Chapter 8 - § 8.2 • WAIVER OF IMMUNITY

• Jurisdiction: Colorado

§ 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.⁶ 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,⁷ and the amount of recovery is limited.⁸ 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.⁹ If dismissed, the party who brought suit may be liable for the governmental entity's attorney fees.¹⁰

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.¹¹ 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.¹² 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.¹³ 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.¹⁴ 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.¹⁵ 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.¹⁶

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.¹⁷ 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...