Introduction

Tort claims against governmental entities and/or employees in Colorado are not plaintiff-friendly. In Colorado, governmental entities are immensely insulated from tort liability under the Colorado Governmental Immunity Act (“CGIA”). While the “policy” of the CGIA may be to protect governmental entities from “unlimited liability” so that (1) “public employees are not discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law,” and (2) taxpayers are protected against “excessive fiscal burdens,” see C.R.S. § 24-10-102, the practical effect of the CGIA is a weaponization of the protections afforded to public entities under the CGIA against personal injury plaintiffs regardless of the merits of the plaintiff’s case.

Background

The general premise of the CGIA is that governmental entities and employees are immune from liability for all claims for injury that lie in tort or could lie in tort, see C.R.S. § 24-10-108, unless an exception to immunity, as set forth in C.R.S. §§ 24-10-106(1)(a) through (j), applies, or a governmental employee acted in a willful and wanton manner, see C.R.S. § 24-10-118.

Sovereign immunity is a jurisdictional issue. It is a complete bar to tort actions against governmental entities and employees. See C.R.S. §§ 24-10-106(1), 24-10-108. “Sovereign immunity must be dealt with at the earliest possible stage because ‘[t]he sovereign cannot be forced to trial if a jurisdictional prerequisite has not been met.’” City & Cnty. of Denver v. Dennis, 418 P.3d 489, 494 (Colo. 2018) (quoting Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993)). Accordingly, once a governmental entity raises the issue of sovereign immunity, via a motion to dismiss under C.R.C.P. 12(b)(1), see Dennis, 418 P.3d at 494, the court must suspend all discovery, other than discovery relevant and necessary to decide the immunity issue. See C.R.S. § 24-10-108. Unless waiver of sovereign immunity is demonstrated by the plaintiff and found by the court, the court has no jurisdiction to the hear the case, and the case must be dismissed.

Because governmental immunity under the CGIA derogates common law, courts must “strictly construe the statute’s immunity provisions.” See Cnty. of Jefferson v. Stickle, 2024 CO 7, ¶ 10 (Colo. 2024) (hereinafter referred to as Stickle II”), aff’g Stickle v. Cnty. of Jefferson, 519 P.3d 751 (Colo. App. 2022) (hereinafter referred to as “Stickle I”) (quoting Springer v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo. 2000). At the same time, “[a]s a logical corollary,” courts must “broadly construe the CGIA provisions that waive immunity in the interest of compensating victims of governmental negligence.” See Springer, 13 P.3d at 799.

CGIA Protection #1: The Plaintiff Must PROVE Waiver of Immunity.

The plaintiff bears the burden of proving waiver of sovereign immunity. See Stickle II, 2024 CO 7 at ¶ 10; Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 85-86 (Colo. 2003); Padilla v. Sch. Dist. No. 1, 25 P.3d 1176, 1180 (Colo. 2001). It is not sufficient for a plaintiff to merely plead facts in the complaint that, if taken as true, would demonstrate waiver of immunity. See Martinez v. Estate of Bleck, 379 P.3d 315, 322 (Colo. 2016). Rather, the plaintiff must prove, via sworn affidavits, testimony at an evidentiary hearing (discussed below), and other evidence, that sovereign immunity has been waived. While courts characterize the plaintiff’s burden as “relatively lenient,” this just means that the plaintiff is afforded all reasonable inferences from undisputed evidence and allegations that the court determines are indeed true:

The burden of proof is on the plaintiff to prove the government has waived its immunity, but this burden is relatively lenient, as the plaintiff is afforded the reasonable inferences from her undisputed evidence. Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86 (Colo. 2003). When the facts are disputed, the court must begin by making a factual finding. Id. If the court determines that the plaintiff’s allegations are true, then it should award the plaintiff the reasonable inferences from her evidence. Id. at 85.

Dennis, 418 P.3d at 494.

CGIA Protection #2: It Is Practically Mandatory for the Court to Hold An Evidentiary Hearing Before Deciding the Issue of Immunity.

When facts relating to immunity are in dispute, the district court must hold an evidentiary hearing, which is referred to as a Trinity hearing, and enter findings of fact. See Trinity, 848 P.2d at 924; see also Tidwell, 83 P.3d at 85-86. While the court can rule on the pleadings alone, without a hearing, when facts relating to immunity are not in dispute, see Finnie v. Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253, 1260 (Colo. 2003); Tidwell, 83 P.3d at 86; Padilla, 25 P.3d at 1180, the court’s decision about whether to hold a Trinity hearing is subject to review for abuse of discretion. See Bilderback v. McNabb, 474 P. 3d 247, 250 (Colo. App. 2020). Practically, if a trial court does not hold a Trinity hearing, even when the parties leave the decision about whether to hold a Trinity hearing to the court’s discretion, the trial court’s order will likely be overturned on appeal and remanded with instructions to hold the hearing. See, e.g., Bilderback, supra; Heeren v. City of Arvada, 24CA0681 (Colo. App. Jan. 23, 2025) (unpublished).

PRACTICE POINTER: To keep a CGIA case moving forward and avoid the delay of an appeal on the issue, consider requesting that the trial court hold a Trinity hearing rather than leaving the decision to the court’s discretion.

CGIA Protection #3: The Plaintiff Is Liable for Attorneys’ Fees and Costs If the Case Is Dismissed.

If the governmental entity’s motion to dismiss is granted (i.e., if the plaintiff does not prove waiver of immunity), the plaintiff must pay the governmental entity’s costs, see C.R.C.P. 54(d), and attorneys’ fees, see C.R.S. § 13-17-201. As summarized by the Colorado Court of Appeals:

[Section 13-17-201] applies to dismissals of actions for

lack of subject matter jurisdiction under the CGIA.

See Smith v. Town of Snowmass Village, 919 P.2d 868, 873

(Colo. App. 1996). A motion to dismiss under the CGIA

implicates the trial court’s subject matter jurisdiction and

is properly resolved pursuant to C.R.C.P. 12(b)(1).

Swieckowski v. City of Fort Collins, 934 P.2d 1380,

1382-84 (Colo. 1997). Therefore, an award of attorney fees

is mandatory when a district court dismisses a complaint

under the CGIA. Smith, 919 P.2d at 873.

Wilson v. Denver Health, 2019 Colo. App. LEXIS 2374, *8-9 (Colo. App. June 20, 2019) (unpublished).

The trial court’s order on a motion to dismiss on grounds of sovereign immunity is a final judgment and subject to interlocutory appeal, see C.R.S. § 24-10-108, and the plaintiff’s liability for the defendant’s attorneys’ fees and costs includes fees and costs incurred by the defendant at the trial court level and all the way through the appellate process. See, e.g., Ferrel v. Colo. Dep’t of Corr., 179 P.3d 178, 189 (Colo. App. 2007).

CGIA Protection #4: If the Case Is Not Dismissed, the Plaintiff’s Recovery Is Severely Limited (Absent Willful and Wanton Conduct).

Even if the plaintiff proves waiver of immunity, the plaintiff’s recovery is capped at a few hundred thousand dollars for any and all damages, regardless of the number of governmental defendants, absent a finding of willful and wanton conduct.

Under the CGIA, for claims accruing on or after January 1, 2022, and before January 1, 2026, the maximum amount a plaintiff can recover “in any single occurrence, whether from one or more public entities and public employees,” is a mere $424,000 per person, not to exceed $1,195,000 per “any single occurrence” regardless of the number of claimants. See C.R.S. § 24-10-114(1)(a), (1)(b); State of Colorado, Limitations on Judgments Certificate, Jan. 5, 2022, available here.

The recovery cap does not apply to willful and wanton conduct. Willful and wanton conduct “is not merely negligent; instead it must exhibit a conscious disregard of the danger.” See Martinez v. Estate of Bleck, 379 P.3d 315, 323 (Colo. 2016). If the court finds that a public employee’s conduct was willful and wanton, the cap on the plaintiff’s recovery does not apply and punitive damages may be allowed. See C.R.S. § 24-10-118(1); DeForrest v. City of Cherry Hills Vill., 72 P.3d 384, 387 (Colo. App. 2002).

PRACTICE POINTER: If a governmental employee’s conduct is dangerous, the plaintiff should allege, with factual specificity, see C.R.S. § 24-10-110(5), that the conduct was willful and wanton. Failure to plead the factual basis for willful and wanton conduct will result in dismissal of the claim. See C.R.S. § 24-10-110(5)(b).

How Governmental Entities Weaponize CGIA Protections

In this author’s experience, it is rare for a CGIA case based on negligence, not willful and wanton conduct, to resolve before a final immunity determination.

With the CGIA protections discussed above in place, governmental entities and employees are incentivized to not meaningfully discuss resolution of a tort claim, regardless of the merits of the plaintiff’s case, until the issue of immunity has been finally decided—after the parties have conducted the necessary discovery relating to the issue of immunity, fully briefed the issue of immunity for the trial court, participated in a (practically mandatory) Trinity hearing, exhausted the appellate process, and incurred the cost to do so. This process can be expensive and can take years, before ever getting to the merits of the plaintiff’s case.

All the while, the plaintiff bears substantial risk if the defendant is found to be immune. The plaintiff’s risk is not only of no recovery and owing the plaintiff’s own attorneys’ fees and/or costs, but also of having to pay the defendant’s attorneys’ fees and costs, all the way through an appeal to the Colorado Supreme Court, if necessary, if the case is ultimately dismissed. The defendant, on the other hand, can breathe easy through the process because even if waiver of immunity is ultimately found, the defendant’s financial liability is capped by what can only be described as a draconian per-person and per-occurrence cap.

Once a plaintiff incurs the cost associated with a final immunity determination, the plaintiff—who, in addition to costs, has attorneys’ fees, liens, and/or subrogation claims to satisfy—may be upside down even if he or she were to recover the lesser of the full amount of his or her damages (in cases involving relatively modest injuries) or the statutory cap on the plaintiff’s recovery (in cases involving serious injuries). This, along with the risk of being financially responsible for the defendant’s attorneys’ fees and costs if no waiver of immunity is found, is a deterrent to a plaintiff even bringing a tort claim for negligence against a governmental entity or employee under the CGIA, regardless of the severity of the plaintiff’s injuries and damages. If pursuing a final immunity determination practically has this effect, governmental entities and employees are incentivized to choose this route, regardless of the merits of the plaintiff’s case.

“Think Tank” Takeaways

In this author’s experience, the weaponization of CGIA protections by governmental entities and employees against personal injury plaintiffs in negligence cases is not hypothetical. A legal scheme that deters injured persons from bringing meritorious claims seems broken and in need of fixing. Perhaps this could be accomplished by increasing the limitations on a plaintiff’s recovery under C.R.S. § 24-10-114 or enacting legislation to allow the prevailing party on the issue of sovereign immunity to recover attorneys’ fees and costs from the non-prevailing party. Perhaps there are other, better solutions. Regardless, it seems clear to this author that while the CGIA protections may accomplish the goal of protecting governmental entities and employees from “unlimited liability,” they frustrate another “‘basic but often overlooked’ purpose” of the CGIA, which is to allow people to seek redress for injuries caused by a public entity, see Stickle I, 519 P.3d. at 760, and to compensate victims of governmental negligence, see Springer, supra.