August 3, 2022 | Dianne Criswell

What seems like a foreign concept is really part of the fabric of state and local governments, including special districts

This article overviews the Colorado Governmental Immunity Act, and a recent Colorado Supreme Court decision, in order to provide information to CSD Pool members; however, this information is not a substitute for legal advice. The CSD Pool encourages its members to work with their own legal counsel on questions related to these topics.

Historical Context of Governmental Immunity

Until the twentieth century, a concept called sovereign immunity protected the federal, state, and local governments, and their employees, from lawsuits, particularly suits based in tort. The historic background of sovereign immunity in the United States comes from the British common law legal system, in which no suit was allowed against the monarch or state (sovereign).

Torts are a kind of legal claim for injuries or damages stemming from another’s wrongful actions. Negligence, for example, is a well-known type of tort. Torts are different from contract-based claims, where the duties of the parties to one another, and remedies if those promises are broken, are included in the agreement.

During the twentieth century, the federal and state governments began to replace common law sovereign immunity with statutory immunity allowing some types of tort suits to proceed against the government. In our state, the Colorado Governmental Immunity Act (CGIA), Article 10 of Title 24 of the Colorado Revised Statutes (C.R.S.), replaced sovereign immunity when the statutes became law in 1972.

Limiting Governmental Liability & the CGIA

The General Assembly included a legislative intent section for the CGIA, C.R.S. § 24-10-102, which explains the balance between governmental resources and recourse for injuries. The following are the purposes articulated for providing governmental entities immunity from tort suits, and an explanation of the reasons that exceptions from governmental immunity were also adopted:

• Common law sovereign immunity from all suits for injuries to private persons by the government is not fair/equitable.
• State and local governments provide essential public services and functions; allowing unlimited liability for these services and functions could disrupt or make prohibitively expensive the provision of such essential public services and functions.
• If the liability for public entities was not limited, to some degree, the taxpayers would ultimately bear the fiscal burdens of unlimited liability and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens.
• Public employees, whether elected or appointed, should be provided with protection from unlimited liability so that such public employees are not discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law.

The CGIA limits the circumstances under which a public entity may be held responsible in tort actions and liable for damages. Implementing the CGIA is intertwined with the regular work of government, because public entities, like special districts, are managing resources and risks every day.

1st Limitation: the tort claim must fit into 1 of 7 waivers of CGIA to proceed

Under the CGIA, the default is that public entities are immune from tort liability. However, the CGIA waives governmental immunity for injuries or damage resulting from wrongful actions by local government public entities in the following seven (7) contexts:

1. The operation of a publicly owned or leased motor vehicle, except emergency vehicles;
2. The operation of any public hospital, correctional facility or jail;
3. A dangerous condition of any public building;
4. A dangerous condition of a public highway, road, street or sidewalk;
5. A dangerous condition of any public facility located in any park or recreation area or any public water, gas, sanitation, electrical, power, or swimming facility; and
6. The operation and maintenance by a public entity of any public water, gas, sanitation, electrical, power or swimming facility.
7. Taking effect on January 1, 2022, an action brought pursuant to Part 12 of Article 20 of Title 13 (Civil Action for Sexual Misconduct Against a Minor), whether the conduct alleged occurred before, on, or after January 1, 2022.

A plaintiff bringing suit in Colorado state courts to recover damages from injuries from an alleged tortious action by a government must first prove that one of these seven CGIA waivers applies, thus no governmental immunity bars the suit from moving forward and the court has jurisdiction to proceed to take the matter to trial.

If the trial court needs to hear evidence to understand the facts on this initial, jurisdictional question, there is a limited evidentiary hearing, called a Trinity hearing after a 1993 case.

Recent example of this 1st Limitation, CGIA waivers: Maphis v. City of Boulder

The inquiry on whether a CGIA waiver applies is a mixed question of law and fact. A “mixed question of law and fact” means that a court will look both to the letter of the law (and previous published court decisions) and will consider the parties’ presentation of specific facts in that legal context.

A recent case decided by the Colorado Supreme Court, Maphis v. City of Boulder, 504 P.3d 287 (Colo. 2002), is a good example of how different facts leading to an injury may or may not support the conclusion that the government bears responsibility.

In that case, the plaintiff was injured when she tripped over a two-and-a-half-inch sidewalk deviation, sustaining two fractured elbows along with other injuries. The plaintiff sued the City for damages, arguing that the sidewalk constituted an unreasonably dangerous condition for which governmental immunity was waived, because the sidewalk was not fixed nor was there any warning of the deviation.

As background, the City had a program to identify sidewalks for repairs, including taking citizen complaints about sidewalks. In 2015, the entire zone surrounding the sidewalk was reviewed by an engineering consultant, and no repairs were indicated. Further, the City had not received any complaints or reports about the condition of this sidewalk. However, a City engineering technician marked the sidewalk for repair on a field visit shortly before the plaintiff’s injuries.

Courts determining the facts and law, or reviewing earlier court decisions in this case, came to different conclusions. The trial court concluded that the sidewalk was a dangerous condition for which immunity was waived because the deviation constituted an unreasonable risk of harm to the health and safety to the public.

Court of Appeals, reviewing the decision, disagreed with the trial court, looking instead to the absence of complaints, that no repairs were indicated in the professional survey in 2015, and that there are a lot of uneven sidewalks in the City. On the final appeal to the Colorado Supreme Court, the court noted that the condition of the sidewalk met the City’s standard for being a hazard and was scheduled for repair. Nevertheless, the Colorado Supreme Court continued to look to the facts in the record to determine, under the law, if they met the legal criteria for the “dangerous condition’ waiver.

In its analysis, the Colorado Supreme Court looked at the degree of risk (considering that uneven sidewalks are common in Colorado, the sidewalk was located in a residential area, and there were no citizen reports on the condition of the sidewalk) along with the totality of the circumstances, which included that the City cannot fix every sidewalk due to budgetary and other limitations.

After its review, the majority of the Colorado Supreme Court agreed with the Court of Appeals that the plaintiff did not show that the sidewalk was an unreasonable risk, and therefore that the “dangerous condition” waiver of governmental immunity did not apply and that the suit against the City could not proceed. All the same, three Colorado Supreme Court justices dissented.

Colorado’s courts have interpreted the above CGIA waivers to different fact patterns and claims, except for the seventh which became law in 2021.

As demonstrated from the Maphis v. Boulder case, the facts of each case may be the key to understanding how a court may rule on a CGIA waiver. This case-by-case determination makes it important to confer with legal counsel if your district is making operational or coverage decisions based on the protections or waivers of the CGIA.

2nd Limitation: 182-day notice of claim

The CGIA requires a person claiming to have suffered an injury by a public entity to file a written notice within 182 days after discovering the injury, including: the claimant’s name and address (and, if represented, his/her attorney’s name and address); a statement of the factual basis of the claim, including date, time, place and circumstances of the act, omission, or event; the name and address of any public employee involved, if known; and, a statement of the amount of monetary damages being requested. C.R.S. § 24-10-109.

Colorado courts have not strictly applied these provisions to invalidate a notice, but timely notice is required. Please note that the seventh waiver that applies to local government public entities for sexual misconduct against a minor does not require the 182-day notice.

3rd Limitation: CGIA caps on damages

The CGIA also includes maximum liability limits for public entities. Therefore, even for those tort actions where a public entity may be held responsible under one of the seven (7) statutory waivers, liability is limited by the CGIA to a maximum of $424,000 for injury to one person in any single occurrence and $1,195,000 for injury to multiple persons in a single occurrence, except that no one person shall recover in excess of $424,000 (for claims accruing on or after January 1, 2022 and before January 1, 2026).

These limits are adjusted for inflation every 4 years, C.R.S. § 24-10-114. The Secretary of State’s Office posts the adjustments to these limits in a certificate available at: sos.state.co.us/pubs/info_center/certificates.html.

Other Types of Wrongful Acts

Please note that there are other types of wrongful acts for which a public entity may be held responsible to which the CGIA does not apply. These include the following:

• Federal Actions: Suits or claims against public entities that are grounded in federal law, including claims for violations of a person’s civil rights, and violations environmental, antitrust, securities, and labor and wage laws (again, based in federal law) are outside of the protections of the CGIA.
• Contract Claims: Responsibility for any claims arising out of an agreement or contractual dispute are outside of the CGIA. The responsibilities and remedies from such disputes should be addressed within the agreement itself.
• Criminal Actions: The CGIA does not create any governmental immunity from claims for injury or damage from a public entity’s criminal actions, such as: entering into a prohibited transaction; failing to disclose conflicts of interest; misuse of official information; malfeasance; or issuing a false certificate or document.

Governmental immunity exists to preserve the balance between the role (and resources) of government with the need to provide redress for some types of injury or damage from governmental torts. The CGIA was carefully crafted, and will hopefully be maintained going forward, to promote this balance.

If your district has questions about the CGIA, reach out to your colleagues – the Pool Administrator, your broker, or your district’s legal.