tami a. tanoue general counsel/claims manager, cirsa 1-800-228-7136 303-757-5475 tami@cirsa

LITIGATION HAPPENS:Governmental Immunity Act

Basics and Case Law UpdateColorado PRIMA Conference August 5, 2008

Tami A. Tanoue

General Counsel/Claims Manager, CIRSA

1-800-228-7136

303-757-5475

[email protected]

What We’ll Cover

The GIA’s primary provisions with a look at recent case law

The six waivers with a look at recent case law

Suggestions

GIA’s Primary Provisions

The good news: Colorado Governmental Immunity Act confers public entities immunity except in 6 specified circumstances where liability is waived Actually 7 now, but 7th has no application to local governments

The bad news: Most of the waivers pertain directly to many of your daily operations!

A bit more good news: Federal laws are not often implicated in routine accidents! In contrast, some activities – personnel, police, land use –

frequently implicate federal constitution/civil rights laws


Applies to all public entities and public employees Applies to cities, towns, districts, authorities, entities established by IGA,

etc. Applies to volunteers, elected and appointed officials, employees

Applies to actions that “lie in tort or could lie in tort” Supreme Court in Colo. Dept. of Transp. v. Brown Group Retail recently

acknowledged that “tort” can be a difficult concept to pin down – but it encompasses “all claims against a public entity arising from a breach of a general duty of care, as distinguished from contractual relations or a distinctly non-tortious statutorily imposed duty.”

Thus, claims such as those for contribution, unjust enrichment, and declaratory relief all assert claims that lie in tort or could like in tort and are covered by the GIA.

Similarly, a “spurious lien” claim against a public entity is barred by the GIA because it lies in tort – it is similar to tort of “slander or title” and a means by which a plaintiff is seeking “compensation for personal harms.” Skyland Metro Dist. v. Mountain West Ent.

Key protections of the GIA: immunities, monetary limits, notice requirements, right to defense/indemnification


Is an IMMUNITY act Immunity exists EXCEPT as specifically waived In waived areas, liability determined generally in same

manner as for private individuals Monetary limits of recovery: $150,000/person,

$600,000/occurrence Limits last increased in 1992 (from $400,000 to

$600,000) Act’s monetary limits have been upheld against

constitutional attacks (most recently in 1992) Should public entities take the initiative to review these

limits? Should there be an automatic “escalator” in the statute?


Let’s say a public entity motor vehicle accident kills a woman. She leaves behind three survivors, her husband and two children. Wrongful death action is brought; the wrongful death statute requires all claims arising from the death of a single person be brought under a single cause of action.

Question: Is the public entity’s liability limited to $150,000 for the death, or is each survivor entitled to a separate $150,000 recovery?

See Steedle v. Sereff


Let’s say you have a contentious police pursuit case involving an injured motorist and 4 police officer defendants. Three are represented by the same defense attorney, and the fourth has a separate attorney.

The three officers simply deposit $150,000 in the registry of the court. The fourth doesn’t participate in this action.

The three officers then say the case against them should be dismissed because they’ve given up the maximum to which they’d be exposed.

The fourth officer files a “me too” motion – the case against him should be dismissed since the plaintiff wouldn’t be able to recover a penny more from him.

What should be the result?? See Rudnick v. Ferguson


No waiver of immunities/limits by purchase of insurance

Applies only to STATE LAW tortsNot applicable to federal law claims (such

as civil rights claims)Not applicable to breach of contract


The six waivers of immunity: Operation of motor vehicle by public employee Dangerous condition of a public highway, road, or streets

within corporate limits of municipality Dangerous condition of public hospital, jail, public facility

in park or rec area maintained by public entity, or of public water, gas, sanitation, electrical, power, or swimming facility.

Operation and maintenance of public water, gas, sanitation, electrical, power, or swimming facility

Dangerous condition of public building Operation of public hospital, correctional facility, or jail

The Waivers in Real Life: CIRSA PC Pool 2003-2007

Vehicle Police Liability Employment Sewer Backups Negligent Maintenance

Total Top 5:

Total PC Pool

4,043 $12,582,022 524 $ 7,219,658 244 $ 6,071,335 720 $ 3,333,190 745 $ 1,580,959

6,276 $30,787,164 (68%) (72%)

9237 $42,726,331

GIA - Key Definitions

“Dangerous condition”: Physical condition Unreasonable risk Known or should have been known to exist Proximately caused by negligence in public entity’s

construction/maintenance Design deficiencies are NOT a “dangerous condition”

Most recently recognized again in Grant v. State (decision to remove center medians in connection with highway upgrade covered by design immunity)


“Public employee”: Officers, employees, servants, authorized

volunteersAuthorized volunteers: perform an act for

the public entity at its request and subject to its control

Independent contractors?NOT COVERED.


Who are “public employees” has been subject of recent decisions In Safari 300 v. Hamilton Family Enterprises, a shooting range operator

at a state park claimed it was a “public employee” under the GIA. Court of Appeals said nothing in the GIA indicates that business entities, as

opposed to natural persons, can qualify as “public employees.” Court unpersuaded by general definition of “person” in C.R.S. Section 2-4-

401 which states that “person” includes individuals, corporations, etc. In Wilson v. Meyer, the basis for an order granting summary

judgment to a hospital district’s attorney based on GIA immunity was questioned.

Court of Appeals noted that the record indicated the attorney was advising the board as part of his private practice and therefore was an independent contractor

Sent a shiver down the backs of municipal, county, and school district attorneys in private practice

• Suggestion of designating a firm as an “officer” may be unavailing given the Safari 300 and Wilson decisions


“Public entity” means: the state, county, city and county, municipality, school

district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law; and

any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.


“Public entity” scope has been discussed in recent decisions Is a private entity that serves a public entity an

“instrumentality” under the GIA? No, according to the Court of Appeals in Moran v. Standard Ins. Co. (company serving as administrator for PERA not covered by GIA).

“Instrumentality” connotes an entity that is governmental in nature, citing Robinson v. Colo. State Lottery

Municipally-designated collective bargaining agent (the FOP) likewise not a public entity, Podboy v. FOP


What about a non-profit entity created and controlled by a public entity – instrumentality? Examples: nonprofit corporation created by municipality or

county for financing purposes; ditch company created and controlled by municipality

Status under GIA is still unclear. King v. U.S. (a federal decision) noted that a charter school organized as a nonprofit corporation can be a public entity under the GIA.

However, there is a statute that says that a charter school’s incorporation as a nonprofit corporation does not affect its status as a public school for any purpose. Court in Moran was disinclined to extend the holding in King in the absence of an analogous statute.

If it is possible, consider a form OTHER THAN a non-profit corporation for a legal entity your government creates

Waiver Area #1

Operation of motor vehicle by public employee Must be OWNED OR LEASED by public entity

A truck that you are just test driving?• Immunity should be retained!

Private vehicle driven on municipal business?• Ceja v. Lemire: Immunity is retained!!

Truck borrowed from local dealership, attached to trailer owned by public entity?

• “Perceived as one vehicle”! Grabler v. Allen What if you hire a lousy driver? What is the exposure for claims

of negligent entrustment and negligent hiring, training, and supervision?

Kahland v. Villarreal: These are NOT part of the “operation” of a motor vehicle and thus not part of the waiver!

Waiver Area #2

Dangerous condition of a public highway, road, or street within corporate limits of municipality that physically interferes with the movement of traffic on the paved portion (or portion used for motor vehicle travel) thereof “Dangerous condition” is a dangerous physical condition

proximately caused by the public entity’s negligence in the construction or maintenance of a facility

All public entities have design immunity in CO Counties have street immunity!

Recent Court of Appeals decision, Lauck v. E-470 Public Highway Authority, observes that the legislature’s concern was over “unpaved roads” . . . .

Waiver Area #2

What about an overgrowth of bushes in the median? Not a physical interference with movement of traffic!

What about sidewalks? A thoroughfare!

Sight line flaws at an intersection? Design immunity!

What about the lack of lighting (a street lamp outage)? It IS a dangerous physical condition – a “safety device”

that’s an integral part of the roadway!

Waiver Area #2

Negligently leaving excess gravel on newly surfaced highway:

May be liable even without actual notice of condition! Is a controlled access parking lot a roadway?

No! What about the failure to install safety devices?

It may be deemed part of the “maintenance” obligation where the devices are necessary to return a road to the same general state of being, repair, or efficiency as initially constructed!

Waiver Area #2

What about Snow and Ice?? “Dangerous condition” definition states:

“The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition.”

Waiver Area #2

BUT: “Nothing in [Section 24-10-106(1)(d)(1)] shall preclude a particular dangerous accumulation of snow, ice, sand, or gravel from being found to constitute a dangerous condition in the surface of a public roadway when the public entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice through the proper public official responsible for the roadway and had a reasonable time to act.”

Waiver Area #2

Let’s parse that – the entity may be liable if: There’s a particular dangerous accumulation of

snow, ice, sand, or gravel in the surface of a public roadway; and

The public entity failed to use existing means available to it for removal or mitigation of such accumulation; and

The public entity had actual notice through the proper public official responsible for the roadway and had a reasonable time to act

What about a dangerous accumulation in an alley?

Waiver Area #2

Also, immunity is waived for:

“A dangerous condition caused by an accumulation of snow and ice which physically interferes with public access on walks leading to a public building open for public business when a public entity fails to use existing means available to it for removal of such accumulation and when the public entity had actual notice of such condition and a reasonable time to act

Waiver Area #2

We’d better parse that one, too – the entity may be liable if: A dangerous condition exists, caused by an accumulation of

snow and ice The accumulation physically interferes with public access on

walks leading to a public building open for public business The public entity has failed to use existing means available to it

for removal of the accumulation; and The public entity had actual notice of such condition and a

reasonable time to act

Waiver Area #2

What about traffic signs, signals, markings? Act states that traffic signs, signals, and markings do not

constitute a PHYSICAL intereference with the movement of traffic

Failure to post signs likewise not within the waiver of immunity However, immunity is waived for “a dangerous condition caused

by the failure to realign a stop or yield sign which was turned without authorization in a manner which reassigned the right of way

Waiver Area #2

Immunity is also waived for the failure to repair a “traffic control signal on which conflicting directions are displayed”

A temporary stop sign is a “traffic control signal” – and if it conflicts with a traffic light, it is a “traffic control signal on which conflicting directions are displayed”!!!

Lesson: Be very wary of the use of temporary stop signs, if you cannot control when a traffic light that is out may come back on

Waiver Area #3

Dangerous condition of public hospital, jail, public facility in park or recreation area maintained by public entity, or of public water, gas, sanitation, electrical, power, or swimming facility. What’s a “water” or “sanitation” facility? 2003

legislation finally established definitions Years of litigation established that the 2003

legislation is not retroactive – Colorado Springs v. Powell; Longmont v. Henry-Hobbs

Waiver Area #3

Public Water Facility: 2003 legislation clarifies that the term means

structures and related apparatus used in the collection, treatment, or distribution of water for domestic and other legal uses.

Not natural watercourses! Not drainage, borrow, or irrigation ditches! Not curb and gutter systems!

This legislation was recently used against us in Montoya v. Westminster – held that a water meter pit, even though not a necessary feature of a water distribution system, and even though not providing a “public benefit,” is part of a public water facility

Waiver Area #3

Public Sanitation Facility: 2003 legislation has restored the intended meaning

to the term by defining it to include structures and related apparatus used in the collection, treatment, and disposition of sewage or industrial wastes of a liquid nature.

Not natural watercourses! Not storm sewers, drainage, or flood control

facilities! Not drainage, borrow, or irrigation ditches! Not curb and gutter systems!

Waiver Area #3

What’s a “public facility located in a park or recreation area”? Athletic field in public college: Yes. A fire ring made by students in a federal forest area: No! A tree located in a park: No! Ski areas, passenger tramways: Yes (most likely; no

appellate decisions found) Natural condition of unimproved property is not a

dangerous condition. This would include a natural lake in a park

City’s failure to have automatic lightning warning system on golf course is not “dangerous condition” of public facility located in a part and rec area

Waiver Area #4

Operation/maintenance of public water facility, gas facility, sanitation facility, power facility, or swimming facility

Waiver Area #4

2003 legislation also gave us statutory definition of “maintenance”: 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 preserving a facility from decline or failure.

The obligation is to preserve from degradation, not from obsolescence

Waiver Area #4

A statutory definition of “operation” also exists: The act or omission of a public entity or public employee in the

exercise of the powers, duties, and functions vested in them by law with respect to the purposes of a public facility.

By implication, “operation” also includes a negligent or inadequate inspection or a failure to make an inspection of a public facility to determine whether it constitutes a public hazard.

But “operation” refers to functions that relate to the facility’s purpose; ancillary functions or those remotely related to the primary purpose of the facility are not part of “operation” (example: HR functions vis-à-vis operation of a public hospital)

Waiver Area #4

Note: Swimming facilities are the only type of recreational facility which pose liability from BOTH a “dangerous condition AND a “operation and maintenance” standpoint.

Drownings caused by inattention … operation??!! Recent member inquiry regarding absence of

mandated lifeguard requirements causes us great concern

Waiver Area #5

Dangerous condition of public building Grounds surrounding public building, and driveway leading

to it, are not part of public building (But don’t forget the separate waiver of immunity for

snow and ice on walks leading to public building) A question: What’s a “public” building?

Building owned by public entity but leased/rented to private party? We don’t know!

• Make sure your leases properly characterize “non-public” nature of building and its use in this situation

“Non-public” part of a public building? Still part of the public building!

Waiver Area #5

Another area of complex and confusing case law – what’s part of the “building”?

If it’s a “fixture,” it may be part of the building … but there is no clear “fixture v. equipment” distinction – and there’s no making sense of the decisions! Printing press not a fixture, was not dangerous condition of

building A dry-erase board that normally would have been affixed to the

wall was a fixture and a dangerous condition of the building!?! Unpadded wall + use of building as gym was a dangerous

condition of the building!?!

Waiver Area #5

Woodworking machine in school classroom, the use of which caused an amputation, was a dangerous condition of the building because machine was “integral part” of classroom and therefore of the school?!

Portable extension ladder to ad hoc ceiling storage area in sculpting class was a dangerous condition of a public building – because the loft area was not designed as a storage area and the means of access provided was clearly unsafe!?!

Waiver Area #5

Waiver applies to building or structural defects – not to the use of a building Party held in public building leading to public

employee’s intoxication and motor vehicle accident relates to use of building, so immunity is retained

Shooting in public courthouse likewise relates to acts by intervening third party, not to any condition of the building

Waiver Area #6

Operation of public hospital, correctional facility, or jail Critical exposure to watch out for: suicides in

jails/lockups

Waiver Areas – A Bit More Good News

These waivers and immunities also apply to you as public employees, but in order to be protected, you must: Be within the scope of your employment – your

authorized duties Not be acting in a “willful and wanton” fashion “outside the scope” or “willful and wanton” conduct

takes you outside any GIA protections as well as outside your liability coverage protections

Other protections apply when you are within the scope/not willful and wanton, such as right of public employee defendant to be defended at entity’s expense, notice requirements as precondition to suit

“Willful and wanton” conduct

Definition most commonly used is taken from exemplary damages statute: “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff”

Let’s say you’re a mid-level supervisor in a fire department. You know there’s a big culture of hazing new recruits in the department. You’re responsible for supervising the primary culprits.

A probationary employee complains about the hazing. You and other supervisors tell him: “Expect to be treated like $#1+

for a year.” “If you complain, the hazing will only worsen.” “Anyone can take anything for a year.” “This is part of the history and culture of the Department.”

Did the mid-level supervisor engage in “willful and wanton” conduct? See District Court order in Martin v. North Metro Fire Dist.

Dos and Don’ts

Legal “dos and don’ts” are especially relevant with ongoing events – such as dealing with a employee problem or land use issue – much can be done to influence outcome positively or negatively

Less relevant with sudden and unforeseeable events such as motor vehicle accidents – “lawyering” the event isn’t really much of a consideration at that point

You can’t do much to “improve” your legal position post-incident – but there are a few dos and don’ts to help you avoid undermining it

Dos and Don’ts

Cooperate with law enforcement, your entity’s own investigation/review procedures, and defense attorney/ claim adjuster

Other than those parties, be careful about discussing event – the more times you recount an event, the more concerns arise about reconciling differences

Admitting liability is not smart! The admission may be used against you in court It is a conclusion that should be left for the technical and

legal experts to sort out

Dos and Don’ts

Be wary of the “careless” remark – “Yeah, I’ve known about this pothole for months,” “We’ll take care of everything for you” Create a “script” for personnel who must respond to residences

in the event of a sewer backup or similar recurring incident Do contact your insurer ASAP – claim adjuster may want

to do on-site investigation, can assist with liability-related questions, might early-assign counsel in serious claims

Refer third party claimants to your risk manager or claim adjuster – do not attempt to assist with claim-related questions yourself

Questions You May Face Post-IncidentShould you take subsequent remedial

measures, like change procedures?

Should you do an internal investigation?

Should you take disciplinary/corrective action?

These are all “Dos”!

Preventative Measures

Accidents can’t be entirely eliminated, but here are some prevention/mitigation suggestions: Check MVRs when hiring – have disqualification criteria,

and apply them consistently Performance evaluations should include safety as an

evaluation factor Have contracts in place that provide you and your entity

with indemnification and “additional insured” status

Preventative Measures

Never agree to indemnify another party if you can help it The Golden Rule applies here: He Who Has The Gold,

Rules! Pass maintenance responsibility on to a private party

contractually if you can Case in point: Drainage areas in residential subdivisions

If you see a pattern of repeat incidents at the same location, follow up! Regular sewer backups at same address, no evidence of

customer misuse: furious customer, furious claim adjuster!

Other suggestions

Keep good records of inspection and maintenance activities Will assist in determining whether you were negligent in

maintenance/operation activities Make sure they are accurate and complete

Records that are sloppy, incomplete, or inaccurate will be of no help and may hurt you Remember, you do not want your conduct to be

characterizable as “willful and wanton”!

Conclusion

The accident is what it is – legal “vetting” won’t make it any better after the fact Though wrong moves could make things worse

If fault and liability are clear, encourage early settlement, consider mediation

In a catastrophic incident, use a team approach to managing and responding – risk manager and other top management, legal, PIO, claims adjuster all should be involved

Conclusion

And finally … relax … that’s why you have insurance!

tami a. tanoue general counsel/claims manager, cirsa 1-800-228-7136 303-757-5475 tami@cirsa

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