Recent Developments in Governmental Immunity: Post-trinity Broadcasting
| Publication year | 1996 |
| Pages | 43 |
| Citation | Vol. 25 No. 6 Pg. 43 |
1996, June, Pg. 43. Recent Developments in Governmental Immunity: Post-Trinity Broadcasting
In the spring of 1993, the Colorado Supreme Court's decision in Trinity Broadcasting of Denver v. City of Westminster(fn1) significantly altered both the procedural and substantive aspects by which issues of governmental immunity are decided in the Colorado courts. Prior to Trinity Broadcasting, if there existed a disputed issue of material fact, this was generally sufficient to preclude dismissal of the claim. Trinity Broadcasting, however, expands the role of the trial court and specifically provides for dismissal of many claims pursuant to the terms of the Colorado Governmental Immunity Act ("GIA"),(fn2) even though there exist disputed issues of fact.
Since the Trinity Broadcasting opinion, a line of cases has followed from both the Colorado Supreme Court and the Court of Appeals. This article highlights these recent cases, which expand on Trinity Broadcasting and provide some assistance to practitioners in this field of law.
Trinity Broadcasting involved a factual dispute regarding a claimant's compliance with the 180-day notice provisions of the GIA. In remanding the matter to the trial court, the Supreme Court ruled that the 180-day notice period was a jurisdictional prerequisite for bringing claims against a government entity. The court also ruled that contested issues of fact concerning whether notice is provided are issues to be determined by the court, not the jury.(fn3) The Supreme Court further established that trial courts are to consider disputed notice issues under the procedures for motions to dismiss for lack of subject matter jurisdiction, Colorado Rules of Civil Procedure ("C.R.C.P.") 12(b)(1).(fn4)
Under this standard, the trial court, as the trier of fact, determines whether there has been compliance with the notice requirements and is entitled to the deferential "clearly erroneous" standard of appellate review.(fn5) This standard is far less stringent than the standard for summary judgment and allows the trial court to receive and hear evidence, then issue its findings even when based on disputed issues of fact(fn6)
The holding in Trinity Broadcasting discussed the 180-day notice requirements of the GIA. Subsequent cases have expanded the Trinity Broadcasting decision to apply to other aspects of the GIA, particularly the specific waivers of governmental immunity found at CRS § 24-10-106. As a general matter, under the GIA a government entity and its employees are subject to liability in tort only when sovereign immunity is specifically waived. Cases that have followed Trinity Broadcasting discuss the procedural and substantive standards by which disputed issues of fact for these waivers of immunity are determined. These cases provide that when specific issues of governmental immunity are raised, the standards of Trinity Broadcasting must be applied.
The standard of review for deciding the immunity issues under the GIA was challenged in Fogg v. Macaluso.(fn7) In Fogg, the Supreme Court addressed the question of whether a motion to dismiss on grounds of immunity under the GIA must be treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P.12(b)(1), or as a motion to dismiss for failure to state a claim under C.R.C.P. 12(b) (5).(fn8) In Fogg, the claimant took the position that the assertion of immunity under the GIA is a substantive claim and, as a result, a trial court should address the motion to dismiss on grounds of immunity under C.R.C.P. 12(5) and treat all facts alleged by the nonmoving party as true.(fn9) This standard would allow great latitude to a claimant, avoid the necessity of a pretrial Trinity Broadcasting evidentiary hearing and eventually allow a claimant to present all claims to a jury if a disputed issue of material fact exists.
The Supreme Court held that although there is some difference in language between the notice section of the GIA and the sovereign immunity section, the differences do not compel a different procedural result, as both sections define requirements for subject matter jurisdiction. A trial court is therefore directed to apply the standards of C.R.C.P. 12(b)(1) to claims involving motions to dismiss on grounds of immunity under the GIA.(fn10) If the parties contend that there are disputed issues of fact, the trial court will allow limited discovery on those issues, conduct an evidentiary hearing and sit as the trier of fact.
A number of reported cases since Trinity Broadcasting demonstrate the variety of instances in which claims have been dismissed even when there existed disputed...
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