Appendix — Pacheco v. DeFoor

Supreme Court brief1992

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IN THE j iitbe Gi 7NES CLERK

Supreme Court of the United States

OcToBER 1991 TERM

THE COLORADO DEPARTMENT OF HIGHWAYS and THE

COLORADO DIVISION OF HIGHWAYS, PHILLIP PACHECO,

EARMAN PACHECO, MERLE ZIMER, PHILLIP WEST, ROSS

HAMILTON, EDWARD FINK, JOHN M. SALAZAR, R.L. CLEV-

ENGER, DWIGHT BOWER, PHIL MCCULLOUGH, and LOWELL

JACKSON,

Petitioners,

YVONNE E. DEFOOR, FRANK BOWEN; MARGIE BOWEN; ELI-

NOR M. BUTENHOFF; URS FREI; MICHAEL HATTON; THE

ESTATE OF ANNA HAYES, Deceased; THE CHILDREN AND

ESTATE OF ARLENE JOHNSON, Deceased; ESTA1= OF JOHN

KILLEEN, Deceased; ESTATE OF MARKUS LANG, HERBERT

LAND, as survivor, heir and personal representative of Mar-

kus Lang, and THE ESTATE OF MARKUS LANG, RITA LAND, as

survivor, heir and personal representative of Markus Lang

and THE ESTATE OF MARKUS LANG, and ELFRIEDE BORRILLO,

as Special Administrator of the Estate of Markus Lang; THE

ESTATE OF DOUGLAS MACKENZIE, Deceased; SUZANNE MAC-

KENZIE; MICHAEL MCGARVEY, NANCY MCGARVEY:

BERNADINE M. REMMERS; CAROL J. SMITH, THOMAS C.

SMITH, and MEAGAN N. SMITH, a minor; THE ESTATE OF

GLADYS STEWART, Deceased; THE ESTATE OF SOL STEWART,

Deceased; THE CHILDREN AND ESTATE OF KEITH WALTERS,

Deceased; THE CHILDREN AND ESTATE OF KATHLEEN WAL-

TERS, Deceased; HOROSHI YOSHIOKA; MORDEKHAY FuUM.-

ISHIKA; MASHASIKI NAKAYAMA; MIKAYO TAJIMA; and

RODNEY ALVA WEST; and CLARENDON NATIONAL INSUR-

ANCE COMPANY; SAN JUAN TourRS, INC., d/b/a GRAY LINE

Tours; and all persons or entities suffering, or claiming to

[continued]

suffer, damages resultant from the August 10, 1987, collision

between a boulder and a Gray Line Tour Bus on U.S. High-

way 40, about seven miles east of Winter Park, Colorado,

while the bus was on Berthoud Pass,

Respondents,

and

THE STATE OF COLORADO, by and through the Colorado

State Claims Board of the Division of Risk Management,

Plaintiff-Appellee,

PETITIONERS’ APPENDIX

Alan Epstein

David R. Brougham

of HALL & EVANS

1200 - 17th Street, Suite 1700

Denver, Colorado 80202

(303) 628-3300

Attorneys For Third-Party

Defendants and Counter

Defendants-Appellees, Phillip

Pacheco, Earman Pacheco,

Merle Zimer, Phillip West,

Ross Hamilton, Edward Fink,

John M. Salazar, R.L.

Clevenger, Dwight Bower, Phil

McCullough, and Lowell

Jackson

TABLE OF CONTENTS

PAGE

Trial Court’s Order Denying Defendants’ and

Counterclaimants’ Motion for Summary Judgment . la

Colorado Supreme Court’s Opinion ............ 13a

Defendants’-Appellants’ Petition for Rehearing .... 59a

Colorado Supreme Court’s Order Denying

Defendants’-Appellants’ Petition for Rehearing.... 74a

DISTRICT COURT, CITY AND COUNTY OF DENVER,

COLORADO

Case No. 88CV141, Courtroom 14

ORDER

THE STATE OF COLORADO, by and through the Colorado

State Claims Board of the Division of Risk Management,

Plaintiff,

YVONNE E. DEFoor, et ai...

Defendants and Counterclaimants.

and

CLARENDON NATIONAL INSURANCE COMPANY, et al..

Defendants and Counter-Plaintiffs,

Vv.

THE STATE OF COLORADO, et al.,

Defendant.

and

THE COLORADO DEPARTMENT OF HIGHWAYS, ef ai..

Counterclaim Defendants.

This matter came before the Court on defendants’ and

counterclaimants’ motion for summary judgment, the State

of Colorado’s motion to dismiss all remaining counterclaims,

and third-party defendants and counter-defendants’ motion

to dismiss all claims alleging civil rights violations under 42

U.S.C. Section 1983. The Court, hereby enters the following

findings of fact, conclusions of law, and order:

1. On August 10, 1987, defendants and counterclaimants

(claimants) were the passengers in a tour bus travelling on

U.S. Highway 40 (Berthoud Pass), in Grand County,

Colorado.

2. At the time, a Colorado State Department of High-

way’s ernployee was conducting a ditch-clearing operation,

and was using a state owned motor vehicle to move boulders

on Berthoud Pass. While moving a 6.7 ton boulder, the state

employee pushed it off the side of the mountain. The boulder

rolled down onto the roadway, hitting the side of the claim-

ants’ tour bus. As a result, nine people were killed and

nineteen others were injured.

3. On January 7, 1988, the State of Colorado (the State)

filed a complaint for interpleader and for a defendant class

action, pursuant to C.R.C.P. Rules 22 and 23. The State

asked for leave to deposit the sum of $400,000 into the regis-

try of the court, as the full extent of its liability, under C.R.S.

24-10-101 et seg. (1988 Repl. Vol.), the Colorado Govern-

mental Immunity Act (the Act).

4. The Colorado Governmental Immunity Act provides

as follows:

(1) A public entity shall be immune from liability in

all claims for injury which lie in tort or could lie in

tort . . . 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 his employment.

(d) A dangerous condition of a public highway,

road, or street which physically interferes with the

movement-—of traffic. . . . C.R.S. 24-10-106 (1988

Repl. Vol.)

5. After sovereign immunity is waived, the State’s liabil-

ity is limited to $150,000, when one person is injured in an

accident. In an accident where more than one person is

injured, each claimant’s recovery is limited to $150,000, and

the State’s total liability per occurrence is limited to

$400,000. C.R.S. 24-10-114 (1988 Repl. Vol.)

6. When the General Assembly passed the Colorado Gov-

ernmental Immunity Act, it made the following findings: (1)

That the state of Colorado and its political subdivisions pro-

vide essential public services and functions, and unlimited

liability for injuries which lie in tort could disrupt or make

prohibitively expensive, the government’s ability to provide

such services and functions; (2) That taxpayers would ulti-

mately bear the fiscal burdens of unlimited liability; therefore

limitations were necessary to protect taxpayers against exces-

sive fiscal burdens; and (3) That public employees should be

protected from unlimited liability so that they are not dis-

couraged from providing the services or functions required

by Colorado’s citizens, or from exercising the powers author-

ized or required by law. C.R.S. 24-10-102 (1988 Repl. Vol.)

7. The legislature also recognized that, in certain cases,

the doctrine of governmental immunity was, and would con-

tinue to be, inequitable. C.R.S. 24-10-102 (1988 Repl. Vol.)

8. On April 28, 1989, the claimants filed a joint motion

for summary judgment claiming that the damage cap provi-

sions of the Act ($150,000 per person, and $400,000 per

occurrence), violate their rights to equal protection under the

United States and Colorado Constitutions; their rights guar-

anteeing access to the courts; their substantive due process

rights; and their rights to protection from the passage of spe-

cial legislation.

I. EQUAL PROTECTION

9. The Fourteenth Amendment to the United States Con-

stitution declares that no state shall deny a person equal pro-

tection of the law. A similar guarantee exists within

Colorado’s Constitution’s due process clause. Colo. Const.

art. II, §25; Austin v. Litvak, 682 P.2d 41, 49 (Colo. 1984). An

equal protection issue arises when persons who are similar!y

—

situated receive different treatment by the law. Board of

County Commissioners v. Flickinger, 687 P.2d 975 (Colo.

1984).

10. A court will apply one of three standards of review

when a party challenges a statute under the equa! protection

clause. The first and highest standard is strict scrutiny. It is

applied where a “‘suspect”’ classification is established, or a

fundamental right is involved. Austin v. Litvak, supra.

11. Suspect classifications involve unalterable traits, such

as race, religion, lineage and alienage. Everett v. Goldman,

359 So. 2d 1256, 1266 (La. 1978). The damage cap provisions

under the Act do not involve suspect classifications. Lee v.

Colorado Department of Health, 718 P.2d 221 (Colo. 1986).

12. Fundamental rights include free speech, voting and

interstate travel. Everett v. Goldman, supra. The weight of

authority is that there is no fundamental right to recover an

unlimited amount of damages from government entities per-

forming government functions, Condemarin v. University

Hospital, 775 P.2d 348, 352 (Utah 1989), or to receive full

recovery in tort for an injury. Duke Power Company vy. Caro-

lina Environmental Study Group, 438 U.S. 59, 98 S. Ct. 2620,

57 L.Ed.2d 595 (1978).

13. But see White v. State of Montana, 661 P.2d 1272

(Mont. 1983) (right to bring civil action for personal injuries

is a fundamental right and subject to strict scrutiny analysis.)

14. Claimants argue that the Act’s damage cap provisions

infringe on their fundamental rights of interstate travel, and

therefore the Court should apply the strict scrutiny test. How-

ever, the Court finds that the Act does not create a classifica-

tion that infringes on the fundamental right to travel. See

Strong v. Collatos, 450 F. Supp. 1356, 1360 (D. Mass. 1978)

(A right which operates to impose some loss, hardship or

disadvantage on the exercise of the right to travel may be said

to penalize the right; “travel’’ means migration with the

intent to settle and abide.) Therefore, strict scrutiny is not the

proper standard of review

15. The second standard of review is the intermediate

standard. It applies where “‘quasi-suspect’’ classes are

involved. The United States Supreme Court has applied this

standard where classifications are based on alienage and ille-

gitimacy. Austin v. Litvak, supra at 49. To date, the Colorado

Supreme Court has only applied the intermediate standard of

review to gender based classifications. Austin vy. Litvak, supra.

16. The claimants here argue that the right to compensa-

tion for personal injuries is an important constitutional right,

and therefore, this court should, at a minimum, apply the

intermediate standard of review.

i7. The majority of jurisdictions, including Colorado,

have refused to apply the intermediate standard of review to

legislation limiting damages for personal injuries. See Lee v.

Colorado Department of Health, supra at 227; Ryszkiewicz v.

City of New Britain, 479 A.2d 793, 799 (Conn. 1984); Crowe

v. John W. Harton Memoria! Hospital, 579 $.W.2d 888, 892

(Tenn. 1979).

18. But see Condemarin vy. University Hospital, 775 P.2d

348, 356 (Utah 1989) (statute limiting recovery from unin-

sured governmental entity reviewable under intermediate

standard. Note however that the court applied this standard

because “the legislature not only limited recovery, but also

extended partial governmental immunity to restrict rights

which existed at common law”’); Hanson v. Williams County,

389 N.W.2d 319, 328 (N.D. 1986) (the right to recover from

personal injuries held to be an important substantive right);

Carson v. Maurer, 424 A.2d 825, 830-31 (N.H. 1980) (medi-

cal malpractice statute limiting recovery reviewable under

the intermediate standard).

19. This court finds that, in Colorado, the right to recover

damages for personal injuries is not reviewable under the

intermediate standard.

20. The third standard of review is the “rational basis”

test. Under this standard, a classification is valid if it has a

rational basis in fact, and bears a rational relationship to

legitimate governmental objectives. Austin v. Litvak, supra at

49. In 1986, the Colorado Supreme Court ruled that, where a

statute limits the amount of damages recoverable from a gov-

ernmenta! tortfeasor, the proper standard of review is the

rational basis test. Lee v. Colorado Department of Health, 718

P.2d 221. 227 (Colo. 1986).

21. Under the rational basis test, a law is presumed to be

constitutional and the challenging party must prove beyond a

reasonable doubt that the classification is unreasonable, or, if

reasonable, is unrelated to any legitimate governmental

objective. Tassian v. People, 731 P.2d 672 (Colo. 1987).

22. Inapplying the rational basis test, this Court’s limited

role is to determine whether there is a reasonable basis upon

which the legislature might have acted. State v. Wilkie, 261

N.W.2d 434, 442 (Wisc. 1978). A classification does not

offend the constitution simply because it is not made with

mathematical certainty or because it results in some inequal-

ity. Woods v. Holy Cross Hospital, 591 F.2d 1164, 1173 (Sth

Cir. 1979).

23. The majority of states that have considered the equal

protection issue have applied the rational basis test, and have

ruled that statutes limiting recovery from governmental

tortfeasors are constitutional. See Lienhard v. State of Minne-

sota, 431 N.W.2d 861 (Minn. 1988) (statutory classification

limiting liability of the state to $100,000 for one claim, and

$500,000 for any number of claims arising out of a single

occurrence, is rationally related to the legitimate governmen-

tal objective of insuring fiscal stability to meet and carry out

the manifold responsibilities of government); Estate of Car-

gill v. City of Rochester, 406 A.2d 704 (N.H. 1979) (statute

limiting recovery bears a rationa! relationship to limiting

financial burden placed on governmental units by large judg-

ments or high insurance premiums); Crowe v. John W. Harton

Memorial Hospital, supra (ordinance limiting amount of

damages recoverable against governmental tortfeasors to

$20.000 has a rational basis in protecting tax revenues from

unlimited claims.)

24. The Court finds that the Act’s provisions limiting

maximum recovery bear a rational relationship to two legiti-

mate governmental objectives: (1) promoting fiscal certainty;

and (2) protecting important governmental services and func-

tions from curtailment or termination.

25. The Court further finds that the claimants have failed

to prove the statute unconstitutional beyond a reasonable

doubt. Therefore, the Act does not violate the equal protec-

tion clauses of the United States or Colorado Constitutions.

Il. RIGHT OF ACCESS TO THE COURTS

26. Claimants also argue that the damage cap provisions

of the Act violate their rights of access to the courts. Article II,

§6 of the Colorado Constitution provides:

Courts of justice shall be open to every person, and a

speedy remedy afforded for every injury to person,

property or character; and right and justice should

not be administered without sale, denial or delay.

27. When a person claims a right which is not subject to

special constitutional protection, such as a fundamental right

or a suspect class, that person’s access to the courts may be

restricted if the restriction bears a rational relationship to a

legitimate governmental interest. Everett v. Goldman, supra

at 1268-69.

28. The majority of courts in other jurisdictions which

have considered this issue have held that statutes limiting

recovery against governmental tortfeasors do not violate a

plaintiff's right of access to the courts. See Ryszkiewicz v. City

of New Britain, supra (state constitutional provision granting

access to courts does not grant unqualified might to recover

unlimited damages from government entities); Estate of Car-

gill v. Rochester, supra (state constitutional provision giving

litigants free access to courts to pursue civil remedies “‘for all

injuries” does not guarantee that all injured persons will

receive full compensation for their injuries); Crowe vy.

John W. Harton Memorial Hospital, supra (state statute limit-

ing the amount of damages recoverable against governmental

tortfeasors to $20,000 does not violate a plaintiff's right of

access to the courts.)

29. But see White v. State of Montana, 661 P.2d 1272

(Mont. 1983) (statute limiting governmental liability for eco-

nomic damages and prohibiting recovery for non-economic

damages violates Montana’s state constitution which guaran-

tees all persons a speedy remedy for every injury.)

30. The Court has already found that the classification

contained in the Colorado Governmental Immunity Act

bears a rational relationship to legitimate governmental inter-

ests. Accordingly, the court also finds that the statutory classi-

fication does not violate the claimants’ right of access to the

courts.

lil. SUBSTANTIVE DUE PROCESS

31. Claimants’ third argument is that the damage cap

provisions of the Act violate their substantive due process

rights, and are therefore unconstitutional.

32. A plaintiff has no vested property right in a particular

measure of damages. and the legislature possesses broad

authority to modify the scope and nature of such damages.

Fein v. Permanente Medical Group, 695 P.2d 665, 679 (Cal.

198Sycirme to American Bank & Trust Company v. Commu-

nity Hospital, 683 P.2d 670 (Cal. 1984).

33. Where legislation involves economic and social wel-

fare interests, the test of substantive due process is whether

the regulation is reasonable in relation to the goals sought to

be attained and was adopted in the interest of the community

as a whole. Sibley v. Board of Supervisors of Louisiana, 462

So. 2d 149 (La. 1985).

34. A law violates the substantive due process guaranty

only when there 1s a totally arbitrary deprivation of liberty.

Woods v. Holy Cross Hospital, 591 F.2d 1164 (Sth Cir. 1979).

Where a statute provides that an injured person may apply to

the court for relief only within a limited period of time, there

is no violation of due process. Oberst v. Mays, 365 P.2d 902,

905 (Colo. 1961).

35. The legislation here bears a rational relation to legiti-

mate governmental objectives. Therefore, the damage cap

provisions do not violate the claimants’ rights to substantive

due process.

36. See Jetton v. Jacksonville Electric Authority, 399 So.

2d 396 (Fla. App. 1981) (statute imposing $50,000 limit on

governmental tort liability does not violate substantive due

process of the law.) See also Sibley v. Board of Supervisors of

Louisiana, supra (statute limiting medical malpractice

awards to $500,000 does not violate due process clauses.)

IV. SPECIAL LEGISLATION

37. Claimants’ final argument is that the Act constitutes

special legislation and is therefore unconstitutional.

38. Article V, Section 25 of the Colorado Constitution

provides:

The general assembly shall not pass . . . special

laws . . . granting to any corporation, association,

or individual any special or exclusive privilege,

immunity or franchise whatsoever.

39. A statute is not special legislation where it is general

and uniform in its operation upon all those in like situations.

Bushnell v. Sapp, 571 P.2d 1100 (Colo. 1977).

10a

40. The Colorado Governmental Immunity Act applies

uniformly to all persons who sue governmental tortfeasors,

and does not single out certain groups for special treatment.

Therefore, the statute does not constitute special legislation.

See Giebink »y. Fischer, 709 F. Supp. 1012 (D. Colo. 1989)

(premises liability statute applies uniformly to all landowners

to limit liability for injuries, and therefore is not a special

law.)

V. THE ROLE OF THE TRIAL COURT

41. This court is aware that some claimants have sus-

tained injuries and damages in excess of the statutory limits,

and the damage cap provisions of the Colorado Governmen-

tal Immunity Act will create severe financial hardships for

these claimants and their families. Since the State has not

claimed that these claimants were in any way responsible for

the calamity, this result may seem inequitable. Nevertheless,

when the language of a statute is plain and unambiguous, the

Court must apply the statute as written. Lee v. Colorado

Department of Health, supra.

42. It is not within this Court’s power to rewrite legisla-

tion. The power to change the present scheme of compensa-

tion or to provide an alternative remedy for these and other

claimants rests with the General Assembly. Bellendir v. Kezer,

648 P.2d 645 (Colo. 1982).

43. Nor can this Court interpret the Act using the stan-

dards suggested by claimants’ counsel. Only four years ago,

the Colorado Supreme Court upheld the constitutionality of

the Colorado Governmental Immunity Act against another

party’s analogous claim that the Act violated his right to equal

protection. This Court is bound by that precedent. Lee v.

Colorado Department of Health, supra.

lla

VI. CIVIL RIGHTS CLAIMS

44. Claimants have already conceded that no claim may

be stated against the individual defendants in their official

capacities. Will v. Michigan Department of State Police, 107

S. Ct. 2304 (1989). The final issue is whether these claimants

have stated claims sufficient to expose the individual defend-

ants to potential civil rights liability in their individual capac-

ities. The Court concludes that plaintiffs have not stated such

claims and hereby incorporates by reference the arguments

made in the briefs submitted by the State of Colorado and by

third-party defendants and counter-defendants.

ORDER

WHEREFORE, IT IS ORDERED that defendants’ and

counterclaimants’ motion for summary judgment as to the

constitutionality of C.R.S. 24-10-i01 et seg. is denied; the

Court declares that said statute is constitutional; and

IT IS FURTHER ORDERED that the plaintiff State of

Colorado’s motion to dismiss all counterclaims alleged

against it is granted; and

IT IS FURTHER ORDERED that third-party defend-

ants and counter-defendants’ motion to dismiss all claims

alleging civil rights violations under 42 U.S.C. Section 1983

is granted; and

IT IS FURTHER ORDERED that this matter shall pro-

ceed as an interpleader action; and

IT IS FURTHER ORDERED that this Order shall con-

stitute a final judgment for appellate purposes, the court find-

ing no just reason for delay. C.R.C.P. Rule 54 (b).

12a

Dated this 27th day of July, 1990.

BY THE COURT:

Sandra he Rothenberg

District Court Judge

SIR/cwf

cc: All counsel

13a

COLORADO BAR ASSOCIATION

ADVANCE SHEET HEADNOTE

February 3, 1992

No. 90SA351. State v. DeFoor. Statutory Limitations on

Damages — Sovereign Immunity — Equal Protection of

Laws — Due Process of Laws — Access to Courts — $ 1983.

The supreme court holds that the statutory limitation on

damages in section 24-10-114(1), 1OA C.R.S. (1988), sought

against the State withstands equal protection, due process

and access to court challenges. The supreme court also finds

that dismissal of the § 1983 claims was premature on the

facts, and thus reinstates and remands the claims for further

hearing.

l4a

No. 90SA351

Supreme Court, State of Colorado

FEBRUARY 3, 1992

THE STATE OF COLORADO, by and through the Colorado

State Claims Board of the Division of Risk Management,

Plaintiff-Appellee,

YVONNE E. DEFOOR; FRANK BOWEN; MARGIE BOWEN; EL!-

NOR M. BUTENHOFF; URS FREI; MICHAEL HATTON; THE

ESTATE OF ANNA HAYES, Deceased; THE CHILDREN AND

ESTATE OF ARLENE JOHNSON, DECEASED; ESTATE OF JOHN

KILLEEN, Deceased; ESTATE OF MARKUS LANG, HERBERT

LAND, as survivor, heir and personal representative of Mar-

kus Lang, and THE ESTATE OF MARKUS LANG, RITA LAND, as

survivor, heir and personal representative of Markus Lang

and THE ESTATE OF MARKUS LANG, and ELFRIEDE BORRILLO,

as Special Administrator of the Estate of Markus Lang; THE

ESTATE OF DOUGLAS MACKENZIE, Deceased: SUZANNE MAC-

KENZIE; MICHAEL MCGARVEY, NANCY MCGARVEY:

BERNADINE M. REMMERS; CAROL J. SMITH, THOMAS C.

SMITH, and MEAGAN N. SM:-TH, a minor; THE ESTATE OF

GLADYS STEWART, Deceased; THE ESTATE OF SOL STEWART,

Deceased; THE CHILDREN AND ESTATE OF KEITH WALTERS,

Deceased; THE CHILDREN AND ESTATE OF KATHLEEN WAL-

TERS, Deceased; HOROSHI YOSHIOKA; MORDEKHAY FUM-

ISHIKA; MASHASIKI NAKAYMA; MIKAYO TAJIMA; and

RODNEY ALVA WEST; and CLARENDON NATIONAL INSUR-

ANCE COMPANY; SAN JUAN Tours, INC., d/b/a GRAY LINE

Tours; and all persons or entities suffering, or claiming to

suffer, damages resultant from the August 10, 1987, collision

[Continued]

15a

between a boulder and a Gray Line Tour Bus on U.S. High-

way 40, about seven miles east of Winter Park, Colorado,

while the bus was on Berthoud Pass,

Defendants-Appellants,

Vv.

THE COLORADO DEPARTMENT OF HIGHWAYS and THE COLO-

RADO DIVISION OF HIGHWAYS, PHILLIP PACHECO, EARMAN

PACHECO, MERLE ZIMMER, PHILLIP WEST, ROSS HAMILTON,

EDWARD FINK, JOHN M. SALAZAR, R.L. CLEVENGER,

DWIGHT BOWER, PHIL MCCULLOUGH, and LOWELL

JACKSON,

Third-Party Defendants and Counter Defendants-Appellees.

Appeal from the District Court, City and County of

Denver, Honorable Sandra I. Rothenberg, Judge

EN BANC JUDGMENT AFFIRMED IN PART,

REVERSED IN PART, AND CASE

REMANDED WITH DIRECTIONS

Sears, Anderson & Swanson, P.C.

Leland P. Anderson

Denver, Colorado

Victoria C. Swanson, P.C.

Victoria C. Swanson

Colorado Springs, Colorado

Pryor, Carney and Johnson, P.C.

Thomas L. Roberts

Mark P. Martens

Englewood, Colorado

Fogel, Keating & Wagner

David Struthers

Denver, Colorado

l6a

Aisenberg & Kaplan

H. Paul Himes

Denver, Colorado

Attorneys for Appellants

Gale A. Norton, Attorney General

Raymond T. Slaughter, Chief Deputy Attorney General

Timothy M. Tymkovich, Solicitor General

Timothy R. Arnold, Deputy Attorney General

Gregg E. Kay, First Assistant Attorney General

Simon P. Lipstein, Assistant Attorney General

Denver, Colorado

Attorneys for Appellee The State of Colorado

Hall & Evans

David R. Brougham

Denver, Colorado

Attorneys for Individual Appellees Phillip Pacheco,

Earman Pacheco, Merle Zimmer, Phillip West, Ross

Hamilton, Edward Fink, John M. Salazar, R.L. Cleven-

ger, Dwight Bower, Phil McCullough, and Lowell

Jackson

The Association of Trial Lawyers of America

Michael C. Maher, President

Washington, D.C.

The Colorado Trial Lawyers Association

John Gehlhausen, President

Denver, Colorado

Vinton, Waller, Slivka & Panasci

Denis H. Mark

Denver, Colorado

Attorneys for Amici Curiae The Association of Trial

Lawyers of America (ATLA) and The Colorado Trial

Lawyers Association (CTLA)

17a

Miller & McCarren, P.C.

J. Kent Miller

Denver, Colorado

Attorneys for Amicus Curiae Colorado Head Injury

Foundation, Inc.

Frederic K. Conover, II

Denver, Colorado

Holme Roberts & Owen

Daniel S. Hoffman

Boyd N. Boland

Denver, Colorado

Attorneys for Amicus Curiae Colorado Bar Association

Eason, Sprague & Wilson, P.C.

Eugene M. Sprague

Elizabeth A. McKeever

Denver, Colorado

Attorneys for Amicus Curiae the Colorado School Dis-

tricts Self Insurance Pool

Griffiths & Tanoue, P.C.

Susan K. Griffiths

Tami A. Tanoue

Elizabeth E. Salkind

Denver, Colorado

Colorado Municipal League

Kathleen E. Haddock

Denver, Colorado

Attorneys for Amici Curiae Colorado Intergovernmental

Risk Sharing Agency, Colorado Counties Casualty and

Property Pool, Colorado Counties, Inc., The Colorado

Special Districts Property and Liability Pool, The Spe-

cial District Association of Colorado, and Colorado

Municipal League

18a

JUSTICE VOLLACK delivered the Opinion of the

Court as to Parts I, II, III, and V, and announced the Judg-

ment of the Court as to Part IV.

CHIEF JUSTICE ROVIRA specially concurs as to

Part IV, and JUSTICE LOHR joins in the special

concurrence.

JUSTICE MULLARKEY specially concurs as to Part V

and dissents as to Part II, and JUSTICE QUINN joins in the

special concurrence as to Part V.

JUSTICE QUINN dissents as to Part 1V, and JUSTICE

MULLARKEY joins in the dissent.

19a

Claimants appeal from a district court ruling that the

Colorado Governmental Immunity Act, §§ 24-10-1001 to -120,

10A C.R.S. (1988) (the Act), does not violate claimants’ rights

to equal protection of laws, access to courts, or due process of

laws.! Claimants also appeal from the district court’s determi-

nation that their claims against individual defendants under

42 U.S.C. § 1983 (1988) were insufficient to expose those

defendants to liability. We affirm the district court ruling

regarding claimants’ constitutional challenges, but remand

the § 1983 allegations for further hearings.

On August 10, 1987, Phillip Pacheco was operating a

state-owned vehicle. He used this vehicle to move a 6.7-ton

boulder, pursuart to Department of Highway ditch-clearing

policies, on an upper switchback on the west side of Berthoud

Pass. The boulder rolled down onto a roadway and hit a tour

bus. Of the thirty-four passengers on the bus, nine were killed

and twenty-five sustained injuries as a result of the collision.

On January 6, 1988, the Colorado Attorney General

filed an interpleader action in Denver District Court. The

Attorney General attempted to deposit the sum of $400,000

with the registry of the Court, and to have a defendant class

certified pursuant to C.R.C.P. 22 and 23. On April 28, 1989,

the claimants filed a motion for summary judgment, contend-

ing that section 24-10-114(1), 1OA C.R.S. (1988), of the Act

violated their right to equal protection of laws, access to

| This court has jurisdiction pursuant to § 13-4-102(1)(b), 6A GR:S.

(1988), as claimants contest the constitutionality of § 24-10-114(1).

Claimants were the named defendants in an interpleader action filed by

the State of Colorado on January 6, 1988. Claimants are the appellants

before this court.

20a

courts and due process of laws.’ Section 24-10-114(1)

provides:

(1) The maximum amount that may be recovered

under this article in any single occurrence, whether from

one or more public entities and public employees, sha!

be:

(a) For any injury to one person in any single

occurrence, the sum of one hundred fifty thousand

dollars;

(b) For an injury to two or more persons in any

single occurrence, the sum of four hundred thousand

dollars; except that, in such instance, no person may

recover in excess of one hundred fifty thousand

dollars.

The claimants also made claims pursuant to 42 U.S.C. § 1983

(1988). The State filed its own motion for summary judgment

and moved to dismiss the § 1983 claims. The district court

ruled against the claimants and in favor of the State on the

motions for summary judgment.

2 Claimants also contended that the Act violated the constitutional

prohibition against special legislation. That contention was not raised

on appeal to this court.

Il.

Claimants urge that section 24-10-114(1), 10OA C.R.S.

(1988), violates their right to equal protection of the laws

because it creates an arbitrary classification. Some individu-

als, according to claimants, may be fully compensated for

injuries they sustain alone. Others jointly injured, however,

may not be. Claimants further contend that the recovery limi-

tations in the Act violate their right to equal protection of the

laws because the limitations are not rationally related to the

State’s interest in assuming liability for its tortious acts.

Claimants premise their argument on the equal protection

guarantees found in the Fourteenth Amendment to the

United States Constitution and in Article II, Section 25, of

the Colorado Constitution.

Claimants’ argument raises the larger issue of whether

the General Assembly can ever limit the State’s liability for

damages in tort, as any limitation will work favorably for

some but not others. We have recognized, however, that it is

within the province of the General Assembly to simultane-

ously create governmental liability and place limitations on

actions brought against the State. See, e.g., Evans v. Board of

County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971) (abro-

gating sovereign immunity in Colorado). We conclude that

the General Assembly can limit the State’s liability for dam-

ages and affirm the district court’s ruling that the Act does not

violate the claimants’ right to equal protection of the laws.

" 22a

A. Arbitrary Classification

Claimants contend that section 24-10-114(1) creates an

arbitrary and irrational classification between individuals

who may potentially receive full compensation under subsec-

tion (1)(a) as opposed to individuals who are less likely to

receive full compensation for injuries under subsection

(1)(b).3 Claimants further contend that their right to recover

damages for personal injuries is important, and that section

3 Claimants argue that § 24-10-114(1) creates additional, impermis-

sible classifications. First claimants contend that § 24-10-114(1) irra-

tionally separates victims of private tortfeasors from victims of public

tortfeasors. We rejected this contention in Lee v. Colorado Department

of Health, 718 P.2d 221, 227-28 (Colo. 1986). Secondly, claimants

contend that § 24-10-114(1) irrationally compensates victims of torts in

1979 differently than victims of torts in 1991, given the rate of infla-

tion. This court rejected a similar argument in Bellendir v. Kezer, 648

P.2d 645, 647 (Colo. 1982). In Bellendir, we held:

In determining that the absence of an escalation of benefits

provision applicable to individuals in the plaintiff's position

violates no constitutional guarantee, we do not mean to indi-

cate that the present statute necessarily best fulfills the social

and economic objectives it was designed to achieve or that a

more just system could not be formulated . . . However, it is

not the function of this Court to rewrite legislation; the power

to change the present scheme rests with the General Assembly.

Id. We thus decline to invalidate § 24-i0-114(1) on such grounds.

Finally, claimants contend that § 24-10-114(1) irrationally sepa-

rates victims of torts from victims of breaches of contracts. This con-

tention is without merit as contracts are the product of intentional acts

for which public entities can accurately plan and budget. See, e.g.,

Faber v. State, 143 Colo. 240, 241, 353 P.2d 609, 609-10 (1960) (distin-

guishing Boxberger v. State Highway Dep't, 126 Colo. 438, 250 P.2d

1007 (1952), and Ace Flying Serv. Inc. v. Colorado Dep’t of Agric., 136

Colo. 19, 314 P.2d 278 (1957), as cases involving actions on contracts

wherein persons dealing with the state are entitled to enforce their

contract rights, from cases premised on the state’s negligence.)

23a

24-10-114(1) should thus be reviewed under a heightened

scrutiny equal protection test.‘

This court previously declined to apply a heightened

scrutiny test to an equal protection attack on section 24-10-

4 This court has previously detailed the analytical framework for

addressing equal protection challenges. See e.g., Tassian v. People, 73!

P.2d 672, 674-75 (Colo. 1987). While neither party contends that strict

scrutiny should be applied to § 24-10-114(1), claimants ask this court to

follow the jurisprudence of the Utah Supreme Court and the New

Mexico Supreme Court in their recent application of an intermediate

standard of review to equal protection attacks on statutory damage

limitations. See Trujillo v. City of Albuquerque, 798 P.2d 571, 577-78

(N.M. 1990), and Condemarin v. University Hospital, 775 P.2d 348,

352-56 (Utah 1989).

The Utah Supreme Court considered the constitutionality of

damage limitations in a medical malpractice action brought against a

state university hospital in Condemarin. When the plaintiff brought her

action, government-owned health care facilities were immunized from

suits by a governmental immunity act. Thus, the Condemarin court was

required to evaluate the doctrine of sovereign immunity with respect to

health care services. The Condemarin court considered the plaintiff's

inability to bring suit and concluded that a heightened standard of

review should be applied because “the legislature has not only limited

recovery, but it has also extended partial governmental immunity to

restrict rights which existed at common law.” /d. at 356. We are not

called upon here to evaluate partial governmental immunity and,

under our holding in Lee, we decline to follow the Condemarin court.

The New Mexico Supreme Court held that damage limitations

should be reviewed under intermediate scrutiny because “‘[a] tort vic-

tim’s interest in full recovery of damages calls . . . for a form of scru-

tiny somewhere between ‘the largely toothless invocation of minimum

rationality and the nearly fatal invocation of strict scrutiny.” ” Trujillo,

798 P.2d at 578 (citations omitted). The Trujillo court, however,

declined to pass on the constitutionality of the damage limitations at

issue. We decline to follow the jurisprudence of the 7rujillo court

because we do not recognize a right to full recovery for damages, nor do

we view (as claimants concede) the rational basis inquiry to be ‘largely

toothless.’ See, e.g., Austin v. Litvak, 682 P.2d 41, 50 (Colo. 1984) (a

legislative classification failed under a rational basis test); and Gallegos

v. Phipps, 779 P.2d 856 (Colo. 1989) (statute failed to pass rational

basis test).

24a

114(1) and applied a rational basis test instead, in Lee v.

Colorado Department of Health, 718 P.2d 221, 227 (Colo.

1986) (a rational basis test applies where no fundamental

right is infringed nor suspect class created). See also Duke

Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59,

83 (1978) (liability limitations are classic examples of eco-

nomic regulation which is subject to rational basis review)

(quoted in Austin v. Litvak, 682 P.2d 41, 50 (Colo. 1984)).

Pursuant to Lee, we again apply a rational basis test to the

instant equal protection attack on section 24-10-114(1).

B. Rational Basis Review

Under the rational basis test, section 24-10-114(1) is

presumed constitutional and can create a classification that

affords disparate treatment to different groups only if it is

rationally related to a legitimate state interest.’ Tassian v.

People, 73\ P.2d 672, 675 (Colo. 1987). We begin our analy-

sis with a review of the State’s liability for injuries caused by

the negligent operation of state-owned motor vehicles.

In 1949, the General Assembly enacted a statute that

rendered the State liable for injuries caused by the tortious

> The rational basis test places the burden of proof on the party

challenging the statute's constitutionality. The challenger must prove

beyond a reasonable doubt that the classification is unreasonable, or

that it is unrelated to any legitimate siate interest. Lee, 718 P.2d at 227;

Tassian v. People, 731 P.2d 672, 675 (Colo. 1987). The statute is

afforded a presumption of constitutionality at the outset of the inquiry.

Tassian, 731 P.2d at 675. See also Duke Power Co. v. Carolina Envtl

Study Group, Inc., 438 U.S. 59, 83 (1978).

25a

operation of certain classes of state-owned motor vehicles.°®

Act approved May 6, 1949, ch. 118, sec. 1, 1949 Colo. Sess.

Laws 268-69; see also §§ 13-10-1 to -3, 2 C.R.S. (1953). The

General Assembly simultaneously limited the State’s liability

for such damages as follows:

(a) Bodily injury liability, Ten Thousand and No/100

($10,000.00) Dollars for each person, Twenty Thousand

and No/100 ($20,000.00) Dollars for each accident.

(b) Property damage liability, Five Thousand and

No/100 ($5,000.00) Dollars for each accident.

Id. at 268. When enacting these sections, the General Assem-

bly declared that the Act was necessary for “the immediate

preservation of the public peace, health and safety.” /d. at

269.

In 1968, the legislative council of the General Assembly

appointed a committee to study sovereign immunity in Colo-

rado. See Legislative Council Report to the Colorado General

Assembly, Governmental Liability in Colorado, Research

Publication No. 134 (Nov. 1968) [hereinafter “Legislative

Council Report’’]. The committee reviewed the extent of the

State’s liability in numerous areas, including liability for inju-

ries related to roads, highways and negligent operation of

In case any injury to the person or property of another is

caused by the tortious operation of a motor vehicle by a state,

county, municipal or quasi-municipal police, fire or health

department while engaged in the line of duty, the state,

county, municipality or quasi-municipality and the motor

vehicle drivérs thereof shall be liable for such injury to the

extent hereinafter stated[.]

Act approved May 6 1949, ch. 118, sec. 1, 1949 Colo. Sess. Laws 268.

The General Assembly did not choose to include liability for

injuries caused as a result of highway construction or maintenance at

that time. See e.g., § 120-7-13, 6 C.R.S. (1963).

26a

motor vehicles.’ The committee also reviewed both the

amount and nature of claims filed with the State from July 28,

1965, through September 5, 1967. Jd. at 46-48. The commit-

tee analyzed “‘the practical fiscal considerations which might

foreseeably flow from any enlargement of tort responsibility.”

id. at 143.

On two different occasions, the committee met for the

purpose of discussing the fiscal impact of purchasing govern-

ment liability insurance. Jd. at 144. In proposing approaches

to legislation regarding governmental liability, the committee

anticipated the equal protection issue currently before this

court:

[I]t 1s said that any dollar limitation is arbitrary and

bound to be unfair to some claimants since such

limits will usually have no rational relationship to

the amount of actual damages sustained. On the

other hand, this approach does eliminate to a con-

siderable degree the danger of the catastrophe judg-

ment, and provides a sound basis for rational fiscal

planning and the computation of insurance

premiums.

Id. at 119.8 The committee was thus aware that any recovery

limitation might not satisfy all claims equally. The committee

noted that limiting recovery, however, provided ‘ta sound

basis for rational fiscal planning and the computation of

insurance premiums.” 7d. In their report submitted to the

General Assembly, the committee concluded that limiting

7 At the time of the report, nineteen states (including Colorado) were

liable in damages for injuries caused by the negligent operation of

certain classes of motor vehicles. Legislative Council Report at 60 and

71; see, e.g., § 13-10-1, 2 C.R.S. (1963).

8 The comment appeared as a criticism of a proposal to limit liability

to the amount of insurance coverage. At the time of the report, twenty-

five states had authority to purchase liability insurance. Fourteen of

those twenty-five states permitted recovery to the extent of insurance

coverage. Legislative Council Report at 72.

27a

liability was the best alternative to either no liability or

unlimited liability. Jd. at 144-45.

in March of 1971, this court considered and rejected the

draconian doctrine of sovereign immunity in Evans v. Board

of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971)

(plaintiff sued for damages sustained after she fell on court-

house steps) In rejecting the doctrine, we held:

The effect of this opinion . . . is simply to undo

what this court has done and leave the situation

where it should have been at the beginning . . . : in

the hands of the General Assembly of the State of

Colorado. If the General Assembly wishes to restore

sovereign immunity . . . in whole or in part, it has

the authority to do so. If the legislative arm of our

government does not completely restore these

immunities, then undoubtedly it will wish to place

limitations upon the actions that may be brought

against the state and its subdivisions. This, too, it

has full authority to accomplish.

Id. at 105, 482 P.2d at 972 (citations omitted).9

In May of the same year, the General Assembly exer-

cised this authority and created governmental liability in

numerous areas, including highway maintenance, while

simultaneously limiting recovery for liability to $100,000 per

person and $300,000 per occurrence.'° Act approved May 22,

1971, ch. 323, sec. 1, 1971 Colo. Sess. Laws 1204-11; § 130-

9 We announced our decision in Evans along with our decisions in

Flournoy v. School District Number One, 174 Colo. 110, 482 P.2d 966

(1971), and Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). These

cases have been superseded by statute as stated in State v. Hartsough,

780 P.2d 836 (Colo. 1990).

'0 The committee recommended setting recovery limits at $100,000

per person/$3,000,000 per occurrence. Legislative Council Report at

145. During deliberations, Representative Sack motioned, however, to

establish the per-occurrence limit at $300,000, and the draft bill was

accordingly amended on February 24, 1971.

28a

11-14, 6 C.R.S. (1971 Supp.); see, e.g., State v. Hartsough, 790

P.2d 836, 837-38 (Colo. 1990). In 1979, the General Assem-

bly approved sections 24-10-114(1}(a) and (b), which

increased the liability limits to their current val-

ues—$ 150,000 per person and $400,000 per occurrence. Act

approved June 15, 1979, ch. 219, sec. 4, 1979 Colo. Sess.

Laws 863.

The General Assembly has thus rendered the State of

Colorado liable for actions arising out of negligent operation

of state-owned motor vehicles for forty-two years. Recovery

has been limited since such actions were created in 1949. As

the State’s exposure has generally grown since 1949, the lim-

its on liability have correspondingly been raised, in 1971 and

again in 1979. Thus the monetary limits on the State’s liabil-

ity remained the same from 1949 through 1971, from 1971

through 1979, and from 1979 through the present. The Gen-

eral Assembly acted rationally during this period, when

adjusting the State’s liability to its monetary ability to assume

such fiscal responsibilities.

C. State Interesis

In evaluating the state interests involved, we look to

those interests invoked by section 24-10-114(1) and by the

Act generally. Section 24-10-114(1) provides monetary recov-

ery for governmental liability created by the Act. In the Act’s

declaration of policy, the General Assembly recognized this

court’s abrogation of sovereign immunity and joined in our

conclusion that the doctrine of sovereign immunity fre-

quently produced unjust results. § 24-10-1002, 1OA C.R:S.

(1988); Evans, 174 Colo. at 101, 482 P.2d at 970. The General

Assembly stated, however, “that unlimited liability could dis-

rupt or make prohibitively expensive the provision of .. .

essential public services and functions.” § 24-10-102. The

29a

General Assembly also noted that “‘the taxpayers would ulti-

mately bear the fiscal burdens of unlimited liability.”!! Jd.

Claimants argue that section 24-10-114(1) is not ration-

ally related to the enumerated state interests for the following

reasons: because the recovery limits were arbitrarily chosen;

because the scheme denies full recovery where government

liability is potentially greatest; because the limits have not

been raised since 1979; because there is no evidence of finan-

cial hardship to the community; and, because the amount of

claims paid is not substantial. We reject claimants’

contentions.

In Evans v. Board of County Commissioners, 174 Colo.

97, 482 P.2d 968 (1971), we abrogated the doctrine of sover-

eign immunity and returned to the legislature the authority to

regulate the State’s liability. Jd. at 105, 482 P.2d at 972. Prior

to our decision in Evans, the legislative council carefully con-

sidered the extent to which the State could afford liability

insurance. Responding to both our decision in Evans and the

Legislative Council Report, the General Assembly exercised

its authority and abrogated sovereign immunity in 1971,

while simultaneously establishing recovery limits. The Gen-

eral Assembly raised the recovery limits eight years later.

We have previously rejected an equal protection chal-

lenge to section 24-10-114(1) in Lee v. Colorado Department

of Health, 718 P.2d 221, 227-28 (Colo. 1986). We noted that

the State had an interest in creating fiscal certainty in order to

execute its myriad public responsibilities. Jd. at 227. We did

not hesitate to conclude that

[b]y limiting the liability of a public entity to a fixed

amount, the Governmental Immunity Act protects

1 Section 24-10-113(3) of the Act provides that when public entities

are unable to pay judgments during the fiscal year, the entities “shall

levy a tax, in a separate item to cover such judgment.” § 24-10-113(3),

10A C.R.S. (1988). Public entities are required to levy such taxes until

outstanding judgments are satisfied. /d.

30a

the public entity against the risk that unforeseen and

unlimited tort judgments will deplete the public cof-

fers and result in the termination or substantial cur-

tailment of important governmental functions.

Id. at 228. We found that section 24-10-114(1) satisfied equal

protection of the laws. Jd. at 228.

Claimants concede that their claim, the multi-person

incident, is the rare exception and not the rule. Their claim

thus presents the extreme case where a particular request for

relief is not completely fulfilled as a result of limited liability.

As the United States Supreme Court has said,

In the area of economics and social welfare, a State

does not violate the Equal Protection Clause merely

because the classifications made by its laws are

imperfect. If the classification has some ‘reasonable

basis,’ it does not offend the Constitution simply

because ‘... in practice, it results in some

inequality.’

Dandrige v. Williams, 397 U.S. 471, 485 (1970), quoted in

Bellendir v. Kezer, 648 P.2d 645, 647 (1982).!2 We find that

section 24-10-114(1) is rationally related to the legitimate

state interests of fiscal solvency and provision of essential

services while minimizing taxpayer burdens. Accordingly, we

affirm the district court’s holding that claimants are not

deprived of their right to equal protection of the laws.

IIT.

Claimants next contend that section 24-10-114(1), 1OA

C.R.S. (1988), deprives them of access to courts guaranteed

'2 See also Duke Power, 438 U.S. at 86 (Limiting liability “will, of

necessity, be arbitrary in the sense that any choice of a figure based on

imponderables like those at issue here can always be so characterized.

This is not, however, the kind of arbitrariness which flaws otherwise

constitutional action.”’).

3la

by Article II, Section 6, of the Colorado Constitution because

the statute denies them an adequate remedy for their injuries.

We disagree.

Article II, Section 6, of the Colorado Constitution

provides:

Courts of justice shall be open to every person,

and a speedy remedy afforded for every injury to

person, property or character; and right and justice

should be administered without sale, denial or

delay.['>]

This provision protections initial access to the courts. 7orres

v. Portillos, 638 P.2d 274, 277 (Colo. 1981).'4 The right of

access is conditioned on the existence of a legal right under

law to seek redress from another. When a right accrues under

law, courts must be available to effectuate that right. Protect

'3 Once again, claimants ask this court to follow the jurisprudence of

the Utah Supreme Court and the New Mexico Supreme Court in their

recent analyses of whether damage limitations burden litigants’ access

to courts. See Trujillo v. City of Albuquerque, 798 P.2d 571 (N.M.

1990), and Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989).

Under the Utah Governmental Immunity Act, the defendants in

Condemarin were immune from suit. Thus, the plaintiff was deprived

of her initial access to the courts. Unlike the Condemarin plaintiff,

claimants in the present case are not deprived of their opportunity to

sue the State. Thus they are not similarly deprived of their access to the

courts.

The New Mexico Supreme Court considered whether damage

limitations violated litigants’ access to courts in Trujillo. The Trujillo

court opined that an intermediate level of scrutiny should apply to

statutes burdening access to courts, but declined to pass on the consti-

tutionality of the damage limitations. We do not need to address what

level of scrutiny should apply to restrictions on access to courts, as we

find no access restricted in the present case.

14 In Torres, we evaluated § 38-12-103(3)(a), 3 C.R.S. (1973), which

allows landlords, but not tenants, to recover attorney fees in § 38-1 2-

103(3)(a) actions. We held that the tenants’ lack of equal opportunity to

recover attorney fees did not deny initial access to the courts and

therefore did not contravene Article II, § 6. Torres, 638 P.2d at 277.

32a

Our Mountain Env't, Inc. v. District Court, 677 P.2d 1361,

1367 n.6 (Colo. 1984) (the federal constitutional right to peti-

tion the government for a redress of grievances includes

access to the courts) (citing Hurricane v. Kanover, Ltd., 651

P.2d 1218 (Colo. 1982), and O’Quinn v. Walt Disney Prods.,

Inc., 177 Colo. 190, 493 P.2d 344 (1972)); see also Curtiss v.

GSX Corp., 774 P.2d 873, 876 (Colo. 1989) (rejecting a tort

claim where a statute immunized an employer from lawsuits

brought by an employee for work-related injuries).

Claimants contend that section 24-10-114(1) violates

their right to open courts because it denies them an adequate

remedy. Article II, Section 6, however, does not purport to

control the scope or substance of remedies afforded to Colo-

rado litigants. The open courts guarantee rather assures liti-

gants “that courts of justice shall be open to every person and

a speedy remedy afforded for every injury.” Curtiss, 774 P.2d

at 876.

Claimants alternatively contend that the legislature

severely curtailed a remedy without providing an adequate

alternative, contrary to the requirements of Kandt v. Evans,

645 P.2d 1300 (Colo. 1982).'5 In Kandt, we considered

whether a plaintiffs right of access to the courts was violated

when she was precluded from filing an intentional tort action

'5 Claimants contend that they are entitled to an adequate remedy

under Boxberger vy. State Highway Department, 126 Colo. 438, 250

P.2d 1007 (1952), wherein we stated that “[t]he rights of a citizen

remain the same whether they collide with an individual or the govern-

ment.” Jd. at 1008. In Boxberger, we were concerned with a plaintiff's

ability to sue the State Highway Department. The plaintiff had exe-

cuted and delivered a deed granting access rights to a portion of his

farm to the Department, but never received any consideration. We

concluded that the district court erred in dismissing plaintiff's action.

Like Kandt, Boxberger is readily distinguishable from the instant

case as the claimants’ ability to file suit against the State is not in

dispute. Further, the instant case does not involve a dispute regarding

contract rights, as did Boxberger. Thus, Boxberger’s directive does not

resolve the issue before this court.

33a

against a co-employee under the Colorado Worker’s Com-

pensation Act. Kandt, 645 P.2d at 1306. We held that the

General Assembly could abrogate common law rights as long

as an adequate statutory remedy was supplied, and concluded

that there was no access to courts violation.

Claimants do not contend that the General Assembly

has eliminated a right to an adequate remedy that existed at

common law, nor do they now dispute their ability to file suit

against the State. We do not find Kandt to govern the present

case. Because the access to courts guarantee does not address

adequacy of remedy, we conclude that claimants have not

been deprived of their access to courts.

IV.

Claimants contend that section 24-10-114(1), 1OA

C.R.S. (1988), deprives them of their rights to substantive

due process under the Fourteenth Amendment to the United

States Constitution and under Article II, Section 25, of the

Colorado Constitution. We disagree.

The due process guarantee of the Colorado Constitution

provides that “‘[n]o person shall be deprived of life, liberty or

property, without due process of law.’’ Colo. Const., art. II,

§ 25.'© We have observed that “‘[t]he constitutional provision

pertaining to due process of law is applicable to rights, not

remedies.” White v. Ainsworth, 62 Colo. 513, 522, 163 P. 959,

962 (1917) (a party has no vested right in a remedy) (citing

6 Am. & Eng. Ency. of Law 947 (2d ed.)). The United States

Supreme Court has similarly observed that

although a vested cause of action is property and is

protected from arbitrary interference, [appellants

have] no property, in the constitutional sense, in any

'©6 The Fourteenth Amendment to the United States Constitution

similarly provides, in pertinent part: “No State . . . shail deprive any

person of life, liberty, or property, without due process of law :

34a

particular form of remedy; all that [they are] guaran-

teed by the Fourteenth Amendment is the preserva-

tion of [their] substantial right to redress by some

effective procedure.

Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933) (citations

omitted). Thus, the federal and state due process guarantee

does not give litigants rights to particular remedies.'’? Claim-

ants argue that they have a legal right to damages for their

injuries that is a property right which cannot be taken away

without due process of law. Claimants rely on Rosane v.

Senger, 112 Colo. 363, 149 P.2d 372 (1944), for the proposi-

tion that the right to damages for injuries constitutes property

subject to the protections of the due process guarantee. The

plaintiff in Rosane contested whether the district court erred

in finding that her medical malpractice action was barred by a

statute of limitations. We said that “[a] legal right to damage

for an injury is property and one can not [sic] be deprived of

his property without due process. There can be no due pro-

cess unless the party deprived has his day in court.” Jd.at 370,

149 P.2d at 375. Plaintiffs property right to damages was

thus effectuated by preserving her cause of action for dam-

ages. Jd. at 370, 149 P.2d at 375-76. We accordingly found

that her action was not barred by the statute of limitations. Jd.

Claimants’ contention equates rights to causes of action

to rights to a specific remedy under section 24-10-114(1).

Section 24-10-114(1) was enacted as part of the General

Assembly’s response to our abrogation of sovereign immu-

nity. Evans v. Board of County Comm'rs, 174 Colo. 97, 482

P.2d 968 (1971). In Evans, we invited the General Assembly

to recreate governmental immunity as it saw fit, in whole or in

part. Jd. at 105, 482 P.2d at 972. The General Assembly

created a statutory scheme whereby claimants with rights to

'? The United States Supreme Court held, in Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 (1978), that

liability limitations found in the Price-Anderson Act did not violate the

due process guarantee in the Fourteenth Amendment.

bit.

35a

particular causes of action can seek /imited recovery against

the State. See generally § § 24-10-101 to -120, 10OA C.R.S.

(1988). Section 24-10-114(1), as part of this scheme, is a

limited remedial statute; it supplies a carefully defined range

of remedies for causes of action created under other sections

of the Act. It does not create a mght to a specific dollar

remedy.

Claimants’ substantive due process claim to recover an

amount in excess of the statutory scheme would set the

unwarranted precedent that the State’s liability is limited

only when the particular plaintiffs are satisfied with the com-

pensation received. The principles of limited liability, how-

ever, do not turn on the facts of particular cases.

We conclude that because there is no right to a remedy,

claimants have failed to articulate a cognizable property

interest in support of their due process claim.

Claimants alternatively contend that the due process

guarantee incorporates claimants’ right of access to courts

which in turn requires a guid pro quo, or adequate, alternative

remedy.'§ Claimants’ alternative contention fails for the

above-discussed reason: it fails to articulate a cognizable

property interest. We thus conclude that section 24-10-114(1)

does not deprive claimants of their rights to substantive due

process of laws.

Finally, claimants contend that the district court erred in

dismissing their § 1983 claims against individual defendants

18 Whether such a right exists is an unresolved question with respect

to federal law. The Duke Power Court stated that “‘it is not at all clear

that the Due Process Clause in fact requires that a legislatively enacted

compensation scheme either duplicate the recovery at common law or

provide a reasonable substitute remedy.” Duke Power, 438 U.S. at 88.

36a

for failure to state claims sufficient to expose the individual

defendants to civil rights hiability.'9 We agree.

In order to state a claim for relief under § 1983, a plain-

tiff must allege that a defendant acted under color of state law

and that the defendant’s action deprived the plaintiff of a

right secured by the federal constitution or federal laws. Par-

ratt v. Taylor, 451 U.S. 527, 535 (1981). Courts must then

determine whether such rights have been violated by applying

substantive federal law that defines the requisite state of mind

and the other requirements for pleading a civil rights action.

Daniels v. Williams, 474 U.S. 327, 330 (1985); Baker v.

McCollan, 443 U.S. 137, 140 (1979); Sheldon Nahmod, Civil

Rights and Civil Liberties Litigation: The Law of Section 1983

§ 2.02. 141 (3d ed. 1991). Finally, the defendant can assert

qualified immunity defenses to defeat a § 1983 claim. Hafer v.

Menlo, US. _, 112 S. Ct. 358 (1991); Will v. Michi-

gan Dep’t of State Police, 491 U.S. 58 (1989); Anderson v.

Creighton, 483 U.S. 635 (1987).

Noting that parties “against whom summary judgment

is sought [are] entitled to the benefit of all favorable infer-

ences that may be drawn from the facts,”’ Churchey v. Adolph

Coors Company, 759 P.2d 1336, 1339-40 (Colo. 1988) (cita-

tions omitted), we are not convinced that there was no genu-

ine issue of material fact with respect to claimants’ § 1983

allegations. We thus reinstate and remand the § 1983 claims

for further hearings.

CHIEF JUSTICE ROVIRA specially concurs as to

Part IV, and JUSTICE LOHR joins in the special

concurrence.

19 Claimants brought third-party actions under § 1983 against vari-

ous individuals, including the Executive Director of the Department of

Highways, the Chief Engineer, and highway maintenance supervisors

and workers.

37a

JUSTICE MULLARKEY specially concurs as to Part V

and dissents as to Part II, and JUSTICE QUINN joins in the

special concurrence as to Part V.

JUSTICE QUINN dissents as to Part IV, and JUSTICE

MULLARKEY joins in the dissent.

38a

State v. DeFoor, No. 90SA351

CHIEF JUSTICE ROVIRA specially concurs:

Except as to Part IV, in which I concur in the result only,

I concur in the majority opinion. I write separately to empha-

size my belief that the legislature is empowered to place

recovery limitations on the statutorily created claim against

public entity tortfeasors without violating the claimants’ con-

stitutional guarantee of due process.

After the Colorado Attorney General attempted to

deposit the $400,000 maximum amount recoverable under

section 24-10-114(1)(b), 1OA C.R.S. (1988) with the registry

of the district court, the claimants sought summary judgment

alleging that section 24-10-114(1)(b), which limits the aggre-

gate amount payable for any single occurrence involving two

or more persons to $400,000,' is unconstitutional because it

violates their constitutional guarantees of equal protection,

due process, and access to courts. I limit my analysis to claim-

ants’ allegations that this statute violates their substantive

due process rights. ~

The majority found, inter alia, that the General Assem-

bly can limit the state’s liability for damages. See maj. op. at

7. I believe that this holding correctly acknowledges the con-

stitutionality of section 24-10-114(1)(b) both facially and as

applied to the claimants in this case.

! This section also limits the per person recovery to $150,000.

39a

In order to defeat a facial substantive due process chal-

lenge to a statute, the state need only show that a regulation is

rationally related to a legitimate state purpose. Bloomer v. Bd.

of County Comm'rs of Boulder County, 799 P.2d 942, 948

(Colo. 1990); Colorado Soc’y of Community and Institutional

Psychologists, Inc. v. Lamm, 741 P.2d 707, 710-11 (Colo.

1987). As the majority and Justice Quinn’s dissent point out,

section 24-10-114(1)(b) bears a rational relationship to the

legitimate government interests of fiscal solvency and fiscal

integrity, and this provision is, thus, facially constitutional.

See maj. op. at 17 and Quinn, J., dissenting at 1 & 2. Conse-

quently, I turn to examine the effect of application of this

statute on the claimants’ due process rights.

While I recognize that a statute not objectionable on its

face may nonetheless be found unconstitutional because of its

effect in operation, People v. Albrecht, 145 Colo. 202, 208, 358

P.2d 4, 8 (1960), I do not believe that application of section

24-10-114(1)(b) results in deprivation of the claimants’ due

process rights. Nor do I find it conceivable that, having

adjudged this statute facially valid, it is rendered invalid by

its operation which effectuates the very purpese for which the

statute was enacted — setting a ceiling on aggregate recovery

from a single tortious occurrence.

In this case, there were thirty-four claimants seeking

recovery for injuries caused by a single occurrence. The aggre-

gate damages figure was more than the $400,000 recoverable

under section 24-10-114(1)(b). Yet, unless there exists a dep-

rivation of a property interest, there can be no denial of

substantive due process. See Faber v. State, 143 Colo. 240,

241, 353 P.2d 609, 610 (1960) (due process operates to pro-

hibit deprivation of rights where such rights exist under sub-

stantive law).

40a

Under the Fourteenth Amendment to the United States

Constitution and Article II, Section 25 of the Colorado Con-

stitution, individuals are protected from loss of liberty with-

out due process of law. Often, it is difficult to characterize an

affected interest as a “liberty” or “property” interest. See

Morgan v. Mansfield, 569 F. Supp. 710, 713 (D.Colo. 1983).

The Supreme Court has held that the term “liberty” should be

granted broad meaning and that it “denotes not merely free-

dom from bodily restraint but also the right of the individual

to contract, to engage in any of the common occupations of

life, to acquire useful knowledge, to marry, establish a home

and bring up children, to worship God according to the dic-

tates of his own conscience, and generally to enjoy those

privileges long recognized . . . as essential to the orderly

pursuit of happiness by free men.” Board of Regents of State

Colleges v. Resa, 403 U.S. 564, 572 (1972) (citation omitted).

in Espinoza v. O’Dell, 633 P.2d 455, 462-64 (Colo.), cert.

granted, 454 U.S. 1122 (1981), cert. dismissed, 456 U.S. 430

(1982), we recognized that children of an individual killed as

a result of an allegedly willful and wanton tort perpetrated by

the state had suffered deprivation of a liberty interest based

on loss of continued relationship and association with the

4la

deceased parent.? With these concepts in mind, I recognize

that the individuals harmed or killed as a result of the acci-

dent that occurred on Berthoud Pass road have suffered a

deprivation of their liberty interests. These claimants have

regrettably been deprived of their freedom to remain free

from bodily harm. See Daniels v. Williams, 474 U.S. 327, 341

(1986).

This liberty interest, however, is not the interest affected

by section 24-10-114(1)(b). This provision in no way causes,

condones, or affects acts which may result in deprivation of

the interest in remaining free from bodily harm. Section

24-10-114(1)(b) instead affects the amount recoverable once

such harm has occurred. It was the tortious act and not the

statute placing a ceiling on aggregate recovery that caused

these losses of liberty interest. Consequently, the effect of the

statute is not on one’s substantive guarantee of liberty but on

one’s property interest, if any, in a remedy arising from a

2 In Espinoza, we found that the Colorado wrongful death statute

created an entitlement for damages in those indirectly injured by the

tortfeasor’s actions and that the statute also limited damages for such

plaintiffs to net pecuniary loss. Espinoza v. O'Dell, 633 P.2d at 463. We

determined that the statutory limitation on damages recoverable by

these aggrieved plaintiffs did not sufficiently vindicate the claimed

deprivation of liberty interest. Jd. at 465. We analyzed the statutory

damages limitation as applied to the deprivation of liberty interest

suffered by these children by weighing the state’s reasons for enacting

the limitations against the liberty interest asserted. We determined that

the children would remain uncompensated for the loss of important

nonpecuniary aspects of the family relationship if the damages limita-

tion were applied and declined to limit the plaintiffs’ § 1983 damages

claim to net pecuniary losses only. Unlike this case, however, the issue

in Espinoza focused on the failure of the wrongful death statute to

provide any compensation for deprivation of certain “‘aspects of the

liberty interest” such as “losses flowing from a variety of associational

interests, such as paternal love and care, instruction, counseling, emo-

tional support, and the family’s mutual enjoyment of life together.” Jd.

at 464. It did not address the constitutionality of the damages limita-

tion on recovery for deprivation of the aspects of the liberty interest for

which the wrongful death statute provides compensation.

42a

tortious act that may deprive an individual directly or indi-

rectly of a liberty interest.

While recognizing that “‘[a] legal right to damage for an

injury is property,” Rosane v. Senger, 112 Colo. 363, 370, 149

P.2d 372, 375 (1944), the majority states that this provision is

remedial and that there is no right to a remedy. Consequently,

the majority finds that the claimants “failed to articulate a

cognizable property interest in support of their due process

claim.”’ See maj. op. at 23. I believe, however, that a statuto-

rily granted right to damages, validly limited, is property, but

only to the extent to which it is statutorily defined. Property

interests “‘are created and their dimensions are defined by

existing rules or understandings that stem from an indepen-

dent source such as state law.” Cleveland Bd. of Education v. -

Loudermill, 470 U.S. 532, 538 (1985) (citation omitted)

(emphasis added). The statutory scheme of the Colorado

Governmental Immunity Act (Immunity Act), adopted in

1971, provides immunity from liability for public entities

against all actions which lie in tort or couid lie sn tort except

as provided for in the Immunity Act. § 24-10-105, [OA C.R.S.

(1988). There is no constitutional right for persons to sue and

recover a judgment against the state for the state’s tortious

conduct. Consequently, claimants’ right to pursue an action

against the state is derived solely from the statutory excep-

tions listed in the Immunity Act. Since the legislature is

empowered to completely eliminate any recovery against

public entities for claims asserted in tort, then the legislature

certainly has the authority to limit recovery amounts where it

has provided a remedy. See Bloomer v. Bd. of County

Comm'rs of Boulder County, 799 P.2d 942, 948 (Colo. 1990)

(“[T]he right to maintain an action against a governmental

(state) entity is derived from statutes, and reasonable condi-

tions . . . imposed as a condition precedent to the right are

mandatory.”) (citation omitted). This rmght to damages is,

therefore, a property interest subject to constitutional protec-

tion only within its defined dimension of $400,000

maximum.

43a

In Golden State Transit Corp. v. Los Angeles, 493 U.S.

103, 106 (1989), the Supreme Court laid out a test for deter-

mining the existence of a federal right for the purpose of

stating a claim under § 1983. In determining whether a statute

creates an interest subject to the protection of § 1983, the

Court considered ‘“‘whether the provision in question creates

obligations binding on the governmental unit,” whether the

asserted interest was sufficiently concrete so as to be enforcea-

ble by the judiciary, and whether the putative plaintiff is

within the class of persons intended to be benefitted by the

provision. Section 24-10-114(1)(b) does obligate the govern-

ment to provide certain damages when it is found liable in

tort. That obligation, however, is specifically limited to an

amount no greater than $400,000. Thus, while the interest of

the injured claimants here is sufficiently concrete and such

injured claimants are within the class of persons which sec-

tion 24-10-114(1)(b) is intended to protect, the legally pro-

tected interest created by this statute is the right to recover for

damages only to the extent of a $400,000 aggregate

maximum.

Since the $400,000 limitation was in effect at the time of

this tortious occurrence, and since the state met this legisla-

tively imposed obligation of $400,000, I do not find that the

claimants were deprived of any protectable property interest

triggering the due process clause.

I am authorized to state that JUSTICE LOHR joins in

this special concurrence.

44a

State v. Defoor, No. 90SA351

JUSTICE MULLARKEY specially concurring in part

and dissenting in part:

I specially concur in Part V of the majority opinion

which remands for trial the claims asserted pursuant to

42 U.S.C. § 1983 (1988) (“1983 claims’’) against the individ-

ual state defendants. The 1983 claims allege that: (1) the

individual defendants were “grossly negligent, reckless, and

showed deliberate indifference to the public safety and

human life’ with respect to formulating and executing the

Colorado Department of Highways (““Highways’’) policies on

removing boulders from the Berthoud Pass road, and (2) the

individual defendants’ actions and inactions violated the

complainants’ due process protected rights to life, liberty,

personal security and safe travel.

Taken in a light most favorable to the claimants, the

facts show that Highways employee Phillip Pacheco deliber-

ately pushed a 6.7 ton boulder off a switchback and over a

steep incline directly above a well-traveled road. It rolled

down the mountainside nearly 800 feet and struck the bus in

which the claimants were riding. The custom and policy of

clearing the road in such a dangerous manner had been fol-

lowed by Highways for years. Prior experience, as well as a

Highways-conducted study showing that neither trees nor

cement and steel guardrails could be relied upon to halt a

rolling boulder on a steep slope, made the defendants aware

that the boulder was likely to roll onto the road below.

Pacheco was the only employee working at the site at the

time, and there were no flaggers or other devices to stop traffic

on the road below. Thus, the evidence in the record supports

the allegations of the 1983 claims that the individual employ-

ees’ acts and omissions were grossly negligent, reckless or

deliberately indifferent to public safety and human life.

45a

I agree that thé allegations adequately state 1983 claims.

In Espinoza v. O'Dell, 633 P.2d 455, 464 (Colo. 1981), cert.

granted 454 U.S. 1122 (1981), and cert. dismissed 456 U.S.

430 (1982), we upheld a 1983 claim asserting a protected

liberty interest in the children of a man who was shot and

killed by police officers and we concluded that there must be a

remedy when “the government itself becomes the source of

danger to an individual’s rights.” In Uberoi v. University of

Colorado, 713 P.2d 894, 903 (Colo. 1986). we held that alle-

gations of gross negligence, recklessness or intentional con-

duct are sufficient to raise 1983 claims under the due process

clause. Read together, Espinoza and Uberoi support the 1983

claims now before us.

Moreover, other jurisdictions have upheld 1983 claims

similar to those presented here. See, e.g., Morrison v. Wash-

ington County, 700 F.2d 678 (11th Cir. 1983), cert. denied

464 U.S. 864 (1983) (reinstating 1983 claim against a public

hospital where the hospital had an “unruly” patient jailed

and the patient died while in jail); Ruge v. City of Belleview,

892 F.2d 738 (8th Cir. 1989) (1983 claim held stated by estate

of worker killed in a trench cave-in where defendant city had

deliberate policy of not shoring ts trenches). See also Wil-

liam, Burnham, Separating Constitutional and Common-Law

Torts: A Critique and a Proposed Constitutional Theory of

Duty, 73 Minn. L. Rev. 515, 518-19 (1989) (discussing the

origins of deliberate indifference 1983 claims in Rochin v.

California, 342 U.S. 165 (1952)).

Our decision reversing the trial court’s dismissal of the

1983 claims necessarily rejects the qualified immunity

defense asserted by the individual state defendants on appeal.

The 1983 claims were clearly established under the test devel-

oped in Anderson v. Creighton, 483 U.S. 635, 639 (1987), and

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). I recognize

that, on remand, the defendants again may claim qualified

immunity contending that their conduct was objectively rea-

sonable. Guider v. Smith, 431 N.W.2d 810, 816, n.15 (Mich.

46a

1988) (trial court may consider immunity claims on motion

to dismiss, motion for summary judgment and as defense to

liability in trial on the merits). But, if so asserted, the quali-

fied immunity claim must await a trial on the merits because

conduct cannot be both deliberately indifferent as the claim-

ants allege and objectively reasonable. See David Rudovsky,

The Qualified Immunity Doctrine in the Supreme Court: Judi-

cial Activism and the Restriction of Constitutional Rights, 138

U. Pa. L. Rev. 23, 57 (1989) (deliberate indifference pre-

cludes finding of objective reasonableness required to prove

qualified immunity). Accordingly, these claims should pro-

ceed to trial.

Il.

I agree with Justice Quinn that the $400,000 per occur-

rence cap contained in section 24-10-113(1)(b), 1OA C.R.S.

(1988), is unconstitutional but I write separately because my

reasoning differs from his. In my view, there is no rational

basis for the $400,000 cap and I would strike the cap as

violating the equal protection guarantees of the state and

federal constitutions. This issue was not before the court in

Lee v. Department of Health, 718 P.2d 221 (Colo. 1986), and,

for that reason, Lee is not dispositive. Accordingly, I join

Justice Quinn’s dissent from Part IV of the plurality opinion

and I also dissent from Part II of the majority opinion.

It is clear that, for purposes of state liability, the govern-

mental immunity act creates two categories of injured per-

sons. The first category is those injured in accidents involving

only one or two victims. The second category is persons

injured in incidents involving more than two victims. Vic-

tims in the first category may collect $150,000 per person

while recovery in the second category is limited to $400,000

in total. As the number of victims in a single incident

increases, the amount recoverable per person decreases until.

in a case like this, only a token recovery is possible for each

individual.

47a

The validity of these two categories must be tested under

the rational basis standard. That test requires that “‘the statu-

tory classification has a reasonable basis in fact and bears a

reasonable relationship to a legitimate governmental interest.

Lee, 718 P.2d at 227. In our jurisprudence, the rational basis

test is not a “rubber stamp” signalling automatic approval of

the challenged legislation but rather it requires a careful con-

sideration of the reasonableness of the legislative classifica-

tions at issue. Recently, in Gallegos v. Phipps, 779 P.2d 856

(Colo. 1989), we applied the rational basis test and struck

down a statute which attempted to reinstate the common law

categories of trespasser, licensee and invitee for purposes of

premises liability. We found that the duties imposed on land-

owners were not rationally related to the categories of injured

persons created by the statute. /d. at 862 (the statutorily cre-

ated hierarchy of duties “bears no rational relationship to a

legitimate governmental interest and can be justified neither

historically nor logically.’’) See also Austin v. Litvak, 682 P.2d

41 (Colo. 1984) (plurality opinion) (invalidating medical mal-

practice statute of repose under rational basis test).

Here the reasonableness of the two statutory categories

must be evaluated in light of the stated goal of providing fiscal

certainty to the state. Lee, 718 P.2d at 227-28. The legisla-

ture’s different treatment of the two categories is arbitrary

because no limitation at all is placed on the total claims paid

or the number of claims paid in a given time period. The

legislature may not have to do exact justice when drafting its

statutes but the fit here is so rough and the adverse conse-

quences are so great that the $400,000 limitation cannot

stand. Consistent with the fiscal certainty goal, the $150,000

per person limit should be applied to the single incident,

multiple victim case.

For these reasons, I dissent from Parts II and IV.

JUSTICE QUINN joins in Part I of this concurrence

and dissent.

48a

State of Colorado v. Defoor, No. 90SA351

JUSTICE QUINN dissenting in part:

I dissent from Part IV of the court’s opinion, in which a

plurality of the court upholds the trial court’s entry of sum-

mary judgment against the claimants on their due process

claim. I would hold that section 24-10-114(1)(b), LOA C.R.S.

(1988), which-places a $400,000 limitation on the cumulative

recovery in tort for injuries and damages to two or more

persons in any single occurrence, violates substantive due

process of law under the Colorado Constitution when, as

here, the limitation is applied in a manner that will bar any

recovery by the claimants once the $400,000 limitation has

been exhausted.

I do not dispute the General Assembly’s right to limit an

individual claimant’s tort recovery to $150,000. Although

such limitation may be less than full compensation in a given

case, it nonetheless is adequate to cover most tort claims filed

against a public entity and is reasonably related to the govern-

mental objective of safeguarding the fiscal integrity of the

public entity in carrying out its many functions. In those rare

cases where $150,000 is not adequate compensation, such

award still provides the claimant with moderate compensa-

tory damages and, in that respect, is far better than a legisla-

tively decreed governmental immunity for all claims against a

public entity. I also concede that the $400,000 per-occurrence

limitation is not so inadequate as to be facially unconstitu-

tional as violative of due process of law. Most tort claims

against the state involve one or two claimants. Even when

more than two persons might be injured in a single occur-

rence, the $400,000 per-occurrence limitation can often be

applied in a manner that will provide all claimants with a

moderate amount of compensation for their injuries and

damages and still accommodate the governmental interest in

maintaining fiscal integrity.

49a

In the present case, however, the application of the

$400,000 per-occurrence limitation to the thirty-four claim-

ants, nine of whom are pursuing wrongful death claims, so

limits what I view as a claimant’s legally protected property

interest in receiving a moderate measure of compensation for

injuries and damages caused by a public entity as to render

that interest illusory in the extreme. I accordingly would not

apply the $400,000 per-occurrence limitation as a bar to the

claimants’ tort actions, but, rather, would permit each claim-

ant to file and seek recovery for money damages up to

$150,000 as provided by the per-claim limitation of section

24-10-114(1)(a), LOA C.R.S. (1988).

I accept the proposition that the Colorado Constitution

does not prohibit the General Assembly from altering the

nature of a common law tort claim, from eliminating a com-

mon law right to damages so long as an adequate substitute

remedy is provided, or from imposing reasonable monetary

limitations on a tort claim. See generally Kandt v. Evans, 645

P.2d 1300 (Colo. 1982); O’Quinn v. Walt Disney Productions,

Inc.. 177 Colo. 190, 493 P.2d 344 (1972). In Lee v. Depart-

ment of Health, 718 P.2d 221 (Colo. 1986), for example, we

upheld the facial validity of the monetary limitations of the

Colorado Governmental Immunity Act against an equal

50a

protection challenge.' The fact that the monetary limitations

do not facially violate a claimant’s right to equal protection of

the laws under the Colorado Constitution, however, is not to

say that such limitations may therefore be applied to any and

'In Lee v. Department of Health, 718 P.2d 221 (Colo. 1986),

Lawrence Wayne Lee was injured in an automobile accident and

brought suit against the Department of Health for the negligence of its

employee in causing the accident. Lee’s claim was in excess of the

$150,000 limitation, and Lee’s wife sued for loss of consortium in the

amount of $150,000. The jury by special verdict found that Lee

sustained total damages of $606,409.36 as a result of the combined

negligence of the state employee and Lee, and attributed 51 percent of

the negligence to the state employee and 49 percent to Lee. The jury

made an identical apportionment of negligence on the wife’s claim for

loss of consortium and determined that her total damages amounted to

$100,000. The trial court reduced Lee’s award to $150,000 pursuant to

the statutory per-claim limitation and also reduced the wife’s award,

based on the imputed negligence of Lee, to $51,000.

Lee raised a multitude of issues on appeal, including the claim

that the monetary limitations of the Governmental Immunity Act

violate equal protection of the laws by effectuating an arbitrary

classification between public entities, which are subject only to limited

liability under the statutory scheme, and private tortfeasors, who are

responsible for all harms caused by their negligence. In rejecting Lee’s

equal protection challenge, we concluded that the statutory

classification relating to claims against a public entity, although

treating public entities differently from private tortfeasors, was based

on real differences in fact between governmental and_ private

tortfeasors. Public entities, we held, “are responsible for providing a

vast array of governmental services to the public and, as a result, are

exposed to far greater liability and risks than a private individual.” 718

P.2d at 227. The legislative decision to limit the public entity’s liability,

we stated, “proceeds from actual differences in the magnitude and

character of the functions assumed by public entities and in the effect of

greater potential liability exposure on the public entity’s ability to

continue its governmental functions.” Jd. We went on to conclude that

the statutory classification ‘is reasonably related to the governmental

objective of providing fiscal certainty in carrying out the manifold

responsibilities of government.” /d. at 227-28.

(footnote continues)

Sla

all circumstances without implicating the due process rights

of the victims of a governmental tort.

“(T]he concepts of equal protection and due process,

both stemming from our American ideal of fairness, are not

mutually exclusive.” Bolling v. Sharpe, 347 U.S. 497, 499

(1954). ‘Equal protection’ . . . emphasizes disparity in

treatment by a State between classes of individuals whose

situations are arguably indistinguishable.” Ross v. Moffitt,

417 U.S. 600, 609 (1973). Equal protection analysis,

therefore, often involves an assessment of whether a statutory

classification is unconstitutionally underinclusive by not

including within the class all persons or groups who are

similarly situated with respect to the purpose of the

legislation or, alternatively, whether a statutory classification

is unconstitutionally overinclusive by including within the

class persons or groups who are not similarly situated with

respect to the purpose of the statutory scheme. L. Tribe,

American Constitutional Law 1446-50 (2d ed. 1988). Due

process of law, in contrast, “emphasizes fairness between the

State and the individual dealing with the State, regardless of

how other individuals in the same situation may be treated.”

Ross, 417 U.S. at 609. Substantive due process analysis,

therefore, looks primarily to whether governmental power is

arbitrarily directed against a person so as to deprive that

person of a preexisting interest in life, liberty, or property. See

People v. Max, 70 Colo. 100, 108-10, 198 P. 150, 154 (1921).

Furthermore, there is a significant difference between

upholding the facial constitutionality of a statute and the

(footnote continued)

Our decision in Lee resolved only the facial validity of the

monetary limitations in the context of an equal protection challenge.

We did not consider whether the $400,000 per-occurrence limitation

would pass constitutional muster under due process analysis when

applied in a manner that deprives a tort claimant of any meaningful

redress for injuries and damages suffered as a result of the legal fault of

a governmental entity in performing an activity for which the state had

expressly waived the defense of sovereign immunity

52a

separate question of the constitutional validity of applying

the same statute to a particular set of circumstances. To hold

that a statute sufficiently satisfies threshold standards of

constitutionality to survive a facial challenge is not to imply

that the statute is thereby immune from challenge on grounds

of unconstitutional application. See, e.g., Walters v. National

Ass'n of Radiation Survivors, 473 U.S. 305, 337-38

(O’Connor, J., concurring); Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 503-04 (1982); Lee v.

Smith, 772 P.2d 82, 85 (Colo. 1989); New Safari Lounge v.

Colorado Springs, 193 Colo. 428, 434-35, 567 P.2d 372, 377

(1977). The application of the $400,000 per-occurrence

limitation to the claimants in this case is a striking example of

applying the facial terms of a statute in a manner that

deprives the claimants of a sulstantial property interest in

violation of due process of law.

Il.

A legislative enactment creates a legally protected inter-

est when it creates an obligation on the part of the state to

others, when it delineates the interest of potential claimants

in a specific and concrete manner so as to permit judicial

enforcement of the interest, and when it manifests an intent

to benefit the class of which the claimants are members. See

generally Golden State Transit Corp. v. Los Angeles, 493 U.S.

103, 106 (1989). All three of these elements are present in the

Colorado Governmental Immunity Act. First, section 24-1 0-

106(1\(d), LOA C.R.S. (1988), specifically waives sovereign

immunity for injuries resulting from a dangerous condition

on a public highway. Second, inextricably intertwined with

the specific right to recover against a public entity for injuries

resulting from dangerous conditions on a public highway is

the mght of a tort claimant to recover an amount up to

$150,000, as codified in section 24-10-114, 1O0A C.R.S.

(1988). Third, the statutory right to recover an amount up to

$150,000 is clearly intended to benefit persons such as the

claimants in this case.

53a

Construing sections 24-10-106(1)(d) and 24-10-114 as

creating a legally protected property interest in recovering

money damages from a public entity for injuries and damages

tortiously inflicted by the public entity is in accord with basic

concepts of fairness. Years ago this court held in Rosane vy.

Senger, 112 Colo. 363, 370, 149 P.2d 372, 375 (1944), that a

legal right to recover damages for a tortiously inflicted injury

is a property interest protected by due process of law. Our

holding in Rosane is by no means unique in that respect. See,

e.g., National Ass'n of Radiation Survivors v. Derwinski, No.

C-83-1851-MHP, 1991 WL 248656 (N.D. Cal. Nov. 21, 1991)

(on remand from Supreme Court’s decision rejecting facial

due process challenge to $10 statutory limit on attorney fees

for assisting with disability claims before Veterans Adminis-

tration, federal district court holds statute violative of due

process as applied to claimants’ constitutionally protected

property interest in presenting complex claims for disability

based on ionizing radiation); Condemarin v. University Hos-

pital, 775 P.2d 348, 356-60 (Utah 1989) (Durham, J.) (hold-

ing that the balancing of statutory limitation on tort award

against governmental entity and the purpose served by statu-

tory limitation should be analyzed under due process, rather

than equal protection, in order to take proper account of

serious abrogation of important substantive right to recover

for personal injuries caused by governmental entity). More-

over, no one today can seriously question the proposition that

a person has an interest in freedom from bodily harm tor-

tiously inflicted by a governmental entity and that such inter-

est qualifies as a liberty interest for due process purposes. See

Daniels v. Williams, 474 U.S. 327, 341 (1986) (Stevens, J.,

concurring). Finally, we have previously recognized that the

heirs of a victim killed as a result of a governmental tort may

rightfully claim ‘ta personal constitutional liberty interest” in

the continued life of their deceased spouse, parent, or child.

Espinoza v. O'Dell, 633 P.2d 455, 463 (Colo. 1981), cert.

granted, 454 U.S. 1122 (1981), cert. dismissed, 456 U.S. 430

(1982). If a person has a liberty interest in personal security

54a

against governmentally inflicted bodily injury and also a

‘personal constitutional liberty interest” in the continued life

of a spouse, parent, or child, it follows axiomatically that the

same person should be accorded the right to seek some mea-

sure of moderate compensation to redress the unlawful gov-

ernmental deprivations of those interests. Otherwise, the

interests themselves become nothing more than legal fictions.

To be sure, the nature and extent of the property interest

in recovering moderate compensation for injuries and dam-

ages caused by tortious governmental conduct finds its source

in state law, specifically the Colorado Governmental Immu-

nity Act, §§ 24-10-101 to -120, 10OA C.R.S. (1988 & 1991

Supp.). The mere fact that a property interest originates in

state law, however, does not mean that a statutory scheme

that creates the property interest is beyond the pale of an

unconstitutional application in violation of due process of

law. The plurality accepts the fact that the statutory scheme

waives sovereign immunity in tort for injuries resulting from

a dangerous condition on a highway and grants the tort vic-

tim the statutory right to sue and recover from the public

entity responsible for the dangerous condition a judgment not

in excess of $150,000, §§ 24-10-100(1)(d) & 24-10-114(1)(a),

10A C.R.S. (1988), but then, enigmatically in my view, per-

mits the $400,000 per-occurrence limitation to annul that

same statutory right whenever the total damages awarded to

other victims of the same disaster have exceeded the statutory

limitation. In reaching that result, the plurality reasons that

“fsjection 24-10-114 is a limited remedial statute’ which

“supplies a carefully defined range of remedies for causes of

action created under other sections of the Act” and thus does

not create a ‘‘cognizable interest in support of [the claimants’ ]

due process claim.” Plurality op. at 22-23. The $400,000 per-

occurrence limitation of section 24-10-114(1), however, can

hardly be considered “remedial” when its application to the

multi-victim disaster in this case results in depriving most of

the injured claimants, as well as most of the heirs or repre-

sentatives of those killed in the accident, of any legal redress

55a

whatever for their respective injuries and damages. I view the

plurality’s rejection of the claimants’ due process claim as

countenancing the very type of incongruous creation and

annulment of a significant property interest that the doctrine

of unconstitutional application was designed to prohibit.

The state may not grant the victim of a governmental

tort a property interest in recovering a judgment against a

public entity and then, in the same statutory scheme, so con-

dition the right on circumstances beyond the control of the

victim as to result in the abolition of the very interest created

by the statute. In holding otherwise, the plurality employs a

“bitter-sweet” analysis which requires a tort claimant to take

the “‘bitter’’ per-occurrence limitation with the “sweet” statu-

tory right to sue the governmental tortfeasor. That analysis,

however, leads to the anomalous result of elevating the

$400,000 limitation to the status of a fundamental defining

element of the very interest created by the statute. A property

interest, however, “‘cannot be defined by the procedures pro-

vided for its deprivation any more than can life or liberty.”

Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 541

(1985). On August 10, 1987, therefore, when Department of

Highways employees moved a 6.7-ton boulder off the side of a

public highway and caused it to roll down Berthoud Pass and

strike a bus and kill nine occupants and injure twenty-five

occupants, each injured victim and the heirs or representa-

tives of each deceased victim had a legislatively created and

legally protected property interest in suing the state and in

receiving a compensatory damages award, not to exceed

$150,000, upon proving that the Department of Highways

was legally at fault in causing the dangerous road condition.

III.

It should be kept in mind that this case comes to us on

summary judgment and that, consequently, the trial court's

judgment can be affirmed only if this court is convinced that

the application of the $400,000 per-occurrence limitation

S6a

would not Violate due process of iaw under any set of factual

circumstances disclosed by the record. E.g., Churchey v.

Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo. 1988); Con-

tinental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo.

1987); Mount Emmons Mining Co. v. Town of Crested Butte,

690 P.2d 231, 238-41 (Colo. 1984). | am unable to conclude

that the application of the statutory limitation is consonant

with due process of law under the state of the record in this

case.

The record shows that the costs incurred by only a few of

the nine persons killed and the twenty-five persons injured in

this disaster will exhaust the statutory per-occurrence limita-

tion. A hospital that treated one of the victims killed in the

accident has filed a lien for $327,907.60 for medical costs. In

addition, one of the injured victims has tendered a notice of

claim to the Attorney General aileging damages in the

amount of $150,000, and another injured victim has filed a

notice of claim in the amount of $500,000. The record also

contains an affidavit from an experienced arbiter who

reviewed the documents relating to the damages incurred by

the claimants. The arbiter’s affidavit states that the probable

aggregate of damage to all claimants and their families greatly

exceeds $400,000 and that the damage to several individual

claimants clearly exceeds $150,000. Obviously, therefore, if

one wrongful death claimant receives $150,000, and the two

other injured claimants collect $150,000 and $100,000

respectively on their claims, the remaining thirty-one victims

will be left without any recourse whatever to obtain compen-

sation for their injuries. Even if the $400,000 were to be

divided equally among all claimants, the resulting award of

approximately $11,000 to each claimant would amount to

nothing more than an illusory remedy at best when the

$11,000 is weighed against the staggering medical costs, inju-

ries, lost wages, permanent disability, loss of earning capac-

ity, pain and suffering, and loss of enjoyment of life incurred

by the claimants.

Jia

Finally, so far as the record before us shows, permitting

each claimant to sue the Department of Highways and

recover a judgment for $150,000 would not endanger the

fiscal integrity of the state. By statute, the Division of Risk

Management is charged with the administration of the fund

out of which claims against a state public entity are paid. §§

24-30-1501 to -1520, 10A C.R.S. (1986 & 1991 Supp.). The

Risk Management Division, in the discovery phase of the

case, produced several annual reports which it prepared for

the General Assembly. The 1989 report, which is the latest in

the record, shows that since the year 1985 the Division

received state appropriations of approximately $7,000,000

and earned $549,922 in interest on those appropriations.

1989 Annual Report of Division of Risk Management at 2.

During this same period the Division paid out only $927,437

in claims and set aside $1,707,861 in reserve for open claims.

Id. at 4. The record also shows that a task force appointed by

the Governor to study the liability limits of the Colorado

Governmental Immunity Act found that approximately 1 500

claims per year were filed against the state since 1985, that the

average payment on these claims was $1,000, and that the

largest payment was only $50,000. Governmental Immunity

Lirnits Task Force Report to Governor and General Assem-

bly at 3 (1988).

2 The task force recommended that section 24-10-114, 10A C.R.S.

(1988), be amended by the addition of the following subsection:

(5) Notwithstanding the limits established in this section, a judg-

ment or judgments may be claimed and rendered against the state

in excess of these amounts, provided that the portion of the judg-

ment or judgments which exceeds the limits shall not be paid until

and unless the General Assembly authorizes payment of the whole

portion or any part thereof which exceeds the limits. Any claimant

may present proof of judgment to the General Assembly and

request payment of that portion of the judgment which exceeds

the limits. Any portion in excess of the limits shall be paid from

the general fund or any other funds established by the General

Assembly.

(footnote continues)

58a

Under the circumstances of this case, the application of

the $400,000 per-occurrence limitation to the thirty-four

claimants consigns them to running a “race to judgment” in

order to vindicate their rights. The speed at which a judgment

may be obtained in that race is, for all practical purposes, a

matter of chance. Yet, to all who lose the race, the “law has

become a phantom and justice a dream, and constitutional

guarantees of the sacredness of life, liberty, and property, ‘a

tale . . . full of sound and fury, [signifying nothing.” Max,

70 Colo. at 112, 198 P. at 155.

I accordingly dissent from the plurality’s rejection of the

claimants’ due process claim.

JUSTICE MULLARKEY joins in this dissent.

(footnote continued)

Governmental Immunity Limits Task Force Report to Governor and

General Assembly at 2 (1988).

59a

No. 90SA351

Supreme Court, State of Colorado

DEFENDANTS-APPELLANTS’ PETITION

FOR HEARING

THE STATE OF COLORADO, by and through the Colorado

State Claims Board of the Division of Kisk Management,

Plaintiff-Appellee,

YVONNE E. DEFOoR, FRANK BOWEN; MARGIE BOWEN; ELI-

NOR M. BUTENHOFF; URS FREI; MICHAEL HATTON; THE

ESTATE OF ANNA HAYES, Deceased; THE CHILDREN AND

ESTATE OF ARLENE JOHNSON, Deceased; ESTATE OF JOHN

KILLEEN, Deceased; ESTATE OF MARKUS LANG, HERBERT

LAND, as survivor, heir and personal representative of Mar-

kus Lang and THE ESTATE OF MARKUS LANG, RITA LAND as

survivor, heir and personal representative of Markus Lang

and THE ESTATE OF MARKUS LANG, and ELFRIEDE BORRILLO,

as Special Administrator of the Estate of Markus Lang; THE

ESTATE OF DOUGLAS MACKENZIE, Deceased; SUZANNE MAC-

KENZIE: MICHAEL MCGARVEY, NANCY MCGARVEY,

BERNADINE M. REMMERS; CAROL J. SMITH, THOMAS C.

SMITH. AND MEAGAN N. SMITH, a minor; THE ESTATE OF

GLADYS STEWART, Decreased; THE ESTATE OF SOL STEWART,

Deceased: THE CHILDREN AND ESTATE OF KEITH WALTERS,

Decreased: THE CHILDREN AND ESTATE OF KATHLEEN WAL-

TERS. Deceased: HOROSHI YOSHIOKA; MORDEKHAY FUM-

ISHIKA: MASHASIKI MAKAYAMA; MIKAYO TAJIMA; and

CLARENDON NATIONAL INSURANCE COMPANY; SAN JUAN

Tours, INc. d/b/a GRAY LINE TOURS; and all persons or

entities suffering, or claiming to suffer, damages resultant

[continued]

60a

from the August 10, 1987 collision between a boulder and a

Gray Line Tour Bus on U.S. Highway 40, about seven miles

east of Winter Park, Colorado, while the bus was on Berthoud

Pass,

Defendants-Appellants,

¥.

THE COLORADO DEPARTMENT OF HIGHWAYS and THE COLO-

RADO DIVISION OF HIGHWAYS, PHILLIP PACHECO, EARMAN

PACHECO, MERLE ZIMMER, PHILLIP WEST, ROSS HAMILTON,

EDWARD FINK, JOHN M. SALAZAR, R.L. CLEVENGER,

DWIGHT BOWER, PHiL MCCULLOUGH, AND LOWELL

JACKSON,

Third-Party Defendants and counter Defendants-Appellees.

Appeal from the District Court, City and County of

Denver, Honorable Sandra I. Rothenberg, Judge

EN BANC JUDGMENT AFFIRMED IN PART,

REVERSED IN PART, AND CASE

REMANDED WITH DIRECTIONS

Sears, Anderson & Swanson, P.C.

Leland P. Anderson

Denver, Colorado

Sears, Anderson & Swanson, P.C.

Victoria C. Swanson

Colorado Springs, Colorado

Pryor, Carney and Johnson, P.C.

Thomas L. Roberts

Mark P. Martens

Englewood, Colorado

Aisenberg & Kaplan

H. Paul Himes

Denver, Colorado

iene

6la

Attorneys for Appellants

Gale A. Norton, Attorney General

Raymond T. Slaughter, Chief Deputy Attorney General

Timothy M. Tymkovick, Solicitor General

Timothy R. Arnold, Deputy Attorney General

Gregg E. Kay, First Assistant Attorney General

Simon P. Lipstein, Assistant Attorney General

Denver, Colorado

Attorneys for Appellee The State of Colorado

Hall & Evans

David R. Brougham

Denver, Colorado

Attorneys for Individual Appellees Phillip Pacheco,

Earman Pacheco, Merle Zimmer, Phillip West, Ross Ham-

ilton, Edward Fink, John M. Salazar, R.L. Clevenger

Dwight Bower, Phil McCullough, and Lowell Jackson

The Association of Trial Lawyers of America

Michael C. Maher, President

Washington, D.C.

The Colorado Trial Lawyers Association

John Gehlhausen, President

Denver, Colorado

Vinton, Waller, Slivka & Panas«

Denis H. Mark

Denver, Colorado

{ttorneys for Amici Curiae The Association of Trial Law

yers of America (ATLA) and The Colorado Trial Lawyers

Association (CTLA)

Miller & McCarren, P.¢

J. Kent Miller

Denver, Colorado

{ttornevs for Amicus Curiae Colorado Head Injury

Foundation, Inc

Frederick K. Conover, II

Denver, Colorado

Holme Roberts & Owen

Daniel S. Hoffman

Boyd N. Boland

Denver, Colorado

Attorneys for Amicus Curiae Colorado Bar Association

Eason, Sprague & Wilson, P.C.

Eugene M. Sprague

Elizabeth A. McKeever

Denver, Colorado

Attorneys for Amicus Curiae the Colorado School Districts

Self Insurance Pool

Griffiths & Tanoue, P.C.

Susan K. Griffiths

Tami A. Tanous

Elizabeth E. Salkind

Denver, Colorado

Colorado Municipal League

Kathleen E. Haddock

Denver, Colorado

Attorneys for Amici Curiae Colorado Intergovernmental

Risk Sharing Agency, Colorado Counties Casualty and

Property Pool, Colorado Counties, Inc., The Colorado Spe-

ciai Districts Property and Liability Pool, The Special Dis-

trict Association of Colorado, ad Colorado Municipal

League.

EN BANC DECISION

JUSTICE VOLLACK delivered the Opinion of the

Court as to Parts I, II, III, and V, and announced the

Judgment of the Court as to Part IV.

CHIEF JUSTICE ROVIRA specially concurred as to

Part IV, and JUSTICE LOHR joined in the special

concurrence.

JUSTICE MULLARKEY specially concurred as to

Part V and dissented as to Part II, and JUSTICE QUINN

joined in the special concurrence as to Part V.

JUSTICE QUINN dissented as to Part IV, and JUS-

TICE MULLARKEY joined in the dissent.

64a

Pursuant to Rule 40 of the Colorado Appellates Rules

Defendants-Appellants submit this Petition for Rehearing as

follows:

1. The social implications of this Court’s decision in

the Berthoud Pass Bus-Rock case are unsettling. This

Court has in essence ruled that the interests of the State

are paramount to the interests of the individual. The

Court’s analysis of the constitutional issues raised in this

appeal reflects partiality to concerns of governmental

operations and desensitization to the needs of the per-

sons for whom that government was ordained to serve.

Throughout the Court’s analysis, the abiding concern is

the fiscal integrity of the government. Against this con-

cern, little or nothing is said of the enormous personal

tragedy and burden which the State seeks to shift to the

victims of its own wrongdoing. In essence, the State has

ordained that certain persons, particularly those

involved in multi-victim tort incidents, shall be required

to sacrifice their rights and claims to fair compensation

for the benefit of the government and its operations. The

government cannot be of the people, by the people and

for the people when it denies them effective remedies for

wrongs it has committed against the people. When gov-

ernment serves the people in this way, it has ceased to

serve, and has become an organism whose chief purpose

is to sustain its own life.

2. The Court erroneously applied the rational basis

test in its equal protection analysis of C.R.S. 24-10-114.

One’s life and personal bodily security are not mere eco-

nomic issues, nor does this statute present a simple case

of classic economic regulation. Equal protection analysis

of statutes limiting compensation for the loss of life and

health mandates application of heightened or intermedi-

ate scrutiny. Even if the rational basis test is applied, the

factual record in this case is devoid of evidence that the

65a

harsh damage limitation scheme of the Colorado Gov-

ernmental Immunity Act (CGIA) is necessary to assure

sound fiscal planning or the continued provision of

essential public services. No actuarial or statistical data

supported the legislature’s action in passage of the dam-

age limitation provisions of the CGIA. Though the

state’s fiscal integrity may be a legitimate state interest,

the damage limitation provisions of the CGIA do not

“rationally” relate to that interest.

3. The majority opinion is premised upon a con-

clusory assumption without basis in fact. The assump-

tion is that the governmental immunity damage caps are

necessary to assure the continuing solvency and function

of the State government. The factual record demon-

strates beyond a reasonable doubt that the state’s fiscal

integrity is not at risk because of tort actions which may

be brought against it. The majority opinion quotes at

length from the 1968 Legislative Council report on Gov-

ernmental Liability in Colorado, Research Publication

No. 134 (Nov. 1968). This report notably and expressly

recommended aggregate caps of $3,000,000, not the pal-

try sum of $300,000 which was eventually adopted by the

General Assembly without debate or discussion recorded

in the legislative history. The Majority decision men-

tions minimizing taxpayer burdens. As the damage caps

are applied in this case, a medical bill of $327,907.60

incurred by Markus Lang at Denver General Hospital

cannot be paid by Markus Lang (who has died). This bill

will now inevitably be borne by the taxpayers of the City

and County of Denver instead of the taxpayers of the

State of Colorado. Ironically, the statute results in the

shift of the burden of this bill from the larger public

entity which caused the injury to a smaller public entity

which had committed no wrongdoing at all. Further,

once Markus Lang was removed by air ambulance to

Germany, he remained hospitalized in Germany from

March through July 1988, and the People of the Federal

66a

Republic of West Germany were thereafter required to

undertake his care and assume the financiai burden of his

care. Through the application of this statute, the wrong-

doing public entity has succeeded in shifting massive

obligations to other public entities across the globe

whose citizens were lured to Colorado by Colorado’s bil-

lion dollar marketing and tourist industry. Through

operation of this statute and others minimizing compen-

sation for injury in this State. Colorado is now one of the

least safe places to travel in the United States.

The majority opinion refers to this as an “extreme”

case. On the other hand, consider the number of school

children who daily ride buses to their schools or to out-

ings in the mountains. This tragedy could be repeated

with the victims all being our children or grandchildren.

The State surely has an interest in assuring the future

security, health, and rehabilitation of its citizens’ chil-

dren. The statute bears no rational relationship to that

objective.

4. The Court erred in interpreting Article II, Sec-

tion 6 of the Colorado Constitution (access to courts).

The Court erroneously states that this provision only

provides a right of access to the Courts, but does not

control the scope or substance of any remedy. This is

contrary to the constitutional provision which guaran-

tees not only the right to file a cause of action, but also

promises a “speedy remedy afforded for every injury to

person’’. As applied in the present case, the damage limi-

tation provisions of the CGIA effectively deny any mean-

ingful remedy to the victims of the Berthoud Pass bus

accident.

Contrary to the Majority’s interpretation of Claim-

ants’ position, claimants contend that the Common Law

of this State provided not only a remedy, but an adequate

remedy to citizens injured at the hands of the govern-

ment. Evans v. Board of County Commissioners, 174

67a

Colo. 97, 482 P.2d 968 (1971) made clear that sovereign

immunity was not part of the common law of this State.

Correlatively, the right to adequate redress for damages

inflicted by the government must be part of the state’s

common Jaw. This Court’s interpretation of the access to

courts constitutional provision renders that constitu-

tional guarantee meaningless. Under a plain reading of

this Court's interpretation, as long as citizens can enter

the courthouse door, their rights are satisfied, even if that

Court is powerless to offer them any remedy at all. This

Court’s interpretation of the access to courts provision

renders Colorado court’s hollow halls of legal bureaucra-

cies, without any guarantee to deliver justice in the form

of a legal remedy for a wrong. A right without a remedy is

not right at all.

5. Claimants do not argue that the state’s monetary

liability for its torts must be unlimited, as asserted in this

court’s opinion. Rather, claimants argue that this statute

(and this Court in interpreting this statute) must consti-

tutionally balance the interest of the state’s fisc against

the interest of the victims of the state’s wrongful conduct.

This Court erred in failing to address this constitution-

ally mandated balancing test anywhere in its analysis of

the constitutionality of the statute. The dissenting opin-

ions suggest a more sensitive balance can be achieved

between the interests of the state and those of the victims

by eliminating the aggregate caps as applied in this case.

Minimally, that would provide greater relief to the indi-

vidual victims and achieve the purpose of protecting the

state from “‘unlimited” liability. The due process balanc-

ing test described in Claimant’s Reply Brief forwards the

interests of both the claimants and the government. In

this case, the majority opinion fails to acknowledge the

tragic effect the damage limitation provisions has on the

individual victims of the Berthoud Pass accident. The

“harsh” impact of sovereign immunity has been given

new life in this decision.

68a

6. The Court erred in failing to consider the constitu-

tionality of the statutory damage caps as applied in this

case. The issues of this appeal were decided on summary

judgment, and the implication of the Court’s opinion is

that there is no set of facts which could demonstrate this

statute is unconstitutional as applied. It is hard to imag-

ine injustice on a grander scale than the application of

the CGIA’s damage limitation provisions to the facts of

this case. If the light of innocent life can be snuffed so

quickly and compensation for the loss of life can be

eschewed so openly and so callously, then there may be

no set of facts wherein this statute may be found uncon-

stitutional. The government has at once granted victims

of governmental wrongdoing a property interest in

recovering judgments for loss of life and health, and at

the same time so qualified that right as to lead to its

abolition. See Quinn, J. dissent, p. 9. If three claimants

receive $150,000, $150,000 and $100,000 respectively,

the remaining thirty-one victims receive nothing. The

statutory scheme does not provide for any apportion-

ment or fair division of the proceeds. The victims of the

multi-victim disaster are unjustly left to fight among

themselves for the small biscuit of compensation pro-

vided by the state. The tragedy of this incident is revis-

ited on the victims through the crushing application of a

statute enacted on the basis of unfounded and factually

unsupported assumptions.

7. The Court erroneously limited Rosane v. Senger,

112 Colo. 363, 149 P.2d 372 (1944) in its due process

analysis. Claimants rely on Rosane for the proposition

that they have a legal right to damage for an injury which

property right cannot be deprived without due process.

The Court erroneously analyzed claimants due process

rights as only rights to causes of action rather than rights

to damages for injury. Claimants’ due process rights

include not only the right to pursue causes of action, but

the right to pursue “meaningful” causes of action which

69a

provide “meaningful” remedies for the loss of life and

serious impairment of health.

Lives of innocents have been lost; other innocents’ lives

have been changed forever. They may knock at the door of

the Courthouse; they may even enter; but they leave with

even less than they entered.

WHEREFORE, on the grounds set forth above, Defend-

ants-Appellants respectfully request this Honorable Court to

grant a rehearing on the case and for such other and further

relief as the Court deems just and necessary.

70a

Dated this 14th day of February, 1992.

Respectfully submitted,

SEARS, ANDERSON & SWANSON, P.C,

On Behalf of the Berthoud Pass Claimants’ Committee

and all Defendants-Appellants

Leland P. Anderson, #6745

Sears, Anderson &

Swanson, P.C.

3900 E. Mexico Avenue,

Suite 810

Denver, CO 80210

Victoria C. Swanson,

#13889

2 North Cascade Avenue,

Suite 1250

Colorado Springs, Colorado

80903

(719) 471-1984

Tom Roberts, #

Pryor, Carney & Johnson

6200 S. Syracuse Way,

Suite 400

Englewood, CO 80111

(303) 771-6200

Mark P. Martens, #16095

Pryor, Carney & Johnson

6200 S. Syracuse Way,

Suite 400

Englewood, CO 80111

(303) 771-6200

David Struthers, #14321

Fogel, Keating and Wagner

1199 Bannock Street

Denver, Colorado 80204

(303) 534-0401

H. Paul Himes, #8320

Aisenberg & Kaplan

1600 Broadway, Suite 2000

Denver, CO 80202

(303) 861-2509

Tla

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct

copy of the foregoing DEFENDANTS-APPELLANTS’

PETITION FOR REHEARING was placed in the United

States first-class mail, proper postage affixed, this 14th day of

February, 1992, addressed as follows:

Thomas J. Lyons

Assistant Attorney General

Gregg E. Kay

First Assistant Attorney General

Office of the Attorney General

Tort Litigation Section

1525 Sherman Street, Third Floor

Denver, Colorado 80203

Leland P. Anderson, Esq.

Sears, Anderson and Swanson, P.¢

3900 E. Mexico Avenue

Suite 810

Denver, Colorado 80210

David Struthers, Esq.

Fogel, Keating & Wagner

1199 Bannock Street

Denver, Colorado 80204

David R. Brougham, Esq.

Hall & Evans

1200 - 17th Street, Suite | 700

Denver, Colorado 80202

Mark P. Martens, Esq.

Pryor, Carney & Johnson, P.¢

6200 South Syracuse Way

Suite 400

Englewood, Colorado 80111

72a

H. Paul Himes, Esq.

Aisenberg & Kaplan, P.C.

1600 Broadway, Suite 2000

Denver, Colorado 80202-4920

William C. Murray, Jr.

Assistant City Attorney

Office of the City Attorney

1445 Cleveland Place, #301-B

Denver, Colorado 80202

Phillip Rich, Esq.

Speake, Speake & Rich

101 Springs, N.W.

Moulton, Alabama 35650

Forrest W. Lewis, Esq.

Schoenwald & Lewis

1900 Grant, Suite 700

Denver, Colorado 80203

James A. Cederberg, Esq.

Bragg & Dubofsky, P.C.

600 - 17th St., Suite 1700-N

Denver, Colorado 80202-5401

Roger T. Castle, Esq.

Roger T. Castle, P.C.

1888 Sherman Street, Suite 415

Denver, Colorado 80203

Scott W. Lawrence, Esq.

Kripke, Epstein & Lawrence, P.C.

1777 S. Harrison Street, #P200

Denver, Colorado 80210

John J. Rossi, Esq.

Morrisard & Rossi

12203 East 2nd Avenue

Aurora, Colorado 80011-8399

Harold Feder, Esq.

1441 18th Street, Suite 150

Denver, Colorado 80202

Bruce J. Kaye, Esq.

Leventhal & Bogue, P.C.

950 S. Cherry St., Suite 711

Denver, Colorado 80222

Gregg A. Greenstein, Esq.

Downey & Knickrehm, P.C.

1200 17th Street, Suite 980

Denver, Colorado 80202

Neil Hillyard, Esq.

Branney, Hillyard, Kudla & Lee

3333 S. Bannock St., 10th FI.

Englewood, Colorado 80110

Peter M. Smith, Esq.

First National Bank Building

33 West Hampden Avenue, Suite 808

Englewood, Colorado 80110

Alan Richman, Esq.

Breit, Best, Richmand & Bosch

1512 Larimer Street, Suite 900

Denver, Colorado 80202

Gregg A. Greenstein, Esq.

1200 Seventeenth St.

Suite 980

Denver, Colorado 80202

74a

No. 90SA351

Supreme Court, State of Colorado

APPEAL FROM THE DISCOURT COURT,

DENVER, COUNTY, 88CV141

THE STATE OF COLORADO, by and through the Colorado

State Claims Board of the Division of Risk Management,

Plaintiff-Appellee,

YVONNE E. DEFOOR, FRANK BOWEN; MARGIE BOWEN; ELI-

NOR M. BUTENHOFF; URS FREI; MICHAEL HATTON; THE

ESTATE OF ANNA HAYES, Deceased; THE CHILDREN AND

ESTATE OF ARLENE JOHNSON, Deceased; ESTATE OF JOHN

KILLEEN, Deceased; ESTATE OF MARKUS LANG, HERBERT

LANG, as survivor, heir and personal representative of Mar-

kus Lang and THE ESTATE OF MARKUS LANG, RITA LANG as

survivor, heir and personal representative of Markus Lang

and THE ESTATE OF MARKUS LANG, and ELFRIEDE BORRILLO,

as Special Administrator of the Estate of Markus Lang; THE

ESTATE OF DOUGLAS MACKENZIE, Deceased; SUZANNE MAC-

KENZIE; MICHAEL MCGARVEY, NANCY MCGARVEY:;

BERNADINE M. REMMERS; CAROL J. SMITH, THOMAS C.

SMITH AND MEAGAN N. SMITH, a minor; THE ESTATE OF

GLADYS STEWART, Deceased; THE ESTATE OF SOL STEWART,

Deceased; THE CHILDREN AND ESTATE OF KEITH WALTERS,

Deceased; THE CHILDREN AND ESTATE OF KATHLEEN WAL-

TERS, Deceased; HOROSHI YOSHIOKA; MORDEKHAY FUM-

ISHIKA; MASHASIKI NAKAYMA; MIKAYO TAJIMA; and

RODNEY ALVA WEST:;and CLARENDON NATIONAL INSURANCE

COMPANY; SAN JUAN Tours, INC. d/b/a GRAY LINE TOURS;

and all persons or entities suffering, or claiming to suffer,

[continued]

= eS

it |

/ a7 GA

damages resultant from the August 10, 1987 coilision

between a boulder and a Gray Line Tour Bus on U.S. High-

way 40, about seven miles east of Winter Park, Colorado,

while the bus was on Berthoud Pass,

Defendants-Appellants,

THE COLORADO DEPARTMENT OF HIGHWAYS and THE COLO-

RADO DIVISION OF HIGHWAYS, PHILLIP PACHECO, EARMAN

PACHECO, MERLE ZIMMER, PHILLIP WEST, ROSS HAMILTON,

EDWARD FINK, JOHN M. SALAZAR, R.L. CLEVENGER,

DWIGHT BOWER, PHIL MCCULLCUGH, AND LOWELI

JACKSON,

Third-Party Defendants and Counter Defendants-

Appellees

Upon consideration of the Petition for Rehearing filed in

the above cause, and now being sufficiently advised in the

premises,

IT IS THIS DAY ORDERED that said Petition for

Rehearing shall be, and the same hereby is, DENIED.

BY THE COURT, EN BANC, FEBRUARY 24, 1992.

Justice Quinn and Justice Mullarkey would grant the

petition.

cc:

SEARS, ANDERSON & SWANSON, PC.

Leland P. Anderson

Denver Centerpoint, Suite 810

3900 E. Mexico Avenue

Denver, CO 80210

VICTORIA C. SWANSON, P.C

Victoria C. Swanson

312 S. Weber St., Suite C

Colorado Springs, CO 80903

76a

PRYOR, CARNEY & JOHNSON

Thomas L. Roberts

Mark P. Martens

6200 S. Syracuse Way, Suite 400

Englewood, CO 80111

FOGEL, KEATING & WAGNER

William L. Keating

David Struthers

1199 Bannock St.

Denver, CO 80204

AISENBERG & KAPLAN, P.C.

H. Paul Himes

1600 Broadway, Suite 2000

Denver, CO 80202-4920

Gregg Kay, Ist Asst. AG

Simon Lipstein, Asst. AG

HALL & EVANS

David R. Broughman

1200 17th St., Suite 1700

Denver, CO 80202

EASON, SPRAGUE & WILSON

Eugene Sprague

1625 Broadway, #900

Denver, CO 80202-4709

Yvonne DeFoor

c/o Colorado Public Justice Foundation

Attn: Arthur Pina

P.O. Box 37311

Denver, CO 80237

Denis H. Mark

Colorado Trial Lawyers Association

1600 Stout St., #1300

Denver, CO 80202

Michael C. Maher

1050 3ist Street, N.W.

Washington, D.C. 20007

John Gehlhausen

1888 Sherman St., #370

Denver, CO 80203

J. Kent Miller

MILLER & McCARREN

370 17th St., #3050

Denver, CO 80202

Daniel S. Hoffman

Boyd N. Boland

HOLME, ROBERTS & OWEN

1700 Lincoln, #4100

Denver, CO 80203

Frederic K. Conover, II

FAEGRE & BENSON

370 17th Street, #2500

Denver, CO 80202

Kathleen E. Haddock

Colorado Municipal League

1660 Lincoln Street, #2100

Denver, CO 80264

Susan K. Griffiths

Tami A. Tanoue

Elizabeth E. Salkind

GRIFFITHS & TANOU!

Blake Street Terrace

1860 Blake St., #550

Denver, CO 80202

78a

Honorable Sandra I. Rothenberg

c/o Honorable John N. McMullen

Denver District Court

City and County Building

1437 Bannock Street

Denver, CO 80202

Clerk of Denver District Court

City and County Building

1437 Bannock Street

Denver, CO 80202

79a

CERTIFICATE OF MAILING

I hereby certify that on this 20th day of May, 1992 a true

and correct copy of the foregoing PETITIONER'S APPEN

DIX was mailed by placing the same in the United States

Mail, postage prepaid, addressed as follows:

Leland P. Anderson, Esq.

Sears, Anderson & Swanson, P.C.

Denver Centerpoint, Suite 810

3900 E. Mexico Avenue

Denver, Colorado 80210

Victoria C. Swanson, Esq.

Sears, Anderson & Swanson, P.C

2 North Cascade Avenue, Suite 1250

Colorado Springs, Colorado 80903

Thomas L. Poberts, Esq.

Mark P. Martens, Esq.

Pryor, Carney & Johnson

6200 South Syracuse Way, Suite 400

P.O. Box 6559

Englewood, Colorado 80155-6559

William L. Keating, Esq.

David Struthers, Esq.

Fogel, Keating & Wagner

1199 Bannock Street

Denver, Colorado 80204

H. Paul Himes, Esq.

Aisenberg & Kaplan

1600 Broadway, Suite 2000

Denver, Colorado 80202

80a

Gregg E. Kay, Esq.

First Assistant Attorney General

Office of the Attorney General

Tort Litigation Section

110 - 16th Street, Tenth Floor

Denver, Colorado 80202

Eugene Sprague, Esq.

Eason, Sprague & Wilson

1625 Broadway, #900

Denver, Colorado 80202-4709

Yvonne DeFoor

c/o Colorado Public Justice Foundation

Attn: Arthur Pina

P.O. Box 37311

Denver, Colorado 80237

| Dennis H. Mark

Colorado Trial Lawyers Association

1600 Stout Street, #1300

Denver, Colorado 80202

Michael C. Maher

1050 3ist Street, N.W.

Washington, D.C. 20007

John Gelhausen

1888 Sherman Street, #370

Denver, Colorado 80203

J. Kent Miller

Miller & McCarren

370 - 17th Street, #3050

Denver, Colorado 80202

Daniel S. Hoffman

Boyd N. Boland

Holme, Roberts & Owen

1700 Lincoln, #4100

Denver, Colorado 80203

Frederic K. Conover, I]

Faegre & Benson

370 - 17th Street, #2500

Denver, Colorado 80202

Kathleen E. Haddock

Colorado Municipal League

1660 Lincoln Street, #2100

Denver, Colorado 80264

Susan K. Griffiths

Tami A. Tanoue

Elizabeth E. Salkind

Griffiths & Tanoue

Blake Street Terrace

1860 Blake Street, #550

Denver, Colorado 80202

Mac V. Danford

Clerk. Colorado Supreme Court

\ preme O /) /

2 East 14th :

Denver, Colorado 80203

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.