The Changing Concept of Governmental Immunity

JurisdictionColorado,United States
CitationVol. 23 No. 3 Pg. 603
Publication year1994
23 Colo.Law. 603
Colorado Lawyer

1994, March, Pg. 603. The Changing Concept of Governmental Immunity


Vol. 23, No. 3, Pg. 603

The Changing Concept of Governmental Immunity

by Marilyn M. Ruland

In March 1971, the Colorado Supreme Court prospectively abolished the doctrine of sovereign immunity, while inviting the General Assembly to restore immunity in whole or in part.(fn1) As a result, the General Assembly adopted the Colorado Governmental Immunity Act ("Act"),(fn2) a statutory scheme under which tort claimants could seek recovery against public entities only in specified situations.

In response to certain appellate decisions and the fiscal impact of increasing municipal insurance rates, the General Assembly substantially amended the Act in 1986.(fn3) Additional amendments were adopted in 1992.(fn4) This article highlights for the practitioner significant appellate decisions interpreting the 1986 version of the Act as well as the important changes made by the General Assembly in 1992.

Scope and Definitions

Except for six categories of governmental activity (discussed below), the Act now extends immunity in all actions against a public entity which lie in tort or could lie in tort, regardless of the type of action or the form of relief chosen by the claimant.(fn5) Thus, the Act does not apply to claims for breach of contract, while claims for tortious interference with a contract are barred.(fn6) Similarly, replevin claims and estoppel actions based on negligence or intentional misrepresentations are barred.(fn7) The issue of whether other statutes creating governmental duties may create an implied waiver of governmental immunity is currently pending in the Colorado Supreme Court.(fn8)

Except for the same six categories of governmental activity, public employees are also immune from tort liability for injuries caused by their actions or omissions within the scope of their employment, unless their conduct was willful and wanton.(fn9) As discussed later in this article, Court of Appeals decisions are currently in conflict as to the standard for determining the immunity of police officers responding to emergency calls.

Essential terms such as "dangerous condition," "injury," "operation," "public entity" and "public employee," which appear throughout the Act, are defined in CRS § 24-10-103 and have been further construed in recent appellate decisions.(fn10)

No Immunity for Certain Actions

Sovereign immunity has been waived in CRS § 24-10-106(1) in actions for injuries resulting from the following:

1) operation of government motor vehicles by public employees, except emergency vehicles within the provisions of CRS § 42-4-106(2) and (3);(fn11)

2) operation of any public hospital, correctional facility or jail by a public entity;(fn12)

3) the dangerous condition of any public building(fn13) (however, immunity is waived only for injuries arising from the physical condition of the building itself and not for those arising from dangerous activities conducted within the building);(fn14)

4) the dangerous condition of a public highway, road or street or a municipal sidewalk(fn15) (thus, sovereign immunity is waived for a public entity's failure to maintain a roadside or a right-of-way fence,(fn16) and a 1992 amendment extended the waiver to the accumulation of ice and snow on walks leading to public buildings open for business;(fn17) however, claims of negligent design of an intersection are barred,(fn18) and immunity similarly has not been waived for dangerous conditions of county roads(fn19));

5) the dangerous condition of any public hospital, jail or public facility located in any park or recreation area maintained by a public entity; or public water, gas, sanitation, power or swimming facility;(fn20) and

6) operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility or swimming facility.(fn21)



The sovereign immunity defense may be raised by answer or by motion to dismiss pursuant to Colorado Rules of Civil Procedure ("C.R.C.P.") 12(b)(1).(fn22) CRS § 24-10-108 provides that if a public entity raises the issue of sovereign immunity before or after discovery is commenced, the court shall suspend discovery except for that which is necessary to decide the sovereign immunity issue and shall decide such issue on motion. A 1992 amendment added a provision that makes the court's decision on the motion an appealable judgment.(fn23)

The practitioner's preparation for resolution of the immunity issue requires careful study of the Supreme Court's opinion in Trinity Broadcasting of Denver, Inc. v. City of Westminster.(fn24) For example, the trial court, rather than the jury, is the fact finder on a public entity's pretrial assertion that timely notice of claim was not filed. Depending on the case, the trial court may conduct an evidentiary hearing before deciding the jurisdictional issue of notice or sovereign immunity. In addition, a trial court may consider evidence pursuant to C.R.C.P. 12(b)(1) without converting the motion to one for summary judgment. Finally, under C.R.C.P. 12(b)(1), the plaintiff has the burden to prove jurisdiction, and appellate review is conducted pursuant to the highly deferential, clearly erroneous standard.


Any person claiming to have suffered a tortious injury by a public entity or by a public employee in the course of employment must file a written notice of claim within 180 days after the date of discovery of the injury, regardless of whether the person then knew all of the elements of the claim.(fn25) Compliance with this section is a jurisdictional prerequisite to any action brought under the Act. Failure to comply forever bars any claim.(fn26)

The notice period places a burden on the injured person to determine the cause of the injury, to ascertain whether a governmental entity or a public employee is the cause and to notify the governmental entity within 180 days from the time the injury is discovered.(fn27) A factual dispute between the parties concerning when the plaintiff discovered the injury may require an...

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