Supreme Court. In Lee v. Colorado Dept. of Health,(fn18) the court unanimously upheld the constitutionality of the Act's monetary liability limits against an equal protection challenge.
Another change made in Section 1 (and also appearing in Sections 2, 4, 5, 8 and 15 of the bill) is to clarify that the Act applies to all actions which lie or could lie in tort, "regardless of whether that may be the type of action or the form of relief chosen by a claimant." While this presumably was the original scope of the Act,(fn19) conforming amendments were made to make the language consistent throughout the Act. This change also is intended to address a Colorado Supreme Court decision which implied that damages in contract for mental suffering are not subject to the Act's protections.(fn20) This change...
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