# Appendix — Pacheco v. DeFoor

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0701%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 981

## Text

\ “2 i Sure: y Li r 3
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No. } or q a (992
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,

V.

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

i

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

la

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

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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

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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

—

4a

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

Sa

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.

6a

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

Ta

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

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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

9a

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,
V.
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.

Be

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

© Section (1) of the Act provided:
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.

V.

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.

oe

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. ~

I.

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

A

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.

B

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.

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).

5

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

CE

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)

ia

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,

V.

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.

OO

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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0701%3A2. Public record. Not legal advice.