Petition for Writ of Certiorari — Pacheco v. DeFoor (No. 91-1922)
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IN THE OFFICE OF THE CLERK
Supreme Court of the Wuited Stat
OCTOBER TERM, 1991
YVONNE E. DEFoor, FRANK BOWEN, et al.,
Petitioners,
Vv.
THE STATE OF COLORADO, et al.,
Respondents.
Petition for Writ of Certiorari to the
Supreme Court of the State of Colorado
PETITION FOR WRIT OF CERTIORARI
THOMAS L. ROBERTS
(Counsel of Record)
MARK P. MARTENS
PRYOR, CARNEY & JOHNSON
A Professional Corporation
6200 S. Syracuse Way, +400
Englewood, Colorado 80111
(303) 771-6200
LELAND P. ANDERSON
VICTORIA C. SWANSON
SEARS, ANDERSON & SWANSON
A Professional Corporation
Denver Centerpoint, +810
Denver, Colorado 80210
(303) 759-1963
May 26, 1992 Attorneys for Petitioners
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. When multiple victims of a governmental tort chal-
lenge on equal protection grounds the constitutionality of
caps on the right to recover damages from the State for
personal injuries, death, and property losses, does the
Fourteenth Amendment require the State to justify those
limitations by showing that the caps are substantially
related to an important governmental interest?
2. When a state legislature creates sovereign immunity
by statute but excepts from immunity a limited right to
recover in tort and then cuts off the right to recover
the full extent of that remedy at two victims per tortious
occurrence, does due process require (a) that the scheme
provide a quid pro quo for the common-law remedy it
replaces and/or (b) that the interests of governmental
tort victims be balanced against the governmental inter-
est allegedly furthered by the restriction?
ii
LIST OF PARTIES
PETITIONERS (Defendants-Third-Party Plaintiffs-Ap-
pellants) : °
Yvonne E. DeFoor, Frank Bowen, Margie Bowen,
Elinor 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 Markus Lang, and The Estate of Markus Lang,
Rita Land as survivor, heir and personal representa-
tive of Markus Lang and The Estate of Markus
Lang, and Elfriede Borrillo, as Special Administra-
tor of the Estate of Markus Lang, The Estate of
Douglas MacKenzie, Deceased, Suzanne MacKenzie,
- Michael McGarvey, Nancy McGarvey, Bernadine M.
Remmers, Carol J. Smith, Thomas C. Smith, and
Meagan Smith, a minor, The Estate of Gladys Stew-
art, Deceased, The Children and Estate of Keith
Walters, Deceased, The Children and Estate of
Kathleen Walters, Deceased, Horoshi Yoshioka, Mor-
dekhay Fumishika, Mashasiki Nakayma, Mikayo
Tajima, and Rodney Alva West, and Clarendon Na-
tional Insurance Company,* San Juan Tours, Ince.
doing business as Gray Line Tours,** and all persons
or entities suffering, or claiming to suffer, damages
resultant from the August 10, 1987, collision be-
tween 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,
* The parent companies of Clarendon National Insurance Company
are: EXA Corporation, Kansa Corporation, Ltd., C.G. America
Corporation, Clarendon Insurance Group, Inc., and Clarendon
America Insurance Company.
** San Juan Tours, Inc., doing business as Gray Line Tours, has
no parent company nor any wholly owned subsidiary.
iii
RESPONDENTS (Plaintiff-Appellee) :
The State of Colorado, by and through the Colorado
State Claims Board of the Division of Risk Manage-
ment,
And
(Third-Party Defendants-Appellees) :
The Colorado Department of Highways and The
Colorado 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.
ce
TABLE OF CONTENTS .
Page
QUESTIONS PRESENTED 0. occccecceceeeccececeeeee i
AMES SO SMNO IE niecitacinicnciectscenecntccssnsiplaisli, ae ii
TABLE OF AUTHORITIES 2.0.20... ccccccccececcseeeeneeee vii
REC RNMEE SOMIUE ossenccsisnnascccniniciacmicdonians aaa 1
a, SR REN CREME Car ied 9a Sly hes 2
CONSTITUTIONAL AND STATUTORY PROVI-
ee Ei | OEE OB Sete 2
STATEMENT OF THE CASE |... 3
STATEMENT OF RELATED CASES ........_. 6
REASONS FOR GRANTING WRIT... 6
{. THIS COURT SHOULD RESOLVE THE CON-
FLICTS AMONG THE STATES REGARDING
THE LEVEL OF CONSTITUTIONAL SCRU-
TINY TO BE APPLIED TO STATUTORY
SCHEMES WHICH ELIMINATE~-OR SE-
VERELY CURTAIL~ AN _ INDIVIDUAL’S
RIGHT TO RECOVER DAMAGES FOR TOR-
TIOUSLY INFLICTED PERSONAL INJUR-
i NL: ON CN NIT ss -2 22 Sin yeh 7
II. THIS COURT SHOULD RESOLVE THE IM-
PORTANT FEDERAL QUESTION REGARD-
ING THE DUE PROCESS ANALYSIS TO BE
APPLIED TO STATUTES WHICH ELIMI-
NATE OR SUBSTANTIALLY CURTAIL AN
INDIVIDUAL’S RIGHT TO RECOVER FOR
PERSONAL INJURIES .000.000..oo.--ncncecocececcceeeeee 12
CATER nasenicstnanssussstiiicomenletaneaaansel ee 18
vi
TABLE OF CONTENTS—Continued
APPENDIX A Page
Colorado Supreme Court Opinion (February 38,
LO@e) .....-... saicaecsbesihacieg seca Ka eRe av eat al ccanen eae ae ae la-4la
APPENDIX B
Denver District Court Opinion (July 27, 1990) ..... 42a-53a
APPENDIX C
Denial of Petition for Rehearing (February 24,
BID -eninssecccnstisnsssantadicnsz caucasian ae 54a-55a
APPENDIX D
Denial of Stay of Mandate (April 23, 1992) ........ 56a
APPENDIX E
Excerpts from the Colorado Governmental Immun-
_ | RRS igigdubiciaee dnp ae easel 57a-62a
vii
TABLE OF AUTHORITIES
CASES:
Arneson v. Olsen, 270 N.W.2d 125 (N.D. 1978) ......
Baptist Hospital of Southeast Texas, Inc. v. Baber,
672 S.W.2d 296 (Tex. App. 1984) .......... pice eas
Boddie v. Connecticut, 401 U.S. 371 (1971) .....-....-
Carson v. Maurer, 424 A.2d 825 (N.H. 1980) ....... 9,11,14
Cleveland Board of Education v. Loudermill, 470
TIS. BBR (1OBB) nn nn.ncencanenescncensncncensnnssvonsesseenccssonnnsns 15
Condemarin v. University Hospital, 775 P.2d 348
(Utah 1989) ..........-.------c---cececeeceeeeseeeemteceeceetesseees 9, 16,17
Craig v. Boren, 429 U.S. 190 (1976) .........--------------- 8
Duke Power Co. v. Carolina Environmental Study
Group, Inc., 488 U.S. 59 (1978) -.......-- 12, 18, 15, 16, 18
Evans v. Board, 482 P.2d 968 (Colo. 197 | EERSTE 13
Farley v. Engeiken, 740 P.2d 1058 (Kan. 1987) .. 10
Fein v. Permanente Medical Group, 474 U.S. 892
(TQBB) -.-o.nnennsnencnncnceae-nncnmnensnnennesaneensnnsnenccnensannnness 12
Hale v. Port of Portland, 783 P.2d 506 (Or. 1989) .. 11
Hanson v. Williams County, 389 N.W.2d 319 (N.D.
BO asa ac ice enact enenitereneneeennstoneenanionis 9,11
Hunter v. North Mason High School District, 539
Poa 645 (Wash. 1975) ........-.-..--...-...-...---..---.---. 17
Jones v. State Board of Medicine, 555 P.2d 399
(Idaho 1976) ............-----------:--cscececseeeeeecerecstesene 9
Kansas Malpractice Victims Coalition v. Bell, 757
P.2d 261 (Kan. 1988) ...........................-.-.-.-....)...- )
Lienhard v. State, 431 N.W.2d 861 (Minn. 1988). 11
Logan v. Zimmerman Brush Co., 455 U.S. 422
IY sinc seecencontannsnnasnsansccusventinwiinersenastestcnnaciantisnes 13, 14, 15
Lucas v. United States, 757 S.W.2d 687 (Tex.
BI cass snscceidicsnensledecumnlinonsbiitalaiepneenlaslaacspaspiarntatansiseesvne 9
Martinez v. California, 444 U.S. 277 (1980) -........- 5, 14
Mullane v. Central Hanover Bank & Trust Co.,
Oe OT GE TD siiccctecesennietsaisncrneconee cessive 14
Plyler v. Doe, 457 U.S. 202 (1982) ........-..----------------- 8
Rosane v. Senger, 149 P.2d 372 (Colo. 1944) ......... 13
Shapiro v. Thompson, 394 U.S. 618 (1969) -........... 8
Simon v. St. Elizabeth Medical Center, 355 N.E.2d
903 (Ohio Com. Pl. 1976) ............- Ee TOI Se 14
Viii
TABLE OF AUTHORITIES—Continued
Page
Smith v. Philadelphia, 515 A.2d 306 (Pa. 1986) .... 9
Stephen v. Denver, 659 P.2d 666 (Colo. 1983) _....... 13
Trimble v. Gordon, 430 US. 762 (1977) _.............. 8
Trujillo v. Albuquerque, 798 P.2d 571 (N.M.
I idnkste seabed comets rere Cee lS —- 9,10
Vitek v. Jones, 445 U.S. 480 (1980) 14-15
Wilson v. Gipson, 753 P.2d 1349 (Okla. 1988) ___... 11
Wright v. Central Du Page Hospital Association,
gb th ) | Sepa eee 14
oi CONSTITUTION, STATUTES AND RULES:
Fifth Amendment, United States Constitution 2
Fourteenth Amendment, United States Constitu-
ee es eae 2
I a Ue I I ge etrccscetreccnncoseen oe 2
43 US.C. § 1968..................... FOR a eRORE ie bA: 5, 6
pk ot >: an ee eens cat 12
CRS. §94-10-101 Blew: 3
C.R.S. § 24-10-106(1) (a) & (d) 3
C.R.S. § 24-10-114(1) .................. 3
IN THE
Sigwrene Court of the United Siates
OCTOBER TERM, 1991
YVONNE E. DEFoor, FRANK BOWEN, et al.,
Petitioners,
THE STATE OF COLORADO, et al.,
Respond nts.
Petition for Writ of Certiorari to the
Supreme Court of the State of Colorado
PETITION FOR WRIT OF CERTIORARI
COME NOW your Petitioners and respectfully pray
this Honorable Court to issue a writ of certiorari to re-
view the judgment and opinion of the Supreme Court
of the State of Colorado entered in this matter on Feb-
ruary 3, 1992.
OPINIONS BELOW
The majority and dissenting opinions of the Colorado
Supreme Court are reported at 824 P.2d 783 and appear
as Appendix A at la through 41a. The Denver District
Court’s unreported opinion is Appendix B at 42a through
53a. Denial of Petition for Rehearing appears as Ap-
2
pendix C at 5da through 90a. This Court’s denial of
Stay of Mandate is Appendix D at 56a.
JURISDICTION
The judgment of the Colorado Supreme Court was en-
tered February 3, 1992. Petition for rehearing was de-
nied February 24, 1992. Jurisdiction is invoked under 28
U.S.C. § 1257 (a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
A. The Fifth Amendment to the United States Con-
stitution:
No person shall be... deprived of life, liberty, or
property, without due process of law; nor shall pri-
vate property be taken for public use without just
compensation.
B. The Fourteenth Amendment to the United States
Constitution :
{No state shall] deprive any person of life, liberty
or property without due process of law, nor deny to
any person within its jurisdiction the equal protection
of the laws.
C. Colorado Revised Statute (“C.R.S.") § 24-10-114
(1) (1988):
The maximum amount that may be recovered under
this article in any single occurrence, whether from
one or more public entities and public employees,
shall be:
(2) For any injury to one person in any single
occurrence, the sum of one hundred fifty thousand
dollars;
ib: For an injury to two or more persons in any
single occurrence, the sum of four hundred thou-
sand dollars except that, in such instance, no
3
person may recover in excess of one hundred fifty
thousand dollars.
More complete excerpts of the Colorado Governmental
Immunity Act appear as Appendix E, 57a through 62a.
STATEMENT OF THE CASE
On August 10, 1987, a Gray Line sight-seeing bus
carrying 28 persons, most of whom were out-of-state and
foreign tourists, was travelling over Berthoud Pass on
U.S. Highway 40 in Grand County, Colorado when dis-
aster suddenly struck. Pursuant to established depart-
ment ditch-clearing policies, a Colorado Department of
Highways employee, operating a front-end loader, pushed
a 6.7 ton boulder off the upper mountain highway causing
it to careen down the mountainside, rip through trees,
and smash into the bus on the unguarded switchback be-
low. Nine people were killed, and 19 others sustained
severe physical and emotional injuries. The toll of human
life and suffering was catastrophic and exceeded by many
times the $150,000 per person and $400,000 per occur-
rence limitations or caps contained in Colorado’s Gov-
ernmental Immunity Act, C.R.S. §§ 24-10-101 et seq.
(1988).!
On January 7, 1988, the State of Colorado filed an
interpleader action in Denver District Court, naming
as defendants the petitioners herein and seeking to de-
posit a total sum of $400,000 into the registry of the
court as the full extent of its legal obligation for the
catastrophic injuries, damages, and deaths suffered by
the 28 victims of the State’s road-clearing policies.
The State conceded that the tragic incident fell within
the sovereign immunity waiver provisions of the Govern-
1 One passenger, Markus Lang, a young West German, died after
11 continuous months of hospitalization in Denver, Colorado and
in West Germany, having incurred more than $400,000 in medical
expenses.
4
mental Immunity Act allowing suit for operation of a
motor vehicle and or a dangerous road condition. See
C.R.S. § 24-10-106(1) (a) and (di (1988). It main-
tained, however, that C.R.S. § 24-10-114(1) restricted its
maximum liability to only $150,000 per person and
$400,000 per occurrence.
In response and by way of counterclaim, the petition-
ers asserted the unconstitutionality of the Act’s damage
caps and brought in the Department of Highways and
individual State employees as third-party defendants for
violation of petitioners’ civil rights. In April 1989, pe-
titioners filed a motion for summary judgment arguing,
among other things, that the damage caps are uncon-
stitutional because they violated, on their face and as
applied, the equal protection and due process guarantees
of both the United States and Colorado Constitutions.
Petitioners based their motion on an extensive evi-
dentiary showing that the damage caps were arbitrary
and not even arguably necessary to the financial security
of Colorado. The State presented no evidence, actuarial
or otherwise, that the damage caps were in any way re-
lated to Colorado’s fiscal security. The legislative his-
tory uncontrovertibly demonstrated that in passing the
damage limitation provisions, the Colorado legislature
heard no financial, actuarial, or other expert evidence
justifying the need for caps. Indeed, the record estab-
lishes that the numbers were pulled from thin air and
based upon unsupported assumptions. In short, there was
no factual dispute that Colorado has the financial means
to make substantial reparations to the injured parties.
Despite this factual showing, the trial court upheld the
constitutionality of the damage caps. Applying the ra-
tional basis minimum review standard, the trial court
held that the right to recover damages for personal in-
juries did not involve an important constitutional right,
and thus the State was not required to show that the
caps’ curtailment of this right was substantially related
7
0
to an important governmental interest. App. B at 47a
to 48a. The Court further held that the damage caps
did not violate the petitioners’ substantive due process
rights. Jd. at 50a.
On February 3, 1992, the Colorado Supreme Court
affirmed the trial court, finding that the damage ‘i.mi-
tations of the Colorado Governmental Immunity Act were
mere economic regulation requiring only minimum scru-
tiny under the rational basis standard of review. Ignor-
ing a factual and legislative record which irrefutably
belied its stated assumptions, the Court concluded the
damage limitations were necessary to protect the public
fisc. The Court rejected claimants’ due process claims
with the conclusion that no cognizable property inter-
est had been articulated, ignoring petitioners’ quid pro
quo and balancing test arguments altogether.’ In dis-
sent, Justice Mullarkey concluded that the $400,000 per
occurrence cap was arbitrary and flunked even the mini-
mum rational basis test, noting that as the number of
victims in a single incident increases, the amount recover-
able per person decreases until, in a case like this, only
token recovery is possible. App. A at 29a to 30a. Justice
Quinn (joined by Justice Mullarkey) dissented conclud-
ing that the $400,000 per occurrence cap should be
stricken on substantive due process grounds. As applied
to the facts of this case, he observed that the aggregate
cap rendered a legally protected property interst “il-
lusory in the extreme.”’ App. A at 32a.
*The Court reversed and remanded the trial court’s dismissal
of respondents’ 42 U.S.C. $1983 claims for further proceedings.
The issues presented in this petition, however, will not again arise
in this case because § 1983 claims “cannot be immunized by state
law.” Martinez v. California, 444 U.S. 277, 284 n.& (1980). Colo-
rado’s Governmental Immunity Act is thus irrelevant to the re-
maining claims. Therefore, the issues presented are ripe for review.
6
STATEMENT OF RELATED CASES
On May 20, 1992, the individual § 1983 defendants filed
their own petition for certiorari seeking review of the
unanimous decision to reinstate petitioners’ civil rights
claims. For the reasons stated in footnote 2, supra, that
proceeding involves issues separate and distinct from the
ones presented here. Further, the § 1983 issues may not
be ripe for decision. This proceeding is, therefore, pro-
cedurally and legally independent of the other.
REASONS FOR GRANTING WRIT
This case~presents important question of federal law
deserving review by this Court. First, the decision below
conflicts with other state courts of last resort with regard
to the federal questions of the appropriate standard of
review to be applied in equal protection and due process
analysis of a statute which severely curtails or effectively
eliminates the right to recover for tortiously inflicted
personal injuries and damages. Contrary to Colorado, at
least six other state supreme courts to date have applied
an intermediate standard of review requiring the State
to justify its intrusion into the liberty interests of indi-
viduals by showing that the restriction bears a substantial
relationship to an important governmental interest. Also
contrary to Colorado, the highest courts of other states have
required a quid pro quo or balancing test analysis for due
process purposes. Second, the opinion decides a federal]
question which has not yet been—but should be—decided
by this Court: whether due process requires a legislative
compensation scheme to be a quid pro quo for the common-
law remedy it supplants?
This Court should address these important issues and
provide direction and uniformity as to the federal consti-
tutional standards governing review of statutes which
severely restrict or render illusory the rights of persons
who have been deprived of their liberty and property in-
terest by the tortious conduct of others. The reasons are
7
all the more compelling when the wrongdoer is not a small
town or other public entity but the State itself—a govern-
mental entity with full capacity to respond in monetary
damages.
I. THIS COURT SHOULD RESOLVE THE CONFLICTS
AMONG THE STATES REGARDING THE LEVEL
OF CONSTITUTIONAL SCRUTINY TO BE AP-
PLIED TO STATUTORY SCHEMES WHICH ELIM-
INATE OR SEVERELY CURTAIL AN INDIVID-
UAL’S RIGHT TO RECOVER DAMAGES FOR TOR-
TIOUSLY INFLICTED PERSONAL INJURIES.
State courts of last resort have reached conflicting con-
clusions regarding an important federal issue: the level of
equal protection scrutiny to be applied to damage statutes
which eliminate or severely curtail an individual’s right
to recover damages for personal injuries. This critical
constitutional issue has never been addressed by this
Court, and its resolution is necessary to settle conflict
among the States.
The Colorado Supreme Court equated the rights affected
by the damage caps statute with traditional economic
rights, refused to apply heightened scrutiny, and merely
resorted to the extremely deferential minimum rationality
test. App. A. at 5a to 7a. Petitioners submit that this
finding was error. The rights involved are significantly
greater and constitutionally more important than tradi-
tional economic or commercial rights.
This Court has recognized that in certain limited cir-
cumstances, statutes which affect important rights or
create invidious classifications, while not giving rise to
the strict scrutiny triggered by fundamental constitu-
tional rights, will be measured by a heightened constitu-
tional scrutiny:
|'Wlie have recognized that certain forms of legisla-
tive classification, while not facially invidious, none-
theless give rise te recurring constitutional difficulties;
8
in these limited circumstances we have sought the
assurance that the classification reflects a reasoned
judgment consistent with the ideal of equal protection
by inquiring whether it may fairly be viewed as
furthering a substantial interest of the State.
Plyler v. Doe, 457 U.S. 202, 217-18 (1982). Although
finding the right in question ‘public education) not a
fundamental constitutional right, this Court found it to
be a right of sufficient significance to call for intermedi-
ate scrutiny. /d. at 221. Advancement of education and
the ‘inestimable toll” resulting from its deprivation was
held to outweigh the State’s alieged interest in preserv-
ing its educational and economic resources for children
other than the children of illegal immigrants. The State’s
interests in preserving its resources for its legal inhabit-
ants could not justify the classification used in allocating
those resources. /d. at 208, 222.
This intermediate standard has been applied to several
other classifications as well. Craig v. Boren, 429 U.S. 190
(1976) (gender); Trimble v. Gordon, 430 U.S. 762 (1977)
(illegitimacy) ; Shapiro v. Thompson, 394 U.S. 618 (1969)
(welfare benefit eligibility).
Petitioners submit that statutes which deny or severely
reduce recovery for personal injuries and death suffered
at the hands of the government should be subject to scru-
tiny under the same intermediate standard. As in Plyler,
the inability of those suffering personal injuries to recover
damages affects the social, economic and_ psychological
well-being of the individuals involved on a daily basis.
Petitioners do not argue that governmental entities
should never be allowed to pass statutes containing damage
caps. Petitioners submit only that a governmental entity
should be required to show that the caps are substantially
related to the objectives sought and not constitutionally
countenanced because permissible means or ends merely
imaginable.
ee
9
Several states have applied the more exacting height-
ened scrutiny test to damage caps statutes. See Conde-
marin v. University Hospital, 775 P.2d 438 (Utah 1989)
(governmental tort claim caps); Trujillo v. Albuquerque,
798 P.2d 571 (N.M. 1990) (governmental tort claim caps) ;
Smith v. Philadelphia, 516 A.2d 306 (Pa. 1986) (gov-
ernmental tort claim caps); Hanson v. Williams County,
389 N.W.2d 319 (N.D. 1986); Carson v. Maurer, 424
A.2d 825 (N.H. 1980) (personal injury claim caps) ;
Jones v. State Board of Medicine, 555 P.2d 399 (Idaho
1976) (medical malpractice claim caps); Kansas Mal-
practice Victims Coalition v. Bell, 757 P.2d 251 (Kan.
1988) (medical malpractice claim caps); Lucas v. United
States, 757 S.W.2d 687 (Tex. 1988) (medical malpractice
claim caps).
Courts which have applied heightened scrutiny have
recognized the importance of the right to recover damages
for personal injuries as well as the fact that this right
simply does not fit into the traditional pigeonhole of eco-
nomic or commercial rights. In Condemarin, for example,
the Utah Supreme Court addressed the issue in a case
where the plaintiff suffered injuries at a state hospital
and asserted that her injuries greatly exceeded the
$100,000 cap. In finding the cap unconstitutional, the
Court found the right to recover damages for personal
injuries to be an important substantive right:
“The importance of this right is seen not only from a
purely compensatory perspective, but also a function
of the close relation it bears to other rights which
are fundamental. Not only is the right to be compen-
sated for injuries closely related to fundamental
rights, but additionally, it does not logically fit into
the ‘commercial’ rights description which is charac-
teristic of rational basis standard of judicial review.”
Condemarin, 775 P.2d at 354 (citation omitted).
The New Mexico Supreme Court has also found that
statutes which limit an individual’s right to recover dam-
10
ages for personal injuries should be analyzed under
heightened scrutiny:
|Wle firmly adhere to the proposition that the legis-
lature, in effecting its policy choices, may not dis-
regard lightly the important and substantial individ-
ual interests served by the recovery of tort damages.
We are satisfied that we “neither trample arbitrarily
upon the legislature’s preferred position of direct,
political accountability . . . nor do we foresake our
duty to protect individuals” when we employ height-
ened scrutiny “in those limited circumstances when
the class implicated is so sensitive to injustice and
the rights affected are so substantial and important”
as they are here.
Trujillo, 798 P.2d at 575 (citation omitted). Important to
the New Mexico Court’s decision was the fact that persons
who have suffered personal injuries are basically a power-
less class in our political system which requires additional
constitutional protection. The Kansas Supreme Court ex-
pressed very similar views in Farley v. Engelken, 740
P.2d 1058 (Kan. 1987) which defined the class of injured
victims as an uncohesive, powerless, and unidentifiable
group which represents, to the healthy taxpayer, an eco-
nomic threat or drain. The political powerlessness of this
class of persons makes it similar to the semi-suspect
classes which courts have recognized require “judicial
protection threugh an enhanced scrutiny of legislation
critically affecting their individual rights.” Jd. at 1064.
North. Dakota has held that an intermediate standard
of review must be applied to legislation affecting the im-
portant right to recover for personal injury in a products
liability action:
.. While there are economic consequences for manufac-
‘turers and their insurers underlying the legislation
in question, we believe our focus must be on the in-
dividuals affected. We are unwilling to view human
life and safety as simply as a matter of economics.
Therefore, we agree with the New Hampshire Su-
O————— NN
CC
11
preme Court that the right to recover for personal
injuries is an important substantive right. “When
we are dealing with human life and safety we believe
that more is required for a justification than a
reference to... economics... .” .
Hanson, 389 N.W.2d at 325, 328 (emphasis added).
New Hampshire has also reasoned that an individual’s
right to recover in tort for personal injury is “sufficiently
important to require that the restrictions imposed on those
rights be subjected to a more rigorous judicial scrutiny
than allowed under the rational basis test.” Carson, 424
A.2d at 830. In striking down damage caps applicable to
health care providers, the Supreme Court stated:
It is simply unfair and unreasonable to impose a
burden of supporting the medical care industry solely
upon those persons who are most severely injured
and therefore most in need of compensation.
Id. at 837 (citations omitted).
Other states, of course, are in accord with Colorado
and have applied the rational basis test to damage caps,
including those applicable to governmental entities. See,
e.g., Wilson v. Gipson, 753 P.2d 1349 (Okla. 1988) ; Hale
v. Port of Portland, 783 P.2d 506 (Or. 1989); Lienhard
v. State, 431 N.W.2d 861 (Minn. 1988).
Recent times have witnessed widespread legislative
erosion of the rights of individuals to recover for tor-
tiously inflicted injuries, and it is time for this Court to
resolve the conflict among the states as to the vitally
important issue of what is the proper constitutional stand-
ard by which this legislation will be judged.
12
II. THIS COURT SHOULD RESOLVE THE IMPOR-
TANT FEDERAL QUESTION REGARDING THE
DUE PROCESS ANALYSIS TO BE APPLIED TO
STATUTES WHICH ELIMINATE OR SUBSTAN-
TIALLY CURTAIL AN INDIVIDUAL’S RIGHT TO
RECOVER FOR PERSONAL INJURIES.
This Petition raises an important question left unsettled
by this Court in Duke Power Co. v. Carolina Environ-
mental Study Group, Inc., 488 U.S. 595 (1978). Justice
White phrased it is follows: ‘Whether due process re-
quires a legislatively enacted compensation scheme to be
a quid pro quo for the common-law or state-law remedy
it replaces,_and if so, how adequate it must be [?]” Fean
v. Permanente Medical Group, 474 U.S. 892, 894-95
(1985) (White, J., dissenting) (observing that this un-
resolved issue “is dividing the appellate and highest courts
of several States . .. and is deserving of this Court’s
review’). Although deferring the question whether due
process requires a quid pro quo evaluation, this Court
nevertheless undertook such an analysis in Duke Power
and concluded that the Price-Anderson Act, 42 U.S.C.
§ 2210, setting a $560 million limitation on damages for
liability from certain nuclear accidents, provides a reason-
ably just substitute for the common or state tort law
remedies it replaced. Duke Power, 438 U.S. at 61. The
Colorado Supreme Court refused to apply a quid pro quo
analysis stating that no cognizable property interest had
been asserted by petitioners.
Petitioners submit that the Court should now resolve
the question as to whether due process requires a quid
pro quo analysis in the context of the Berthoud Pass
tragedy and determine whether a State may deprive
persons of health, liberty, or property, without providing
an adequate—or any—remedy. The $400,000 aggregate
limitation of the Governmental Immunity Act is not ac-
companied by any procedural safeguards that guarantee
that well-founded claims filed by victims of multi-victim
13
accidents will receive any compensation, let alone ‘“ade-
quate’ compensation."
Colorado recognized that common law remedies existed
for victims for governmental torts in Evans v. Board,
482 P.2d 968 (1971). See also Stephen v. Denver, 659
P.2d 666, 668 n.3 (Colo. 1983) (Governmental Immunity
Act in derogation of common law). In passing the Gov-
ernmental Immunity Act, however, the State deprived
claimants of their property interest with no benefit re-
turned. This is the issue raised by Duke Power, but left
unresolved to this day.
Petitioners, victims of a mass disaster, have a protected
property interest in their causes of action. The hallmark
of property is an individual entitlement grounded in state
law which right cannot be removed except for cause.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430
(1982). Colorado has previously held that “a legal right
to damage for an injury is property and one cannot be
deprived of his property without due process.” Rosane v.
Senger, 149 P.2d 372 (1944). In this ease, the Colorado
Supreme Court distinguished Rosane by concluding that
the protected property interest is limited to the right to
file a cause of action, but does not include the right to a
remedy. This conclusion is in conflict with decisions of
the highest courts of other states and this Court.
The North Dakota Supreme Court stated that “while
there need not always be a quid pro quo, any limitation
3 Cf. Duke Power Co., 438 U.S. at 90-91. The fact that the Colo-
rado Governmental Immunity Act provides no other remedies for
victims who sustain damages in excess of the damage caps dis-
tinguishes this case from Duke Power. In finding that the caps at
issue in Dulce Power satisfied due process requirements, this Court
noted the Act provided “an advance guarantee of recovery up to
£560 million plus an express commitment by Congress to take what-
ger further steps are necessary to aid the victims of a nuclear
incident.” 438 U.S. at 86 n.31. This is a far cry from Colorado’s
minimalist immunity scheme.
14
or elimination of a pre-existing right may not be arbi-
trarily imposed.” Arneson v. Olsen, 270 N.W.2d 125, 135
(N.D. 1978). Nevertheless, the Court found that the im-
position of damage caps in medical malpractice claims
was an insufficient quid pro quo for the severely injured
malpractice plaintiff. See also Wright v. Central Du Page
Hospital Association, 347 N.E.2d 736, 743 (Ill. 1976).
This approach was followed by the courts in Texas and
New Hampshire. See Baptist Hospital of Southeast Texas,
Inc. v. Baber, 672 S.W.2d 296, 298 (Tex. App. 1984);
Carson, 424 A.2d at 837-38. Ohio decided that a quid quo
must be given. Simon v. St. Elizabeth Medical Center,
355 N.E.2d 9038, 910 (Ohio Com. Fl. 1976). In this case,
the Colorado Supreme Court refused to engage in any
quid pro quo analysis upon finding that no property inter-
est had been articulated.
A cause of action is property protected by the Four-
teenth Amendment’s Due Process Clause. Mullane v.
Central Hanover Bank & Trust Co., 389 U.S. 306, 313
(1950). A state tort claim is a specific “species of
‘property’ protected by the Due Process Clause.” Mar-
tinez, 444 U.S. at 281-82. Although a state’s interest in
fashioning its own rules of tort law may be important,
there is nevertheless a federal interest in protecting the
individual tort victim from state action that is wholly
arbitrary or irrational. Martinez, 444 U.S. at 282.
“ T]he Due Process Clause protects civil littigants who
seek recourse in the courts... as plaintiffs attempting
to redress grievances.”” Logan, 455 U.S. at 429. A system
or procedure that deprives persons of their claims in a
random manner presents an unjustifiably high risk that
meritorious claims will be terminated. Logan, 455 at
434-35.
While the legislature may elect not to confer a property
interest, once it does so it may not constitutionally au-
thorize the deprivation of such an interest without appro-
priate procedural safeguards. Vitek v. Jones, 445 U.S.
15
480, 490-91 n.6 (1980). The State must have an interest
of “overriding significance” to deprive an individual of a
property interest of “basic importance.” Boddie v. Con-
necticut, 401 U.S. 371, 376 (1971).
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 condition the right on circumstances beyond the control
of the victim as to result in the abolition of the very
interest created by the state. See Logan, 455 U.S. at 436.
A property interest “cannot be defined by the procedures
provided for its deprivation any more than ean life or
liberty.” Cleveland Board of Education v. Loudermill. 470
U.S. 5382, 541 (1985).
The uncontroverted facts of record demonstrate that the
combined damages of the 28 victims exceeded many times
over the $400,000 aggregate limit. The statutory scheme
does not protect the property rights of all claimants to
participate in distribution of the $400,000. If two claim-
ants were each to receive the maximum individual recovery
of $150,000 and one other $100,000, the remaining 25
victims will be left without any remedy whatsoever. Tf
the $400,000 limit were arithmetically divided, the result-
ing 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
medica] costs, injuries, lost wages, permanent disability,
loss of earning capacity, pain and suffering, and loss of
enjoyment of life incurred by the petitioners.
In Pulse Power, this Court on the basis of a substantial
factual record applied a substantive due process quid pro
quo analysis to a more comprehensive damage cap statute
which provided a $560 million cap on damages available
to victims of a nuclear accident. Duke Power, 438 U.S.
at 84.
In the present case, the State presented no evidence
justifying the arbitrary and capricous legislative action
16
imposing damage limits which would effectively preclude
recovery by many victims of governmental torts. The
legislative record is devoid of any factual investigation by
the legislature concerning the amount of the caps. The
burdens on the victims (who have now been asked to
carry the State’s burden of its own tortious conduct)
have been amply demonstrated. The State’s burdens are
speculative and without factual basis or support in the
record.
Though Duke Power left open whether quid pro quo
analysis was necessary, it did apply such analysis finding
the Price-Waterhouse Act “to be a fair and reasonable
substitute for uncertain recovery of damages of this mag-
nitude from a utility or component manufacturer... .”
Luke Power, 438 U.S. at 91 (emphasis added). The
Berthoud Pass victims, on the other hand, have been pro-
vided a completely arbitrary and capricious substitute
remedy which deprives most of them of any meaningful
remedy. ”
Utah characterized the quid pro quo approach as
“classic due process analysis” and held that a court must
examine “the legitimacy of the legislative purpose and
the extent to which said purpose was reasonably and
substantially advanced” by the means utilized and com-
pare the protected rights denied. Condemarin, 775 P.2d
at 357, 358. Legislative efforts to abrogate rights must be
“closely examined . . . and struck down when the disability
they seek to impose on individual rights is too great to be
justified by the benefits accomplished or when the legisla-
tion is simply an arbitrary and impermissible shifting of
collective burdens to individual citizens.” Jd. at 358.
Condemarin held that “the legislative determination to
interfere with, limit, or abrogate the availability of reme-
dies for injuries to person, property or reputation re-
quires an important state interest and a rational means of
implementation. The greater the intrusion upon the con-
stitutionally protected interest, the greater and more ex-
’
17
plicit the state’s reasons must be. It is necessary for the
legislature, first, and this Court, second, to balance the
weight of the governmental interest at stake against the
countervailing importance of the individual rights being
compromised.” Condemarin, 775 P.2d at 358.
As noted above, the right to recover for personal in-
juries is an important substantive right, not merely one
of monetary value, but fundamental to insure a per-
son’s well-being and ability to continue to live a decent
life. See Hunter v. North Mason High School Dist., 539
P.2d 845, 848 (Wash. 1975).
The Colorado Supreme Court refused to balance in any
manner the interests of the 28 victims of the bus accident
and thereby condoned an arbitrary and capricious limita-
tion of damages which denied the victims their rights to
substantitve due process of law—a result completely in-
consistent with classic due process analysis as exemplified
by Condemarin. A significant conflict between jurisdic-
tions arises when citizens of one state (Utah) are entitled
to have their interests properly balanced against the in-
terests of the government, and citizens and tourits visiting
another state (Colorado) are denied a balanced review of
their interests.
Before the State is allowed to conserve its money at the
expense of seriously injured citizens, “its citizens are
entitled to a showing in the courts that a measure so
drastic and arbitrary as a [$150,000 $400,000] cap on all
damages is urgently and overwhelmingly necessary.”
Condemarin, 775 P.2d at 363. As in Condemarin, there
was “no factual showing in the legislative history or the
trial court that the recovery limitation is reasonably
necessary for preservation of the public treasury.” Jd. at
903. Despite this failure the Colorado Supreme Court
expressed exclusive concern with the monetary interests
of the government and virtually ignored constitutional :
and statutory policies of compensation to victims of gov-
18
ernmental torts. Due process requires the rights and
interests of the victims not be arbitrarily and caprici-
ously limited in the absence of any showing of the reason-
ableness and necessity for such limitation. Granting this
writ will answer the question left open in Duke Power
and resolve the conflict between Colorado and states such
as Utah as to the proper analysis to be applied to substan-
tive due process claims.
CONCLUSION
Petitioners urge this Court to grant certiorari review
in this matter to harmonize the holdings of the state
courts of last resort concerning the federal constitutional
treatment of statutory caps on the right to recover for
personal injuries and to conform the decision below with
decisions of this Court.
Respectfully submitted,
THOMAS L. ROBERTS
(Counsel of Record)
MARK P. MARTENS
PRYOR, CARNEY & JOHNSON
A Professional Corporation
6200 S. Syracuse Way, +400
Englewood, Colorado 80111
(303) 771-6200
LELAND P. ANDERSON
VICTORIA C. SWANSON
SEARS, ANDERSON & SWANSON
A Professional Corporation
Denver Centerpoint, +810
Denver, Colorado 80210
(303) 759-1963
May 26, 1992 Attorneys for Petitioners
APPENDICES
la
APPENDIX A
SUPREME COURT
STATE OF COLORADO
No. 9YOSA351
February 3, 1992
THE STATE OF COLORADO, by and through the Colorado
State Claims Board of the Division of Risk Manage-
ment,
Plaintiff-A ppellee,
V.
YVONNE FE. DEFoor: FRANK 30WEN; MARGIE BOWEN:
ELINOR M. BUTENHOFF: Urs FREI; MICHAEL HATTON:
THE ESTATE OF ANNA HAYES, Deceased: THE CHIL-
DREN AND ESTATE OF ARLENE JOHNSON, Deceased:
ESTATE OF JOHN -KILLEEN. Deceased; ESTATE OF
MARKUS LANG, HERBERT LAND, as survivor, heir and
personal representative of Markus Lang, and THE
ESTATE OF MARKUS LANG, RITA LAND as survivor, he
and personal representative of Markus Lang and Ty
‘ESTATE OF MARKUS LANG. and ELFRIEDE BORRILLO. 4s
Special Administrator of the Estate of Markus La) go:
THE ESTATE OF DOUGLAS MACKENZIE, Deceased:
SUZANNE MACKENZIE: MICHAEL McCGARVEY, 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 CHIL-
DREN AND ESTATE OF KEITH WALTERS, Deceased; THE
CHILDREN AND ESTATE OF KATHLEEN WALTERS, De-
ceased; HOROSHI YOSHIOKA: MORDEKHAY FUMISHIKA;
MASHASIKI NAKAYMA: MIKAYO TAJIMA; and RODNEY
ALVA WEST; and CLARENDON NATIONAL INSURANCE
2a
COMPANY; SAN JUAN Tours, INC. d/b/a GRAY LINE
Tours; and all persons or entities suffering, or claim-
ing to suffer, damages resultant 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-A ppellants,
V.
THE COL®RADO DEPARTMENT OF HIGHWAYS and THE
COLORADO DIVISION OF HIGHWAYS, PHILLIP PACHECO,
HARMAN PACHECO, MERLE ZIMMER, PHILLIP WEST,
Ross HAMILTON, EDWARD FINK, JOHN M. SALAZAR,
R.L. CLEVENGER, DWIGHT BOWER, PHIL MCCULLOUGH,
and LOWELL JACKSON,
i Third-Party Defendants and
Counter Defendants-A ppellees.
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
JUSTICE VOLLACK delivered the Opinion of the Court
as to Parts I, IT, HI, and V, and announced the Judgment
of the Court as to Part IV.
CHIEF JUSTICE RoviRA specially concurs as to Part IV,
and JUSTICE LOHR joins in the special concurrence.
y | meee
3a
JUSTICE MULLARKEY specially concurs as to Part V and
dissents as to Part II, and Jusrick QUINN joins in the
special concurrence as to Part V.
JUSTICE QUINN dissents as to Part IV, and JusTICE
MULLARKEY joins in the dissent.
Claimants appeal from a district court ruling that the
Colorado Governmental Immunity Act, £§ 24-10-101 to
-120, 10A C.R.S. (1988) (the Acti, 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 determination 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.
I.
On August 10, 1987, Phillip Pacheco was operating a
state-owned vehicle. He used this vehicle to move a 6.7-
ton boulder, pursuant to Department of Highway ditch-
clearing policies, on an upper switchback on the west side
of Berthoud Pass. The boulder rolled down onto a road-
way 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
1 This court has jurisdiction pursuant to § 13-4-102(1)(b), 6A
C.R.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.
4a
“8, 1989, the claimants filed a motion for summary judg-
ment, contending that section 24-10-114(1). 10A C.RS.
(1988), of the Act violated their right to equal protec-
tion of laws, access to courts and due process of laws.
Section 24-10-11411) provides:
> 'l) The maximum amount that may be recovered
under this article in any single occurrence. whether
from one or more public entities and public employ-
a ee
(a) For any injury to one person in any single
occurrence, the sum of one hundred fifty thousand
(b) For an injury to two or more persons in any
single occurrence, the sum of four hundred thousand
do] ars; except tnat., in sucn Instance, no person may
1 excess of one hundred fifty thousand
recover
The claimants also made claims pursuant to 42 U.S.C
WS88). The State filed its own motion for sum-
mary 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.
IT,
Claimants urge that section 24-10-114(1). 10A C.R.S.
(1988), violates their right to equal protection of the
laws because it creates an arbitrary Classification. Some
individuais, according to claimants, may be fully com-
pensated for injuries they sustain alone. Others jointly
injured, however, may not be. Claimants further contend
that the recovery limitations 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
- Claimants also contended that the Act violated the constitutiona]
prohibition against special legislation. That contention was not
] ; } .
raised on appeal O this court
oa
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 Assi mbly can ever limit the State’s liability
for damages in tort, as any limitation will work favor-
ably for some bu not othe . We have recoegn ized, how-
ever, that it is Within th province of the Gene ral Assem-
bly to simultaneously create governmental liability iar
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) ‘abrogating sovereign immunity
in Colorado). We conclude that the General fairs
limit the State’s liability for damages and affirn
district court’s ruling that the Act does not sion :
claimants’ right to equal protection of the laws.
A. Arbitrary Cla ssi fic tion
Claimants contend that section 24-10-114(1) creates an
arbitrary and irrational classification between individuals
who may accutiats receive full compensation under sub-
ection (1)(a) as opposed to individuals who are less
likely to receive full compensation for injuries under sub-
section (1)(b).* Claimants further contend that their
* Claimants argue that § 24-10-114(1) creates additional, imper-
missible classifications. First, claimants contend that § 24-10-114(1)
irrationally separates victims of private tortfeasors from victims of
public tortfeasors. We rejected this contention in Lee v. Colorado
Department of Health, 718 P 2d oe. Pate af Be 2s Colo 1986 ;. Secondly,
claimants contend that § 24-10-114(1) irrationally compensates vic-
tims of torts in 1979 differently than victims of torts in 1991, given
the rate of inflation. 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 bencfits
provision applicable to individuals in the plaintiff's position
violates no constitutional guarantee, we do not mean to indicate
that the present statute necessarily best fulfills the social and
re
6a
right to recover damages for personal injuries is im-
portant, and that section 24-10-114(1) should thus. be
reviewed under a heightened scrutiny equal protection
economic objectives it was designed to achieve or that a more
just svstem could not be formulated Hlowever, 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 24-10-114(1) on such yvround
Finally, claimants contend that § 24-10-114(1) irrationally sepa
rates victims of torts trom victims of breaches of contract This
contention is without merit as contracts are the product of inten
tional acts for which public entities can accurately plan and budget
See, o.g., Faber v, State, 142 Colo. 240, 241. 3583 P.2d 609, 609-10
(1960) (distinguishing Bowherger State Highway Dep't, 126
Colo. 488, 250 P.2d 1007 1952), and Ace Flying Serv. Ine
Colorado Dep't of Aagric., 1836 Colo. 19, 314 P.2d 278 1957), as
ceases involving actions on contracts wherein persons dealing with
the state are entitled to enforce their contract rights. from. cas
premised on the state’s negligence. )
‘This court has previously detailed the analytical framework for
addressing equal protection challenges. See, ¢.g., Tassian v People,
(31 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 applica
tion of an intermediate standard of review to equal protection
attacks on statutory damage limitations. See Trujillo v. City of
Whuquerque, T98 Pld 571, 577-78 (NM. 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 sover
eign 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 recov ry, but it has also ex-
tended partial governmental immunity to restrict rights which
existed at common law.” Jd. at 356. We are not called upon her
Ta
This court previously declined to apply a heightened
scrutiny test to an equal protection attack on section 24-
10-114(1) and applied a rational basis test instead, in Lee
0. Colorado Department of Health, 718 P.2d 22 , mat
(Colo, 1986) (a rational basis test applies where no fun-
damental right is infringed nor suspect class created).
See also Duke Power Co. ». Carolina Epvtl. Study Group,
Inc., 438 U.S. 59, 83 (1978) (liability limitations are
classic examples of economic 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 protec-
tion attack on section 24-10-1141).
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.®
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 “fa) tort
victim’s interest in full recovery of damages calls... for a form
of scrutiny somewhere between ‘the largely toothless invocation of
minimum rationality and the nearly fatal invocation of. strict
serutiny.’” 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 jurispru-
dence of the Trujillo 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 Gallé gos v. Phipps, 779 P.2d
856 (Colo. 1989) (statute failed to pass rational basis test
* 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 unreason-
able, or that it is unrelated to any legitimate state interest. Lee,
8a
Tassian v. People, 731 P.2d 672, 675 (Colo. 1987). We
begin our analysis 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 in,uries caused by the tor-
tious 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 -8, 2 C.R.S.
(1953). The General Assembly simultaneous!y 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 As-
sembly declared that the Act was necessary for “the im-
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).
* 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 drivers
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. (1968).
6
9a
mediate preservation of the public peace, health and
safety.” Jd. at 269.
In 1968, the legislative council of the General Assembly
appointed a committee to study sovereign immunity in
Colorado. See Legislative Council Report to the Colorado
General Assembly, Governmental Liability in Colorado,
Research Publication No. 184 (Nov. 1968) [hereinafter
“Legislative Council Report”]. The committee reviewed
the extent of the State’s liability in numerous areas, in-
cluding liability for injuries related to roads, highways
and negligent operation of motor vehicles.?. The commit-
tee also reviewed both the amount and nature of claims
filed with the State from July 28, 1965, through Septem-
ber 5, 1967. Jd. at 46-48. The committee analyzed “the
practical fiscal considerations which might foreseeably
flow from any enlargement of tort responsibility.” Jd. at
148.
On two different occasions, the committee met for the
purpose of discussing the fiscal impact of purchasing gov-
ernment liability insurance. /d. at 144. In proposing ap-
proaches to legislation regarding governmental liability,
the committee anticipated the equal protection issue cur-
rently before this court:
[I]t is 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 considerable
degree the danger of the catastrophe judgment, and
provides a sound basis for rational fiscal planning
and the computation of insurance premiums.
7 At the time of the report, nineteen states (including Colorado)
were liable in damages for injuries caused by the negligent opera-
tion of certain classes of motor vehicles. Legislative Council Report
at 60 and 71; see, e.g., § 18-10-1, 2 C.R.S. (1963).
10a
Id. at 119.8 The committee was thus aware that any re-
covery limitation might not satisfy all claims equally. The
committee noted that limiting recovery, however, pro-
vided “a sound basis for rational fiscal planning and the
computation of insurance premiums.” Jd. In their report
submitted to the General Assembly, the committee con-
cluded that limiting 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 courthouse 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 im-
munities, then undoubtedly it will wish to place limi-
tations 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).
§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 insur-
ance. Fourteen of those twenty-five states permitted recovery to
the extent of insurance coverage. Legislative Council Report at 72.
® 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).
|
lla
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. 328, sec. 1, 1971 Colo. Sess. Laws
1204-11; § 1830-11-14, 6 C.R.S. (1971 Supp.); see, e.g.,
State v. Hartsough, 790 P.2d 836, 837-38 (Colo. 1990).
In 1979, the General Assembly approved sections 24-10-
114(1)(a) and (b), which increased the liability limits
to their current values—$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 opera-
tion 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 limits on liability have correspondingly
been raised, in 1971 and again in 1979. Thus the mone-
tary limits on the State’s liability remained the same from
1949 through 1971, from 1971 through 1979, and from
1979 through the present. The General Assembly acted
rationally during this period, when adjusting the State’s
liability to its monetary ability to assume such fiscal re-
sponsibilities.
C. State Interests
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 mone-
tary recovery for governmental liability created by the
Act. In the Act’s declaration of policy, the General As-
10 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.
12a
sembly recognized this court’s abrogation of sovereign im-
munity and joined in our conclusion that the doctrine of
sovereign immunity frequently produced unjust results.
§ 24-10-102, 10A C.R.S. (1988) : Evans, 174 Colo. at 101,
482 P.2d at 970. The General Assembly stated, however,
“that unlimited liability could disrupt or make prohibi-
tively expensive the provision of . . . essential publie serv-
ices and functions.” § 24-10-102. The General Assembly
also noted that “the taxpayers would ultimately bear the
fiscal burdens of unlimited liability.” " Jd.
Claimants argue that section 24-10-114(1) is not ra-
tionally related to the enumerated state interests for the
following reasons: because the recovery limits were arbi-
trarily 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 financial 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
sovereign 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 legisla-
tive council carefully considered 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 abro-
gated sovereign immunity in 1971, while simultaneously
establishing recovery limits. The General Assembly raised
the recovery limits eight years later.
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 judg-
ment.” § 24-10-113(3), 10A C.R.S. (1988). Public entities are re-
quired to levy such taxes until outstanding judgments are satisfied.
Td.
13a
We have previously rejected an equal protection chal-
lenge to section 24-10-114(1) in Lee v. Colorado Depart-
ment of Health, 718 P.2d 221, 227-28 (Colo. 1986). We
noted that the State had an interest in creating fiscal cer-
tainty in order to execute its myriad public_responsibili-
ties. /d. at 227. We did not hesitate to conclude that
[bly limiting the liability of a public entity to a
fixed amount, the Governmental Immunity Act pro-
tects the public entity against the risk that unfore-
seen and unlimited tort judgments will deplete the
public coffers and result in the termination or sub-
stantial curtailment of important governmental func-
tions.
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 im-
perfect. If the classification nas some “reasonable
basis,” it does not offend the Constitution simply
because “. . . in practice, it results in some in-
equality.”
Dandridge 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
12 See alzo 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.”).
l4a
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 protec-
tion of the laws.
ITI.
Claimants next contend that section 24-10-114(1), 10A
C.R.S. (1988), deprives them of access to courts guaran-
teed 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 pro-
vides:
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.''*)
'S 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 liti-
gants’ 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 Government Immunity Act, the defendants in
Condemarin were immune from suit. Thus, the plaintiff was de-
prived 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 limi-
tations 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
constitutionality 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.
15a
This provision protects initial access to the courts. Torres
v. Portillos, 638 P.2d 274, 277 (Colo. 1981). 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 Our Mountain Env’t, Inc. v. District
Court, 677 P.2d 1361, 1367 n.6 (Colo. 1984) (the federal
constitutional right to petition the government for a re-
dress 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., 174
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 ade-
quate remedy. Article II, Section 6, however, does not
purport to control the scope or substance of remedies af-
forded to Colorado litigants. The open courts guarantee
rather assures litigants “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 ade-
quate alterative, contrary to the requirements of Kandt
v. Evans, 645 P.2d 1300 (Colo. 1982)."° In Kandt, we
4In Torres, we evaluated § 38-12-103(3)(a), 3 C.R.S. (1973),
which allows landlords, but not tenants, to recover attorney fees in
§ 38-12-103(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.
'5 Claimants contend that they are entitled to an adequate remedy
under Boxrberger v. 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 —
government.” /d. at 1008. In Boxrberger, we were concerned with
l6a
considered whether a plaintiffs right of access to the
courts was violated when she was precluded from filing
an intentional tort action against a co-employee under the
Colorado Worker’s Compensation Act, Kandt, 645 P.2d
at 1306. We held that the General Assembly could abro-
gate 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 gov-
ern the present case. Because the access to courts guar-
antee 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), 10A
C.R.S. (1988), deprives them of their rights to substan-
tive 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 “[nJo person shall be deprived of life, li-
berty or property, without due process of law.” Colo.
Const., art. II, § 25.1° We have observed that “[t]he con-
a plaintiff's ability to sue the State Highway Department. The
plaintiff had executed 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 dis-
missing 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 regard-
ing contract rights, as did Boxberger. Thus, Boxberger’s directive
does not resolve the issue before this court.
16 The Fourteenth Amendment to the United States Constitution
similarly provides, in pertinent part: “No State... shall deprive
CE —————e
17a
stitutional provision pertaining to due process of law is
applicable to rights, not remedies.” White v. Ainsworth,
62 Colo. 518, 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
particular form of remedy; all that [they are] guar-
anteed by the Fourteenth Amendment is the preser-
vation of [their] substantial right to redress by some
effective procedure.
Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933) (cita-
tions omitted). Thus, the federal and state due process
guarantee does not give litigants rights to particular rem-
edies.'7 Claimants 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. Claim-
ants rely on Rosane v. Senger, 112 Colo. 363, 149 P.2d
372 (1944), for the proposition that the right to damages
for injuries constitutes property subject to the protections
of the due process guarantee. The plaintiff in Rosane con-
tested 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
process unless the party deprived has his day in court.”
Id. at 370, 149 P.2d at 375. Plaintiff’s property right to
damages was thus effectuated by preserving her cause
any person of life, liberty, or property, without due process of
ees
17 The United States Supreme Court held, in Duke Power Co. v.
Carolina Environmental Study Group, Inc., 488 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.
18a
of action for damages. 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 ac-
tion 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 sov-
ereign immunity. 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 particular causes of ac-
tion can seek limited recovery against the State. See gen-
erally §§ 24-10-101 to -120, 10A C.R.S. (1988). Section
24-10-114(1), as part of this scheme, is a limited reme-
dial statute; it supplies a carefully defined range of rem-
edies for causes of action created under other sections of
the Act. It does not create a right 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
compensation received. The principles of limited liability,
however, 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 quid pro quo, or adequate, alter-
native remedy.’* Claimants’ alternative contention fails
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
19a
for the above-discussed reason: it fails to articulate a
cognizable property interest. We thus conclude that sec-
tion 24-10-114(1) does not deprive claimants of their
rights to substantive due process of laws.
¥
Finally, claimants contend that the district court erred
in dismissing their § 1983 claims against individual de-
fendants for failure to state claims sufficient to expose
the individual defendants to civil rights liability..° We
agree.
In order to state a claim for relief under § 1983, a
plaintiff 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. Parratt 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. McCol-
lan, 443 U.S. 137, 140 (1979); Sheldon Nahmod, Civil
Rights and Civil Liberties Litigation: The Law of Sec-
tion 1983 § 3.02, 141 (3d ed. 1991). Finally, the defend-
ant can assert qualified immunity defenses to defeat a
§ 1983 claim. Hafer v. Menlo, USS. , 112 S. Ct.
858 (1991); Will v. Michigan Dep’t of State Police, 491
U.S. 58 (1989); Anderson v. Creighton, 483 U.S. 6385
(1987).
Noting that parties “against whom summary judgment
is sought [are] entitled to the benefit of all favorable
legislatively enacted compensation scheme either duplicate the re-
covery at common law or provide a reasonable substitute remedy.”
Duke Power, 438 U.S. at 88.
19 Claimants brought third-party actions under § 1983 against
various individuals, including the Executive Director of the Depart-
ment of Highways, the Chief Engineer, and highway maintenance
supervisors and workers. ~
20a
inferences that may be drawn from the facts,” Churchey
v. Adolph Coors Company, 759 P.2d 1336, 1339-40 (Colo.
1988) (citations omitted), we are not convinced that
there was no genuine 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 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 IV, and Justice
MULLARKEY joins in the dissent.
Zia
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 emphasize my belief that the legislature is empowered
to place recovery limitations on the statutorily created
claim against public entity tortfeasors without violating
the claimants’ constitutional guarantee of due process.
After the Colorado Attorney General attempted to de-
posit the $400,000 maximum amount recoverable under
section 24-10-114(1)(b), 10A C.R.S. (1988) with the
registry of the district court, the claimants sought sum-
mary judgment alleging that section 24-10-114(1) (b),
which limits the aggregate amount payable for any single
oecurrence 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 claimants’ 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 heiding correctly acknowl-
edges the constitutionality of section 24-10-114(1) (b)
both facially and as applied to the claimants in this case.
A
In order to defeat a facial substantive due process chal-
lenge to a statute, the state need only show that a regula-
tion 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 Com-
munity 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)
1This section also limits the per person recovery to $150,000.
22a
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. Consequently, I
turn to examine the effect of application of this statute
on the claimants’ due process rights.
sa 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 depriva-
tion 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 effec-
tuates the very purpose for which the statute was en-
acted—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
aggregate damages figure was more than the $400,000
recoverable under section 24-10-114(1)(b). Yet, unless
there exists a deprivation 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 prohibit deprivation of rights
where such rights exist under substantive law).
Under the Fourteenth Amendment to the United States
Constitution and Article II, Section 25 of the Colorado
Constitution, individuals are protected from loss of lib-
erty without due process of law. Often, it is difficult to
characterize an affected interest as a “liberty” or “prop-
erty” 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 freedom from bodily re-
23a
straint but also the right of the individual to contract, to
engage in any of the common occupations of life, to ac-
quire 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. Roth, 408 U.S. 564, 572 (1972) (cita-
tion 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 in-
dividual killed as a result of an allegedly willful and
wanton tort perpetrated by the state had suffered depri-
vation of a liberty interest based on loss of continued
relationship and association with the deceased parent.?
With these concepts in mind, I recognize that the individ-
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 dam-
ages 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 depriva-
tion 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 limitation were applied and
declined to limit the plaintiffs’ § 1983 damages claim to net pecuni-
ary 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 in-
terest” such as “losses flowing from a variety of associational
interests, such as paternal love and care, instruction, counseling,
emotional support, and the family’s mutual enjoyment of life to-
gether.” Jd. at 464. It did not address the constitutionality of the
damages limitation on recovery for deprivation of the aspects of
the liberty interest for which the wrongful death statute provides
compensation.
24a
uals harmed or killed as a result of the accident that
occurred on Berthoud Pass road have suffered a depriva-
tion of their liberty interests. These claimants have re
grettably been deprived of their freedom to remain free
from bodily harm. See Daniels v. Wiliams, 474 U.S: 327,
341 (1986). 1
This liberty interest, however, is not the interest af-
fected 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
tortious act that may deprive an individual directly or
indirectly 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 872, 875 (1944), the majority states that
this provision is remedial and that there is no right to a
remedy. Consequently, the majority finds that the claim-
anis “failed to articulate a cognizable property interest
in support of their due process claim.” See maj. op. at
23. I believe, however, that a statutorily granted right
to damages, validly limited, is property, but only to the
extent to which it is statutorily defined. Property inter-
ests “are created and their dimensions are defined by
- existing rules or understandings that stem from an inde-
pendent source such as state law.” Cleveland Bd. of Edu-
cation v. Loudermill, 470 U.S. 532, 588 (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
could lie in tort except as provided for in the Immunity
25a
Act. § 24-10-105, 10A C.R.S. (1988). There is no con-
stitutional right for persons to sue and recover a judg-
ment 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 exceptions
listed in the Immunity Act. Since the legislature is em-
powered to completely eliminate any recovery against
public entities for claims asserted in tort, then the legis-
lature 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 conditions . . . imposed as a con-
dition precedent to the right are mandatory.’’) (citation
omitted). This right to damages is, therefore, a property
interest subject to constitutional protection only within its
defined dimension of $400,000 maximum.
In Golden State Transit Corp. v. Los Angeles, 493 U.S.
103, 106 (1989), the Supreme Court laid out a test for
determining the existence of a federal right for the pur-
pose of stating a claim under § 1988. In determining
whether a statute creates an interest subject to the pro-
tection of § 1983, the Court considered “whether the pro-
vision in question creates obligations binding on the gov-
ernmental unit,” whether the asserted interest was suffi-
ciently concrete so as to be enforceable 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 government 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 section 24-10-114(1)(b) is intended to protect,
the legally protected interest created by this statute is
the right to recover for damages only to the extent of a
$400,000 aggregate maximum.
26a
Since the $400,000 limitation was in effect at the time
of this tortious occurrence, and since the state met this
legislatively imposed obligation of $400,000, I do not find
that the claimants were deprived of any protectable prop-
erty interest triggering the due process clause.
I am authorized to state that JusTICE LOHR joins in
this special concurrence.
27a
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
individual 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 (“High-
ways’) policies on removing boulders from the Berthoud
Pass road, and (2) the individual defendants’ actions
and inactions violated the complainants’ due process pro-
tected 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 de-
liberately 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 danger-
ous manner had been followed by Highways for years.
Prior experience, as well as a Highways-conducted study
showing that neither trees nor cement and steel guard-
rails 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
employees’ acts and omissions were grossly negligent,
reckless or deliberately indifferent to public safety and
human life.
i...
28a
I agree that the allegations adequately state 1983
claims. In Espinoza v. O’Dell, 683 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 govern-
ment itself becomes the source of danger to an individ-
ual’s rights.” In Uberoi v. University of Colorado, 713
P.2d 894, 903 (Colo. 1986), we held that allegations of
gross negligence, recklessness or intentional conduct 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 1988 claims
similar to those presented here. See, e.g., Morrison v.
Washington County, 700 F.2d 678 (11th Cir. 1983),
cert. denied 464 U.S. 864 (1988) (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 its trenches). See also Wiiliam
Burnham, Separating Constitutional and Common-Law
Torts: A Critique and a Proposed Constitutional Theory
of Duty, 73 Minn. L. Rev. 515, 518-19 (1989) (discuss-
ing 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 developed 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 reasonable. Guider v.
29a
Smith, 4831 N.W.2d 810, 816, n. 15 (Mich. 1988) (trial
court may consider immunity claims on motion to dis-
miss, motion for summary judgment and as defense to
liability in trial on the merits). But, if so asserted, the
qualified immunity claim must await a trial on the merits
because conduct cannot be both deliberately indifferent as
the claimants allege and objectively reasonable. See
David Rudovsky, The Qualified Immunity Doctrine in the
Supreme Court: Judicial Activism and the Restriction
of Constitutional Rights, 188 U. Pa. L. Rev. 28, 57
(1989) (deliberate indifference precludes finding of ob-
jective reasonableness required to prove qualified immu-
nity). Accordingly, these claims should proceed to trial.
II.
I agree with Justice Quinn that the $400,000 per oc-
currence cap contained in section 24-10-113(1) (b), 10A
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 dis-
positive. 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 gov-
ernmental immunity act creates two categories of injured
persons. 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. Victims 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 de-
creases until, in a case like this, only a token recovery is
possible for each individual.
80a
The validity of these two categories must be tested un-
der the rational basis standard. That test requires that
“the statutory classification has a reasonable basis in fact
and bears a reasonable relationship to a legitimate govern-
mental interest.” Lee, 718 P.2d at 227. In our jurispru-
dence, the rational basis test is not a “rubber stamp”
signalling automatic approval of the challenged legislation
but rather it requires a careful consideration of the rea-
sonableness of the legislative classifications at issue. Re-
cently, 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 cate-
gories of trespasser, licensee and invitee for purposes of
premises liability. We found that the duties imposed on
landowners were not rationally related to the categories
of injured persons created by the statute. Jd. at 862 (the
statutorily created 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) ( plural-
ity opinion) (invalidating medical malpractice 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
legislature’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 consequences 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.
i
i
3la
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
summary judgment against the claimants on their due
process claim. I would hold that section 24-10-114 (1) (b),
10A C.R.S. (1988), which places a $400,000 limitation
on the cumulative recovery in tort for injuries and dam-
ages to two or more persons in any single occurrence,
violates substantive due process of law under the Colo-
rado 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. Al-
though such limitation may be less than full compensa-
tion in a given case, it nonetheless is adequate to cover
most tort claims filed against a public entity and is rea-
sonably related to the governmental objective of safe-
guarding the fiscal integrity of the public entity in carry-
ing out its many functions. In those rare cases where
$150,000 is not adequate compensation, such award still
provides the claimant with moderate compensatory dam-
ages 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 unconstitutional 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 occurrence, 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.
In the present case, however, the application of the
$400,000 per-oecurrence limitation to the thirty-four
32a
claimants, nine of whom are pursuing wrongful death
claims, so limits what I view as a claimant’s legally pro-
tected 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 ac-
tions, but, rather, would permit each claimant to file and
seek recovery for money damages up to $150,000 as pro-
vided by the per-claim limitation of section 24-10-114 (1)
(a), 10A C.R.S. (1988).
I.
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
common law right to damages so long as an adequate
substitute remedy is provided, or from imposing reason-
able monetary limitations on a tort claim. See generally
Kandt v. Evans, 645 P.2d 1800 (Colo. 1982); O’Quinn
v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d
344 (1972). In Lee v. Department of Health, 718 P.2d
221 (Colo. 1986), for example, we upheld the facial valid-
ity of the monetary limitations of the Colorado Govern-
mental Immunity Act against an equal protection chal-
lenge.’ _The fact that the monetary limitations do not
1In 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 con-
sortium 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 re-
duced Lee’s award to $150,000 pursuant to the statutory per-claim
33a
facially viclate 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 all circumstances without implicating the due
process rights of the victims of a governmental tort.
“|The 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 dis-
parity in treatment by a State between classes of in-
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 aribtrary
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 as-
sumed by public entities and in the effect of greater potential lia-
bility exposure on the public entity’s ability to continue its govern-
mental 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 responsi-
bilities of government.” Jd. at 227-28.
Our decision in Lee resolved only the facial validity of the mone-
tary 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 a 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.
34a
dividuals whose situations are arguably indistinguish-
able.” Ross v. Moffitt, 417 U.S. 600, 609 (1973). Equal
protection analysis, therefore, often involves an assess-
ment of whether a statutory classification is unconstitu-
tionally 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, regard-
less 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 per-
son 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 cunstitutionality of a statute and the
separate question of the constitutional validity of apply-
ing 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,
é.g., Walters v. National Ass’n of Radiation Survivors,
473 U.S. 305, 337-38 (O’Connor, J., concurring) ; Hoff-
man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 503-04 (1982); Lee v. Smith, 772 P.2d 82, 85 (Colo.
1989) ; New Safart 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 claim-
35a
ants of a substantial property interest in violation of due
process of law. -
II.
A legislative enactment creates a legally protected in-
terest 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 24-10-106
(1) (d), 10A C.R.S. (1988), specifically waives sovereign
immunity for injuries resulting from a dangerous condi-
tion on a public highway. Second, inextricably inter-
twined with the specific right to recover against a public
entity for injuries resulting frora dangerous conditions
on a public highway is the right of a tort claimant to
recover an amount up to $150,000, as codified in section
24-10-114, 10A 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.
Coustruing sections 24-10-106(1) (d) and 24-10-114 as
creating a legally protected property interest in recover-
ing money damages from a public entity for injuries and
damages tortiously inflicted by the nublic entity is in
accord with basic concepts of fairness. Years ago this
court held in Rosane v. Senger, 112 Colo. 363, 370, 149
P.2d 372, 375 (1944), that a legal right to recover dam-
ages for a tortiously inflicted injury is a property inter-
est protected by due process of law. Our holding in
Rosane is by no means unique in that respect. See, e.y.,
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 reject-
ing facial due process challenge to $10 statutory limit on
attorney fees for assisting with disability claims before
36a
Veterans Administration, 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 radia-
tion) ; Condemarin v. University Hospital, 775 P.2d 348,
356-60 (Utah 1989) (Durham, J.) (holding that the
balancing of statutory limitation on tort award against
governmental entity and the purpose served by statutory
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 re-
cover for personal injuries caused by governmental en-
tity). Moreover, no one today can seriously question the
proposition that a person has an interest in freedom from
bodily harm tortiously inflicted by a governmental en ity
and that such interest 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 “a personal constitutional liberty interest” in the
continued life of their deceased spouse, parent, or child.
Espinoza v. O’Deil, 683 P.2d 455, 468 (Colo. 1981), cert.
granted, 454 U.S. 1122 (1981), cert. dismissed, 456 U.S.
430 (1982). If a person has a liberty interest in per-
sonal security against governmentally inflicted bodily in-
jury and also a “personal constitutional liberty interest”
in the continued life of a spouse, parent, or child, it fol-
lows axiomatically that the same person should be ac-
corded the right to seek some measure of moderate com-
pensation to redress the unlawful governmental depriva-
tions of those interests. Otherwise, the interests them-
selves beeome nothing more than legal fictions.
To be sure, the nature and extent of the property in-
terest in recovering moderate compensation for injuries
and damages caused by tortious governmental conduct
finds its source in state law, specifically the Colorado
Governmental Immunity Act, §§ 24-10-101 to -120, 10A
; cilia
:
7 37a
C.R.S. (1988 & 1991 Supp.). The mere fact that a prop-
erty 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 appli-
cation in violation of due process of law. The plurality
accepts the fact that the statutory scheme waives sover-
eign immunity in tort for injuries resulting from a dan-
gerous condition on a highway and grants the tort victim
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, permits the $400,000 per-occurrence limita-
tion to annul that same statutory right whenever the
total damages awarded to other victims of the same dis-
aster have exceeded the statutory iimitation. In reaching
that result, the plurality reasons that “[s]ection 24-10-
114 is a limited remedial statute” which “supplies a care-
fully defined range of remedies for causes of action cre-
ated under other sections of the Act” and thus does not
create a “cognizable interest in support of [the claim-
ants’] 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 representatives of those killed
in the accident, of any legal redress whatever for their
respective injuries and damages. I view the plurality’s
rejection of the claimants’ due process claim as counte-
nancing the very type of incongruous creation and an-
nulment of a significant property interest that the doc-
trine 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 condition the right on circumstances beyond the con-
38a
trol of the victim as to result in the abolition of the very
interest created by the statute. In holding otherwise, the
plurality employs a “bittersweet” analysis which requires
a tort claimant to take the “bitter” per-cccurrence limita-
tion with the “sweet” statutory right to sue the govern-
mental 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, how-
ever, “cannot be defined by the procedures provided for
its deprivation any more than can life or liberty.” Cleve-
land Bd. of Education v. Loudermill, 470 U.S. 532, 541
(1985). On August 10, 1987, therefore, when Depart-
ment 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 victims
and the heirs or representatives of each deceased victim
had a legislatively created and legally protected property
interest in suing the state and in receiving a compensa-
tory damages award, not to exceed $150,000, upon prov-
ing that the Department of Highways was legally at fault
in causing the dangerous road condition.
ITI.
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 pre-
occurrence limitation would not violate due process of
law 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); Continental Air Lines, Ine.
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). I 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.
39a
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 pre-
occurrence limitation. 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 At-
torney General alleging 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 con-
tains an affidavit from an experienced arbiter who re-
viewed 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 re-
ceives $150,000, and the two other injured claimants col-
lect $150,000 and $100,000 respectively on their claims,
the remaining thirty-one victims will be left without any
recourse whatever to obtain compensation for their in-
juries. Even if the $400,000 were to be divided equally
among all claimants, the resulting award of approxi-
mately $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, injuries,
lost wages, permanent disability, loss of earning capacity,
pain and suffering, and loss of enjoyment of life incurred
by the claimants.
Finally, so far as the record before us shows, permit-
ting 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 re-
40a
ports 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 appropria-
tions 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. Jd. 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
1500 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 Limits Task Force Report to
Governor and General Assembly at 3 (1988) 2
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 judg-
ment” 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
? 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
judgment or judgments may be claimed and rendered against
the state in excess of these amounts, provided that the portion
of the judgment 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 ex-
ceeds 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 ex-
cess of the limits shall be paid from the general fund or any
other funds established by the General Assembly.
Governmental Immunity Limits Task Force Report to Governor and
General Assembly at 2 (1988).
4la
of life, liberty, and property, ‘a tale . . . full of sound
and fury, [slignifying nothing.’” Maz, 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.
42a
APPENDIX B
DISTRICT COURT
CITY AND COUNTY OF DENVER, COLORADO
Case No. 88CV141, Courtroom 14
THE STATE OF COLORADO, by and through the Colorado
State Claims Board of the Division of Risk Management,
Plaintiff,
v.
YVONNE E. DEFOOR, et al.,
Defendants and Counterclaimants.
and
CLARENDON NATIONAL INSURANCE COMPANY, et al.,
Defendants and Counter-Plaintiffs,
V.
THE STATE OF COLORADO, et al.,
Defendant.
and
THE COLORADO DEPARTMENT OF HIGHWAYS, et al.,
Counterclaim Defendants.
ORDER
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
1 onl
|
43a
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 counterclaim-
ants (claimants) were the passengers in a tour bus tra-
velling on U.S. Highway 40 (Berthoud Pass), in Grand
County, Colorado.
2. At the time, a Colorado State Department of High-
way’s employee was conducting a ditch-clearing operation,
and was using a state owned motor vehicle to move bould-
ers 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 claimants’ 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 de-
fendant 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 registry of the Court, as the full extent
of its liability, under C.R.S. 24-10-101 et seg. (1988 Repl.
Vol.), the Colorado Governmental 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 pub-
lic 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 move-
ment of traffic. . . . C.R.S. 24-10-106 (1988 Repl.
Vol.)
44a
5. After sovereign immunity is waived, the State’s
liability is limited to $150,000, when one person is injured
in an accident. In an accident where more than one per-
son is injured, each claimant’s recovery is limited to
$150,000, and the State’s total liability per occurrence is
limited to $400,000. C.R.S. 24-10-114 (1988 Repl. Vol.)
6. When the General Assembly passed the Colorado
Governmental Immunity Act, it made the following find-
ings: (1) That the state of Colorado and its political
subdivisions provide essential public services and func-
tions, and unlimited liability for injuries which lie in tort
could disrupt or make prohibitively expensive, the gov-
ernment’s ability to provide such services and functions;
(2) That taxpayers would ultimately bear the fiscal
burdens of unlimited liability; therefore limitations were
necessary to protect taxpayers against excessive fiscal
burdens; and (8) That public employees should be pro-
tected from unlimited liability so that they are not dis-
couraged from providing the services or functions re-
quired by Colorado’s citizens, or from exercising the
powers authorized 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 continue 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 pro-
visions 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
guaranteeing access to the courts; their substantive due
process rights; and their rights to protection from the
passage of special legislation.
ee
45a
I. EQUAL PROTECTION
9. The Fourteenth Amendment to the United States
Constitution declares that no state shall deny a person
equal protection 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 per-
sons who are similarly situated receive different treat-
ment by the law. Board of County Commissioners v. Flick-
inger, 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 equal pro-
tection clause. The first and highest standard ig 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 clas-
sifications. 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 gov-
ernment entities performing government functions, Con-
demarin v. University Hospital, 775 P.2d 348, 352 (Utah
1989), or to receive full recovery in tort for an injury.
Duke Power Company v. Carolina 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. )
46a
14. Claimants argue that the Act’s damage cap provi-
sions infringe on their fundamental rights of interstate
travel, and therefore the Court should apply the strict
scrutiny test. However, the Court finds that the Act does
not create a classification that infringes on the funda-
mental right to travel. See Strong v. Collatos, 450 F.
Supp. 1356, 1860 (D. Mass. 1978) (A right which op-
erates to impose some loss, hardship or disadvantage on
the exercise of the right to travel may be said to penalize
the right; “travel” means migration with the intent to
settle and abide.) Therefore, strict scrutiny is not the
proper standard of review.
15. The second standard of review is the intermediate
standard. It applies where “quasi-suspect” classes are
involved. The United States Supreme Court has applied
this standard where classifications are based on alienage
and illegitimacy. Austin v. Litvak, supra at 49. To date,
the Colorado Supreme Court has only applied the inter-
mediate standard of review to gender based classifica-
tions. Austin v. Litvak, supra.
16. The claimants here argue that the right to com-
pensation for personal injuries is an important constitu-
tional right, and therefore, this court should, at a mini-
mum, apply the intermediate standard of review.
17. The majority of jurisdictions, including Colorado,
have refused to apply the intermediate standard of re-
view to legislation limiting damages for personal injur-
ies. 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 M. Harton Memorial
Hospital, 579 S.W.2d 888, 892 (Tenn. 1979).
18. But see Condemarin v. University Hospital, 775
P.2d 348, 356 (Utah 1989) (statute limiting recovery
from uninsured governmental entity reviewable under in-
termediate standard. Note however that the court ap-
plied this standard because “the legislature not only lim-
ited recovery, but also extended partial governmental im-
47a
munity 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 for personal injuries held to
be an important substantive right); Carson v. Maurer,
424 A.2d 825, 830-31 (N.H. 1980) (medical malpractice
statute limiting recovery reviewable under the inter-
mediate standard).
19. This court finds that, in Colorado, the right to
recover damages for personal injuries is not reviewable
under the intermediate standard.
20. The third standard of review is the “rational
basis” test. Under this standard, a classification is valid
if it has a rational basis in fact, and bears a rational
relationship to legitimate governmental objectives. Aus-
tin v. Litvak, supra at 49. In 1986, the Colorado Supreme
Court ruled that, where a statute limits the amount of
damages recoverable from a governmental 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 un-
reasonable, or, if reasonable, is unrelated to any legiti-
mate governmental objective. Tassian v. People, 731 P.2d
672 (Colo. 1987).
22. In applying 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 (Wise. 1978). A classi-
fication does not offend the constitution simply because it
is not made with mathematical certainty or because it re-
sults in some inequality. Woods v. Holy Cross Hospital, —
591 F.2d 1164, 1173 (5th Cir. 1979).
23. The majority of states that have considered the
equal protection issue have applied the rational basis
48a
test, and have ruled that statutes limiting recovery from
governmental tortfeasors are constitutional. See Lien-
hard v. State of Minnesota, 481 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 governmental objec-
tive 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 rational relationship
to limiting financial burden placed on governmental units
by large judgments or high insurance premiums) ; Crowe
v. John W. Harton Memorial Hospital, supra (ordinance
limiting amount of damages recoverable against govern-
mental tortfeasors to $20,000 has a rational basis in pro-
tecting tax revenues from unlimited claims. )
24. The Court finds that the Act’s provisions limiting
maximum recovery bear a rational relationship to two
legitimate governmental objectives: (1) promoting fiscal
certainty; and (2) protecting important governmental
services and functions from curtailment or termination.
25. The Court further finds that the claimants have
failed to prove the statute unconstitutional beyond'a rea-
sonable doubt. Therefore, the Act does not violate the
equal protection clauses of the United States or Colorado
Constitutions.
II. RIGHT OF ACCESS TO THE COURTS
26. Claimants also argue that the damage cap pro-
visions of the Act violate their rights of access to the
courts. Article II, §6 of the Colorado Constitution pro-
vides: :
Courts of justice shall be open to every person, and
a speedy remedy afforded for every injury to per-
son, property or character; and right and justice
49a
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 rela-
tionship 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 limit-
ing recovery against governmental tort feasors do not vio-
ate a plaintiff’s right of access to the courts. See Ryszkie-
wicz v. City of New Britain, supra (state constitutional
provision granting access to courts does not grant un-
qualified right to recover unlimited damages from gov-
ernment entities) ; Estate of Cargill v. Rochester, supra
(state constitutional provision giving litigants free ac-
cess to courts to pursue civil remedies “for all injuries”
does not guarantee that all injured persons will receive
full compensation for their injuries) ; Crowe v. John W.
Harton Memorial Hospital, supra (state statute limiting
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
economic damages and prohibiting recovery for non-eco-
nomic damages violates Montana’s state constitution
which guarantees all persons a speedy remedy for every
injury.)
30. The Court has already found that the classifica-
tion contained in the Colorado Governmental Immunity
Act bears a rational relationship to legitimate govern-
mental interests. Accordingly, the court also finds that
the statutory classification does not violate the claimants’
right of access to the courts.
50a
III. 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.
82. A plaintiff has no vested property right in a par-
ticular 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. 1985) citing to American Bank & Trust
Company v. Community Hospital, 683 P.2d 670 (Cal.
1984).
33. Where legislation involves economic and social wel-
fare interests, the test of substantive due process is
whether the regulation is reasonable in relation to the
goals sought to be attained and was adopted in the in-
terest 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 is a totally arbitrary deprivation of
liberty. Woods v. Holy Cross Hospital, 591 F.2d 1164
(5th Cir. 1979). Where a statute provides that an in-
jured 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
legitimate governmental objectives. Therefore, the dam-
age cap provisions do not violate the claimants’ rights to
substantive due process.
86. 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 sub-
stantive due process of the law.) See also Sibley v. Board
of Supervisors of Louisiana, supra (statute limiting med-
ical thalpractice awards to $500,000 does not violate due
process clauses. )
‘
5la
IV. SPECIAL LEGISLATION
37. Claimants’ final argument is that the Act con-
stitutes special legislation and is therefore unconstitu-
tional.
38. Article V, Section 25 of the Colorado Constitution
provides:
The general assembly shall not pass . . . special laws
... granting to any corporation, association, or in-
dividual any special or exclusive privilege, immunity
or franchise whatsoever.
39. A statute is not special legislation where it is gen-
eral and uniform in its operation upon all those in like
situations. Bushnell v. Sapp, 571 P.2d 1100 (Colo. 1977).
40. The Colorado Governmental Immunity Act applies
uniformly to all persons who sue governmental tort-
feasors, and does not single out certain groups for special
treatment. Therefore, the statute does not constitute
special legislation. See Giebink v. 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
Governmental 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 stat-
ute as written. Lee v. Colorado Department of Health,
supra.
42. It is not within this Court’s power to rewrite legis-
lation, The power to change the present scheme of com-
52a
pensation 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
standards suggested by claimants’ counsel. Only four
years ago, the Colorado Supreme Court upheld the con-
stitutionality of the Colorado Governmental Immunity Act
against another party’s analogous claim that the Act vio-
lated his right to equal protection. This Court is bound
by that precedent. Lee v. Colorado Department of Health,
supra.
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 defendants to potential civil rights liability in
their individual capacities. The Court concludes that
plaintiffs have not stated such claims and hereby incor-
porates 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. 24-10-101 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
53a
IT IS FURTHER ORDERED that this matter shall
proceed as an interpleader action; and
IT IS FURTHER ORDERED that this Order shall
constitute a final judgment for appellate purposes, the
court finding no just reason for delay. C.R.C.P. Rule
54 (b).
Dated this 27th day of July, 1990.
BY THE Courr:
/s/ Sandra I. Rothenberg
SANDRA I. ROTHENBERG
District Court Judge
SIR/cwf
ee: All counsel
54a
APPENDIX C
SUPREME COURT
STATE OF COLORADO
Case No. 90SA351
THE STATE OF COLORADO, by and through the Colorado
State Claims Board of the Division of Risk Management,
Plaintiff-A ppellee,
Vv.
a YVONNE E. Dreroor; FRANK BOWEN; MARGIE BOWEN;
ELINOR M. BuTENHOFF; Urs FREI; MICHAEL HATTON;
THE ESTATE OF ANNA HAYES, Deceased; THE CHILDREN
AND ESTATE OF ARLENE JOHNSON, Deceased; ESTATE
OF JOHN KILLEEN, Deceased, ESTATE OF MARKUS LANG,
HERBERT LANG, as survivor, heir and personal repre-
sentative of Markus Lang, and THE ESTATE OF MARKUS
LANG, Rita LANG as survivor, heir and personal repre-
sentative of Markus Lang and THE ESTATE OF MARKUS
LANG, and ELFRIEDE BorRILLO, as Special Adminis-
trator of the Estate of Markus Lang; THE ESTATE OF
DoucLAS MACKENZIE, Deceased; SUZANNE MACKEN-
ZIE; MICHAEL McGarvey, NANCY MCGARVEY; BERNA-
DINE 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, De-
ceased; THE CHILDREN AND ESTATE OF KEITH WAL-
TERS, Deceased; THE CHILDREN AND ESTATE OF KATH-
LEEN WALTERS, Deceased; HOROSHI YOSHIOKA, MOR-
DEKHAY FUMISHIKA; MASHASIKI NAKAYMA; MIKAYO
TAJIMA; and RODNEY ALVA WEST; and CLARENDON
NATIONAL INSURANCE COMPANY; SAN JUAN TOURS,
Inc. d/b/a Gray LINE Tours; and ail persons or en-
tities suffering, or claiming to suffer, damages resultant
55a
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-A ppellants,
V.
THE COLORADO DEPARTMENT OF HIGHWAYS and THE
COLORADO 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-A ppellees.
Appeal from the District Court, Denver County, 88CV141
ORDER OF COURT
Upon consideration of the Petition for Rehearing filed
in the above cause, and now being sufficiently advised in
the premises,
IT IS THIS DAY ORDERED that said Petition for
Rehearing shall be, and the same hereby is, DENIED.
BY THE COURT, EN BANC, FEBRUARY 24, 1992.
Justice Quinn and Justice Mullarkey would grant the
petition,
RES Te
56a
APPENDIX D
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
April 23, 1992
WILLIAM K. SUTER,
Clerk of the Court
Mr. Alan Epstein
Hall & Evans
1200 7th Street, Suite 1700
Denver, CO 80202-5800
RE: Phillip Pacheco, et al. v. Colorado, et al.
Application No. A-722
Dear Mr. Epstein:
The second application for stay of mandate of the Su-
preme Court of Colorado in the above-entitled case has
been presented to Justice White who on April 23, 1992
endorsed thereon the following:
“The application is denied
Byron R. White
4/23/92”
Very truly yours,
WILLIAM K. SUTER
Clerk
/s/ Francis J. Lorson
FRANCIS J. LORSON
Chief Deputy Clerk
ec: (Service List)
57a
APPENDIX E
ARTICLE 10
Governmental Immunity
24-10-101. Short title. This article shall be known and
may be cited as the “Colorado Governmental Immunity
Act”.
24-10-102. Declaration of policy. It is recognized by
the general assembly that the doctrine of sovereign im-
munity, whereunder the state and its political subdivisions
are often immune from suit for injury suffered by private
persons, is, in some instances, an inequitable doctrine. The
general assembly also recognizes that the supreme court
has abrogated the doctrine of sovereign immunity effec-
tive July 1, 1972, and that thereafter the doctrine shall
be recognized only to such extent as may be provided by
statute. The general assembly also recognizes that the
state and its political subdivisions provide essential pub-
lie services and functions and that unlimited liability
could disrupt or make prohibitively expensive the provision
of such essential public services and functions. The gen-
eral assembly further recognizes that the taxpayers
would ultimately bear the fiscal burdens of unlimited li-
ability and that limitations on the liabitity of public en-
tities and public employees are necessary in order to pro-
tect the taxpayers against excessive fiscal burdens. It is
also recognized that public employees, whether elected or
appointed, should be provided with protection from un-
limited liability so that such public employees are not dis-
couraged from providing the services or functions re-
quired by the citizens or from exercising the powers au-
thorized or required by law. It is further recognized that
the state, its political subdivisions, and the public em-
ployees of such public entities, by virtue of the services
and functions provided, the powers exercised, and the con-
sequences of unlimited liability to the governmental proc-
ess, should be liable for their actions and those of their
58a
agents only to such an extent and subject to such condi-
tions as are provided by this article. The general assem-
bly also recognizes the desirability of including within one
article all the circumstances under which the state, any
of its political subdivisions, or the public employees of
such public entities may be liable in actions which lie in
tort or could lie in tort regardless of whether that may
be the type of action or the form of relief chosen by a
claimant and that the distinction for liability purposes be-
tween governmental and proprietary functions should be
abolished.
24-10-103. Definitions. As used in this article, unless
the context otherwise requires:
* * * *
(2) “Injury” means death, injury to a person, dam-
age to or loss of property, of whatsoever kind, which, if
inflicted by a private person, would lie in tort or could
lie in tort regardless of whether that may be the type of
action or the form of relief chosen by a claimant.
* * * *
(5) “Publie entity’ means the state, county, city and
county, incorporated city or town, school district, special
improvement district, and every other kind of district,
agency, instrumentality, or political subdivision of the
state organized pursuant to law.
24-10-104. Waiver of sovereign immunity. Notwith-
standing any provision of law to the contrary, the govern-
ing body of a public entity, by resolution, may waive the
immunity granted in section 24-10-106 for the types of
injuries described in the resolution. Any such waiver may
be withdrawn by the governing body by resolution. A
resolution adopted pursuant to this section shall apply
only to injuries occurring subsequent to the adoption of
such resolution.
59a
24-10-105. Prior waiver of immunity—effect. It is the
intent of this article to cover all actions which lie in tort
or could lie in tort regardless of whether that may be
the type of action or the form of relief chosen by the
claimant. No public entity shall be liable for such actions
except as provided in this article, and no public employee
shall be liable for injuries arising out of an act or omis-
sion occurring during the performance of his duties and
within the scope of his employment, unless such act or
omission was willful and wanton, except as provided in
this article. Nothing in this section shall be construed to
allow any action which lies in tort or could lie in tort re-
gardless of whether that may be the type of action or the
form of relief chosen by a claimant to be brought against
a public employee except in compliance with the require-
ments of this article.
24-10-106. Immunity and partial waiver. (1) A public
entity shall be immune from liability in all claims for
injury which lie in tort or could lie in tort regardless of
whether that may be the type of action or the form of
relief chosen by the claimant except as provided otherwise
in this section. Sovereign immunity is waived by a pub-
lic 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, except emergency vehicles op-
erating within the provisions of section 42-4-106 (2) and
(3), C.R.S.;
(d) A dangerous condition of a public highway, road,
or street which physically interferes with the movement
of traffic on the paved portion, if paved, or on the portion
customarily used for travel by motor vehicles, if unpaved,
of any public highway, road, street, or sidewalk within
the corporate limits of any municipality, or of any high-
way which is a part of the federal interstate highway
system or the federal primary highway system, or of any
60a
highway which is a part of the federal secondary highway
system, or of any highway which is a part of the state
highway system on that portion of such highway, road,
street, or sidewalk which was designed and intended for
public travel or parking thereon. As used in this section,
the phrase “physically interferes with the movement of
traffic” shall not include traffic signs, signals, or markings,
or the lack thereof, but shall include the failure to repair
a stop sign or a yield sign which reassigned the right-
of-way or the failure to repair a traffic control signal on
which conflicting directions are displayed, if such failure
constituted a dangerous condition as defined in section
24-10-103(1).
24-10-107. Determination of liability. Except as other-
wise provided in this article, where sovereign immunity
is not a bar under section 24-10-106, liability of the pub-
lie entity shall be determined in the same manner as if
the public entity were a private person.
24-10-108. Sovereign immunity a bar. Except as pro-
vided in sections 24-10-104 to 24-10-106, sovereign im-
munity shall be a bar to any action against a public
entity for injury which lies in tort or could lie in tort
regardless of whether that may be the type of action or
the form of relief chosen by a claimant. If a public entity
raises the issue of sovereign immunity prior to or imme-
diately after the commencement of discovery, the court
shall suspend discovery, except any discovery necessary to
decide the issue of sovereign immunity, and shall decide
such issue on motion.
24-10-114. Limitations on judgments. (1) The maxi-
‘mum amount that may be recovered under this article in
any single occurrence, whether from one or more public
entities and public employees, shall be:
(a) For any injury to one person in any single occur-
rence, the sum of one hundred fifty thousand dollars;
6la
(b) For any 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.
(2) The governing body of a public entity, by resolu-
tion, may increase any maximum amount set out in sub-
section (1) of this section that may be recovered from the
public entity for the type of injury described in the resolu-
tion. The amount of the recovery that may be had shall
not exceed the amount set out in such resolution for the
type of injury described therein. Any such increase may
be reduced, increased, or repealed by the governing body
by resolution. A resolution adopted pursuant to this sub-
section (2) shall apply only to injuries occurring subse-
quent to the adoption of such resolution.
* * * *
24-10-113. Payment of judgments. (1) A public entity
or designated insurer shall pay any compromise, settle-
ment, or final judgment in the manner provided in this
section, and an action pursuant to the Colorado rules of
civil procedure shall be an appropriate remedy to compel
a public entity to perform an act required under this
section.
(2) The state and the governing body of any other
public entity shall pay, to the extent funds are available
in the fiscal year in which it becomes final, any judgment
out of any funds to the credit of the public entity that are
available from any or all of the following:
(a) A self-insurance reserve fund;
(b) Funds that are unappropriated for any other pur-
pose unless the use of such funds is restricted by law or
contract to other purposes;
(c) Funds that are appropriated for the current fiscal
year for the payment of such judgments and not previously
encumbered.
62a
(3) If a public entity is unable to pay a judgment dur-
ing the fiscal year in which it becomes final because of
lack of available funds, the public entity shall levy a tax,
in a separate item to cover such judgment, sufficient to
discharge such judgment in the next fiscal year or in the
succeeding fiscal year if the budget of the public entity
has been finally adopted for the fiscal year in which the
judgment becomes tinal before such judgment becomes
final; but in no event shall such annual levy for one or
more judgments exceed a total of ten mills, exclusive of
existing mill levies. The public entity shall continue to
levy such tax, not to exceed a total annual levy of ten
mills, exclusive of existing mill levies, but in no event less
than ten imills if such judgment will not be discharged by
a lesser levy, until such judgment is discharged. In the
event that more than one judgment is unsatisfied and a
ten-mill levy is insufficient to satisfy the judgments in
one year, the proceeds of the ten-mill levy shali be pro-
rated annually among the judgment creditors in the pro-
portion that each outstanding judgment bears to the total
judgments outstanding.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.