Governmental Immunity, Damage Caps, and the Lower North Fork Fire: Who Should Pay?
Burg Simpson Law Firm Comments on Wild Fires Burning Across Colorado –
Denver, Colorado March 30, 2012 – Should the government be given a “free pass” when its negligence causes injuries, death and destruction to innocent citizens? As firefighters continue their efforts to contain the Lower North Fork Fire in Conifer, Colorado, its victims look to recover from the damage inflicted. Whether that damage is the loss of a home, expenses for temporary housing, smoke damage, medical care, personal injury or even the death of a loved one, the human and economic costs of this fire will be enormous.
Unlike fires that are “acts of God” or caused by an unknown person, the Colorado State Forest Service has apologized for causing the fire. But when the government causes death, injury and damage, admitting negligence does not mean taking responsibility for the damage.
Colorado’s Governmental Immunity Act (“GIA”) severely restricts or bars victims from recovering against Colorado state and local governments in most cases. The GIA was enacted in 1971 to replace the archaic and outdated doctrine of “sovereign immunity,” based on the medieval notion that the “king can do no wrong.” When Colorado courts finally overruled sovereign immunity, the state legislature replaced it with the GIA, which is codified at Title 24, Article 10 of the Colorado Revised Statutes.
The GIA grants the state immunity from lawsuits for negligence and other tort claims except as partially waived by the state. Immunity is partially waived for such acts as:
Operation of motor vehicles;
Operation of hospitals, correctional facilities, and jails;
Dangerous conditions in public buildings;
Dangerous conditions of public highways and roads;
Operation and maintenance of certain public utilities;
Operation and maintenance of public swimming facilities.
Public employees are also protected by the GIA when acting in the course and scope of their employment, except for acts that fall into one of waivers listed above or for “willful and wanton” conduct by public employees. Therefore, if a public employee intentionally caused a fire, or recklessly and with deliberate disregard for the rights of others ignored a risk, the GIA likely would not apply. The corollary is that the government may not pay a judgment against an employee for such misconduct.
Even if there is a waiver of governmental immunity, damages that can be assessed against the government are “capped” by statute at only $150,000 per person injured in an incident and $600,000 total in a single occurrence. This cap has not been adjusted for inflation in decades and does not begin to cover the current cost of medical care, damage to homes, and permanent disability that can result from governmental negligence.
The GIA does allow the government to waive its immunity and caps, and to insure against liability. Colorado has created several intergovernmental risk sharing pools (e.g., Colorado Intergovernmental Risk Sharing Agency, Colorado Special District Property and Liability Pool) that act like insurance companies to spread the risk of liability to governmental entities that may not be able to afford a catastrophic loss. The state legislature also has the ability to waive immunity and compensate victims in some cases.
Victims of governmental negligence also have special “hoops” they must jump through in order to bring a claim. Within 180 days of discovery of an injury, a victim must submit a formal notice of claim to the government entity. The form, content, and submission procedures of the notice of claim must be followed or the claim could be barred. Failure to submit a proper notice of claim within 180 days will bar the claim in most cases.
Colorado’s legislature chose more than 40 years ago to restrict innocent victims’ rights to recover against the government. The Lower North Fork Fire should cause us to re-examine whether these arbitrary and outdated damage caps and restrictions on victim rights should be replaced. When the government’s negligence causes damage to an innocent victim, why should the victim not be made whole? The government, like any private business, can insure or self-insure against the risk. Allocating the costs of negligence to a government agency will make the agency and its employees accountable to the public by cutting into an agency’s discretionary spending if it must pay for the damages caused by its negligence. The days of “the king can do no wrong” are over, and it is time for Colorado to re-visit the outdated and unfair damage caps and immunity conferred by the GIA.
With offices in Denver, Steamboat Springs, Cincinnati, Cody, and Phoenix, Burg Simpson Eldredge Hersh & Jardine, P.C., is a firm of award winning national trial lawyers, practicing in the areas of personal injury, class action, medical malpractice, dangerous drug litigation, defective products, insurance bad faith, employment law, social security, workers’ compensation, commercial and securities litigation.
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Peter W. Burg
Brian K. Matise