Driving on C470 tree in middle lane -can’t dodge it – who pays for those repairs…

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Driving on C470 tree in middle lane -can’t dodge it – who pays for those repairs…

driving 65 miles per hour and noticed to late that there was a tree on C470 and Quebec.

Asked on May 6, 2009 under Accident Law, Colorado

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Well, was 65 proper at that time, on that road, based on road conditions and weather?

If you hit a tree in the middle lane, where did the tree come from? Was it on the road from a government owned tree that came down from weather (i.e., from side of road)? If not, you may be forced to contact your own insurance company.  When did the accident happen and could it be determined when the tree was there? I.e., perhaps a trucker hauling trees dropped it?

Review the law below carefully and then contact your state AG's office about how to file a claim:

   
 
 

24-10-106. Immunity and partial waiver.

 
 
 

   
 
 

(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:

 
 
 
   
 
 

(a) The 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.R.S.;

 
 
 
   
 
 

(b) The operation of any public hospital, correctional facility, as defined in section 17-1-102, C.R.S., or jail by such public entity;

 
 
 
   
 
 

(c) A dangerous condition of any public building;

 
 
 
   
 
 

(d) (I) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion, if paved, or on the portion customarily used for travel by motor vehicles, if unpaved, of any public highway, road, street, or sidewalk within the corporate limits of any municipality, or of any highway which is a part of the federal interstate highway system or the federal primary highway system, or of any highway which is a part of the federal secondary highway system, or of any highway which is a part of the state highway system on that portion of such highway, road, street, or sidewalk which was designed and intended for public travel or parking thereon. As used in this section, the phrase "physically interferes with the movement of traffic" shall not include traffic signs, signals, or markings, or the lack thereof. Nothing in this subparagraph (I) shall preclude a particular dangerous accumulation of snow, ice, sand, or gravel from being found to constitute a dangerous condition in the surface of a public roadway when the entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice through the proper public official responsible for the roadway and had a reasonable time to act.

 
 
 
   
 
 

(II) A dangerous condition caused by the failure to realign a stop sign or yield sign which was turned, without authorization of the public entity, in a manner which reassigned the right-of-way upon intersecting public highways, roads, or streets, or the failure to repair a traffic control signal on which conflicting directions are displayed;

 
 
 
   
 
 

(III) A dangerous condition caused by an accumulation of snow and ice which physically interferes with public access on walks leading to a public building open for public business when a public entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice of such condition and a reasonable time to act.

 
 
 
   
 
 

(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. Nothing in this paragraph (e) or in paragraph (d) of this subsection (1) shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way.

 
 
 
   
 
 

(f) The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity;

 
 
 
   
 
 

(g) The operation and maintenance of a qualified state capital asset that is the subject of a leveraged leasing agreement pursuant to the provisions of part 10 of article 82 of this title;

 
 
 
   
 
 

(h) Failure to perform an education employment required background check as described in section 13-80-103.9, C.R.S.

 
 
 
   
 
 

(1.5) (a) The waiver of sovereign immunity created in paragraphs (b) and (e) of subsection (1) of this section does not apply to claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction, and such correctional facility or jail shall be immune from liability as set forth in subsection (1) of this section.

 
 
 
   
 
 

(b) The waiver of sovereign immunity created in paragraphs (b) and (e) of subsection (1) of this section does apply to claimants who are incarcerated but not yet convicted of the crime for which such claimants are being incarcerated if such claimants can show injury due to negligence.

 
 
 
   
 
 

(c) The waiver of sovereign immunity created in paragraph (e) of subsection (1) of this section does not apply to any backcountry landing facility located in whole or in part within any park or recreation area maintained by a public entity. For purposes of this paragraph (c), "backcountry landing facility" means any area of land or water that is unpaved, unlighted, and in a primitive condition and is used or intended for the landing and takeoff of aircraft, and includes any land or water appurtenant to such area.

 
 
 
   
 
 

(2) Nothing in this section or in section 24-10-104 shall be construed to constitute a waiver of sovereign immunity where the injury arises from the act, or failure to act, of a public employee where the act is the type of act for which the public employee would be or heretofore has been personally immune from liability.

 
 
 
   
 
 

(3) In addition to the immunity provided in subsection (1) of this section, a public entity shall also have the same immunity as a public employee for any act or failure to act for which a public employee would be or heretofore has been personally immune from liability.

 
 
 
   
 
 

(4) No rule of law imposing absolute or strict liability shall be applied in any action against a public entity or a public employee for an injury resulting from a dangerous condition of, or the operation and maintenance of, a public water facility or public sanitation facility. No liability shall be imposed in any such action unless negligence is proven.

 
 
 

   
 
 

Source: L. 71: p. 1206, § 1. C.R.S. 1963: § 130-11-6. L. 79: (1)(b) amended, p. 702, § 76, effective June 21. L. 86: IP(1), (1)(b), (1)(d), (1)(e), (1)(f), and (2) amended and (3) added, p. 875, § 5, effective July 1. L. 87: (4) added, p. 931, § 1, effective May 13. L. 92: (1)(d) amended, p. 1116, § 2, effective July 1. L. 94: (1.5) added, p. 2087, § 1, effective July 1; (1)(a) amended, p. 2556, § 53, effective January 1, 1995. L. 2002: (1.5)(c) added, p. 63, § 1, effective March 22. L. 2004: (1)(g) added, p. 1056, § 1, effective May 21. L. 2008: (1)(h) added, p. 2226, § 4, effective June 5.

 
 
 

   
 
 

Editor's note: Section 7 of chapter 434, Session Laws of Colorado 2008, provides that the act enacting subsection (1)(h) applies to actions accruing on or after June 5, 2008.

 
 
 

 
   
 
 ANNOTATION 
 
 

 
Analysis
 
I. General Consideration.
II. Subsection (1).
     A. Paragraph (a).
     B. Paragraph (b).
     C. Paragraph (c).
     D. Paragraph (d).
          1. Subparagraph (I).
          2. Subparagraph (II).
          3. Subparagraph (III).
     E. Paragraph (e).
     F. Paragraph (f).
III. Subsection (1.5).
IV. Subsection (2).
V. Subsection (3).
VI. Subsection (4).
 
   
 
 I. GENERAL CONSIDERATION. 
 
 
   
 
 

Am. Jur.2d. See 57 Am. Jur.2d, Municipal, County, School, and State Tort Liability, §§ 37-46.

 
 
 
   
 
 

C.J.S. See 81A C.J.S., States, §§ 313-321, 533-545, 547-551, 553-556.

 
 
 
   
 
 

Law reviews. For note, "Prisoners' Rights: Personal Security", see 42 U. Colo. L. Rev. 305 (1970). For article, "1988 Update on Colorado Tort Reform Legislation -- Part II", see 17 Colo. Law. 1949 (1988). For article, "The Public Building Exception to Governmental Immunity", see 24 Colo. Law. 1059 (1995). For article, "Health Care Litigation in Colorado: A Survey of Recent Decisions", see 30 Colo. Law. 91 (August 2001).

 
 
 
   
 
 

Constitutionality upheld. Subsection (1)(d) does not violate the equal protection or due process clause of the state or federal constitution nor the prohibition against special legislation contained in § 25 of article V of the state constitution. Bloomer v. Boulder County Bd. of Comm'rs, 799 P.2d 942 (Colo. 1990).

 
 
 
   
 
 

Subsection (1.5) is rationally related to the legitimate state interests of fiscal solvency and provision of essential services while minimizing taxpayer burdens. Davis v. Paolino, 21 P.3d 870 (Colo. App. 2001).

 
 
 
   
 
 

Subsection (1.5)(a) is rationally related to legitimate state interests; therefore, it does not violate the equal protection clause or the due process clause. Sealock v. Colo., 218 F.3d 1205 (10th Cir. 2000).

 
 
 
   
 
 

Immunity strictly construed. The Colorado Governmental Immunity Act (CGIA) is in derogation of the common law, and the legislative grants of immunity must be strictly construed. Stephen v. City & County of Denver, 659 P.2d 666 (Colo. 1983); Bloomer v. Boulder County Bd. of Comm'rs, 799 P.2d 942 (Colo. 1990), overruled in Bertrand v. Bd. of County Comm'rs, 873 P.2d 223 (Colo. 1994); City of Aspen v. Meserole, 803 P.2d 950 (Colo. 1990); Jenks v. Sullivan, 826 P.2d 825 (Colo. 1992), overruled in Bertrand v. Bd. of County Comm'rs, 873 P.2d 223 (Colo. 1994); Longbottom v. State Bd. of Cmty. Colls., 872 P.2d 1253 (Colo. App. 1993); Kittinger v. City of Colo. Springs, 872 P.2d 1265 (Colo. App. 1993); Walton v. State, 968 P.2d 636 (Colo. 1998); Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 1999); State v. Nieto, 993 P.2d 493 (Colo. 2000); Harris v. Reg'l Transp. Dist., 15 P.3d 782 (Colo. App. 2000).

 
 
 
   
 
 

Because governmental immunity is in derogation of Colorado's common law, the grant of immunity is to be strictly construed, and the waiver is to be liberally or deferentially construed. Springer v. City & County of Denver, 990 P.2d 1092 (Colo. App. 1999), rev'd on other grounds, 13 P.3d 794 (Colo. 2000); Grabler v. Allen, 109 P.3d 1047 (Colo. App. 2005); Awad v. Breeze, 129 P.3d 1039 (Colo. App. 2005).

 
 
 
   
 
 

Since grant of immunity to public entities must be strictly construed, waiver of that immunity may not be. Kittinger v. City of Colo. Springs, 872 P.2d 1265 (Colo. App. 1993).

 
 
 
   
 
 

Exceptions to waivers of immunity are to be construed strictly because the ultimate effect of the exceptions is to grant immunity. Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000).

 
 
 
   
 
 

If review of exceptions to waivers of immunity is based on analysis of legislative intent, those interpretations are still valid under the Corsentino standard. Montoya v. Trinidad State Nursing Home, 109 P.3d 1051 (Colo. App. 2005).

 
 
 
   
 
 

Exceptions to waivers of immunity are to be construed narrowly, but the waiver provisions themselves are to be construed deferentially in favor of injured persons. Quintana v. City of Westminster, 56 P.3d 1193 (Colo. App. 2002).

 
 
 
   
 
 

The issue of sovereign immunity is one of subject matter jurisdiction, and, under C.R.C.P. 12(b)(1), plaintiff has the burden to prove jurisdiction. Hallam v. City of Colo. Springs, 914 P.2d 479 (Colo. App. 1995); Denmark v. State, 954 P.2d 624 (Colo. App. 1997); Padilla v. Sch. Dist. No. 1, 1 P.3d 256 (Colo. App. 1999), aff'd, 25 P.3d 1176 (Colo. 2001); Larry H. Miller Corp.-Denver v. Urban Drainage & Flood Control Dist., 64 P.3d 941 (Colo. App. 2003); Grabler v. Allen, 109 P.3d 1047 (Colo. App. 2005); Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).

 
 
 
   
 
 

When the jurisdictional issue involves a factual dispute, reviewing court employs the clearly erroneous standard of review in considering the trial court's findings of jurisdictional fact. If, however, the alleged facts are undisputed and the issue is purely one of law, the appellate court reviews the jurisdictional matter de novo. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000); Grabler v. Allen, 109 P.3d 1047 (Colo. App. 2005).

 
 
 
   
 
 

Fact that a question of subject matter jurisdiction under the CGIA is intertwined with the merits of the case does not require a court to treat a C.R.C.P. 12(b)(1) motion to dismiss as a motion for summary judgment under C.R.C.P. 56. Summary judgment standards do not apply when determining issues of immunity. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).

 
 
 
   
 
 

To recover under the "dangerous condition" of the CGIA, plaintiff must show as a threshold jurisdictional matter that the condition upon which the plaintiff bases the tort claim existed because of the government's act or omission in maintaining or constructing the condition rather than the government's design of the condition. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997).

 
 
 
   
 
 

Statutory limitation on judgment in § 24-10-114 is not an affirmative defense and is not waived if not presented in the pleadings, at trial, or in a motion for a new trial. City of Colo. Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979).

 
 
 
   
 
 

It was proper for trial court to hold an evidentiary hearing after denial of state's motion to dismiss because the state took a timely interlocutory appeal after the trial court made findings of fact and ruled against dismissal. Walton v. State, 968 P.2d 636 (Colo. 1998).

 
 
 
   
 
 

"Emergency" means an unforeseen combination of circumstances or the resulting state that calls for immediate action or a pressing need. Fogg v. Macaluso, 870 P.2d 525 (Colo. App. 1993), aff'd in part and rev'd in part on other grounds, 892 P.2d 271 (Colo. 1995).

 
 
 
   
 
 

Whether the state has an obligation to install safety devices on a road depends on whether they are necessary to return the road to its original state of being, repair, or efficiency, as initially constructed. This question of necessity is a factual determination to be made by the trial court. Medina v. State, 35 P.3d 443 (Colo. 2001).

 
 
 
   
 
 

Applied in Gray v. City of Manitou Springs, 43 Colo. App. 60, 598 P.2d 527 (1979).

 
 
 
   
 
 II. SUBSECTION (1). 
 
 
   
 
 

For immunity to be waived under the CGIA, plaintiff's alleged injury must be directly related to the purpose of the public institution, as distinct from its operation. Awad v. Breeze, 129 P.3d 1039 (Colo. App. 2005).

 
 
 
   
 
 

No waiver of eleventh amendment immunity. State's waiver of its immunity against suit in its own courts does not constitute a waiver of its eleventh amendment immunity against suit in federal court. Verner v. Colo., 533 F. Supp. 1109 (D. Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir. 1983), cert. denied, 466 U.S. 960, 104 S. Ct. 2175, 80 L.Ed.2d 558 (1984); Griess v. Colo., 624 F. Supp. 450 (D. Colo. 1985), aff'd, 841 F.2d 1042 (10th Cir. 1988).

 
 
 
   
 
 

Conduct wrongful under § 1983 cannot be immunized. Conduct by persons acting under color of state law that is wrongful under 42 U.S.C. § 1983 cannot be immunized by state law. Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d 422 (Colo. App. 1982).

 
 
 
   
 
 

County is a "public entity" entitled to sovereign immunity. Am. Employers Ins. Co. v. Bd. of County Comm'rs, 547 F.2d 511 (10th Cir. 1976).

 
 
 
   
 
 

Charter schools established pursuant to the Charter Schools Act are public entities and, thus, absent a CGIA immunity exception, entitled to immunity from liability in claims that lie in tort or could lie in tort. King v. U.S., 53 F. Supp.2d 1056 (D. Colo. 1999).

 
 
 
   
 
 

A charter school's unique characteristics, including its ability to contract for services, prepare its own budget, and handle its own personnel matters, does not render it a private entity. King v. U.S., 53 F. Supp.2d 1056 (D. Colo. 1999).

 
 
 
   
 
 

Teacher and student advisor of a charter school is a public employee pursuant to this act and, as a result, is entitled to immunity. King v. U.S., 53 F. Supp.2d 1056 (D. Colo. 1999).

 
 
 
   
 
 

Police officers have qualified immunity when dealing with stranded motorist and could not be held liable for subsequent assault suffered by the motorist in the absence of conduct that was willful, malicious, or intended harm. Whitcomb v. City & County of Denver, 731 P.2d 749 (Colo. App. 1986).

 
 
 
   
 
 

A public entity and its employees are immune from tort liability if the employee is operating a police vehicle while in actual pursuit of a suspected violator of title 42, C.R.S., even if the employee is not using the vehicle's emergency lights or sirens, if the pursuit is made to obtain verification of or evidence of the guilt of the suspected violator. Tidwell v. City & County of Denver, 62 P.3d 1020 (Colo. App. 2002), rev'd on other grounds, 83 P.3d 75 (Colo. 2003).

 
 
 
   
 
 

No waiver of immunity under subsection (1)(a) where injuries did not arise from operation of police vehicle but rather arose from conduct of police officer inside the vehicle. Valanzuela v. Snider, 889 F. Supp. 1409 (D. Colo. 1995).

 
 
 
   
 
 

Sovereign immunity not waived for a tort claim asserted by a mineral estate owner that publishing of unauthorized and erroneous report about coal content of owner's land diminished the land's value. City of Northglenn v. Grynberg, 846 P.2d 175 (Colo. 1993).

 
 
 
   
 
 

None of the exceptions to immunity listed in the CGIA either explicitly or implicitly waive sovereign immunity for negligence of the Colorado department of public health and environment in issuing a point source discharge permit. Aztec Minerals Corp. v. Romer, 940 P.2d 1025 (Colo. App. 1996).

 
 
 
   
 
 

Sovereign immunity not waived for bad-faith denials of no-fault auto insurance benefits. Lopez v. Reg'l Transp. Dist., 899 P.2d 254 (Colo. App. 1994).

 
 
 
   
 
 

None of the waiver provisions listed in this section waive sovereign immunity for elementary school principal's alleged negligence in failing to protect children in her custody from the negligence of third parties; therefore, trial court erred in failing to dismiss plaintiff's claims to the extent that the court relied on waiver of sovereign immunity. Richardson v. Starks, 36 P.3d 168 (Colo. App. 2001).

 
 
 
   
 
 

Amounts contracted to be paid are not "claims" within the meaning of this section. Ace Flying Serv., Inc. v. Colo. Dept. of Agric., 136 Colo. 19, 314 P.2d 278 (1957) (decided under former CRS 53, 130-2-1).

 
 
 
   
 
 

Claims arising under just compensation or due process clauses of the Colorado Constitution are not subject to the CGIA. Because the purpose of the just compensation and due process clauses is to provide a remedy for injury to private property inflicted by the government, claims arising under such clauses cannot be barred by governmental immunity. Desert Truck Sales, Inc. v. City of Denver, 821 P.2d 860 (Colo. App. 1991).

 
 
 
   
 
 

A claim for overtime pay under the Fair Labor Standards Act is not a tort claim and thus not a claim within the meaning of this section. Hartman v. Regents of the Univ. of Colo., 22 P.3d 524 (Colo. App. 2000), aff'd on other grounds, 45 P.3d 721 (Colo. 2002).

 
 
 
   
 
 

Wrongful discharge claim brought by county employees against county commissioners was barred by the CGIA; however, claim for breach of employment contract was stated by allegations that published personnel policies and procedures established an employment agreement and employees' discharge violated that agreement. Koch v. Bd. of Co. Comm'rs of Costilla Co., 774 F. Supp. 1275 (D. Colo. 1991).

 
 
 
   
 
 

Claim of bad faith breach of insurance contract against city is a tort and, therefore, is barred by sovereign immunity. Jordan v. City of Aurora, 876 P.2d 38 (Colo. App. 1993).

 
 
 
   
 
 

Claims against city for equitable estoppel and misrepresentation "sound in tort" and are barred under the doctrine of sovereign immunity. Olsen & Brown v. City of Englewood, 867 P.2d 96 (Colo. App. 1993).

 
 
 
   
 
 

Claim for equitable estoppel properly dismissed by trial court because such claims are deemed to be tort claims for purposes of the CGIA. Allen Homesite Group v. Colo. Water Quality Control Comm'n, 19 P.3d 32 (Colo. App. 2000).

 
 
 
   
 
 

CGIA bars claim for damages resulting from city's delay in issuing a certificate of occupancy. Because a building permit is not a contract that promises or impliedly promises subsequent issuance of certificate of occupancy, the claim could only lie in tort. Patzer v. City of Loveland, 80 P.3d 908 (Colo. App. 2003).

 
 
 
   
 
 

Alleged flaws at intersection are all related to claimed inadequacies in design of intersection and are specifically excluded from type of claims that subsection (1) authorizes to be asserted. Szymanski v. State Dept. of Hwys., 776 P.2d 1124 (Colo. App. 1989).

 
 
 
   
 
 

Action against city for interference with performance of contract lies in tort and, therefore, is barred. Grimm Constr. v. Bd. of Water Comm'rs, 835 P.2d 599 (Colo. App. 1992).

 
 
 
   
 
 

A retaliatory discharge claim is a common-law tort claim. Although a statutory claim such as the one created by the "whistleblower" statute may be excepted, other claims of wrongful discharge are barred under the general rule of immunity stated in subsection (1). Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994).

 
 
 
   
 
 

Governmental immunity prevented an estoppel claim where the claim was actually based on misrepresentation and could lie in tort. The court did not determine, however, that all estoppel claims could lie in tort. Lehman v. City of Louisville, 857 P.2d 455 (Colo. App. 1992).

 
 
 
   
 
 

Action for reinstatement and back pay under the anti-discrimination provisions of the Colorado civil rights act is not an action seeking compensatory damages for personal injuries and, therefore, neither lies in tort nor could lie in tort for purposes of the CGIA. City of Colo. Springs v. Conners, 993 P.2d 1167 (Colo. 2000).

 
 
 
   
 
 

Action by health maintenance organization against department of health care policy and financing was grounded in contract law and, consequently, not barred by sovereign immunity. Parties were bound by three contracts, and health maintenance organization provided overwhelming evidence at trial that department had breached contracts by failing to calculate capitation rates in accordance with the language of the contracts and governing Medicaid payment rates. Further, trial court expressly found that liability arose from the contracts executed between the department and the health maintenance organization. Rocky Mtn. Health Maint. Org., Inc. v. Colo. Dept. of Health Care Policy & Fin., 54 P.3d 913 (Colo. App. 2001).

 
 
 
   
 
 

Public entity not immune from liability if claim is for breach of obligation arising from terms of contract. Elliott v. Colo. Dept. of Corr., 865 P.2d 859 (Colo. App. 1993); Adams ex rel. Adams v. City of Westminster, 140 P.3d 8 (Colo. App. 2005).

 
 
 
   
 
 

Private contractual right may exist against state agency regarding life insurance policy, based on statutory scheme and purpose for providing life insurance and the statutory requirement that notice of discontinuance be furnished. Elliott v. Colo. Dept. of Corr., 865 P.2d 859 (Colo. App. 1993).

 
 
 

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