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CAN I SUE THE COLORADO STATE/LOCAL GOVERNMENT?

Exploring the Boundaries of Colorado Governmental Immunity Under the CGIA

WHAT IS COLORADO GOVERNMENTAL IMMUNITY?

Suing the state/local government has been a historically difficult task in Colorado. This is because, prior to 1972, the common law doctrine of sovereign immunity shielded federal, state, and local governments from lawsuits, particularly those sounding in tort.[1] In 1972, though, Colorado enacted the Colorado Governmental Immunity Act (CGIA), which automatically replaced the common law immunity rules and, to this day, allows some types of tort suits to proceed against the state.[2] This practice area page explains the dynamics behind suing the Colorado government, and the boundaries for doing so pursuant to the CGIA. For more information, give us a call at 720-770-3457 or complete a consultation request form.

WHEN YOU CANNOT SUE – PROTECTIONS UNDER THE CGIA

The CGIA, at base level, immunizes public entities in the state from tort liability. The Colorado General Assembly states several purposes behind providing such immunity within the Act, including:

1. That the state “provide[s] essential public services and functions and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions;”[3]
2. That 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;”[4] and
3. That “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.”[5]

WHEN YOU CAN SUE – GOVERNMENTAL LIABILITY UNDER THE CGIA

The CGIA explicitly mentions ten situations where immunity under the Act is waived and a lawsuit is allowed to proceed. Immunity is waived by a public entity in an action for injuries resulting from:[6]

1. The operation, of a vehicle owned or leased by a public entity, by a public employee while in the course of employment (excepting 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, or street; a dangerous condition caused by the failure to realign a stop sign or yield sign; or a dangerous condition caused by an accumulation of snow and ice which interferes with public access and movement;
5. A dangerous condition of any public hospital, jail, public facility located in any park maintained by the public entity, or public water, gas, sanitation, electrical, power, or swimming facility;
6. The operation and maintenance of any public water facility, sanitation facility, electrical facility, power facility, or swimming facility;
7. The operation and maintenance of a qualified state capital asset that is the subject of a leveraged leasing agreement; and
8. The failure to perform an education employment required background check.

A few examples of claims that were allowed to proceed against a Colorado public entity under waiver include:

• The alleged negligent failure of an RTD bus driver to ensure that passengers board and disembark safely;[7]
• The alleged failure to provide a secure area within a prison for visitation of inmates;[8]
• Where the public entity constructs a public building through the services of an independent contractor and a dangerous condition arises through that construction;[9]
• Injuries resulting from a dry erase board that fell on a public school student and pinned her to a desk;[10]
• Injuries to an elementary school student as a result of unpadded gymnasium walls;[11] and
• Where accumulated ice covered a majority of the sidewalk leading to a public school on the night of a winter class, and one of the students of that class was injured because traversing the dimly-lit, icy walkway was the only means to get to the school’s entrance.[12]

IMPORTANT DEFINITIONS IN THE CGIA

Understanding the particular definitions of terms used within the waiver statute is imperative to evaluating whether a particular tort claim against a Colorado governmental entity falls under one of its exceptions.

First, the term “public entity” encompasses all of the following:[13]

• The state;
• The judicial department of the state;
• Any county;
• Any city and county;
• Any municipality;
• Any school district;
• Any special improvement district; and
• Every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law.

The statutory definition clearly intended to cover any and all possible divisions and subdivisions of the state, so take care to check that the entity you are contemplating suing either does or does not constitute a “public entity.”

While the state is listed as a public entity, the term “state” does not include “the judicial department, a county, municipality, city and county, school district, special district, or any other kind of district, instrumentality, political subdivision, or public corporation organized pursuant to law.”[14] Rather, it means:[15]

• The government of the state;
• Every executive department, board, commission, committee, bureau, and office; and
• Every state institution of higher education, whether established by the state constitution or by law, and every governing board thereof.

An important aspect of governmental immunity in Colorado pertains to protection of public entities from liability for the acts of its employees. A “public employee” is “an officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed, but does not include an independent contractor or any person who is sentenced to participate in any type of useful public service,”[16] and one is able to sue a public entity for acts of its public employees only if a waiver applies.

Beyond identifying the individuals and entities that it protects, the CGIA also defines the terms “dangerous condition,” “injury,” and “maintenance,” in order to clarify the language within the waiver statute.

A “dangerous condition” is:

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.[17]

Importantly, the “mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition.”[18]

Next, an “injury” is defined as “death, injury to a person, damage to or loss of property, of whatsoever kind,” resulting in a tort action.[19]

Finally, “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.[20]

Importantly, maintenance does not include any potential duty to “upgrade, modernize, modify, or improve the design or construction of a facility.”[21]

WHERE THE CGIA DOES NOT APPLY

There are three main categories of liability that exist outside of the CGIA:

1. Federal lawsuits are outside of the protections of the CGIA – this includes actions against public entities that are grounded in federal law (i.e., violations of civil rights, other constitutional claims, or violations of federal environmental law).
2. Criminal actions are not protected under the CGIA – there is no 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.”[22]
3. Finally, disputes arising from a contract or agreement with the government are not protected by the CGIA – rather, the duties and remedies upon a breach “should be addressed within the agreement itself.”[23]

Suing the Colorado government can be difficult to navigate due to the restrictions of the CGIA. At Volpe Law, our attorneys are ready to help you with your potential case: give us a call at 720-770-3457 or complete a consultation request form for more information on how we can help!

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.  Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.