In light of the recent tragedy in Minneapolis, the issue of governmental immunity, and its breadth, has received renewed attention. While the immunity claimed there is federal, Colorado, like all states, has its own immunity protections which vary subtly from both the federal safeguards and those of other states.
Governmental immunity has to do with “sovereignty,” a word which may conjure images of kings and queens. Strictly, though, a “sovereign” is a person or entity that holds supreme power or authority. It need not be a king. Be it the feds or some other entity or person, a “sovereign” may be defined as a chief or ruler.
“Sovereign immunity” is an ancient concept which holds that the ruler is immune from certain liabilities to which the rest of us may be held.
Say what, now? If you or I do something for which we may be held legally accountable, the “ruler” gets a free pass for doing exactly the same thing?!
Yep. But before we get to why, let’s talk a moment about “torts”.
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A “tort” is a private civil wrong or injury. The three elements of which every tort is comprised are: 1) the existence of a legal duty to the party injured; 2) breach of that duty; and 3) damage to the injured party resulting or as 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 others. If I breach that duty, say by inattention while texting on my cell phone, and ram the car in front of me, causing the persons in it harm, since the damage flowed 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 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. 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 government was absolutely immune from tort liability. However, most jurisdictions (including Colorado) have abandoned this “hands off” approach in favor of permitting tort actions but only within certain boundaries and constraints. Thus, the Colorado Governmental Immunity Act permits certain tort actions to proceed against the government with, however, certain defined 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, sometimes, up to as much as eight), when bringing an action against a governmental body, notice of the claim must be given within 182 days of the date of the injury. The notice must be in writing, made to the appropriate governmental body, and must contain certain necessary information, including a statement of the factual basis of the claim and the amount sought in compensation.
Even if one follows all procedures to the letter, only certain types of wrongs are compensable and recovery may be had only for certain kinds of injuries.
The Act provides 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 or correctional facility; a dangerous condition of any public building; a dangerous condition of a public roadway; the operation and maintenance of public utilities, parks, and swimming pools; and other similar, enumerated circumstances and settings.
Even if liability lies, damages are “capped”. Neither may the sovereign be held liable for punitive or exemplary damages, 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, it also 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 may be grossly unequal.
How the immunity claim in Minneapolis will ultimately play out remains to be seen. What is clear, however, is that the government and officer involved will make every effort to tuck behind its shield.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,” was published in November.
