Governmental Immunity Act Developments
| Publication year | 1988 |
| Pages | 1525 |
| Citation | Vol. 08 No. 1988 Pg. 1525 |
1988, August, Pg. 1525. Governmental Immunity Act Developments
On August 10, 1987, a boulder collided with a tour bus on U.S. Highway 40 west of Denver near Berthoud Pass. Eight passengers died as a result of the accident and four others sustained serious injuries.(fn1) According to a complaint for interpleader filed by the State of Colorado, notices of claim filed by victims as of December 1987 alleged damages totalling over $14 million, far in excess of the $400,000 per occurrence limit of recovery(fn2) in the Colorado Governmental Immunity Act ("Act").(fn3) Several of the claims also were for amounts in excess of the $150,000 per person limit of recovery in the Act.(fn4)
In January 1988, the governor of Colorado established a task force of legislators and others to provide recommendations concerning whether the Act's monetary limits should be increased by the legislature and whether compensation, in addition to any provided for by the Act, should be paid to the victims.(fn5)
In litigation following the Berthoud Pass accident, the victims have raised numerous issues concerning the validity of the Act's monetary and other limits. Among the issues raised are that the Act infringes on the right to equal protection and due process of the laws, and on the right to a speedy remedy for an injury.(fn6) This article reviews prior decisions of the Colorado Supreme Court that may provide guidance in evaluating those issues and briefly summarizes some recent legislation amending the Act.
The state and its political subdivisions were immune until 1971 from liability for torts committed in the exercise of a governmental function. This absolute governmental immunity was found not to violate the right to due process or equal protection.(fn7)
The doctrine of governmental immunity was prospectively overruled in 1971 by the Colorado Supreme Court in three decisions.(fn8) The overruling of governmental immunity was not based on constitutional concerns, but rather on what the court perceived to be the injustice of the doctrine.(fn9) The legislature accepted the court's invitation to restore governmental immunity and enacted the Act in 1972, restoring immunity except in specified circumstances and establishing monetary limits on recovery.(fn10)
The Colorado Supreme Court has consistently applied a "rational basis" test to due process and equal protection challenges to liability limitations found in the Act and in other statutes.(fn11) The use of this test is consistent with the view expressed by the U.S. Supreme Court that liability limitations are "a classic example of an economic regulation."(fn12)
In Lee v. Colorado Department of Health,(fn13) the Colorado Supreme Court, applying a rational basis test, upheld the constitutionality of the $150,000 and $400,000 monetary limits of the Act against an equal protection challenge.(fn14)
this statutory classification is reasonably related to the governmental objective of providing fiscal certainty in carrying out the manifold responsibilities of government.(fn15)
Lee is consistent with other decisions on liability limitations. For example, in Fritz v. Regents of the University of Colorado,(fn16) the Colorado Supreme Court specifically...
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