Chapter 42 - § 42.4 • DEFENSES

• Jurisdiction: Colorado

§ 42.4 • DEFENSES

There are a number of defenses that may be asserted in response to a trespass claim. The defenses listed here are not exhaustive; there are many "general" defenses, such as statutory non-party at fault, which may also be applicable to a trespass claim but fall beyond the scope of this chapter. The following defenses, rather, are more specific to the tort of trespass.

§ 42.4.1—Consent

Given that a lack of proper permission to enter is an element of the tort of trespass, it will come as no surprise that the existence of consent from the plaintiff to enter the property is an affirmative defense to the claim.⁴⁹ The defendant can meet its burden of proof for this defense by showing that "[b]y words or conduct or both, the plaintiff led the defendant to reasonably believe that the plaintiff consented" to the defendant's or a third person's entry upon the property, so long as the entry was "the same or substantially similar to the manner [of entry] consented to by the plaintiff."⁵⁰

Similarly, the defendant could assert as a defense that it had a privilege or license to enter.⁵¹

§ 42.4.2—Colorado Fence Law

By statute, a person may not sue a livestock owner for trespass damages to grass, garden or vegetable products, or other crops unless the plaintiff had protected the grass, garden or vegetable products, or other crops with a lawful fence.⁵² The fence law has multiple complexities and exceptions through a well-developed body of case law dating to the nineteenth century.⁵³ In the case of trespass on federal lands, the fence law may be preempted by federal law.⁵⁴

§ 42.4.3—Governmental Immunity

Except for specified categories of governmental activity, the Colorado Governmental Immunity Act (CGIA) grants public entities and public employees immunity from claims for injury that lie in tort or could lie in tort, regardless of the type of action or the form of relief chosen by the claimant.⁵⁵ One section of the CGIA proscribes "absolute or strict liability claims" against public water or sanitation facilities.⁵⁶ On two occasions, the Colorado Court of Appeals has held that this section precludes trespass claims against such facilities.⁵⁷

§ 42.4.4—Statute of Limitations

The statute of limitations for trespass is two years after the cause of action accrues.⁵⁸ In the case of a continuing intrusion, the claim does not finally accrue for statute of limitations purposes until the tortious intrusion has ceased.⁵⁹ A property invasion will be deemed a...