State Ex Rel. Colorado State Claims Board of the Division of Risk Management v. DeFoor

Stеwart, Deceased; City Shelbyville, of no one.” Estate of Sol at 723. N.E.2d at 71 Ill.Dec. We Children and Estate of Keith Wal- in tolerating ters, Deceased; perceive substantial benefit the Children and Estate allowing City tardiness and Walters, Deceased; official of Kathleen Horo Rather, prosecute its claim. we believe Yoshioka; Mordekhay Fumishika; shi acquiring will benefit Nakayma; Mikayo Tajima; Mashasiki ability identify period time West; Rodney Alva and Clarendon government local claims can be Company; National Insurance San brought. Tours, Gray Juan Inc. Line d/b/a Tours; and all or entities suf- fering, suffer, claiming or V. August 10, resultant from the appeals holding affirm the court of Gray collisionbetween a boulder and a City appli- is not immune from the Highway 40, Line Tour Bus on U.S. limitations, statute of section 13-80- cable Park, about seven miles east Winter 110, which states that all actions of debt Colorado, while the bus Ber upon any founded contract must Pass, Defendants-Appellants, thoud years after commenced within six of action cause accrues. DEPARTMENT COLORADO OF and the Colorado

HIGHWAYS Division Highways, Phillip Pacheco, Earman Pacheco, Zimmer, Phillip West, Merle Hamilton, Fink, Ross Edward John M. Salazar, Clevenger, Dwight Bower, R.L. Jackson, McCullough, Phil and Lowell Third-Party Defendants and Counter Colorado, By Through STATE Defendants-Appellees. the COLORADO STATE CLAIMS BOARD OF the DIVISION OF RISK No. 90SA351. MANAGEMENT, Plaintiff-Appellee, Colorado, Court En Banc. DeFOOR; Bowen; Yvonne E. Frank Margie Bowen; Butenhoff; M. 3, 1992. Elinor Fеb. Frei; Hatton; Michael the Estate

Urs Rehearing Denied Feb. Deceased; Hayes, Anna the Children Johnson, and Estate of Arlene De-

ceased; Killeen, Estate of De- John

ceased; Lang, Estate of Markus Her- Lang, survivor, person- as heir and

bert representative Lang,

al of Markus Lang, Lang Estate of Markus Rita survivor, personal repre heir and Lang and the Es

sentative Markus Lang, Elfriede Bor

tate Markus

rillo, Special Administrator Lang; of Markus the Estate of

Estate Deceased;

Douglas MacKenzie, Su- MacKenzie; McGarvey,

zanne Michael

Nancy McGarvey; Bernadine M. Rem

mers; Smith, Thomas C. Carol J.

Smith, Smith, minor; Meagan N. Stewart, Deceased; Gladys

the Estate of Swanson, P.C., Pool, Sp. Property Liability Sears, Le- Districts Anderson & Anderson, Denver, Colorado, Sp. C. Dist. Ass’n of P. Victoria Colorado land Swanson, Swanson, P.C., League. C. Colo- Mun. Victoria Johnson, Pryor, Carney and Springs,

rado Martens, Roberts, P.C., P. Thomas L. Mark Opinion Justice VOLLACK delivered the Keating Wagner, Englewood, Fogel, & I, II, III, V, of the Court as to Parts Struthers, Aisenberg Kaplan, H. & David Judgment and announced the of the Court Himes, Denver, appellants. Paul as to Part IV. Gen., Norton, Atty. Raymond T. Gale A. appeal from a district court Claimants Gen., Atty. Slaughter, Deputy Chief Timo- ruling that the Colorado Im- Governmental Gen., Timothy R. thy Tymkovich, M. Sol. -120, Act, munity 24-10-101 to §§ Gen., Arnold, Gregg Kay, E. Deputy Atty. (1988) Act), (the does not violate Gen., Lipstein, P. Atty. First Asst. Simon rights equal protection claimants’ Gen., Denver, appellee State Atty. Asst. laws, courts, access or due of Colorado. appeal from the laws.1 Claimants also dis- Evans, Brougham, Den- Hall & David R. trict court’s determination that their claims ver, appellees Phillip Pache- for Individual individual defendants under Zimmer, co, Pacheco, Phillip Merle Earman (1988) U.S.C. were insufficient to § Hamilton, Fink, West, Ross Edward John expose liability. those defendants to Salazar, Bower, Clevenger, Dwight M. R.L. ruling regarding affirm the district court McCullough, Phil and Lowell Jackson. challenges, claimants’ constitutional but re- allegations for further mand the § America, Lawyers Trial The Ass’n of hearings. President, Maher, Washington, Michael C. D.C., Ass’n, Lawyers Trial The Colorado President, Gehlhausen, Denver, Vin-

John I. ton, Waller, Panasci, H. Slivka & Denis 10, 1987, August Phillip On Pacheco was Mark, Denver, curiae The Ass’n for amici operating He used a state-owned vehicle. (ATLA) Lawyers of America of Trial boulder, pur- a 6.7-ton vehicle move (CTLA). Lawyers Trial Ass’n Colorado Highway suant ditch- McCarren, P.C., Miller, J. Kent Miller & clearing policies, upper an switchback Denver, for amicus curiae Colorado Head of Berthoud Pass. The on the west side Foundation, Injury Inc. roadway ‍‌‌​​​​‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌​‌​​​‍onto a and hit boulder rolled down Conover, II, Holme Frederic K. Roberts thirty-four passengers a tour bus. Of Hoffman, Owen, Boyd N. Bo- & Daniel S. bus, twenty-five nine were killed and land, Denver, for amicus curiae Colorado of the colli- sustained as a result Bar Ass’n. sion. Wilson, P.C., Eason, Eugene Sprague & 6, 1988, January Attor- On Colorado McKeever, Sprague, A. Den- M. Elizabeth ney interpleader action in General filed an ver, curiae Colorado School Dis- for amicus Attorney Denver District Court. The Gen- Pool. tricts Insurance Self $400,- attempted deposit eral the sum of Court, Tanoue, P.C., and to registry K. Grif- 000 with the & Susan Griffiths Tanoue, pursuant fiths, E. a defendant class certified Tami A. Elizabeth Sal- have Denver, April kind, League, Mun. Kath- to C.R.C.P. and 23. On Colorado Denver, summary Haddock, filed a motion for for amici curiae the claimants leen E. 24-10- contending that section Intergovernmental Sharing judgment, Risk Colorado 114(1), the Act violat- Prop- 10A C.R.S. Agency, Counties Cas. and Colorado laws, Counties, Inc., protection of Pool, equal Colorado ed their erty Colorado interpleader Colora- pursuant filed the State of jurisdiction action 1. This court has 13- 4-102(l)(b), appel- January as claimants con- Claimants are do on 24-10-114(1). constitutionality §of test Claimants this court. lants before were the named defendants in an are not ration- process of laws because the limitations laws.2 to courts access ally related to the State’s interest assum- 24-10-114(1) provides: Section ing liability for its tortious acts. Claimants (1) amount that maximum equal pro- argument on the premise any single this article in recovered Fourteenth guarantees found tection occurrence, or more from one whether to the United States Constitu- Amendment public employees, entities II, 25, of the and in Article tion shall be: Colorado Constitution. person (a) any injury one For occurrence, one hun- single the sum of argument raises Claimants' dollars; fifty dred thousand larger the General Assem issue whether (b) per- two or more injury For bly can ever limit State’s occurrence, sum of any single sons in tort, damages in limitation will work dollars; except thousand four hundred not favorably for some but others. We that, instance, may no person in such however, recognized, that it is have within fifty hundred in excess one recover Assembly to province of the General dollars. thousand simultaneously create liabili place brought ty and limitations actions to pursuant made claims The claimants also See, e.g., the State. Evans v. (1988). The State filed its 42 1988 U.S.C. § Comm’rs, County 174 Colo. Board summary judgment for motion own (1971) (abrogating sovereign 482 P.2d 968 1983 claims. The moved dismiss to § Colorado). that immunity We conclude against the claimants court ruled district Assembly can the State’s the General limit on the motions for favor the State liability damages and affirm the district for judgment. summary ruling that the Act does not violate court’s II. right equal protection the claimants’ the laws. 24-10-114(1), that urge Claimants right their violates Arbitrary A. Classification it protection of the laws because

equal contend 24-10- arbitrary Some Claimants that section classification. creates an 114(1) claimants, arbitrary individuals, according may creates an and irrational they classification between individuals who fully compensated injuries sustain however, compensation potentially receive full jointly injured, alone. Others (l)(a) opposed to individuals further contend subsection may not be. Claimants compen- likely the Act are less to receive full recovery limitations in who that (l)(b).3 injuries right equal protection of the sation for under subsection their violate guarantee, we Act violated constitutional do mean Claimants also contended that the present necessarily against special prohibition indicate that the statute the constitutional objectives legislation. best fulfills the social and economic contention not raised That designed just appeal it was to achieve or that a more this court. formulated_ system could not be How- 24-10-114(1) argue ever, that creates § 3. Claimants of this Court to it is not the function First, additional, impermissible classifications. legislation; power change the rewrite 24-10-114(1) irration- § claimants contend that present scheme rests with General Assem- ally private separates victims of tortfeasors bly. rejected public We tortfeasors. victims § Id. We thus decline to invalidate 24-10- Department 114(1) Lee v. Colorado contention in grounds. on such Health, (Colo.1986). P.2d 227-28 Sec- Finally, § claimants contend that 24-10- 24-10-114(1) ondly, 114(1) claimants contend irrationally separates victims of torts irrationally compensates torts in victims of This from victims of breaches contracts. 1991, given differently than victims of torts in is without merit as contracts are contention rejected This court a sim- the rate of inflation. product acts for which of intentional Kezer, See, argument 648 P.2d accurately budget. ilar 645, in Bellendir plan and entities can Bellendir, (Colo.1982). State, we held: In e.g., 609, P.2d Fabеr v. (1960) (distinguishing Boxberger determining of an esca- In the absence applicable Highway provision Dep’t, 126 Colo. 250 P.2d to indi- State lation of benefits Flying position Ace Serv. Inc. v. Colora- plaintiffs viduals in the violates right equal pro rational basis test to the instant further contend that Claimants personal injuries 24-10-114(1). is recover tection attack on section 24-10-114(1) important, and that section height- under a should thus be reviewed B. Rational Basis Review equal protection scrutiny test.4 ened test, the rational Under basis sec ap previously This court declined 24-10-114(1) presumed tion is constitution heightened scrutiny equal test to an

ply a al and can create a classification that af 24-10-114(1) protection attack on section disparate fords treatment to different instead, in applied a rational basis test groups only rationally if it is related to a Health, Lee v. Colorado legitimate state interest.5 Tassian v. Peo (Colo.1986) (a rational ple, (Colo.1987). applies basis test where no fundamental begin analysis our with a review of the infringed suspect nor class cre State’s caused Power v. Car ated). See also Duke Co. negligent operation of state-owned motor Inc., Study Group, olina Envtl. vehicles. 2620, 2635-36, 57 L.Ed.2d the General enacted a (1978) (liability limitations are classic statute that rendered the State liable for examples regulation of economic by operation caused review) tortious (quoted in subject to rational basis Litvak, 41, (Colo. certain classes of state-owned Austin v. P.2d motor veh Lee, 1984)). again apply approved 118, May Pursuant to a icles.6 Act ch. 19, Dep’t Agric., Supreme do (1957), 136 Colo. 314 P.2d 278 The New Mexico Court held that involving contracts damage as cases actions on limitations should be reviewed under dealing wherein with the state are enti scrutiny intermediate because tort victim’s "[a] rights, tled to enforce their contract premised from cases recovery damages interest in full calls ... for negligence.) on the state’s scrutiny a form of somewhere between ‘the largely invocation of toothless minimum ration previously 4.This court has detailed the an- ality nearly and the fatal invocation of strict alytical addressing equal protec- framework for ’" (citations scrutiny. Trujillo, 798 P.2d at 578 See, challenges. e.g., People, 731 tion Tassian v. court, however, omitted). Trujillo (Colo.1987). The declined P.2d party 674-75 While neither constitutionality damage pass scrutiny to on the of the that strict should be contends 24-10-114(1), applied We claimants ask this limitations at issue. decline to follow the jurisprudence jurisprudence Trujillo court to follow the Supreme of the Utah of the court because we Supreme and the New Mexico recognize right' Court do not to full application (as Court in their recent of an interme- damages, nor do we view claimants con equal protection standard of diate review cede) ‘largely inquiry the rational basis to be statutory damage attacks on limitations. See See, Litvak, e.g., P.2d toothless.’ 41, Austin v. Trujillo City Albuquerque, 110 N.M. (Colo.1984) (a legislative classification (1990), and Condemarin v. 577-78 test); Gallegos under a rational basis failed (Utah University Hospital, P.2d (Colo.1989) (statute Phipps, 779 P.2d 856 1989). test). pass failed rational basis the con- The Utah Court considered stitutionality damage limitations in a medical places the burden of 5. The rational basis test brought against malpractice action a state uni- proof challenging party the statute’s con- on the versity hospital in Condemarin. When stitutionality. challenger prove must be- action, government-owned plaintiff brought her yond a reasonable doubt that the classification immunized from suits health care facilities were unreasonable, any it is unrelated to or that Thus, governmental immunity act. Lee, 227; legitimate state interest. 718 P.2d at required Condemarin court to evaluate the (Colo.1987). People, Tassian v. sovereign immunity respect doctrine of with presumption of consti- The statute is afforded health care services. The Condemarin court Tassian, inquiry. tutionality at the outset of the plaintiffs inability bring suit considered the See also Duke Power Co. v. 731 P.2d at 675. heightened and concluded that a standard of Inc., Study Group, Carolina Envtl. applied legisla- review should be because "thе 2620, 2635-36, 57 L.Ed.2d 595 only recovery, has not but it has ture limited partial governmental immunity to also extended rights restrict which existed at common law.” (1) provided: Act 6. Section of the upon called here to Id. at 356. are not person property and, any injury In to the immunity case partial evaluate operation Lee, is caused the tortious holding of another our we decline to follow state, county, munici- of a motor vehicle the Condemarin court. 268-69; impact purchasing government lia- see fiscal 1949 Colo.Sess.Laws sec. -3, bility proposing Id. In insurance. at 144. 13-10-1 also §§ simultaneously approaches legislation regarding govern- limited General liability, anticipated for such as mental committee the State’s equal protection currently issue before follows: court: this liability, Ten Thou- (a) Bodily injury ($10,000.00) Dollars for is said that dollar limitation is No/100

sand and [I]t Twenty No/ to some arbitrary Thousand and and bound to be unfair person, each usually ($20,000.00) Dollars for each acci- claimants since such limits will relationship have rational dent. amount actual sustained. liability, damage Five (b) Property hand, approach the other On does ($5,000.00)Dollars and No/100 Thousand degree eliminate considerable for each accident. danger catastrophe judgment, and of the enacting sections, these 268. When Id. at provides sound basis for rational fiscal Assembly declared that the General computаtion planning and the of insur- pres- immediate necessary for “the Act was premiums. ance peace, health and ervation Id. at 119.8 The committee was thus aware safety.” at 269. Id. any recovery might limitation sat- legislative council equally. The isfy all claims committee not- Assembly appointed a committee however, provid- limiting recovery, ed that immunity in sovereign Colorado. study plan- ed “a sound basis rational fiscal Report Council to the Colo- Legislative pre- ning computation of and the insurance Assembly, Li- Governmental rado General report miums.” Id. In their submitted to Colorado, Research Publication ability in Assembly, the General the committee con- 1968) (Nov. “Legisla- No. 134 [hereinafter limiting liability was the best cluded that re- Report”]. The committee tive Council liability alternative either no or unlimit- liability in the extent of the State’s viewed liability. ed at 144-45. Id. areas, including liability inju- for numerous roads, negli- highways and 1971, ries related In March of this court considered motor vehicles.7 The gent operation of rejected the draconian doctrine of sov- both the amount committee ‍‌‌​​​​‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌​‌​​​‍also reviewed ereign immunity in Evans v. Board of and nature of claims filed with the State 97, Commissioners, County Colo. 5, 28, 1965, through September July from (1971)(plaintiff for P.2d 968 sued 46-48. The committee ana- 1967. Id. at after she fell on sustained courthouse practical “the fiscal considerations lyzed doctrine, rejecting steps) In we hеld: might foreseeably flow opinion simply ... effect of this enlargement responsibility.” Id. at of tort this to undo what court has done and 143. leave the situation it should have where occasions, beginning hands been at ...:

On two different commit- discussing Assembly purpose tee met for the of the General of the State operation injuries by negligent pal police, quasi-municipal or fire or health caused duty, department engaged Legislative while the line of classes certain of motor vehicles. state, county, municipality quasi-mu- 71; see, or e.g., Report 13-10- § Council at nicipality and the motor vehicle drivers there- 1, 2 C.R.S. injury for such to the extent of shall be liable stated[J hereinafter appeared 8. The as a criticism of comment 6, 1949, 1, May approved Act ch. sec. proposal liability to the amount in- to limit Colo.Sess.Laws 268. report, coverage. surance At the time Assembly did not choose in- The General purchase twenty-five authority had lia- states liability as a result of clude caused twenty-five bility of those insurance. Fourteen highway or maintenance at that construction permitted recovery to the extent of insur- states See, 120-7-13, e.g., § time. C.R.S. coverage. Legislative Report at ance Council (in- report, states 7. At the time nineteen 72. Colorado) cluding were liable in Assembly rationally during Assembly eral acted If the General Colorado. period, adjusting liability when the State’s sovereign immunity ... to restore

wishes monetary ability authority to to its to assume such fis- part, it has the whole responsibilities. cal of our legislative If the arm do so. completely restore government does not C. State Interests immunities, undoubtedly it then

these upon the place limitations will wish evaluating In in the state interests brought against the actions volved, we look those interests invoked This, too, it and its subdivisions. state 24-10-114(1) the Act accomplish. authority has full generally. 24-10-114(1) provides monetary recovery governmental liabili (citations omit- at 482 P.2d at 972 Id. ty created the Act. In the Act’s decla ted).9 policy, Assembly ration of the General rec May year, of the same the General ognized abrogation this court’s of sover authority and cre- Assembly exercised this eign immunity joined in our conclusion liability in numerous ar- ated sovereign immunity doctrine eas, maintenance, including highway while frequently unjust 24- produced results. § simultaneously limiting recovery for liabili- 10-102, (1988); Evans, $300,000 $100,000 ty per person per 482 P.2d at 970. The General 22, 1971, approved May Act occurrence.10 stated, however, Assembly “that unlimited ch. sec. 1971 Colo.Sess.Laws 1204- disrupt prohibitively could or make (1971 11; 130-11-14, Supp.); 6 C.R.S. § expensive provision of ... essential see, e.g., Hartsough, State public services and functions.” 24-10- (Colo.1990). In General Assembly also noted approved sections 24-10- taxpayers ultimately that “the would bear 114(l)(a) (b), which increased liabili- liability.”11 fiscal of unlimited burdens ty limits to their current values— Id. $400,000 per per person and occurrence. argue that section 24-10- approved Act June ch. sec. Claimants 114(1) rationally related to the enu- is not Colo.Sess.Laws following for the merated state interests Assembly has thus rendered The General recovery limits reasons: because the were the of Colorado liable for actions State chosen; arbitrarily the scheme de- because negligent operation of state- arising out of government full where liabili- nies forty-two years. owned motor vehicles lim- potentially greatest; because the ty is such ac- Recovery has been limited since 1979; not raised since be- its have been in the tions created 1949. As State’s were no evidence of financial hard- cause there is 1949, generally grown exposure has since and, community; the ship to the because liability correspondingly have the limits on paid is not substantial. amount of claims raised, again in in 1971 and 1979. been contentions. reject We claimants’ monetary the limits on the State’s Thus County from 1949 In Evans v. Board Commis- liability remained the same 97, (1971), 1979, sioners, 1971, 174 Colo. 482 P.2d 968 through through from 1971 and sovereign im- abrogated doctrine of through present. The the the Gen- tioned, however, per-occurrence 9. along to establish the in Evans We announced our decision $300,000, Flournoy decisions in v. School District accord- with our Number and the draft bill was limit at 110, One, P.2d 174 Colo. February ingly amended State, 174 Colo. 482 P.2d 965 and Proffitt superseded by These cases have been 24-10-113(3) provides that of the Act 11. Section Hartsough, 790 P.2d statute as stated in State v. judg- pay public are unable to when entities (Colo.1990). during year, "shall the fiscal the entities ments tax, separate such levy in a item to cover setting recov- 10. committee recommended 24-10-113(3), judgment.” per ery per person/$3,000,000 limits at levy required taxes such Public entities are Legislative Report Council at 145. occurrence. During deliberations, outstanding judgments are satisfied. Id. Representative until Sack mo- liability. limited the legislature the as a result of As returned munity and said, has liability. United States Court regulate the State’s authority to Prior our at 972. 482 P.2d In the of economics and social wel- Id. at area Evans, fare, legislative Equal the council not the State does violate decision merely the extent Protection Clause because carefully considered laws im- classifications made its are insurance. could afford State If the classification has some perfect. our Evans decision Responding both basis,” it not “reasonable does offend Report, Legislative Council and prac- simply because "... Constitution authority Assembly exercised its tice, inequality.” it results in some sovereign immunity in abrogated establishing recovery simultaneously Williams, while Dandridge v. raised

limits. The General L.Ed.2d eight years Kezer, later. recovery limits quoted in Bellendir (Colo.1982).12 24- We find that sectiоn equal an previously rejected We have 10-114(1) rationally legit- related 24-10-114(1) protection challenge to section solvency imate state interests fiscal Health, Lee Colorado provision of mini- essential services while (Colo.1986). not- We mizing Accordingly, we taxpayer burdens. creating had ed that the State holding affirm district court’s myri- certainty to execute its in order fiscal deprived right are responsibilities. at 227. We ad Id. public protection equal laws. to conclude that did not hesitate limiting public enti- liability of III. [b]y amount, Governmental ty to a fixed 24- next contend that section Claimants public entity Immunity protects the Act 10-114(1), (1988), deprives them and un- against the risk that unforeseen guaranteed by Article of access courts deplete the judgments limited tort will II, of the Colorado Constitution Section in the and result termi- coffers denies them an ade- because statute im- or substantial curtailment nation quate remedy injuries. for their dis-We portant governmental functions. agree. section 24-10- Id. found that II, 6, of the Article Colorado protection 114(1) equal satisfied provides: Constitution at 228. laws. Id. open every justice shall Courts be claim, remedy person, speedy that their Claimants concede afforded incident, person, exception every injury property is the rare or multi-person character; presents justice thus should not the rule. Their claim sale, re- particular administered without denial extreme case where quest for relief is not completely fulfilled delay ^[13] Thus, Power, plaintiff deprived suit. was U.S. at from

12. See also Duke "will, necessity, (Limiting be at 2637 arbitrary to the Unlike the her initial access courts. any figure choice of in the sense that present plaintiff, Condemarin imponderables those at issue here on like based opportunity deprived of to sue case are not their not, always This is be so characterized. can similarly they deprived are State. Thus not however, which flaws the kind of arbitrariness their access to the courts. action.”). otherwise constitutional Supreme Court considered The New Mexico litigants’ damage limitations violated whether again, to fol- claimants ask this court Once Trujillo Trujillo. court to courts in The access Supreme jurisprudence of Utah low scrutiny opined that an intermediate level and the New Mexico Court Court burdening apply to statutes access should courts, damage analyses of whether limita- their recent pass but declined constitution- litigants’ access to courts. See tions burden damage ality We do not limitations. Trujillo City Albuquerque, 110 N.M. v. (1990), scrutiny what level of should need to address P.2d 571 and Condemarin Univer- courts, (Utah 1989). Hosp., we sity apply 775 P.2d to restrictions access present Act, case. Immunity no access find Governmental restricted Under Utah were immune the defendants in Condemarin Kandt, plаintiff’s considered whether a to the we protects initial access provision This Portillos, right 638 P.2d of access to the courts was violated Torres v. courts. (Colo.1981).14 right precluded filing of access is The when she was from an legal right of a against co-employ- on the existence conditioned intentional tort action redress from another. Compensa- under law to seek ee under the Colorado Worker’s law, courts right Kandt, accrues under When tion Act. at 1306. We right. to effectuate that must be available Assembly could held that the General abro- Env’t, Inc. v. Dis long Protect Our Mountain gate rights common law as an (Colo. Court, n. 6 677 P.2d trict adequate statutory remedy supplied, 1984) (the right federal constitutional concluded that there was no access to redress of petition government for a courts violation. courts) to the grievances includes access that the Claimants do contend Gener- Kanover, Ltd., 651

(citing Hurricane v. right eliminated a to an al has O’Quinn (Colo.1982), P.2d 1218 remedy that existed at common adequate Prods., Inc., 177 Colo. Disney Walt law, they dispute ability their nor do now (1972)); also 493 P.2d 344 see Curtiss file the State. We do not find suit (Colo.1989) Corp., GSX govern present case. Be- Kandt im (rejecting a tort claim where a statute guarantee does cause the access to courts lawsuits employer munized an adequacy remedy, con- not address we brought by employee an work-related have not de- clude that claimants been injuries). prived access to courts. of their that section 24- Claimants contend 10-114(1) open courts violates their IV. adequate reme it denies them an

because contend that section 24-10- Claimants II, 6, however, does not dy. Article Section 114(1), deprives them of scope or substance purport to control process un- rights to substantive due litigants. of remedies afforded Colorado Amendment der the Fourteenth guarantee rather assures open courts and under Arti- United States Constitution litigants justice shall be “that courts II, 25, of the Constitu- cle Colorado remedy open every person speedy and a disagree. tion. We Curtiss, every injury.” afforded P.2d at 876. guarantee of the process provides that alternatively that Colorado Constitution contend “[n]o

Claimants life, deprived liberty or remedy person shall severely curtailed a legislature alternative, of law.” property, without providing adequate without II, Const., have art. 25.16 We ob requirements of v. Colo. contrary to the Kandt § provision (Colo.1982).15 constitutional served that Evans, P.2d 1300 “[t]he granting Torres, 38-12-103(3)(a), access a deed cuted and delivered evaluated § 14. In Depart- landlords, rights portion of his farm to the ‍‌‌​​​​‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌​‌​​​‍to a but not which allows ment, tenants, consideration. attorney but never received fees in 38-12- to recover court erred in 103(3)(a) that the district tenants’ We concluded We held that actions. dismissing attorney plaintiffs action. equal opportunity to recover lack of deny to the courts and fees did not initial access Kandt, readily distinguish- Boxberger is Like II, § . Article therefore did not contravene as the claimants’ the instant case able from Torres, 638 P.2d at not in ability the State is to file suit Further, case does not in- .dispute. the instant they are entitled to Claimants contend that rights, regarding as did dispute contract volve a Boxberger remedy adequate under v. State Thus, an Boxberger's does not Boxberger. directive Department, 250 P.2d Highway 126 Colo. court. the issue before this resolve rights (1952), stated that ”[t]he wherein we to the United they Amendment whether col- 16.The Fourteenth citizen remain the same of a perti- similarly provides, in government.” Constitution Id. States with an individual or the lide deprive any per- part: shall Boxberger, "No State ... we were con- nent at 1008. In 250 P.2d life, liberty, property, without due ability or plaintiff’s son of to sue the State with a cerned Highway Department. law_” process plaintiff of had exe- The equates rights to applica- law is Claimants’ contention process to due of pertaining rights specific to to causes action a rights, not remedies.” White to ble 24-10-114(1). remedy section Sec- 513, 522, Ainsworth, 163 P. 62 Colo. 24-10-114(1) part was enacted as tion (a right in a (1917) party has no vested Assembly’s response our the General (citing Eng. Ency. 6 Am. & remedy) sovereign abrogation immunity. Evans (2d ed.)). Thе United States Su- Law 947 Comm’rs, County 174 Colo. Board similarly observed that preme has Court Evans, 482 P.2d although prop- cause of action vested Assembly to recreate invited erty protected arbitrary in- and is fit, in governmental immunity as it saw terference, property, [appellants have] in at part. or Id. at whole sense, any partic- in in the constitutional 972. The General created a stat- remedy; [they all that ular form of are] utory whereby scheme claimants with Amend- guaranteed by the Fourteenth particular can rights causes action preservation sub- ment is [their] recovery against seek limited the State. right redress some effec- stantial -120, 24-10-101 generally §§ procedure. tive 24-10-114(1), part Zimmerman, 326, 332, 290 U.S. Gibbes scheme, of this is a limited remedial stat- (1933)(cita- 140, 142, L.Ed. 342 S.Ct. ute; supplies carefully range it defined Thus, omitted). the federal and state tions remedies for causes of action created under guarantee give not liti- process does due of the Act. It not other sections does particular remedies.17 gants rights right remedy. specific to a dollar create a argue legal they that have Claimants process substantive due claim Claimants’ right damages injuries their that is a in stat- recover an amount excess away cannot taken property right which be utory scheme would set unwarranted process of Claimants due law. without liability precedent is limited that State’s rely Senger, on Rosane v. only particular plaintiffs when the are sat- proposition for the that 149 P.2d 372 compensation isfied with the received. consti- right however, principles liability, of limited do subject protections property tutes particular facts cases. not turn plaintiff process guarantee. the due conclude that because there is no We the district Rosane contested whether right remedy, to a claimants have failed to finding medical mal- court that her erred cognizable property articulate a practice by a statute of action was barred process due claim. support their legal right to We said that limitations. “[a] property one damage injury for an alternatively contend that the Claimants deprived property can of his not process guarantee incorporates claim- [sic] process. can be no due without due There right of to courts which in turn ants’ access process party deprived his unless the has quid quo, adequate, requires pro alter- day in court.” at at 375. remedy.18 Id. native Claimants’ alternative property right to was Plaintiff’s contention fails the above-discussed preserving her cognizable thus cause it effectuated reason: fails to articulate damages. Id. 149 P.2d property of action for at interest. We thus conclude that 24-10-114(1) deprive her accordingly at found that does not claim- 375-76. rights action statute ants of to substantive barred process of Id. laws. limitations. 18. Whether such a held, Court exists is unresolved

17. The United States respect question Duke with federal law. The Environmental Duke Power Co. v. Carolina that that Power Court stated "it is not all clear Inc., Study Group, requires Due Process Clause in fact 57 L.Ed.2d limita- legislatively compensation ei- scheme enacted Act found in the Price-Anderson did not tions duplicate law or ther at common guarantee violate the due the Four- remedy.” provide Duke a reasonable substitute teenth Amendment. Power, S.Ct. at 438 U.S. 98 ROVIRA, C.J., specially as to concurs V. LOHR, IV, J., special joins in the Part dis- contend that the Finally, claimants concurrence. dismissing their erred trict court § against individual defendants claims MULLARKEY,J., as specially concurs to expose to failure state claims sufficient II, and dissents to Part Part V rights lia- defendants to civil the individual J., QUINN, joins special in the concurrence bility.19 agree. to Part V. for re In order state a claim J., IV, QUINN, dissents as to Part allege plaintiff must lief under § J., MULLARKEY, joins in the dissent. that a acted under color of state defendant de law the defendant’s action and that specially ROVIRA Chief Justice concurs: prived plaintiff of a secured IV, Part I Except as to in which concur constitution or federal laws. federal only, majority I in the in the result concur 527, 535, 101 Taylor, 451 Parratt v. U.S. emphasize opinion. separately I write 1912-13, L.Ed.2d S.Ct. legislature empowered my that bеlief such Courts must then determine whether place on the statuto- limitations rights applying sub have been violated against public entity rily created claim tort- requi that stantive federal law defines violating the claimants’ feasors without require site mind and the other state of guarantee process. of due constitutional rights pleading ments for civil action. Williams, 327, 330, 106 v. U.S. Daniels Attorney General After the Colorado at- (1985); L.Ed.2d Bak S.Ct. deposit tempted to maximum McCollan, v. 443 U.S. 99 S.Ct. er 24-10- section amount recoverable under 2689, 2692-93, (1979); L.Ed.2d Shel regis- 114(l)(b), with Nahmod, Rights Liber don Civil and Civil court, try of the district the claimants The Law Litigation: ties summary alleging sought judgment 1991). (3d 3.02, Finally, the de ed. § 24-10-114(l)(b), limits section qualified immunity de fendant can assert single aggregate payable amount fenses 1983 claim. v. to defeat § Hafer involving or more occurrence two —Melo, -, 358, 116 U.S. 112 S.Ct. $400,000,1is because it unconstitutional (1991); Michigan Dep’t L.Ed.2d 301 Will guarantees of their constitutional violates Police, 58, 109 State access to protection, process, equal (1989); 105 L.Ed.2d 45 Anderson my analysis I limit to claimants’ courts. 3034, 97 Creighton, 483 U.S. that this statute violates allegations L.Ed.2d 523 process rights. substantive “against parties whom sum- Noting that sought mary entitled judgment [are]

the benefit of all favorable inferences facts,” Churchey be drawn from alia, found, that the majority inter Adolph Company, Coors Assembly can limit the state’s lia- (citations omitted), (Colo.1988) damages. op. at 786. I maj. bility for genu- are convinced that there was hоlding correctly acknowl- that this believe respect fact ine material with issue of 24- constitutionality edges the allegations. re- We thus claimants’ § 10-114(l)(b) applied facially and as both remand the 1983 claims instate and in this case. hearings. further person per recov- brought third-party also This section limits actions 19. Claimants individuals, including $150,000. ery various § 1983 Director Executive Engineer, highway Highways, Chief supervisors and workers. maintenance 794 interest, property vation there

A of a can be process. no denial of substantive due See to defeat a facial substantive In order State, 240, 241, 143 Faber v. 353 P.2d statute, challenge to a process due 609, (1960) (due operates process 610 to regulation only that a show state need prohibit deprivation rights of where such legitimate pur rationally related state law). rights exist under substantive County Board pose. Bloomer v. of County, P.2d Boulder Comm’rs of Under the Fourteenth Amendment to the (Colo.1990); 942, Soc’y Colorado of II, article United States Constitution and Community Psycholo & Institutional Constitution, of the Colorado Lamm, v. 710-11 gists, Inc. protected individuals are from loss of liber- (Colo.1987). majority As and Justice Often, ty due without of law. it is out, section 24-10- Quinn’s point dissent difficult to characterize an affected interest 114(1)(b) relationship to the bears rational a “liberty” “property” interest. interests fiscal legitimate government of Morgan Mansfield, F.Supp. solvency integrity, provi this and fiscal (D.Colo.1983). The Supreme Court has thus, is, facially сonstitutional. See sion “liberty” held term should J., Quinn, dissenting maj. op. at 786 granted it meaning broad and that “de- Consequently, I turn examine 798. merely bodily notes not freedom from re- application this effect of statute on straint also the of the but individual process rights. claimants’ contract, engage any of the com- occupations life, acquire mon useful B knowledge, marry, a home establish recognize I a statute ob While not children, bring up worship God accord- jectionable on its face nonetheless be ing conscience, to the dictates his own effect found unconstitutional because its generally enjoy privileges long those Albrecht, operation, People v. 145 Colo. recognized orderly ... as essential to the 202, 208, (1960), 358 P.2d do pursuit happiness men.” by free Board application 24-10- believe that of section Roth, Regents Colleges State 114(1)(b) deprivation results in the claim 2701, 2706-07, U.S. 92 S.Ct. do process rights. Nor I find it ants’ (citation (1972) omitted). L.Ed.2d 548 that, having adjudged stat conceivable this valid, facially by rendered ute it is invalid O’Dell, In Espinoza v. operation very its which effectuates the (Colo.), granted, cert. 454 U.S. purpose for statute enact which the was L.Ed.2d cert. setting aggregate recovery ceiling ed— dismissed, single from a tortious occurrence. recognized L.Ed.2d 237 that chil case, dren individual as a result of thirty-four of an killed an In this were claim- there allegedly perpetrat tort seeking rеcovery willful wanton ants caused by deprivation single ed the state had suffered aggregate occurrence. $400,- figure liberty damages more than interest based on loss continued relationship 000 recoverable under section 24-10- and association with the de Yet, 114(l)(b). depri- parent.2 concepts unless there exists a With ceased these Espinoza, enacting we found that Colorado state’s reasons for the limitations 2. wrongful liberty death statute created entitlement asserted. We interest deter- damages indirectly injured by in those mined that the children would remain uncom- tortfeasor’s actions and that the statute also lim pensated important nonpecuniary for the loss damages plaintiffs pecuniary to net ited loss. such aspects family relationship damages if O’Dell, Espinoza 633 P.2d at We applied were limitation and declined limit statutory determined that limitation pecuni- plaintiffs’ damages to net § 1983 claim aggrieved plain these recoverable case, however, ary only. Unlike losses sufficiently tiffs did not deprivation vindicate the claimed Espinoza on the failure of the issue in focused liberty interest. Id. at wrongful provide compen- death statute to analyzed statutory limitation as deprivation “aspects of the sation for of certain applied liberty deprivation flowing liberty such as interest” “losses by weighing suffered these children

795 immunity from for entities mind, recognize that the individuals result of the accident all lie or against or killed as a actions which tort could harmed have Pass road except provided occurred on Berthoud in the that lie tort inter- deprivation liberty of their 24-10-105, a suffered Immunity Act. § regrettably have These claimants ests. right There is no constitutional freedom to remain deprived of their been persons judgment to sue recover a bodily Daniels v. free from harm. See against state for the state’s tortious 677, 327, 341, Williams, 474 U.S. right to Consequently, conduct. claimants’ 679, L.Ed.2d 662 pursue against an action state is de- statutory solely exceptions from the interest, however, rived liberty is not the This 24-10-114(l)(b). Immunity legis- in the Act. listed Since the interest affected section condones, causes, way empowered completely in no elimi- provision This lature is depriva- acts result in against public or affects which entities recovery nate from remaining the interest in free tort, tion of legisla- then for claims asserted 24-10-114(l)(b) in- harm. bodily Section certainly authority has the to limit ture once recoverable stead affects the amount recovery provided it has a amounts where has It the tor- such harm occurred. County Board remedy. See Bloomer v. a placing and not the statute tious act County, 799 Comm’rs Boulder recovery ceiling aggregate that caused on 942, (Colo.1990)(“[T]he right to main- liberty Conse- these losses of interest. governmental aсtion a tain an on the statute is not quently, effect of statutes, (state) entity is derived guarantee liberty but one’s substantive imposed con- conditions ... as a reasonable interest, in a property any, if on one’s right precedent to the are mandato- dition arising that remedy from a tortious act (citation omitted). right This to dam- ry.”) directly indi- may deprive an individual or is, therefore, ages property a interest sub- liberty interest. rectly of ject protection only within to constitutional recognizing legal right to While that “[a] dimension of maxi- its defined property,” for an is damage injury Rosane mum. 370, 372, Senger, Corp. Los State Transit Golden (1944), the majority states that S.Ct. Angeles, U.S. no is remedial and there is provision L.Ed.2d remedy. Consequently, the ma- right to determining the out test for laid Court jority finds that the claimants "failed purpose of a for the existence federal cognizable property articulate stating a claim under 1983. In deter § of their due support claim.” statute creates an inter mining whether a believe, however, op. at 792. I that a maj. protection subject est statutorily granted right damages, valid- provision in considered “whether Court limited, ex- property, only is but ly binding obligations on the question creates statutorily which it is defined. tent unit,” asserted whether the Property interests “are created and sufficiently concrete so as interest was by existing rules are dimensions defined judiciary, and wheth be enforceable understandings stem from an inde- class putative plaintiff is within the er the source such as state law.” Cleve- pendent by the persons intended to be benefitted Loudermill, 470 Bd. Education land 24-10-114(1)(b) ob provision. does U.S. provide government to certain ligate the (1985) omitted) (em- (citation L.Ed.2d in tort. added). damages when it is found liable statutory scheme phasis however, obligation, specifically Immunity Act That Governmental the Colorado $400,- greater than Act), provides limited to an amount (Immunity adopted interests, constitutionality of pater- variety address the of associational such as instruction, deprivation care, of the counseling, emo- limitation aspects nal love liberty family’s enjoy- which support, of the interest for and the mutual tional provides compensation. wrongful together.” death statute life Id. at It did ment of guardrails could relied Thus, injured ment and steel while the interest upon rolling steep halt sufficiently concrete and boulder here is claimants aware that the slope, are class made the defendants injured such within 24-10-114(l)(b) likely onto road boulder was roll legally protected only employee protect, the Pacheco was the intended to below. time, statute is the there by working created this at the site and interest damages only to the extent stop flaggers to recover for or other devices to were $400,000 maximum. aggregate Thus, evi- on the road below. traffic allegations supports dence in the record $400,000 in ef- limitation was Since the 1983 claims that the individual em- occurrence, time this tortious fect at the grossly acts were ployees’ and omissions legislatively met the state and since deliberately indiffer- negligent, reckless $400,000, I imposed obligation of do not public safety human life. ent to deprived of were find that protectable trigger- interest property adequately agree allegations I that the ing process clause. the due O’Dell, In Espinoza 1983 claims. v. state (Colo.1981), granted P.2d 464 cert. 633 LOHR, J., I to state that am authorized 1122, 102 969, 71 L.Ed.2d 109 S.Ct. special concurrence. joins in this (1981), and 456 cert. dismissed U.S. specially 102 72 L.Ed.2d 237 we MULLARKEY S.Ct. Justice dissenting in part part: upheld asserting protected in concurring a 1983 claim liberty in the a man children of I. police shot and officers who was killed and we concluded that there must be majori- specially in Part V of concur remedy government be when “the itself for trial ty opinion which remands danger to an individu comes source pursuant U.S.C. claims asserted rights.” University al’s In Uberoi v. (“1983 claims”) (1988) against the Colorado, (Colo.1986), The 1983 individual state defendants. allegations gross negligence, held that (1) allege claims that: the individual defen- intentional conduct are suf recklessness or reckless, “grossly negligent, dants were ficient to raise 1983 claims indifference to the and showed deliberate together, Espinoza Read clausе. safety respect life” with and human support the 1983 claims now and Uberoi formulating executing the Colorado us. before Highways (“Highways”) policies removing boulders from the Moreover, jurisdictions upheld other have road, (2) the Pass individual Berthoud presented here. 1983 claims similar those and inactions violated defendants’ actions See, County, e.g., Washington Morrison process protected complainants’ Cir.1983), (11th 700 F.2d 678 cert. denied life, rights personal security and liberty, 78 L.Ed.2d 171 U.S. safe travel. (1983) (reinstating against a 1983 claim ‍‌‌​​​​‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌​‌​​​‍public hospital hospital had an light in a most where

Taken favorable claimants, patient patient died Highways “unruly” jailed and the the facts show that Bellevue, deliberately jail); Ruge in Phillip City Pacheco while employee (8th Cir.1989) (1983 held pushed off a switchback F.2d 738 claim a 6.7 ton boulder directly in a stated estate worker killed steep and over a incline above city had It down the trench cave-in where defendant well-traveled road. rolled shoring its nearly policy and struck mountainside feet deliberate Burnham, trenches). Sep riding. William claimants were See also bus which the clearing arating and Common- policy The the road Constitutional custom Critique Proposed dangerous had been fol- Law Torts: A such a manner Theory Duty, Minn. years. expe- Prior by Highways lowed Constitutional (1989) (discussing the rience, Highways-conducted as well L.Rev. indifference 1983 study showing origins trees ce- of deliberate that neither nor that, It is for purposes clear of state California, in Rochin U.S. claims (1952)). liability, immunity L.Ed. 183 act 72 S.Ct. categories injured persons. creates two trial reversing the court’s Our decision category injured The first is those in inci- necessarily of the 1983 claims dismissal involving only dents one or victims. two immunity as- rejects qualified defense category injured second defendants serted the individual state involving incidents more than two victims. clearly appeal. 1983 claims were category may first collect Victims developed in under the test established $150,000 per person while in the Creighton, 483 U.S. Anderson v. category second is limited to 3034, 3038-39, 97 L.Ed.2d 523 single As total. the number of victims in a Fitzgerald, Harlow U.S. and increases, incident the amount recoverable 2727, 2738-39, until, per person in case like decreases that, recognize I L.Ed.2d 396 this, only possible a token is remand, again may the claim defendants each individual. qualified immunity contending that objectively reasonable. conduct was Gui- validity categories The these two must Smith, der 431 Mich. 431 N.W.2d tested the rational standard. be basis (1988) (trial n. 15 court con- requires statutory That test that “the clas- dismiss, immunity sider claims on motion sification has a reasonable in fact and basis summary judgment motion for and as de- legit- relationship bears a reasonable to a merits). the fense to in trial on Lee, imate interest.” asserted, But, qualified immunity if so jurisprudence, In the ra- our await a on the merits claim must trial be- stamp” is not a tional basis test “rubber deliberately cause conduct cannot be both signalling of the chal- approval automatic allege as the and ob- indifferent lenged legislation requires it but rather jectively Rudovsky, reasonable. David careful reasonableness consideration Qualified Immunity Doctrine in the issue. legislative of the classifications at Activism Court: Judicial and Recently, Gallegos Phipps, in 779 P.2d Rights, the Restriction Constitutional (Colo.1989), applied the rational ba- (deliberate (1989) 138 U.Pa.L.Rev. test down statute which sis and struck precludes finding objective indifference attempted cat- to reinstate common law required prove qualified reasonableness egories trespasser, and invitee licensee immunity). Accordingly, these claims purposes premises liability. We proceed to should trial. imposed duties on land- found that rationally to the

owners were not related categories injured persons created II. (the statutorily cre- the statute. Id. at 862 $400,- Quinn that the agree I with Justice no rational hierarchy ated of duties “bears in per cap occurrence contained legitimate governmental relationship to a 24-10-114(1)(b), uncon justified neither histori- and can be I separately but write because stitutional cally Austin v. logically.”). nor See also my reasoning part from his. In differs Litvak, (Colo.1984) (plurality P.2d 41 my view, there is rational basis for the no malpractice opinion) (invalidating medicаl $400,000 I cap cap strike the would test). repose under rational basis statute equal guarantees violating protection two stat- Here reasonableness of the of the state and federal constitutions. This light utory categories must be evaluated not before the court Lee v. issue was (Colo. providing cer- Health, goal fiscal stated Department of Lee, 227- 1986), and, reason, tainty to P.2d at for that is not dis- the state. Lee treatment positive. join legislature’s I 28. The different Accordingly, Justice plurali categories arbitrary because Quinn’s from of the two dissent Part IV placed the total I II at all is ty opinion and also dissent Part limitation paid paid number of claims majority opinion. claims or the adequate period. legislature may facially as to be unconstitutional given time drafting justice when as violative of due of law. Most to do exact not have is so one rough fit here tort claims state involve statutes but the its great consequences are so two Even when more than two adverse claimants. injured single $400,000 persons might cannot stand. Con- in a occur- limitation rence, $400,000 certainty goal, per-occurrence the fiscal limita- sistent with applied applied per person limit should be tion can often be in a manner that incident, multiple provide single victim case. will all claimants with a moderate compensation for their amount of reаsons, I dissent from Parts For these still accommodate the II IV. maintaining governmental interest in fiscal integrity. J., I QUINN, joins in Part of this

concurrence dissent. case, however, applica- present $400,000 per-occurrence tion of the limita- QUINN dissenting part: Justice claimants, thirty-four nine tion to the from Part IV of the court’s I dissent claims, pursuing wrongful whom death are plurality of the court opinion, in which a legally so limits view a claimant’s what entry summary trial upholds the court’s receiving protected property in a interest against the claimants on their judgment for compensation moderate measure of in- I hold that sec- process claim. would juries damages by public a enti- caused 24-10-114(l)(b), 10A C.R.S. tion illusory in ty as to render that interest the $400,000 a limitation on the places accordingly apply I not extreme. would in recovery tort cumulative $400,000 per-occurrence the limitation as a persons any in damages to two or more actions, but, bar the claimants’ tort rath- occurrence, single substantive due violates er, file permit would each claimant to law the Colorado Consti- process of up money damages seek when, here, ap- is as the limitation tution $150,000 provided by per-claim limi- any in will bar recov- plied a manner that 24-10-114(l)(a), tation of section $400,000 ery by the claimants once (1988). has exhausted. limitation been dispute Assembly’s I do not the General . I. limit an claimant’s tort right to individual $150,000. Although аccept proposition limi- I that the Colorado recovery to such compensation prohibit not may than full Constitution does tation be less case, of adequate Assembly altering is from the nature a given in a it nonetheless claim, eliminating filed tort a against most claims common law from to cover tort reasonably right long entity related to common law so and is provided, safeguard- adequate remedy of an governmental objective substitute public entity imposing monetary or from reasonable ing integrity the fiscal of many out In on a tort claim. carrying generally in its functions. limitations See $150,000 Evans, (Colo.1982); rare cases is not ade- Kandt v. 645 P.2d 1300 those where O’Quinn Productions, compensation, pro- Disney award v. quate such still Walt Inc., (1972). compen- moderate 177 Colo. P.2d 344 vides claimant with Health, and, respect, 718 P.2d 221 satory damages Department in that is far Lee (Colo.1986), example, govern- upheld the fa- legislatively than decreed better monetary immunity against validity claims cial limitations mental for all $400,- Immunity Act public entity. also concede Colorado Governmental challenge.1 against equal protection per-occurrence is not in- limitation so Health, Department Lee’s claim was in excess of the limita 1. In Lee v. tion, (Colo. 1986), Wayne injured Lee Lee’s wife sued for loss of consortium Lawrence $150,000. jury by special brought in an automobile accident suit thе amount against negli that Lee total of Health for the verdict found sustained $606,409.36 negli causing result combined gence employee as a of its accident. (2d 1988). monetary do Law 1446-50 ed. Due limitations tional fact that contrast, facially law, “emphasizes violate claimant’s not under the Col- equal protection of the laws the State and the individ fairness between however, Constitution, say is not to orado dealing State, regardless ual with ap- limitations therefore be that such how other individuals in the same situation plied to and all circumstances without Ross, may be 417 U.S. at treated.” process rights of the implicating the due due process S.Ct. 2443. Substantive governmental of a tort. victims therefore, analysis, primarily looks protection arbitrarily concepts equal power whether “[T]he stemming process, from our person both deprive directed so as to fairness, not American are mutual ideal life, person preexisting of a Sharpe, ly Bolling exclusive.” Max, liberty, property. People or 693, 694, 98 L.Ed. 884 100, 108-10, 198 P. “ ‘Equal protection’ emphasizes ... Furthermore, significant there is a dif- disparity treatment a State between upholding the facial con- ference between are classes of individuals whose situations stitutionality separate of a statute and the indistinguishable.” Ross arguably v. Mof question validity the constitutional fitt, 417 U.S. applying particular to a the same statute (1973). Equal protеction 41 L.Ed.2d 341 set of circumstances. To hold that a stat- therefore, analysis, often involves an as sufficiently ute satisfies threshold stan- statutory classifica sessment whether constitutionality dards of to survive a facial unconstitutionally tion is underinclusive challenge imply is not to that the statute is including within class all thereby challenge on immune re groups similarly who are situated with application. of grounds unconstitutional or, legislation spect purpose to the of the See, e.g., v. National Ass’n Walters alternatively, statutory whether a classifi of Survivors, 305, 337-38, 473 U.S. Radiation by unconstitutionally cation is overinclusive 3180, 3197-98, 220 105 S.Ct. 87 L.Ed.2d including the within class J., (1985)(O’Connor, concurring); groups similarly who situated with are Hoffman Estates, Inc., purpose statutory Flipside, to the Estates v. respect the of Hoffman 503-04, Tribe, 1186, 1195- scheme. L. American Constitu 455 U.S. 102 Lee, and, governmental public gence employee as a of the and attrib of result, services to the state percent negligence greater liability exposed the state are uted 51 of far employee percent jury private Lee. The made than individual.” 718 P.2d at and 49 risks negligence public apportionment legislative of on the limit an identical 227. The decision to stated, “proceeds entity’s liability, wife’s claim for loss consortium and deter actu- we from magnitude that total amounted to mined her and character of al differences in $100,000. award by public The trial court rеduced Lee’s entities and in the functions assumed statutory per-claim pursuant liability to the greater potential exposure the effect of award, entity’s ability limitation and also reduced wife’s public to continue its on Lee, imputed negligence on based governmental functions.” Id. went on $51,000. statutory “is rea- conclude that the classification sonably objective of related appeal, Lee raised a multitude of issues on certainty carrying providing out the fiscal in including monetary claim that the limita- government.” responsibilities Id. at manifold Immunity of the Governmental Act violate tions equal 227-28. protection by effectuating an laws only in Lee the facial entities, Our decision resolved public arbitrary classification between monetary validity con- in the limitations only subject are limited which challenge. protection tortfeasors, equal an We did scheme, text of statutory private $400,000 per-occur- whether not consider by responsible for all harms caused who are pass mus- would constitutional rence limitation negligence. rejecting equal pro- Lee's process analysis applied when under a due ter challenge, that we concluded the statu- tection tory deprives a tort claimant of in a manner that meaningful relating to claims classification injuries for although treating public redress entity, entities tortfeasors, govern- legal fаult of a differently private suffered a result was based from performing activity governmen- entity for in in mental real differences fact between on entities, de- expressly had waived the private Public the state tortfeasors. tal held, sovereign immunity. array responsible providing a "are vast fense See, Smith, Lee v. (1982); by unique in respect. no means 71 L.Ed.2d (Colo.1989); e.g., New Ass’n National Radiation Surviv Safari Springs, Derwinski, Lounge v. Colorado ors F.Supp. 428, 434-35, (N.D.Cal.1991) (on P.2d from remand $400,000 per-occurrence application rejecting decision Court’s facial in this case is a limitation to the claimants challenge limit on process statutory to $10 striking example applying the facial disability attorney assisting fees for with of a statute a manner that de- terms Administration, Veterans claims before prop- prives the claimants a substantial court holds statute violative federal district process erty in violation of due interest applied con process of due claimants’ law. stitutionally protected property interest

presenting complex disability claims II. ionizing radiation); Condemarin based on University Hospital, 356- legislative legally creates a A enactment (Utah 1989) (Durham, J.) (holding interest when it creates an obli protected balancing statutory on tort limitation others, gation part of the state to against governmental entity and the award potential it the interest of when delineates statutory purpose served limitation specific concrete manner analyzed process, should be under due permit judicial as to enforcement of the so equal protection, rather than in order interest, it an intent to and when manifests proper abrogation take account of serious the class of which the claimants are benefit important substantive to recover generally Golden State members. personal governmen caused Corp. Angeles, v. Los Transit Moreover, entity). today no one can tal L.Ed.2d seriously question proposition that a All three of these elements are person present Im has an interest freedom the Colorado Governmental First, 24-10-106(1)(d), munity tortiously gov Act. inflicted bodily harm (1988), specifically entity waives sover interest ernmental and that such eign injuries resulting immunity for from a qualifies liberty as a for due dangerous public highway. condition See Daniels purposes. Second, inextricably the 677, intertwined with Williams, 474 U.S. 327, 341, 106 S.Ct. against a specific right public to recover J., 679, (1986) (Stevens, L.Ed.2d entity injuries resulting danger for from concurring). Finally, previously we have public highway a the ous conditions on is a killed recognized that the heirs of victim right of a tort claimant to recover an may a governmental as a result of tort $150,000, codified in sec up amount rightfully personal claim “a constitutional Third, 24-10-114, (1988). tion liberty interest” in the continued life statutory right the recover аmount child. Es spouse, parent, or their deceased $150,000 up clearly is intended benefit O’Dell, pinoza (Colo.1981), P.2d the in such as this case. granted, rt. 454 U.S. ce (1981), cert. dis 71 L.Ed.2d 109 24-10-106(l)(d) Construing sections and missed, 456 U.S. 102 S.Ct. creating legally protected 24-10-114 as a person If a has a liber L.Ed.2d property recovering money in interest dam security gov- ty personal in interest injuries ages public entity from for and a ernmentally bodily also injury inflicted and damages tortiously by public inflicted the “personal liberty interest” a constitutional entity is concepts in accord with basic spouse, parent, in a the continued life of court held in Ro ago fairness. Years axiomatically child, that the same 363, 370, 149 it follows Senger, sane person right be accorded the to seek right should legal that a to recover compensation measure moderate damages tortiously injury inflicted is some for a dep governmental to redress the unlawful property protected by a interest due Otherwise, in interests. Rosane process holding Our rivations those of law. nothing grant not The state the victim of a themselves become the interests governmental a legal property than fictions. tort interest in more recovering judgment against public a a en- sure, extent of the the nature and To be then, tity statutory and in the same recovering in moderate property interest scheme, right so condition the circum- damages compensation beyond the the stances control of victim as governmental by conduct caused tortious very result in the the abolition of inter- law, specifically its in state the finds source holding created In est statute. oth- Act, Immunity Colorado Governmental erwise, plurality employs a “bitter- -120, (1988 C.R.S. & 24-10-101 to 10A §§ analysis requires which sweet” a tort Supp.). property mere that a fact per-occur- claimant to take the “bitter” law, however, in originates interest state statutory limitation the “sweet” rence with statutory a that not mean that scheme does to sue the tortfeasor. beyond the property interest is creates however, analysis, That application in leads anoma- of an unconstitutional pale elevating result of limita- process plural- lous violation of law. The a accepts statutory tion to the status of fundamental defin- ity the fact that very sovereign immunity ing in tort element of the interest created scheme waives interest, injuries resulting dangerous property A the statute. “cannot highway grants procedures provided the tort condition be defined statutory right sue recov- can deprivation any more than life or victim its responsible for public entity er from the liberty.” Bd. Education v. Cleveland in dangerous judgment Loudermill, condition a not $150,000, 24-10-106(l)(d) & 1487, excess L.Ed.2d 494 Au- On §§ 24-10-114(l)(a), but therefore, gust when then, view, enigmatically my permits Highways employees moved a 6.7-ton $400,000 per-occurrеnce limitation to annul highway boulder off the side statutory right same that whenever roll and caused it to down Berthoud Pass other total awarded to victims occupants and kill nine and strike bus same have exceeded the statu- disaster occupants, injured each injure twenty-five result, reaching tory limitation. representatives heirs ‍‌‌​​​​‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌​‌​​​‍or victim plurality “[sjection 24-10-114 reasons legislatively had a each deceased victim “sup- a limited remedial statute” legally protected property in- created and carefully range of remedies plies a defined receiving suing state terest for causes of action created under other award, ex- compensatory Act” and thus does not sections $150,000, upon proving that the De- ceed “cognizable support create legally Highways at fault partment claim.” Plu- claimants’] [the causing dangerous road condition. $400,000 op. per-occur- The rality at 792. 24-10-114(1), of rence limitation III. however, hardly be “remedi- can considered kept in this case It should mind that be the application al” when its to multi-victim judgment summary comes us on in depriving in this case disaster results that, judg- court’s consequently, the trial claimants, injured as most of the well is can be if this court only ment affirmed representatives of the heirs or of most $400,- application of the convinced that the accident, any legal of those killed in the not vio- per-occurrence limitation would respective inju- for whatever their redress any set of process due of law under late damages. plurality’s I the ries and view the by factual circumstances disclosed rejection of the claimants’ Churchey Adolph E.g., Coors record. very type of countenancing the claim (Colo.1988); Co., 759 P.2d 1339-40 incongruous creation and annulment of Keenan, Lines, Inc. Air significant property interest that the doc- Continental (Colo.1987); Mount 731 P.2d 712-13 application of was de- trine unconstitutional Mining Co. v. Town Crested signed prohibit. Emmons of (Colo.1984). Finally, so far as the before us Butte, record shows, application permitting each claimant to sue the conclude that the unable to am Highways is of and recover a statutory limitation consonant of the $150,000 endanger judgment the would not process of law under state with By integrity the fiscal of the state. stat- case. the record in this ute, Management Division of Risk the is The record shows that the costs incurred charged with the administration the only the killed and by a few of nine against fund out which claims state injured in twenty-five persons this dis- - entity are paid. 24-30-1501 §§ per-occur- statutory aster will exhaust (1986 Supp.). & 1991 The that hospital A treated rence limitation. Division, Management in the dis- Risk killed accident has of the in the one victims case, phase produced covery several $327,907.60 for a lien medical filed reports prepared which it for the annual addition, injured one vic- costs. Assembly. report, The 1989 General of claim to the has tendered notice tims record, latest in the that shows since Attorney alleging in the year the Division received state $150,000, injured another amount $7,000,000 appropriations approximately has of claim in the filed notice victim $549,922 in and earned those $500,000. The record also con- amount Report Annual appropriations. 1989 Di- experienced an affidavit from an arbi- tains Management During vision of Risk at relating to the documents ter who reviewed period paid only this the Division out same incurred the claimants. $927,437 $1,707,861 set claims and aside prob- that the The arbiter’s affidavit states open reserve for claims. Id. at damage to all aggregate able claimants appoint- task record also shows that a force $400,000 greatly their families exceeds study ed the Governor damage to several individual and that the limits of the Colorado Governmental Immu- $150,000. clearly claimants exceeds Obvi- nity approximately Act found therefore, wrongful ously, if one death year filed per claims were the state $150,000, and claimant receives the two average payment since $150,000 injured other claimants collect $1,000, larg- these claims was that the $100,000 claims, the respectively on their $50,000. payment only est Govern- remaining thirty-one will be left victims Immunity Report Task mental Limits Force without recourse whatever obtain at Governor and General compensation injuries. if Even (1988).2 $400,000 equally divided were be case, claimants, resulting among all award of Under circumstances $400,000 $11,000 application per-occurrence approximately each claimant thirty-four con- nothing would amount to more than an limitation illusory signs running judg- remedy at best them “race to when rights. weighed against staggering medical ment” in order to vindicate their costs, injuries, wages, permanent speed judgment may lost dis- which a is, ability, earning pain practical in that capacity, loss of obtained race for all Yet, suffering, enjoyment purposes, of life to all and loss matter chance. race, incurred the claimants. who lose the the “law has become a Any 24- exceeds claimant 2. The task force recommended that section the limits. 10-114, by the proof judgment be amended present to the General As- following addition of the subsection: sembly payment portion request (5) Notwithstanding limits established in judgment which exceeds limits. section, judgment judgments may be or Any portion of the shall in excess limits be against the state in ex- claimed and rendered general or paid fund other funds amounts, por- provided that cess of these Assembly. established judgment judgments tion of or which ex- Immunity Limits Force Task Re- Governmental paid shall ceeds the limits until Assembly port at to Governor and General pay- unless the General authorizes portion any part thereof ment the whole dream, constitu justice phantom life, of the sacredness guarantees

tional tale ... full of property, ‘a

liberty, and [signifying nothing.’” fury,

sound 112, 198 P. at 155.

Max, 70 Colo. plurality’s dissent from the accordingly claimants’ due

rejection

claim. J.,

MULLARKEY, joins in this dissent. FERGUSON, Defendant-

Robert E.

Appellant, Colorado, of the State of

The PEOPLE

Plaintiff-Appellee.

No. 90SA497. Colorado,

Supreme Court of

En Banc. 3, 1992.

Feb. 24, 1992.

Rehearing Denied Feb.

Case Details

Case Name: State Ex Rel. Colorado State Claims Board of the Division of Risk Management v. DeFoor

Court Name: Supreme Court of Colorado

Date Published: Feb 3, 1992

Citation: 824 P.2d 783

Docket Number: 90SA351

Court Abbreviation: Colo.