24-10-106.5. Duty of care
(1) In order to encourage the provision of services to protect the public health and safety and to allow public entities to allocate their limited fiscal resources, a public entity or public employee shall not be deemed to have assumed a duty of care where none otherwise existed by the performance of a service or an act of assistance for the benefit of any person. The adoption of a policy or a regulation to protect any persons health or safety shall not give rise to a duty of care on the part of a public entity or public employee where none otherwise existed. In addition, the enforcement of or failure to enforce any such policy or regulation or the mere fact that an inspection was conducted in the course of enforcing such policy or regulation shall not give rise to a duty of care where none otherwise existed; however, in a situation in which sovereign immunity has been waived in accordance with the provisions of this article, nothing shall be deemed to foreclose the assumption of a duty of care by a public entity or public employee when the public entity or public employee requires any person to perform any act as the result of such an inspection or as the result of the application of such policy or regulation. Nothing in this section shall be construed to relieve a public entity of a duty of care expressly imposed under other statutory provision.
(2) Except as otherwise provided in section 24-10-106.3, which recognizes a duty of reasonable care upon public school districts, charter schools, and their employees, nothing in this article shall be deemed to create any duty of care.
Source: L. 86: Entire section added, p. 876, 6, effective July 1. L. 2015: (2) amended, (SB 15-213), ch. 266, p. 1039, 3, effective June 3.
Cross references: For the legislative declaration in SB 15-213, see section 1 of chapter 266, Session Laws of Colorado 2015.
A basic purpose of the Government Immunity Act is to allow a person to seek redress for injuries caused by a public entity, and the government immunity created by the Act, being in derogation of the common law, must be strictly construed. State v. Moldovan, 842 P.2d 220 (Colo. 1992).
The language of this section, recognizing that the state is bound by certain statutory duties, does not create an implied waiver of sovereign immunity. Imposition of a duty of care alone is insufficient to waive sovereign immunity. Dept. of Hwys. v. Mtn. States Tel., 869 P.2d 1289 (Colo. 1994).
While this provision precludes the creation of new duties for public entities or employees, it does not seek to limit prior existing common law duties. Gallegos v. City County of Denver, 894 P.2d 14 (Colo. App. 1994), revd on other grounds, 916 P.2d 509 (Colo. 1996).
Even though generally there is no duty to protect students off the school premises, whether a school may, through its actions and policies, undertake such a duty (in this case rules and regulations restricting travel to school by bicycle) is a factual question to be determined by the judge or jury. Jefferson County Sch. Dist. R-1 v. Justus, 725 P.2d 767 (Colo. 1986) (case arose prior to enactment of this section).
School district did not assume duty to provide crossing guards at an intersection in the morning when kindergartners were walking home even though crossing guards were placed at the intersection in the afternoon. Jefferson County Sch. Dist. R-1 v. Gilbert, 725 P.2d 774 (Colo. 1986) (case arose prior to enactment of this section).
Applied in Fine v. Tumpkin, 330 F. Supp. 3d 1246 (D. Colo. 2018).