The Public Building Exception to Governmental Immunity

JurisdictionColorado,United States
CitationVol. 24 No. 5 Pg. 1059
Publication year1995
24 Colo.Law. 1059
Colorado Lawyer

1995, May, Pg. 1059. The Public Building Exception to Governmental Immunity


Vol. 24, No. 5, Pg. 1059

The Public Building Exception to Governmental Immunity

by J. Andrew Nathan and Andrew J. Fisher

The concept of sovereign immunity has been incorporated by the legislature into the Colorado Governmental Immunity Act ("CGIA")(fn1) for more than twenty years. The CGIA provides a series of exceptions to the general grant of immunity, one of which is for injuries resulting from the dangerous condition of a public building.(fn2) Colorado appellate courts have had several recent opportunities to interpret the public building exception. This article summarizes the evolution of the public building exception.

Application of the Act and The Waiver Provision

The legislature enacted the CGIA after the Colorado Supreme Court rejected the common law doctrine of sovereign immunity.(fn3) The CGIA provides immunity to public entities and public employees from liability in all claims that lie in tort or could lie in tort.(fn4) However, the CGIA provides that there are certain claims for which immunity is waived. One of the exceptions to governmental immunity is for injuries that result from a dangerous condition of a public building.(fn5) A "dangerous condition" means a physical condition of a facility or the use thereof that: (1) constitutes an unreasonable risk to the health or safety of the public, (2) is known to exist or that in the exercise of reasonable care should have been known to exist; and (3) is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility.(fn6)

Governmental immunity is not an immunity from liability, but an immunity from suit.(fn7) The CGIA provides that where a public entity raises the issue of sovereign immunity prior to or immediately after the commencement of discovery, the court shall suspend discovery, except discovery necessary to decide the issue of sovereign immunity, and then decide such issue on motion.(fn8)

Colorado courts have recently held that the proper method for resolution of a claim of sovereign immunity is a motion to dismiss for lack of subject matter jurisdiction pursuant to Colorado Rules of Civil Procedure ("C.R.C.P.") 12(b)(1).(fn9) Because this question is jurisdictional, the burden of proof is on the plaintiff.(fn10) If there are disputed questions of fact, the trial court must resolve them and may conduct an evidentiary hearing to do so.(fn11)

Standard of Review

Until recently, there had been some question concerning the standard of review when dealing with one of the waiver provisions. Prior to Bertrand v. Board of County Commissioners,(fn12) there were contradictory opinions concerning how the waiver of sovereign immunity was to be treated by the courts. Some case law had held that the grant of immunity itself must be strictly construed, while other decisions held that the waiver to immunity should be strictly construed.(fn13) Bertrand confirmed that governmental immunity as created by the CGIA is in derogation of common law and that immunity itself, rather than the waivers to immunity, must be strictly construed.(fn14)

Strict construction of governmental immunity by a court is not necessarily fatal to its application. In the recent case of DiPaolo v. Boulder Valley School District,(fn15) counsel for the plaintiff argued on appeal that strict construction of governmental immunity was not only dispositive in that case, but would have resulted in a different result in one prominent public building case, Jenks v. Sullivan.(fn16) The Court of Appeals disagreed, reaffirming the principal holding in Jenks and finding the public building waiver inapplicable.(fn17)

"Use" of a Public Building

The definition of "dangerous...

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