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Hiking, Rock Climbing, Camping and the Colorado Governmental Immunity Act: Who Should Pay When Someone Gets Hurt?

The Colorado Governmental Immunity Act (CGIA), CRS §§24-10-101 et seq., bars lawsuits against Colorado governmental agencies and their employees unless rare circumstances exist. Even when injured victims are allowed to move forward with a lawsuit, damages are limited by statute. There are two schools of thought on the efficacy of the CGIA. One view is that the state provides essential public services that would be disrupted if all lawsuits were allowed to go forward, and the "taxpayers would ultimately bear the fiscal burdens of unlimited liability." The other view is that a denial or reduction of the ability of injured victims to recover monetarily leads to unfair results.

Most Coloradoans don't give much thought to governmental immunity until extraordinary circumstances occur. For example, the recent school shooting in Parkland, Florida, or the Gold King mine disaster in Silverton Colorado in 2015 leave many to wonder who should pay. For some, the issue hits closer to home because friends or relatives have been injured or killed in one of Colorado's state parks. For example, since 2010, 54 people have died attempting to climb the peaks of Colorado's 14ers. The beginning of the outdoor season always brings with it injuries ranging from rock climbing to hiking. Again, who bears financial responsibility?

Before looking at each of these scenarios on an individual basis, it is helpful to understand what the CGIA is and what and whom it covers. The CGIA provides immunity to government entities and their employees in certain personal injury cases. Government entities can waive immunity thereby waiving immunity for their employees as well. In the example of a school shooting, Colorado is one of a few states that waives governmental immunity on acts of school violence and allows civil lawsuits to be filed.

In 2015, state lawmakers passed the Claire Davis School Safety Act, named for a girl who was killed at Arapahoe High School in 2013. The law took full effect on July 1, 2017, and permits victims to sue districts for liability if they fail to ensure student and staff safety on school property or at district-sponsored events. Parents can recover monetary damages from the state of Colorado, rather than be faced with the impossible task of attempting to adequately compensate victims through the defendant or defendant's family who, in all likelihood, could not foot the bill. Despite the waiver, the cap on damages remains the same as in all cases against the government. Before 2013, that cap was $150,000 per injured party in one incident. In 2013, the cap was increased to $350,000 per injured party.

In contrast, the EPA did not waive governmental immunity for its role in the Gold King mine disaster. In 2015, an EPA team was working at the Gold King mine when they accidentally triggered a 3-million-gallon deluge of acidic, heavy metals-laden drainage into the Animas River in southwestern Colorado. The damage alleged in 73 claims against the EPA ranged from clean water concerns and contaminated wells to lost tourism wages and local government expenses for the cleanup. In declining to pay the estimated $1.2 billion in damages the EPA did not deny its role in the disaster but only cited its legal right not to pay based on governmental immunity.

The CGIA defines certain terms differently from their common definitions and are pivotal in the determination of whether the government entity is immune from suit. "D angerous condition" in terms of governmental immunity means a physical condition of a facility that was constructed and maintained by the facility. The mere existence of wind, water, snow ice, or temperature shall not, by itself constitute a dangerous condition. Under CRS §24-10-106(1)(e), a public entity retains immunity for injuries caused by the natural condition of any unimproved property, whether or not such property is located in a park owned by the governmental agency.

Therefore, irrespective of what constitutes a public facility, the government retains immunity if the condition at issue falls within the ambit of the natural condition property limitation. So, in the example of Colorado natural areas, the Colorado Supreme Court has specifically excluded natural conditions of unimproved property in cases where tree branches or falling rocks have caused injury. See Burnett v. State Dep't of Natural Res., Div. of Parks & Outdoor Rec., 2015 CO 19, 346 P.3d 1005, 2015 Colo. LEXIS 216 and Ackerman v. City & Cnty. of Denver, 2016 Colo. LEXIS 615, 2016 WL 3453472. In Burnett, a camper was injured when she was hit by a branch from a tree bordering a campsite in a state park. The court held that the state was immune from suit under the "natural condition of any unimproved property." The court stated that trees are native flora to the property and the fact that they abut a manufactured area does not make them man-made. In Ackerman, plaintiffs were attending a concert at Red Rocks amphitheater when they were injured by rocks that fell from "Creation Rock," a natural rock formation that abuts the facility. The court again held that rocks are a natural condition despite their proximity to an improved property and applied governmental immunity.

Coloradoans are pretty savvy when it comes to the outdoors. Most of us take the proper precautions when traveling out into the wilderness to avoid injury by tree branches and loose rocks on "unimproved property." "Unimproved property" usually refers to real property that is in its natural state.   Unimproved property typically contains a variety of features such as shrubs, trees, rocks, ruts, ditches, cliffs, and watercourses.   When property is unimproved, these natural features have not been disturbed.

Indiana takes a different view than Colorado. In McKenna v. Ft. Wayne, the court points out that things like mowed grass, a picnic table, and a playground would lead a person to "perceive himself as being in relative safety, and not in a "wilderness." Immunity was not preserved for the city in that case when a tree branch fell injuring the plaintiff because "growing trees are part of the real estate upon which they stand until they are severed.Assuming the hackberry tree was in a "natural condition," the trier of fact nevertheless could have concluded it was it was part of the improved property at the time McKenna was injured. McKenna v. Ft. Wayne, 429 N.E.2d 662, 666, 1981 Ind. App. LEXIS 1802. In his dissent in Burnett v. State Dep't of Natural Res, Judge Fox echoes a similar sentiment that applying the natural condition provision to permit a public entity to assert sovereign immunity in an action for injuries resulting from its negligent failure to maintain the safety of a public facility not only is contrary to the interest of compensating victims of governmental negligence, but also leads to an absurd and illogical result. Should Colorado courts follow the example set by Indiana or does that just open the door to a floodgate of litigation that taxpayers cannot afford?

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