Substantial Compliance With Governmental Immunity Act Notice Requirements

JurisdictionColorado,United States
CitationVol. 21 No. 3 Pg. 471
Pages471
Publication year1992
21 Colo.Law. 471
Colorado Lawyer
1992.

1992, March, Pg. 471. Substantial Compliance with Governmental Immunity Act Notice Requirements




471


Vol. 21, No. 3, Pg. 471

"Substantial Compliance" with Governmental Immunity Act Notice Requirements

by Rolf G. Asphaug

The Colorado Governmental Immunity Act ("Act") includes a requirement, codified at CRS § 24--10--109, that any person intending to file a tort lawsuit against a governmental entity first must file a notice of claim within 180 days after the discovery of an injury. The statute requires formal notice even if the public entity has knowledge of the claim through other means.(fn1)

This article examines current legal standards for the content, timing and service of notices under the Act. Recent case law indicates that although claimants must comply fully with the timing and service requirements of the Act, the contents of their notices need be only in "substantial compliance" with the Act.


Background

The Act's notice requirement promotes legitimate state interests of

fostering prompt investigation while the evidence is still fresh; repair of any dangerous condition; quick and amicable settlement of meritorious claims; and preparation of fiscal planning to meet any possible liability.(fn2)

Yet the notice requirement also can spell disaster for ignorant or careless claimants or their attorneys because "failure of compliance ... shall forever bar [the] action."(fn3)

In its original version, § 24--10--109 provided that the contents of the notice had to be in "substantial compliance" with statutory standards. However, over the years, Colorado courts, faced with the unpleasant prospect of dismissing claims on perceived technicalities, appeared to some to be "seizing on the word 'substantial' to allow all manner of defective notice to be considered."(fn4) While the courts may thus have protected some claims from unfair dismissal, some legislators felt that the courts were losing sight of the basic purposes of the notice requirement. In 1986, as part of a comprehensive "tort reform" movement, the General Assembly tried to strengthen the statute by, among other things, deleting the term "substantial" from the Act.(fn5)

The deletion, however, did not solve matters. While the courts no longer had to determine what the General Assembly meant by "substantial compliance," they still had to resolve the equally difficult question of what the unadorned term "compliance" really meant in practice.

Initially, some lower courts took the position that by deleting the word "substantial" from the standard, the General Assembly must have meant to hold claimants to more than substantial compliance---that is, strict compliance---with the notice requirements.(fn6) However, in the late 1990 case of Woodsmall v. Regional Transportation District,(fn7) the Colorado Supreme Court rejected such an absolutist interpretation. Instead, it crafted a judicial compromise between strict compliance and the old, ad hoc standard of substantial compliance. Although the new, post-Woodsmall standard still is called "substantial compliance," it appears to be significantly more rigorous than its former statutory namesake.


New "Substantial Compliance" Standard

CRS § 24--10--109(2) specifies exactly what information must be contained in a notice of claim. This information includes the name and address of the claimant, his or her attorney and any public employee involved; the factual basis of the claim; the nature and extent of the claimed injury; and the amount of damages requested.(fn8)

In Woodsmall, the Colorado Supreme Court considered the question of whether a timely notice of claim, served on a public entity's claims adjuster with a copy to the entity's counsel, was nonetheless defective because it did not provide all of




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the above information.(fn9) In its majority opinion, the Supreme Court held that the General Assembly had not intended automatically to bar suits against public entities in each and every situation in which a notice of claim did not include every item of required information. The court concluded that even though the legislature struck the word "substantial" from the statute, the legislature's intended degree of compliance was "considerably more than minimal but less than absolute." That degree of compliance, the court stated could be fairly characterized only as "substantial compliance."(fn10)

The court recognized the public interest served by a pretrial notice requirement. However, the majority observed that the competing public interest in "permitting injured claimants to seek redress for injuries caused by a public entity"(fn11) would be unduly harmed by...

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