24-10-105. Prior waiver of immunity - effect - indirect claims not separate.
Statute text
(1) It is the intent of this article to cover all actions which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant. No public entity shall be liable for such actions except as provided in this article, and no public employee shall be liable 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, except as provided in this article. Nothing in this section shall be construed to allow any action which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant to be brought against a public employee except in compliance with the requirements of this article.
(2) (a) A reference in this article to an injury, claim, or action that "lies in tort or could lie in tort" shall be construed in all cases to include, in addition to a direct claim or action, a claim or action asserted by way of assignment or subrogation to recover from a public entity or public employee the amount paid on a damages claim or the amount that may become payable on a damages claim because of the occurrence of an injury, as defined in section 24-10-103 (2).
(b) In any case in which an assignee or subrogee asserts an injury governed by this article:
(I) The injury shall not be deemed to be separate from the injury suffered by the assignor or subrogor; and
(II) Pursuant to section 24-10-114 (1.5), the assignment or subrogation concerning the injury shall not be deemed to be a separate occurrence with regard to limitations on judgments.
History
Source: L. 71: p. 1206, 1. C.R.S. 1963: 130-11-5. L. 85, 1st Ex. Sess.: Entire section amended, p. 9, 4, effective September 27. L. 86: Entire section amended, p. 875, 4, effective July 1. L. 2006: Entire section amended, p. 455, 2, effective April 18.
Annotations
Cross references: For the legislative declaration contained in the 2006 act amending this section, see section 1 of chapter 132, Session Laws of Colorado 2006.
Annotations
ANNOTATION
Annotations
Article is intended to define the bounds of public entity liability. Forrest v. County Comm'rs, 629 P.2d 1105 (Colo. App. 1981).
Article protects individual public employees from personal liability for a tort allegedly committed by that employee when acting within the scope of his or her employment. City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996); Richardson ex rel. Richardson v. Starks, 36 P.3d 168 (Colo. App. 2001).
Plaintiff's claim could lie in tort. City's act of providing specifications and design for the pipe to be used gave rise to a common law tort duty to design the pipe with reasonable care and skill. Accordingly, plaintiff's claim could sound in tort, and its nature was not changed by the existence of the contractual relationship between the parties. Morrison v. City of Aurora, 745 P.2d 1042 (Colo. App. 1987).
The exception for willful and wanton conduct does not apply to the acts of a public entity. Stump v. Gates, 777 F. Supp. 808 (D. Colo. 1991).
The Colorado Governmental Immunity Act (CGIA) does not provide for the waiver of the sovereign immunity of public entities from suit based either on their own willful and wanton acts or omissions, or their employees' willful and wanton acts or omissions. Gray v. Univ. of Colo. Hosp., 2012 COA 113, 284 P.3d 191 (conclusion that a public entity is immune from suit based on its own willful and wanton conduct disavowed in Cisneros v. Elder, 2022 CO 13M, 506 P.3d 828).
A waiver of the sovereign immunity of public entities from suit is not triggered by an allegation of willful and wanton conduct because article 10 of this title does not expressly contain any language creating such a waiver. Gray v. Univ. of Colo. Hosp., 2012 COA 113, 284 P.3d 191 (conclusion that a public entity is immune from suit based on its own willful and wanton conduct disavowed in Cisneros v. Elder, 2022 CO 13M, 506 P.3d 828).
This section operates as a waiver of a public employee's immunity for willful and wanton acts but does not operate as a waiver of a public entity's immunity for such acts. King v. U.S., 53 F. Supp. 2d 1056 (D. Colo. 1999). But see Cisneros v. Elder, 2022 CO 13M, 506 P.3d 828 (rejecting conclusion that a public entity is immune from suit based on its own willful and wanton conduct).
The existence of a special relationship, by itself, does not operate as a waiver of immunity under the CGIA. Rather, such a relationship creates a duty that may subject defendants to liability only if it is first determined that defendant's sovereign immunity is waived for the activity in question. Richardson ex rel. Richardson v. Starks, 36 P.3d 168 (Colo. App. 2001).
Court applied definition of "willful and wanton" found in 13-21-102 (1)(b). King v. U.S., 53 F. Supp. 2d 1056 (D. Colo. 1999).
To satisfy the willful and wanton exception to the CGIA, a plaintiff must establish not only the elements of a claim for defamation, but also that the defendant's conduct was done heedlessly and recklessly, without regard to the consequences, or rights and safety of others, particularly plaintiff. Drake v. City & County of Denver, 953 F. Supp. 1150 (D. Colo. 1997).
The CGIA does not shield public entities from an award for attorney's fees for the filing of a frivolous claim by such entities. Colo. City Metro. Dist. v. Graber & Son's, Inc., 897 P.2d 874 (Colo. App. 1995).
Where a public entity, as plaintiff, asserts injuries caused by one of its employees, it would frustrate the purpose of the CGIA to permit the employee to shield him- or herself with the sovereign immunity meant to protect a public entity and a public employee only when acting as an extension of that entity. Tallman Gulch Metro. v. Natureview Dev., 2017 COA 69, 399 P.3d 792.
Article not applicable to contractual statutory breaches. This article is not meant to apply to situations where the action concerns the breach of a contractual statutory duty. Julesburg Sch. Dist. No. RE-1 v. Ebke, 193 Colo. 40, 562 P.2d 419 (1977).
Claims asking for orders for water services cannot lie in tort. They constitute, in effect, a mandamus action. Jones v. Ne. Durango Water Dist., 622 P.2d 92 (Colo. App. 1980).
Defendants did not make alleged defamatory statements within the scope of employment as law enforcement officers employed by the Denver sheriff department and are therefore not immune from liability under the CGIA. Defendants made alleged statements during fraternal order of police (FOP) directors meetings concerning FOP business in their capacity as officers of the FOP, not as employees of the Denver sheriff Department. Podboy v. Fraternal Order of Police, 94 P.3d 1226 (Colo. App. 2004).
Applied in Gray v. City of Manitou Springs, 43 Colo. App. 60, 598 P.2d 527 (1979); State Comp. Ins. Fund v. City of Colo. Springs, 43 Colo. App. 112, 602 P.2d 881 (1979).