May 21, 2013

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SB 13-288: Revising the Process by Which the General Assembly Approves Payments to Claimants in Excess of the Limits of the CGIA

May 10, 2013 by Leave a Comment

On Monday, April 29, 2013, Sen. Bill Cadman introduced SB 13-288 – Concerning the Process by Which the General Assembly Approves Recommendations Made by the State Claims Board for an Additional Payment to Claimants that Exceeds the Maximum Liability Under the “Colorado Governmental Immunity Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law authorizes a person with tort claims against the state brought under the “Colorado Governmental Immunity Act” (CGIA) to recover an additional payment against the state where the state claims board (board) compromises or settles a claim on behalf of the state for the maximum liability limits under the CGIA and determines, in its sole discretion, to recommend to the general assembly that the general assembly, by bill, authorize all or any portion of the additional payment.

The bill makes the following modifications to these provisions:

  • The bill clarifies the existing method for exceeding the CGIA limit based on the board recommendation and authorization through a bill.
  • In connection with a recommendation made by the board to make a payment to one or more claimants resulting from a claim of an injury arising out of the lower north fork wildfire in March 2012 that is received by the general assembly while the general assembly is adjourned sine die, upon certification from the department of law that the board process has been satisfied and on or after July 1, 2013, the bill authorizes the office of the state controller to pay one or more additional payments to such claimants from moneys previously appropriated by bill until such specifically appropriated moneys are exhausted or replenished.
  • In connection with any claim arising out of an injury occurring on or after the effective date of the bill that does not arise out of the lower north fork wildfire, where the board has made a recommendation to the general assembly for an additional payment while the general assembly has adjourned sine die, the payment is authorized where all of the members of the joint budget committee have voted to authorize the additional payment; except that the bill prohibits payment from being made until the general assembly has ratified by bill the authorization to make the payment.

The bill was introduced on April 29 and assigned to the Finance Committee. The Finance Committee approved the bill on May 2 and sent it to the Senate consent calendar for consideration on 2nd Reading. On May 3, the Senate approved the bill on 2nd Reading; the bill is now on the 3rd Reading calendar in the Senate.

Since this summary, the bill passed the Senate on Third Reading and was introduced in the House. It was assigned to the State, Veterans, & Military Affairs Committee, which referred it unamended to the House Committee of the Whole. It then passed the House on Second and Third Readings.

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HB 13-1294: Confirming that the State Judicial Department is a Covered Governmental Entity Under the CGIA

April 25, 2013 by Leave a Comment

On April 8, 2013, Rep. Bob Gardner and Sen. Lucia Guzman introduced HB 13-1294 - Concerning a Clarification that the State’s Judicial Department is Included within the Definition of “Public Entity” for Purposes of the “Colorado Governmental Immunity Act.”  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2012, the general assembly enacted legislation that had the inadvertent effect of removing the state’s judicial department from the definition of “public entity” for purposes of the “Colorado Governmental Immunity Act” (CGIA). The bill modifies the definition of “public entity” under the CGIA to clarify that it includes the state’s judicial department.

On April 16, the Judiciary Committee referred the bill to the full House for consideration on 2nd Reading.

Since this summary, the bill passed Second and Third Readings in the House and was introduced in the Senate, where it was assigned to the Judiciary Committee.

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Bills Regarding Employment Law, the Colorado Governmental Immunity Act, and More Signed by Governor

April 24, 2013 by Leave a Comment

On Friday, April 19, 2013, Governor Hickenlooper signed one dozen bills. He has currently signed a total of 137 bills this legislative session. The bills signed Friday include bills relating to employment law, damages under the Colorado Governmental Immunity Act, education law, and more. The bills are summarized here.

  • SB 13-013 - Concerning Peace Officer Authority for Certain Employees of the United States Secret Service, by Sen. Steve King and Rep. Beth McCann. The bill allows certain agents of the U.S. Secret Service to have limited peace officer authority while working in Colorado.
  • SB 13-018 - Concerning the Use of Consumer Credit Information by Employers, by Sen. Jessie Ulibarri and Rep. Randy Fischer. The bill restricts the use of employees’ and applicants’ consumer credit information by employers, and requires employers to allow employees or potential employees to explain any adverse information.
  • SB 13-023 - Concerning an Increase in the Limitation on the Amount of Damages that may be Recovered by an Injured Party under the “Colorado Governmental Immunity Act,” by Sens. Bill Cadman and John Morse and Reps. Claire Levy and Bob Gardner. The bill increases the amount of damages available under the CGIA to reflect inflation adjustments.
  • SB 13-042 - Concerning the Renewal of Distinguished Foreign Teaching Physician Licenses by a Person Ranked Lower than an Associate Professor, by Sen. John Morse and Rep. Mark Waller. The bill allows distinguished foreign physicians who are teaching at state medical schools to renew their licenses if they are at the level of assistant professor or higher.
  • SB 13-058 - Concerning the Verification Requirement for Parking Privileges for Persons with a Permanent Disability, by Sen. Kevin Grantham and Rep. Lois Landgraf. The bill waives the requirement that persons with permanent disabilities must prove their disabilities every three years in order to renew their parking permits.
  • SB 13-071 - Concerning Uniquely Identifying Student Numbers for Persons Enrolled in Adult Education Programs, by Sen. Evie Hudak and Rep. Rhonda Fields. The bill requires that the Educational Data Subcommittee must identify a method for applying a unique student identification number to individuals enrolled in adult education programs.
  • SB 13-139 - Concerning Supplemental On-Line Education Services, by Sen. Ellen Roberts and Rep. Don Coram. The bill designates the authority to contract for online education services to the Board of Cooperative Educational Services.
  • SB 13-184 - Concerning Repeal of the Criminal Penalties for Discrimination in Places of Public Accommodation, by Sens. Pat Steadman and Steve King and Rep. Paul Rosenthal. The bill repeals the criminal penalties for discrimination in public places but leaves in place the civil penalties.
  • SB 13-192 - Concerning the Ability of Government Agencies to Extend the Time Permitted for Action Based on the Results of Fingerprint-Based Criminal History Record Checks, by Sen. Rollie Heath and Rep. Max Tyler. The bill extends the amount of time government agencies may have before acting on the results of criminal background checks.
  • HB 13-1039 - Concerning Additional Sources of Moneys to be Credited to the Legislative Department Cash Fund, by Rep. Lois Court and Sen. Nancy Todd. The bill allows certain moneys collected to be allocated to the legislative department cash fund.
  • HB 13-1208 - Concerning Creative Districts and Authorizing the Creative Industries Division of the Colorado Office of Economic Development to Offer Incentives in the Form of Need-Based Funding for Infrastructure Development in State-Certified Creative Districts and to Provide Such Funding from any Moneys Appropriated to the Creative Industries Cash Fund for that Purpose, by Rep. Crisanta Duran and Sen. Linda Newell. The bill allows the Creative Industries Division in the Office of Economic Development to spend money to develop infrastructure for creative districts.
  • HB 13-1237 - Concerning the Voluntary Contribution Benefiting the Special Olympics Colorado Fund that Appears on the State Individual Income Tax Returns, by Reps. Dave Young and John Buckner and Sen. Mary Hodge. The bill reestablishes the Special Olympics tax return check-off, since it was not renewed in 2012 after its 2011 sunset.

For the complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

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Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Provide Waiver for Unimproved Areas of State Park

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation on Thursday, March 28, 2013.

Negligence—Camping—Immunity—Waiver—Colorado Governmental Immunity Act—Public Facility—Injuries—Dangerous Conditions.

Sara Burnett appealed the trial court’s judgment dismissing her negligence claim against the Colorado Department of Natural Resources (CDNR). The judgment was affirmed.

Burnett was injured while camping in a designated campground in Cherry Creek State Park, which is operated by the CDNR, when she was struck by a falling tree branch while sleeping in her tent. Burnett contended that the trial court erred in determining that the CDNR did not waive immunity for her injuries under the Colorado Governmental Immunity Act (CGIA). Although the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from branches falling from trees in unimproved parts of a state park. Because there is no waiver of immunity under the CGIA for dangerous conditions in an unimproved area within a state park, the trial court did not err in dismissing Burnett’s negligence claim.

Summary and full case available here.

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Colorado Court of Appeals: Handcuffed Juveniles in Back of Sheriff Transport Van Were Under Control of Sheriff; Colorado Governmental Immunity Act Waived

November 1, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Young v. Jefferson County Sheriff on Thursday, October 25, 2012.

Governmental Immunity—Automobile Accident in Sheriff’s Transport Van.

Defendants, the Jefferson County Sheriff and Deputy Sheriff, appealed the district court’s order denying their partial motion to dismiss the complaint filed by plaintiffs Michael Young (as father and next friend to D.B.) and Amy Larson (as mother and next friend to D.L.) on governmental immunity grounds. The order was affirmed.

Plaintiffs brought this case to recover damages for injuries sustained by D.B and D.L. (juveniles) during an automobile accident while they were handcuffed passengers in a sheriff transport van. The Deputy Sheriff was driving, and plaintiffs alleged he negligently operated the van by failing to secure the handcuffed juveniles with seatbelts. They also sought damages under the doctrine ofrespondeat superior.

Defendants moved for partial dismissal of the complaint under CRCP 12(b)(1) for lack of subject matter jurisdiction, asserting immunity under the Colorado Governmental Immunity Act (CGIA). They argued that securing passengers in a van was not an activity that fell within the CGIA’s waiver of immunity for the “operation of a motor vehicle.” Plaintiffs noted the juveniles were in the Sheriff’s custody when being transported; they were in handcuffs but not secured by seatbelts; because of the handcuffs, they did not have reasonable access to seatbelts; and they were thrown about the van in the accident.

The district court found that physically securing the juveniles was a function controlled by the driver because they were handcuffed. Therefore, the failure to secure them fell within the waiver of immunity. Defendants brought an interlocutory appeal.

CRS § 24-10-106(1)(a) provides waiver of governmental immunity in an action for injuries resulting from “[t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee in the course of employment.” The court previously concluded that “operation” is a “broad term which includes both the physical defects of a motor vehicle and its movement, as well as other actions fairly incidental to those defects or movements.”

Here, the juveniles alleged they were dependent on the van driver to secure them because they were handcuffed. The Court agreed with the district court that securing the handcuffed juveniles with seatbelts was a function controlled by the van driver. The failure therefore fell within the waiver of immunity. The order was affirmed.

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Colorado Court of Appeals: In Interlocutory Appeal, Immunity Found Not Waived Under CGIA and Trial Court’s Order Reversed

October 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Daniel v. City of Colorado Springs on Thursday, October 11, 2012.

Governmental Immunity—CRS § 24-10-106(1)(e)—Public Parking Lots.

Defendant, the City of Colorado Springs (City), brought this interlocutory appeal of the district court’s order denying its motion to dismiss, on governmental immunity grounds, the complaint filed by plaintiff Marilyn Daniel. The order was reversed and the case was remanded.

Plaintiff alleged she was injured when she fell after stepping into a hole in a parking lot for the public Valley Hi Golf Course, which was owned and maintained by the City. She asserted the City knew or should have known about the dangerous condition of the parking lot.

The City moved to dismiss pursuant to CRCP 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Plaintiff argued that immunity had been waived, under CRS § 24-10-106(1)(e), for a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. The City responded that the phrase “in any park or recreation area” includes only places and areas within a golf course, but not the parking lot. The trial court denied the City’s motion to dismiss and the City brought an interlocutory appeal.

On appeal, the Court of Appeals emphasized that waiver was for a dangerous condition located in any park or recreation area. It also noted that before the 1986 amendments to the CGIA, the statute had excepted immunity for a “public parking facility” and that this section was deleted by the amendments. The Court followed other decisions that found this deletion was intended to remove the exclusion from governmental immunity to such areas. It therefore was error to find that the City’s immunity was waived. The order was reversed and the case was remanded with directions to dismiss the complaint against the City.

Summary and full case available here.

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Colorado Court of Appeals: Street Sweeper was Mobile Machinery, Not Motor Vehicle, so City Immune Under CGIA

September 17, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Henderson v. City and County of Denver on September 13, 2012.

Colorado Governmental Immunity Act—Motor Vehicle—Mobile Machinery.

The City and County of Denver (City) appealed from an order denying their motion to dismiss a complaint filed by plaintiff. The order was reversed and the case was remanded.

A street sweeper operated by an employee of the City collided with a car driven by plaintiff. The driver sued the City. She alleged that the City’s immunity was waived under the Colorado Governmental Immunity Act (CGIA) because the street sweeper was a “motor vehicle” within the meaning of CRS § 24-10-106(1)(a). The City moved to dismiss the driver’s claim, arguing that the street sweeper was “mobile machinery” rather than a “motor vehicle,” and thusthe City had immunity under the CGIA. The trial court denied the motion, and the City appealed.

CRS § 42-1-102(58) defines “motor vehicle” as (1) any self-propelled vehicle (2) that is designed primarily for travel on public highways and (3) that is generally and commonly usedto transport persons or property over public highways. CRS § 42-1-102(54) defines “mobile machinery” to be (1) a self-propelled vehicle (2) that is not primarily designed for the transportation of persons or cargo over the public highways, (3) including, but not limited to, wheeled vehicles that are commonly usedin the maintenance of roadways. The evidence in the record supports the conclusion that under the CGIA, the street sweeper is mobile machinery and not a motor vehicle; therefore, the trial court erred when it concluded otherwise and the order was reversed.

A party that successfully defends an appeal of an action that was dismissed on a pretrial motion to dismiss under the CGIA is entitled to recover its reasonable appellate attorney fees under § 13-17-201. The case was remanded to determine the award of attorney fees to the City.

Summary and full case available here.

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Colorado Court of Appeals: Hospital’s Immunity Waived Under Governmental Immunity Act, But Not for Willful and Wanton Conduct; Claims Against Doctor Should Have Been Allowed

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Gray v. University of Colorado Hospital Authority on July 5, 2012.

Public Entity Immunity—Public Employee Immunity—Willful and Wanton Actions.

Charles Gray died while a patient of the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively, the hospital). His family brought a medical malpractice suit against the hospital and some of its employees. Defendants moved to dismiss under the Colorado Governmental Immunity Act (Act), and the trial court granted the motion. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

It was undisputed that Gray suffered from epilepsy and checked into the epilepsy monitoring unit in October 2007 so that the nature and extent of his seizures could be monitored while he was weaned from his anti-seizure medications. This required Gray to stay in the hospital for several nights. Members of his family were assured that Gray would be monitored around the clock by hospital personnel during this process. The hospital later admitted this assurance was false. On the fifth night of the patient’s stay, he was left unattended for about an hour. The patient suffered a seizure, stopped breathing, and died.

The Act provides immunity to all public entities from suit for all actions that lie in tort or that could lie in tort, unless an enumerated exception applies. One exception is applicable in this case: injuries resulting from the “operation of any public hospital.” When immunity is waived, a plaintiff’s recovery is limited to $150,000 per occurrence from one or more public entities. The hospital deposited $150,000 in the court registry and the trial court declared the claim moot.

The Court held that the statute and case law clearly provide that the hospital is immune from suit for its own willful and wanton acts or omissions, or for the willful and wanton acts or omissions of its employees. However, the hospital and the Court recognized that its sovereign immunity was nonetheless waived under the statute. That liability is capped at $150,000 and the claim against the hospital was rendered moot when it deposited that amount into the court registry to be distributed to the patient’s family.

The patient’s family also made numerous allegations against various hospital employees. The Court affirmed the dismissal by the trial court of all those claims except for the claim against Dr. Mark Spitz. Public employees have qualified immunity, not sovereign immunity. Public employees are immune from liability for “injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” The $150,000 cap does not apply to limit a public employee’s liability if his or her acts or omissions were willful and wanton. In this case, the facts alleged support a reasonable inference that Dr. Spitz was aware that his acts or omissions created danger or risk to the patient’s safety and that the doctor acted, or failed to act, without regard to the danger or risk. The dismissal therefore was in error and the case was remanded for proceedings against the doctor.

The Court did not find the conduct of any of the other defendants as alleged in the complaint were of sufficient specificity to support a reasonable inference that they were willful and wanton. Accordingly, the Court affirmed their dismissal.

Summary and full case available here.

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Colorado Court of Appeals: Playground Equipment at a Public School Considered “Public Facility” for Purposes of Waiver of Colorado Governmental Immunity Act

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on July 5, 2012.

Governmental Immunity—Subject Matter Jurisdiction—Injuries on School Playground.

During lunch recess on November 21, 2008, a 9-year-old minor child (the minor) suffered a compound fracture of her left arm when she fell from a playground apparatus. The minor, through her parents and next friends, sued defendants St. Vrain Valley School District RE-1J (school district) and Cathy O’Donnell, alleging claims of premises liability and negligent supervision. The trial court dismissed all claims against defendants. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

The common law doctrine of sovereign immunity was abrogated by the Colorado Supreme Court in a 1971 trilogy of cases. The General Assembly responded by enacting the Colorado Governmental Immunity Act (Act), which includes an immunity waiver for a “dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity. . . .” Defendants filed a CRCP 12(b)(1) motion, arguing lack of subject matter jurisdiction. The trial court granted the motion, holding that the playground apparatus did not constitute a “public facility” under the Act.

On appeal, plaintiffs argued it was error to conclude the apparatus is not a “public facility” under the Act, and the Court agreed. The Court found the phrase “public facility” ambiguous and therefore looked to rules of statutory construction and legislative history to ascertain intent. The Court found that the apparatus clearly was “public,” given its availability to all, and that it was a “facility,” because it was a man-made, mechanical device installed on a playground for the purpose of providing recreation. The legislative history supported this conclusion. The trial court decision was reversed and remanded on this issue.

Plaintiffs also argued that it was error to conclude that the tort of negligent supervision is not a recognized exception to sovereign immunity under the Act. The Court disagreed and affirmed on this issue. The Court noted that all parties agreed that injuries resulting from negligent supervision were not among the tortious injuries for which sovereign immunity has been expressly waived. Plaintiffs’ arguments for an implied waiver are of no avail because the case law is clear that, absent specific language unambiguously waiving sovereign immunity, implied waiver is disallowed by the Act.

Summary and full case available here.

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