Post-Loveland: School District Liability & Colorado Governmental Immunity Act Recreation Area Waiver David Olson General Counsel Colorado School Districts Self Insurance Pool
Overview • CGIA refresher • Loveland decision (Daniel and Young, too) • Where do we go from here?
CGIA – The King Can Do No Wrong?
Colorado Governmental Immunity Act (CGIA) • C.R.S. §§ 24-10-101 through 120 • A “limited” immunity (tort claims … with exceptions!) • Rationale for immunity? – Unlimited liability could disrupt or prohibit the delivery of essential public services – Taxpayers bear the fiscal burden – Public employees should be provided with protection
• 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)
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 … • (c) A dangerous condition of any public building • (e) A dangerous condition of any … public facility located in any park or recreation area maintained by a public entity … • (h) Failure to perform an education employment required background check …
Automatic Finding of Liability? • Once immunity is pierced, simply means the public entity or public employee can be sued • CGIA only applies to claims brought under state law, not federal claims • Public entity is obligated to pay for the defense of public employee (course and scope) • “I am going to sue you for $1 million” … good luck, there are caps on damages
Application of CGIA - Bus/Vehicle Collision
Application of CGIA - Bus/Vehicle Collision
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Son (student) of the other driver was sitting just above impact point
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Rear axel took brunt of the impact
Application of CGIA - Bus/Vehicle Collision
Application of CGIA – Student Bullied While On Bus
Application of CGIA – Student Bullied While On Bus
Finally …. Loveland v. St. Vrain (a.k.a. the “Zip Line” case)!
Loveland v. St. Vrain
Recreation Area Waiver C.R.S. § 24-10-106(1)(e) – A dangerous condition of any public hospital, jail, public facility, located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility.
Issue Whether an injury that occurs on a “zip line” apparatus located on a public school playground fulfills the requirements of the “recreation area waiver” … of the Colorado Governmental Immunity Act.
Holding #1 • A collection of playground equipment considered as a whole qualifies as a “public facility” under the recreation area waiver because such playground equipment is (1) relatively permanent or otherwise affixed to the land, (2) a man-made structure, (3) accessible to the public, and (4) maintained by a public entity to serve a beneficial, common public purpose. (The Court of Appeals erred when it held that the zip line individually, rather than the playground collectively, constituted a “public facility.”
Holding #2 • The public facility (the collection of playground equipment) was “located in” the “recreation area” of the school playground. Applying the three-step analysis from Daniel v. City of Colorado Springs, we determine that the public land underlying the playground equipment is the “putative recreation area,” that the “primary purpose” of that area is recreation, and that the facility where the student was injured is “located in” this area.
The Daniel Test To determine whether or not a public facility is located in a recreation area for purposes of the recreation area waiver, a court shall consider: (1) Examine the underlying piece of contiguous public property to identity the putative (supposed) recreation area; next, (2) Determine whether the public entity’s primary purpose in building or maintaining that area was the promotion of the recreation; and, if so, (3) Determine whether the public facility at issue was located within the boundaries of that area.
What Next? • Is a playground really a public facility? • What is a dangerous condition? • Do signs matter? • Should we make outside recreation part of the curriculum? • What role do inspections play? • How far does the putative recreation area extend?
Application of Loveland
Application of Loveland
Application of Loveland
Application of Loveland
Application of Loveland
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)