If You’re Thinking About Suing the State

Do you have a claim where you may need to sue a Colorado government worker? The Colorado Governmental Immunity Act (CGIA) limits the types of claims you can file against government entities in the state, and also creates some procedural rules for doing so. This post will review a few of those. The complete set of rules under the CGIA is found at § 24-10-101, C.R.S. 2016 and the following statutes.

Types of Claims Allowed Against the State

First, you have to decide if you have a claim that that you can bring at all. Because of sovereign immunity, governments can decide to what extent they will let you sue them. The CGIA applies to tort claims, which are personal injury claims, or claims that could be put as tort claims, but it does not apply to other claims against the government (like contract claims).

The CGIA generally states that tort claims are barred, with some exceptions—meaning that you can sue for these exceptions:

• injuries from a motor vehicle operated by a public employee (but not ambulances),

• operation of a jail (only not for inmates),

• dangerous condition of a public building,

• dangerous conditions of a public road,

• dangerous condition caused by traffic signs,

• dangerous condition caused by snow and ice on walks to public buildings,

• injuries from prescribed fires, or

• some other types of public facilities.

You Must Provide Written Notice

If you think you might want to file a lawsuit, you must provide written notice within 182 days after the date of discovering the injury. Failure to do so constitutes a jurisdictional bar, which precludes one from filing the claim. Practically speaking, this creates an extremely short statute of limitations.

To be clear, you don’t actually have to file a case immediately, just a notice. But the notice has a number of requirements, including:

• name and address of the claimant and of his or her attorney, if any;

• concise statement of the factual basis of the claim, including the date, time, place, and circumstances;

• name and address of any public employee involved, if known;

• statement of the nature and extent of the injury suffered; and

• statement of the amount of monetary damages requested.

Once you have prepared your notice, you must file it with the correct entity. That is the Attorney General’s office for the state, or the governing body of any other public entity, or its attorney, or its agent. You can mail it, but it has to be registered or certified, return receipt requested. You can also serve it personally.

Then, you cannot file the case until you have received notice from the government entity that the claim is denied, or 90 days have passed, whichever occurs first.

This notice requirement does not apply to contract claims, or to civil rights claims. Also, it does not apply to federal claims.

If public employees are sued, the entity is liable for the defense, which is good news for the public employees.

Paying the Government’s Attorney Fees

There is one significant danger for plaintiffs in the CGIA. If the plaintiff doesn’t substantially prevail in the case, the court shall award attorney fees against the plaintiff or the attorney or both, in favor of the public employee. This means that if the plaintiff doesn’t win, the plaintiff or the attorney will automatically have to pay the attorney fees of the entity in defending the case.

The CGIA even tries to take jurisdiction over federal law claims, if they are tort claims or could be considered tort claims, if they are brought in state court. It is questionable whether the CGIA can reach that far, but it does provide a reason for filing in federal instead of state court. This provision also suggests that if you can sue under federal law and not state law, you might be better off doing that.