Colorado State Pupil Transportation Association March 25, 2014 School District Liability & Colorado Governmental Immunity Act (CGIA)
David Olson General Counsel Colorado School Districts Self Insurance Pool (CSDSIP)
CSDSIP (a/k/a “The Pool”) • Member-owned insurance pool
• Formed in 1981 to provide Colorado public schools with insurance
• Currently insure 145 of the 178 School Districts in Colorado
• 36 Charter Schools
• In addition to insurance and legal support, offer risk management
education and training
CSDSIP’s Legal Resources Program (LRP) • Formally launched Aug. 1, 2013
• Goal is to provide general information, risk management,
and consultative services to school boards and administrators about legal issues encountered • Free to CSDSIP Members
School District Liability & Colorado Governmental Immunity Act
The King Can Do No Wrong? • Prior to 1971, governmental entities in Colorado enjoyed
“sovereign immunity” • Colorado Supreme Court, in 1971, decided a trilogy of
cases that abrogated Colorado’s common law of governmental immunity • The General Assembly responded by enacting the
Colorado Governmental Immunity Act (CGIA), reestablishing immunity, but in a limited form
Colorado Governmental Immunity Act (CGIA) • C.R.S. §§ 24-10-101 through 120 • Sovereign immunity or a limited immunity? • Rationale for immunity? –
Unlimited liability could disrupt or prohibit the delivery of essential public services
–
Taxpayers ultimately bear the fiscal burden
–
Public employees should be provided with protection so as not to discourage the delivery of functions and services
• Protections for public employers and public employees • The basic principle: a public entity (and, public employees)
shall be immune from liability in all claims for injury which lie in tort or could lie in tort. (C.R.S. § 24-10-106)
Public Employee? • Who is a Public Employee? • Salaried and Classified Staff? • Elected Official? • Independent Contractors? • Authorized Volunteers?
• “Public Employee” means an officer, employee, servant, or
authorized volunteer of the public entity, whether or not compensated, elected, or appointed, but does not include an independent contractor or any person who is sentenced to participate in any type of useful public service. (C.R.S. § 2410-103(4))
When Is Immunity Waived? Under C.R.S. § 24-10-106(1), immunity is waived by a public entity in an action for injuries resulting from: • (a) Operation of a motor vehicle, owned or leased by such public
entity, by a public employee while in the course of employment, except emergency vehicles operating within the provisions of section 42-4-108(2) and (3) … • (c) A dangerous condition of any public building … • (e) A dangerous condition of any … public facility … • (h) Failure to perform an education employment required
background check … • As a result of the North Fork fire, prescribed fires are now a waiver.
(C.R.S. § 24-10-106.1)
What If Parties Do Not Agree Whether Waiver Applies? • Trinity Hearing (so named for the case that created this process) • The issue of immunity is a jurisdictional standard to be decided by the
trial judge • Plaintiff (claimant) has the burden of proving the existence of an
exception to immunity • When the facts are in dispute, the trial court conducts an evidentiary
hearing • The jurisdictional issue must be decided prior to trial • If a trial court determines that a claim may proceed, negligence/liability
is determined in the same manner as if the public entity were a private entity/person • If a public entity prevails at the Trinity hearing, attorney’s fees are
awarded
Willful and Wanton Conduct • Public employees are immune from actions against them which lie in
tort or could lie in tort unless the action is a result of the public employee’s “willful and wanton” conduct. (C.R.S. § 24-10-118) • “Willful and wanton conduct means conduct purposefully committed
which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others … ” (C.R.S. § 13-21-102(b)) • “Willful and wanton” is an exceedingly high standard under the law
CGIA • Once immunity is pierced, not an automatic finding of
liability, but simply, the public entity or public employee can be sued • The CGIA only applies to claims brought under state law,
not federal claims • Even if the party coming after the school district is
successful, there are caps on damages
“I am going to sue you for one million dollars!” • Is any one claim for one person worth one million dollars?
• New caps, effective July 1, 2013:
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$350,000 for injury to any one person in any single occurrence (previous cap was $150,000)
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$990,000 for injury to two or more person in any single occurrence (no one person can recover more than $350,000) (previous cap was $600,000)
How Does “It” Start … Notice! • Notice to the public entity is required under C.R.S. § 24-
10-109 • Notice must be within 182 days of the injury or when the
injury should have been known (used to be within 180 days of the injury) • Who must the notice go to?
• Defense of public employees, who pays?
Defense of Public Employees • Under C.R.S. § 24-10-110, defense of public employees, the public
entity (school district) pays the cost of defense if the injury occurred during the performance of that public employee’s duties and within the course and scope of that person’s employment, so long as such acts are not willful and wanton • What about payment of all judgment and claims?
• As a public employee, do I need my own insurance?
• What about intentional acts? Willful and wanton?
Application of CGIA - Bus/Vehicle Collision
Application of CGIA - Bus/Vehicle Collision
• Son (student) of the
other driver was sitting just above impact point
• Rear axel took brunt of
the impact
Application of CGIA - Bus/Vehicle Collision
Application of CGIA – Dog Attacks While Student Gets Off Bus
Application of CGIA – Student Bullied While On Bus
Application of CGIA – Student Bullied While On Bus
Application of CGIA – Bus Driver Attacks Student
Application of CGIA – Shop Class Incident
CGIA Checklist • Event? – Contact the Pool! • Was a notice of claim filed (a/k/a “-109 notice”)? - Contact
the Pool! • Is there immunity? For a public entity – does one of the
exceptions apply? For a public employee – was the conduct alleged to be willful and wanton? – Contact the Pool! • Trinity hearing? • Prevail at Trinity or litigation proceeds • When in doubt … Contact the Pool!
Questions? David Olson General Counsel Colorado School Districts Self Insurance Pool 6857 South Spruce Street Centennial, CO 80112 303.722.2600 (office) 720.251.1310 (cell)