VanMeveren Law Group May 2018

May 2018 Foundations 9 7 0 Hiking, Rock Climbing, Camping, and theColoradoGovernmental ImmunityAct

The Colorado Governmental Immunity Act (CGIA), CRS §§24-10-101 et seq., bars lawsuits against Colorado governmental agencies and their employees except under rare circumstances. Even when injured victims are allowed to move forward with a lawsuit, damages are limited by statute. There are two schools of thought on the usefulness of the CGIA. One view is that the state provides essential public services that would be disrupted if all lawsuits were allowed to go forward, and the “taxpayers would ultimately bear the fiscal burdens of unlimited liability.” The other view is that a denial or reduction of the ability of injured victims to recover monetarily leads to unfair results. Most Coloradoans don’t give much thought to governmental immunity until extraordinary circumstances occur. For example, the recent school shooting in Parkland, Florida, or the Gold King mine disaster in Silverton, Colorado, in 2015 leave many to wonder who should pay. For some, the issue hits closer to home because friends or relatives have been injured or killed in one of Colorado’s state parks. Since 2010, 54 people have died attempting to climb the peaks of Colorado’s 14ers. The start of the outdoor season always brings with it injuries caused by rock climbing and hiking. Again, who bears financial responsibility? Before looking at each of these scenarios individually, it is helpful to understand what the CGIA is and what and whom it covers. The CGIA provides immunity to government entities and their employees in certain personal injury cases.

Government entities can waive immunity, thereby waiving immunity for their employees, as well. In the example of a school shooting, Colorado is one of a few states that waives governmental immunity on acts of school violence and allows civil lawsuits to be filed. In 2015, state lawmakers passed the Claire Davis School Safety Act, named for a girl who was killed at Arapahoe High School in 2013. The law took full effect on July 1, 2017, and permits victims to sue districts for liability if they fail to ensure student and staff safety on school property or at district- sponsored events. Parents can recover monetary damages from the state of Colorado rather than be faced with the impossible task of attempting to adequately compensate victims through the defendant or defendant’s family who, in all likelihood, could not foot the bill. Despite the waiver, the cap on damages remains the same as in all cases against the government. Before 2013, that cap was $150,000 per injured party in one incident. In 2013, the cap was increased to $350,000 per injured party. In contrast, the EPA did not waive governmental immunity for its role in the Gold King mine disaster. In 2015, an EPA team was working at the Gold King mine when they accidentally triggered a 3-million- gallon deluge of acidic, heavy-metals-laden drainage into the Animas River in southwestern Colorado. The damage prompted 73 claims against the EPA, ranging from clean water concerns and contaminated wells to lost tourism wages and local

government expenses for the cleanup. In declining to pay the estimated $1.2 billion in damages, the EPA did not deny its role in the disaster, but cited its legal right not to pay based on governmental immunity. The CGIA defines certain terms differently from their common definitions, and that’s pivotal in the determination of whether the government entity is immune to a suit. “Dangerous condition” in terms of governmental immunity means a physical condition of a facility that was constructed and maintained by the facility. The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition. Under CRS §24-10-106(1)(e), a public entity retains immunity for injuries caused

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