Discovery: a Prerequisite to the Running of the Governmental Notice Period

• Publication year: 1995
• Pages: 2381

24 Colo.Law. 2381 Colorado Lawyer 1995.

1995, October, Pg. 2381. Discovery: A Prerequisite to the Running Of the Governmental Notice Period

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2381

Vol. 24, No. 10, Pg. 2381

Discovery: A Prerequisite to the Running Of the Governmental Notice Period

by Robert J. Frank

It is an unwritten rule that in a case of clear liability, damages will be unprovable. It is likewise believed to be true that in a case of clear damages liability will be unprovable. In that rare instance where both liability and damages are clear, it is likely that a procedural requirement, such as a governmental notice requirement, has been missed. In cases where a person claiming to have suffered an injury Scorn a public entity or employee enters an attorney's office 181 days after the date of the injury, it is essential for the attorney to determine when the governmental notice period began to run

This article addresses: (1) discovery of injury as a prerequisite to the beginning of the 180-day notice period mandated by CRS § 24-10-109(1); (2) recent Colorado Court of Appeals decisions that affirm discovery as a prerequisite to the running of the 180-day governmental notice requirement;(fn1) (3) a parent or guardian's duty to give notice for a disabled person or child;(fn2) and (4) the implication of the discovery requirement.

Governmental Notice Requirement

CRS § 24-10-190(1) requires that an individual suing a governmental entity for an injury provide notice within 180 days of the date of the discovery of injury. CRS § 24-10-109(1) reads as follows:

(1) any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment shall file a written notice as provided in this section within 180 days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. [Emphasis added.]

The purpose behind this notice requirement was to "permit a public entity to conduct a prompt investigation of the claim and thereby remedy a dangerous condition, to make adequate fiscal arrangements to meet any potential liability, and to prepare a defense to the claim."(fn3) This statute is a "nonclaim" statute that prohibits the initiation of litigation after a specified time, regardless of disability.(fn4) Thus, a disability in and of itself, such as head injury(fn5) or minority,(fn6) does not serve to toll the running of the governmental notice requirement.

Discovery of injury, however, unlike physical incapacity or...