Interpreting the Colorado Governmental Immunity Act

• Publication year: 1997
• Pages: 77

26 Colo.Law. 77 Colorado Lawyer 1997.

1997, February, Pg. 77. Interpreting the Colorado Governmental Immunity Act

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77

Vol. 26, No. 2, Pg. 77

The Colorado Lawyer
February 1997
Vol. 26, No. 2 [Page 77]

Specialty Law Columns
Tort and Insurance Law Reporter
Interpreting the Colorado Governmental Immunity Act
by Anne Whalen Gill

Column Ed.: William P. Godsman of Salmon, Godsman &amp Nicholson, P.C., Englewood - (303) 771-9900

This article was written by Anne Whalen Gill, Denver, a staff attorney with the Colorado Court of Appeals, (303) 837-3736

This article discusses the Colorado Governmental Immunity Act. It begins with an overview of the Act and continues with a discussion of the scope of the Act; the six types of claims for which immunity should be waived; procedure and notice under the Act; actions against public employees; federal law claims; and current issues

Overview of the Act And Its Origins

The Colorado General Assembly, in 1967, appointed a committee to study the problem of governmental civil immunity "with a view toward developing comprehensive legislation to define and limit the areas of immunity."1 The committee reviewed existing Colorado law in relation to the developing nationwide trend to criticize the doctrine of immunity as "neither logical nor practical."2 Although the committee assessed seven different approaches that could be taken, it reported that then-Chief Justice Pringle had addressed the first meeting of the committee, stating that the majority of the Supreme Court favored legislative action rather than court action to change the doctrine in Colorado.

The court's position was based on the legislative acquiescence in the doctrine and the belief that any change should be the responsibility of the legislature. A minority of the court thought that the judiciary should address the issue because the doctrine came into existence judicially rather than legislatively.3

Concluding that some legislation was needed, the committee initially determined to propose legislation modeled on the California immunity act. After discussion of its complexities and comprehensiveness, the committee decided that it was not an appropriate model for Colorado. Instead, it proposed a bill based on Utah's immunity act, which affirmed the existence of governmental immunity with specific exceptions set out in detail.4 Because the proposed bill became the foundation of the present-day law, the committee's policy statements still provide an excellent starting point for interpreting the immunity act.

In spite of the detailed report and proposed bill, the General Assembly did not act until the Supreme Court decided the 1971 case of Evans v. Board of County Commissioners, which prospectively abolished the doctrine of sovereign immunity while inviting the General Assembly to restore immunity in whole or in part.5 Then, the General Assembly adopted the Colorado Governmental Immunity Act ("Act"), a statutory scheme under which tort claimants could seek recovery against public entities only in specified situations.6 The Act was significantly amended in 1986 and 1992.7 During this time, the Act has withstood several constitutional challenges.8

The committee agreed that it should be the policy of the Act not to narrow the common law on liability nor to expand the present law of immunity.9 This policy has been achieved, as the Supreme Court has held that grants of immunity are to be strictly construed and that exceptions to immunity must be narrowly construed to avoid exposing governmental entities to liability not specifically provided for in the Act.10

Scope of the Act

The Act establishes governmental immunity in all actions against a public entity that lie in tort or could lie in tort, regardless of the type of action or the form of relief chosen by the claimant, except for six listed categories of activity.11 Thus, the critical question is the proper characterization of the claim against the governmental entity.12

Continuing to apply the underlying policy of the Act, the Supreme Court has held that whether other statutes creating governmental duties may create a waiver of governmental immunity depends on whether the waiver is express.13

Public employees are also immune from tort liability, except for the same six categories of activity, for injuries caused by their actions or omissions within the scope of their employment, unless their conduct was willful and wanton.14 However, an employee's immunity may be a defense rather than a jurisdictional bar to a claim.15

The Six Categories

The Legislative Council's report discusses the types of claims for which immunity should be waived, and the policy reasons for waiver, as (1) automobile accidents; (2) negligent operation of hospitals and jails; (3) dangerous conditions of public buildings; (4) negligent construction, operation, or maintenance of public road; (5) dangerous conditions in public parks and recreational facilities; and (6) water, sewer, trash, and other proprietary activities.16 These policies have been adopted in CRS § 24-10-106.

CRS § 24-10-106(1)(a) waives immunity for injuries caused by the operation of government motor vehicles by public employees, except emergency vehicles within the provisions of CRS § 42-4-108(2) and (3). Litigation has focused on two aspects of this provision: whether the equipment qualifies as a "motor vehicle,"17 and the applicability of § 42-4-108(2) and (3).18

CRS § 24-10-106(1)(b) waives immunity for injuries from the operation of any public hospital, correctional facility, or jail by a public entity.19 A "public" hospital may include one serving a restricted portion of the public.20

CRS § 24-10-106(1)(c) waives immunity for injuries caused by the dangerous condition, as defined in CRS § 24-10-103 (1), of any public building.21 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.22

CRS § 24-10-106(1)(d) waives immunity for injuries caused by the dangerous condition of a public highway, road, or street or a municipal sidewalk.23 Immunity has not been waived for dangerous conditions of county roads.24 "Dangerous condition" does not include negligent design;25 immunity is not waived for traffic signs, signals, and markings or their lack.26 The presence of snow, ice, sand, and gravel may constitute a dangerous condition in certain conditions, but only snow or ice may create a...