Robbins: The queen and the Governmental Immunity Act

Owing to a couple of cases with which I am currently involved, I have been thinking a lot lately about the Colorado Governmental Immunity Act. Then pile on Queen Elizabeth II’s platinum jubilee and, while at first, the two may not seem related, the queen’s soiree has amplified my thinking.

How in God’s name, you may be asking, are the queen and the act related?

It’s this: both have a bunch to do with sovereignty.

So let’s define it.

Be it the feds, an aging monarch, or some other entity or person holding power, a “sovereign” may be defined as a chief or ruler. “Sovereign immunity” is a concept more ancient than the queen which holds that the ruler is immune from certain liabilities to which the rest of us are held.

Support Local Journalism

Say what, now? If I do something for which I may be held legally accountable, the “ruler” (government or queen) gets a free pass for exactly the same thing?!

Yep. Exactly. But before we get to why, let’s talk a moment about “torts.”

A “tort” (which, fittingly, derives from the Latin word “torque” which means “to twist” — as in “slowly twisting in the wind”?), rather than a “tart” which is a delicious pastry, is a private civil wrong or injury. The three elements of which every tort is comprised are: the existence of a legal duty to the party injured; breach of that duty; and damage to the injured party resulting directly from (or as natural consequence of) the breach.

As but one example, when I drive my car upon the public roads, I undertake a duty of care to all whom I encounter. If I breach that duty, say by inattention while texting on my cell phone, and ram the beejeesus out the car in front of me, causing it (and/or the persons in it) harm, since the damage flows directly from the breach of my duty of care, I will likely be held liable in tort.

Except in certain circumstances, sovereign immunity protects the sovereign — king, queen, or governmental body — from claims arising under tort.

Here’s why.

The express purpose of sovereign immunity, including the Colorado Act, is an attempt to balance the necessity of governmental services, the redress of certain wrongs committed by the sovereign, and protection of taxpayer monies and assets entrusted to the government. Simply, while the act recognizes that there must be compensation for certain wrongs committed by the government, the amount which may be awarded for those wrongs, and the types of wrongs for which compensation is available, are limited. Stated simply, the act restrains a claimant from breaking the taxpayer-funded bank of government.

Historically, the federal and state governments (and, derivatively, cities and towns) were absolutely immune from tort liability arising from activities which were governmental in nature. Most jurisdictions (including Colorado in 1972) have abandoned this “hands off” approach in favor of permitting tort actions but only within certain boundaries and constraints. Thus is the nature and character of the Colorado Governmental Immunity Act; it permits, by statute, certain tort actions to proceed against the government with, however, certain defined restrictions, limitations and strictly held requirements.

Among other things, the procedure for making a claim against the government is stricter and more constrained than if one were to proceed against one other than the sovereign. For example, while normally the statue of limitations for a tort (the time within which a claim for injury must be brought) is one or two years (and, in some circumstances, up to as much as eight years), when bringing an action against a governmental body, notice of the claim must be given within 182 days of the date of discovery of the injury. The 182-day limitation is strictly construed (that is, 182 days, not 183 or 184). Further, the notice must be in writing, made to the appropriate governmental body and must contain certain necessary information, such as the name and address of the claimant, a statement of the factual basis of the claim, the date of injury, the amount sought in compensation, and other such information.

Even if you follow all procedures to the letter, only certain specifically identified types of wrongs are compensable and recovery may be had only for certain kinds of injuries.

The act provides, specifically, that “A public entity shall be immune from liability in all claims for injury which lie in tort…” but is waived for injuries resulting from: the operation of a motor vehicle (except emergency vehicles — subject to some limitations); the operation of any public hospital, correctional facility; a dangerous condition of any public building; a dangerous condition of a public highway, road or street; the operation and maintenance of public utilities, parks and swimming pools; and other similar, enumerated circumstances and settings.

Even if liability lies, damages (that is, the amount which may be recovered to compensate one for the injury) are “capped.” This much, but not a penny more! More, the sovereign may not be held liable for punitive or exemplary damages (that is, damages intended to punish or make an example of), nor damages for outrageous conduct except in a few, specifically provided, very limited circumstances.

While the act and sovereign immunity generally are in some ways laudatory, shielding the public treasury from claim, it too in some ways fosters unequal justice. If you are injured, say, by a private physician rather than a public one, the damages which may be awarded for the same harm can be, and often are, substantially unequal.

Resorting to a triteism, it is what it is — and the potential claimant and his or her careful attorney must keep eyes and ears wide open to ensure the playing field is fully known and fully understood.

Support Local Journalism