Chapter 14 - § 14.8 • CLAIMS AGAINST A GOVERNMENTAL ENTITY

• Jurisdiction: Colorado

§ 14.8 • CLAIMS AGAINST A GOVERNMENTAL ENTITY

New homes frequently suffer damage traceable to the acts and omissions of a governmental entity. Landslides, subsidence, flooding, and wildfires due to government entity road excavation, water and sewer line construction and maintenance, rock blasting, damming of rivers and streams, controlled burns, and similar actions may damage homes. Finding a basis upon which to successfully sue a responsible governmental entity or official is difficult.

Though the origin of sovereign immunity is obscure, the doctrine, as we know it, developed in England and was based upon the historical fiction that the king could do no wrong and was thus free from legal accountability.¹⁸⁴⁸ The doctrine of sovereign immunity became deeply embedded in the English common law and, subsequently, through judicial recognition and reiteration, became a familiar axiom in American jurisprudence.¹⁸⁴⁹ The Colorado Supreme Court prospectively abrogated the doctrine of sovereign immunity in 1971.¹⁸⁵⁰

§ 14.8.1-Sovereign Immunity and the Governmental Immunity Act

In response to the abrogation of sovereign immunity, Colorado's legislature adopted the Colorado Governmental Immunity Act (CGIA), which reinstated government immunity from tort claims, with certain statutory exceptions.¹⁸⁵¹ The CGIA has been regularly amended in response to decisions limiting its immunity provisions or broadening its immunity waivers. Colorado courts narrowly construe the CGIA's immunity provisions.¹⁸⁵² The Act presents many obstacles to the practitioner whose client's home has been damaged due to a governmental entity's conduct. However, as discussed in § 14.8.2, "Waiver of Immunity," where the CGIA waives immunity, liability may be imposed up to the statutory limits.

§ 14.8.2-Waiver of Immunity

Under the CGIA, governmental entities are immune from suit for all claims in tort, or that could be brought in tort, except for prescribed circumstances in which this immunity is waived.¹⁸⁵³ Where immunity is waived, required statutory notices of claim must be served on specified persons within a prescribed period (currently, 182 days) as a jurisdictional prerequisite to bringing suit,¹⁸⁵⁴ and the amount of recovery is limited.¹⁸⁵⁵ Because governmental entities are immune from both liability and suit, improperly asserted claims are subject to dismissal by the court for lack of subject matter jurisdiction.¹⁸⁵⁶ If dismissed, the party who brought suit may be liable for the governmental entity's attorney fees.¹⁸⁵⁷

Assuming some other common law immunity does not apply, government officials and employees are personally liable for their willful and wanton tortious conduct or conduct outside the scope of their duties or employment.¹⁸⁵⁸ Government officials or employees will be immune if either the CGIA's immunity provisions apply or if proper notice of the alleged injury is not given.¹⁸⁵⁹ Where a government employee acts willfully and wantonly, the statutory immunities and liability limitations are inapplicable, but the requisite notice of claim still is required.¹⁸⁶⁰ Public employees may be liable for punitive or exemplary damages arising out of an act or omission occurring during the performance of their duties and within the scope of their employment only where they acted willfully and wantonly.¹⁸⁶¹ A government entity must indemnify its officials or employees for their litigation defense costs unless the finder of fact determines: (1) that the employee was acting outside the scope of his or her employment when the claimed injury occurred, or (2) that the employee acted willfully and wantonly.¹⁸⁶² A government entity may, but need not, elect to defend its employees or officials against claims for punitive damages or pay or settle claims arising from its employees' or officials' willful and wanton conduct.¹⁸⁶³

In Smokebrush Foundation v. City of Colorado Springs, the Colorado Supreme Court held that the CGIA barred an adjacent property owner's claims for injuries resulting from airborne asbestos released during demolition of the city's property.¹⁸⁶⁴ The court found C.R.S. § 24-10-106(1)(c)'s exception for dangerous conditions in public buildings did not apply because the exception only applies to risks caused by "constructing or maintaining," not demolishing, public facilities.¹⁸⁶⁵

§ 14.8.3-Scope of the Act

The CGIA may bar claims for damages at law for an entity's torts, including negligence, trespass, and nuisance, depending on the circumstances.¹⁸⁶⁶ Equitable claims for injunctive relief premised on the same facts are probably also barred by the CGIA.¹⁸⁶⁷ Breach of contract and promissory estoppel claims, and claims under the Colorado Constitution, Colorado's eminent domain laws, and the U.S. Constitution and federal law are not subject to the CGIA.¹⁸⁶⁸

§ 14.8.4-Inverse Condemnation

Inverse condemnation, as its name suggests, is the mirror image of eminent domain. The doctrine applies when a governmental entity with the power of eminent domain has "taken" private property for public or private use, without compensation, but refuses to exercise its eminent domain power.¹⁸⁶⁹

Because claims for inverse condemnation under eminent domain laws are not subject to the CGIA, this doctrine may provide relief to homeowners whose property is "taken" or "damaged" by government action.¹⁸⁷⁰ To exercise eminent domain, a governmental or public entity must have eminent domain power, must intend to use the property taken for a proper public purpose, and must pay the owner just compensation for the property after providing due process of law.¹⁸⁷¹

"An action for inverse condemnation is allowed where a governmental or public entity with the power of eminent domain takes action that 'substantially depriv[es] the property owner of the use and enjoyment ofthe property, but the [entity] has not formally brought condemnation proceedings.'"¹⁸⁷² A "taking can be effected by a legal interference with the physical use, possession, enjoyment, or disposition of property, or by acts which translate to an exercise of dominion and control by a governmental entity."¹⁸⁷³

To recover on an inverse condemnation claim alleging that property has been "damaged," a plaintiff must establish, (1) there has been a taking of or damage to a property interest; (2) for a public purpose without just compensation; (3) by a governmental or public entity possessing the power of eminent domain that has refused to exercise it.¹⁸⁷⁴ To establish the damage element, the plaintiff must prove that he or she has suffered a unique or special injury different in kind from any injury suffered by the general public as a result of the damage.¹⁸⁷⁵

Inverse condemnation proceedings are appropriate where the underlying activity warrants condemnation pursuant to the entity's eminent domain power.¹⁸⁷⁶ The saturation of land by surface water flooding or by groundwater, under the proper circumstances, can constitute a compensable "taking" of property.¹⁸⁷⁷ A taking of property occurs when the entity clothed with eminent domain power substantially deprives a property owner of the use and enjoyment of his or her property.¹⁸⁷⁸ A taking can also be effected by "a legal interference with the physical use, possession, enjoyment, or disposition of the property, or by acts . . . of dominion and control by a governmental entity."¹⁸⁷⁹ In theory, a taking can occur if an owner is required to forego an economically beneficial use of his or her property, although Colorado's appellate courts have set the bar high for such recovery.¹⁸⁸⁰

"For a governmental action to result in a taking, the consequence of the action that is alleged to be a taking must be at least a direct, natural, or probable result of that action."¹⁸⁸¹ "Therefore, the taking must be a reasonably foreseeable consequence of an authorized action."¹⁸⁸² "[T]he government must have the intent to take the property or to do an act that has the natural consequence of taking the property."¹⁸⁸³

Water leaking from a public entity's underground water lines, damaging a private structure, does not effect a compensable taking because the leakage is not a direct, natural, or probable result of building and...