Sovereign Immunity in Colorado: A Look at the CGIA, 0417 COBJ, Vol. 46 No. 4 Pg. 49
| Author | Anthony Viorst, J. |
Tort and Insurance Law
Anthony Viorst, J.
This article analyzes the Colorado Governmental Immunity Act, which provides immunity to government entities and their employees in certain personal injury cases.
The
Colorado Governmental Immunity Act (CGIA), CRS §§
24-10-101 et seq, grants immunity to government entities and
their employees in many types of personal injury cases, and
limits recoverable damages in others. By the General
Assembly’s own admission, the denial or reduction of
monetary compensation available to injured victims can yield
“inequitable” results.
This article analyzes various provisions of the CGIA.
CGIA Application
Because the CGIA is in derogation of Colorado’s common law, the CGIA provisions that grant immunity must be strictly construed, and the provisions that withhold immunity must be construed broadly.4
The CGIA applies to all actions that “lie in tort or could lie in tort,”5 but does not apply to actions grounded in contract.6 Neither the form of the claim itself nor the relief requested determines whether the claim is one that lies or could lie in tort.7 Rather, the inquiry focuses on the nature of the injury, the relief sought, and the source of the government’s liability.[8] On numerous occasions, Colorado appellate courts have found that purported contract claims were, in fact, tort claims that were subject to the immunity provisions of the CGIA.9
The CGIA applies only to acts or omissions that have already occurred and does not apply to claims for prospective relief to prevent future injury.10
Government employees, like government entities, enjoy the CRS § 24-10-106(1) immunity limitations.11 When immunity is waived, government entities are statutorily obligated to pay any judgment obtained against an employee, where the grounds for employee liability are based on negligent acts committed within the course and scope of employment.[12] Government employees may also be held individually liable for tortious misconduct that is willful and wanton[13]
CGIA Definitions
The CGIA specifically defines certain terms differently from their common definitions. These definitions may impact the determination of whether the government entity is immune from suit. For example:
• “Dangerous condition” means either a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity or public employee in constructing or maintaining such facility. For the purposes of this subsection (1.3), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate. The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition14
• “Injury” means death, injury to a person, damage to or loss of property, of whatsoever kind, which, if inflicted by a private person, would lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant.[15]
• “Maintenance” means the act or omission of a public entity or public employee in keeping a facility in the same general state of repair or efficiency as initially constructed or in preserving a facility from decline or failure. It does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.16
• “Operation” means the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public hospital, jail, or public water, gas, sanitation, power, or swimming facility. It excludes “any duty to upgrade, modernize, modify, or improve the design or construction of a facility”17
CRS § 24-10-106 Immunity Waivers
CRS § 24-10-106(1) provides that “[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort, . . . except as provided otherwise in this section” CRS §§ 24-10-106(1 )(a) through (i) provide for waiver of sovereign immunity in nine situations:18
1. when a motor vehicle that is owned or leased by a public entity is operated by a public employee while in the course of employment, except emergency vehicles operating under CRS §§ 42-4-108(2) and (3);
2. for the operation of a public hospital, correctional facility, or jail by a public entity;
3. when a dangerous condition exists in a public building;
4. when a dangerous condition exists on a public highway, road, or street that physically interferes with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within a municipality’s corporate limits, or other specified highway. Dangerous conditions include certain situations involving the accumulation of snow, ice, sand, or gravel, and specified conditions regarding traffic signs and traffic control signals;
5. when a dangerous condition exists in a public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility. But a public entity may assert sovereign immunity for an injury caused by the natural condition of unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way.
6. for the operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by a public entity;
7. for the operation and maintenance of a qualified state capital asset that is the subject of a leveraged leasing agreement under CRS Art. 82 Part 10;
8. for failure to perform a required CRS § 13-80-103.9 education employment background check; and[19]
9. for an action brought under CRS § 13-21-128.20
These waiver provisions are not mutually exclusive, but provide alternative avenues for exposing a public entity to liability, and more than one waiver provision may be triggered by a given factual scenario.21
CRS §§ 24-10-106(1)(a) through (f) are analyzed in detail below.
CRS § 24-10-106(1)(a): Operation of a motor vehicle that is owned or leased by a public entity by a public employee while in the course of employment, except emergency vehicles
The terms “operation,” “motor vehicle,” “public employee,” “owned or leased,” and “emergency vehicles” under CRS § 24-10-106(1)(a) have been construed by courts.
The Colorado Court of Appeals held that the CGIA’s definition of “operation” does not apply to a motor vehicle, and that the alleged negligent failure of an RTD bus driver to ensure that passengers board and disembark safely is included in the waiver of immunity under CRS § 24-10-106(1)(a).22 Likewise, negligently stopping to discharge a passenger at an improper place is part of the “operation” of a bus for which immunity has been waived by the CGIA.23 Immunity is also waived when a deputy sheriff fails to secure handcuffed juveniles with seatbelts.24
However, the waiver of immunity does not apply to a driver’s negligent supervision of students on a school bus.25 Nor does it apply to a public entity’s negligent supervision of a bus driver.26
The CGIA explicitly states that the definition of “motor vehicle” in the Uniform Motor Vehicle Law, CRS § 42-1-102(58), applies to the CGIA, and the term also includes a light rail car.27 Under the Uniform Motor Vehicle Law, a “motor vehicle” is a self-propelled vehicle designed primarily for travel on public highways that is generally used to transport persons and property over public highways, or a low-speed electric vehicle; the term does not include “low-power scooters, wheelchairs, or vehicles moved solely by human power.”28
The term “motor vehicle” has been construed to include a snow plow,29 but not a street sweeper.30
The Colorado Supreme Court has held that an independent contractor employed by a private company and driving a bus for RTD is not a public employee, and thus there are no immunity issues surrounding negligent acts committed by such a person.31
Both the government entity and the individual public employee have immunity when an accident is caused by a public employee driving a private vehicle that is not owned or leased by a public entity.32
Under CRS § 42-4-108 the drivers of emergency vehicles are entitled to certain privileges and are thus immune from suit “when responding to an emergency call, or when in pursuit of an actual or suspected violator of the law...
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