Colorado § 24-10-108 - Sovereign immunity a bar.

§ 24-10-108. Sovereign immunity a bar.

Except as provided in sections 24-10-104 to 24-10-106 and 24-10-106.3, sovereign immunity 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 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. The court's decision on such motion shall be a final judgment and shall be subject to interlocutory appeal.

Source: L. 71: p. 1207, § 1. C.R.S. 1963: § 130-11-8. L. 86: Entire section amended, p. 877, § 8, effective July 1. L. 92: Entire section amended, p. 1117, § 3, effective July 1. L. 2015: Entire section amended, (SB 15-213), ch. 266, p. 1039, § 4, effective June 3.

Cross references: For the legislative declaration in SB 15-213, see section 1 of chapter 266, Session Laws of Colorado 2015.

ANNOTATION

Law reviews. For article, "'Trinity' Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss", see 33 Colo. Law. 91 (Dec. 2004). For article, "Bailment Claims Under the Colorado Government Immunity Act and the Economic Loss Doctrine", see 44 Colo. Law. 37 (Sept. 2015).

No waiver of eleventh amendment immunity. A state's waiver of its immunity against suit in its own courts does not constitute a waiver of its eleventh amendment immunity against suit in federal court. Verner v. Colo., 533 F. Supp. 1109 (D. Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir. 1983).

Sovereign immunity is in derogation of the common law and must be strictly construed. Exceptions to immunity are to be narrowly interpreted to avoid imposing liability not specifically provided for in the Colorado Governmental Immunity Act (CGIA). Richland Dev. Co. v. E. Cherry Creek, 934 P.2d 841 (Colo. App. 1996).

Courts must address sovereign immunity under the CGIA at the earliest possible stage of the case, and may in its discretion defer ruling on other questions, including those related to class certifications, until after sovereign immunity has been addressed. Grand Junction Peace Officers' Ass'n v. City of Grand Junction, 2024 COA 89, 558 P.3d 1021.

The CGIA provides that a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort unless the injury is among those for which immunity has been expressly waived. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo. 1996); Foster v. Bd. of Governors of Univ. Sys., 2014 COA 18, 342 P.3d 497, overruled in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion considered the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

The CGIA is less concerned with what the plaintiff is arguing and more concerned with what the plaintiff could argue. The form of the complaint is not determinative of the claim's basis in tort or contract. A court must consider the nature of the injury and the relief sought. A court will assess the nature of the injury and the relief requested on a case-by-case basis through a close examination of the pleadings and undisputed evidence. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo. 1996); Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008).

When the injury arises either out of conduct that is tortious in nature or out of the breach of a duty recognized in tort law, and when the relief seeks to compensate the plaintiff for that injury, the claim likely lies in tort or could lie in tort for purposes of the CGIA. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008).

The nature of the relief is not dispositive as to the question of whether a claim lies in tort. Rather, the relief requested is merely an aid in understanding the duty breached or the injury caused to determine if the claim lies or could lie in tort. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008); Grand Junction Peace Officers' Ass'n v. City of Grand Junction, 2024 COA 89, 558 P.3d 1021.

The dispositive question is whether the claim is a tort claim or could be a tort claim for purposes of analysis under the CGIA. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo. 1996); Robinson v. Colo. State Lottery Div., 155 P.3d 409 (Colo. App. 2006), aff'd, 179 P.3d 998 (Colo. 2008); Foster v. Bd. of Governors of Univ. Sys., 2014 COA 18, 342 P.3d 497 , overruled in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion considered the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA; City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 655 (overruling Foster v. Bd. of Governors of Univ. Sys., 2014 COA 18, 342 P.3d 497, to the extent it considered the economic loss rule as part of the CGIA inquiry); Grand Junction Peace Officers' Ass'n v. City of Grand Junction, 2024 COA 89, 558 P.3d 1021.

If a claim could arise in tort and in contract, the claim is barred under the CGIA because it could lie in tort. The economic loss doctrine does not affect or apply to the CGIA subject matter jurisdiction analysis. City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 655 (overruling Foster v. Bd. of Governors of Univ. Sys., 2014 COA 18, 342 P.3d 497, to the extent it considered the economic loss rule as part of the CGIA inquiry).

Cases that could arise in both tort and contract are barred by the CGIA, for example, where a plaintiff could either sue to rescind a contract or affirm a contract and sue in tort for damages, while claims arising solely in contract are not subject to the CGIA. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008).

CGIA bars a claim for replevin of property that was rightfully obtained but allegedly wrongfully detained. The claim lies or could lie in tort. The CGIA bars tort claims and there is no waiver for an action in replevin for property to obtain possession of property validly seized by a public entity's police power. Woo v. El Paso County Sheriff's Office, 2020 COA 134, 490 P.3d 884, aff'd, 2022 CO 56, 528 P.3d 899.

Applying the CGIA to replevin claim does not violate plaintiff's due process rights because he had a meaningful post-seizure remedy in a related criminal case. Woo v. El Paso County Sheriff's Office, 2020 COA 134, 490 P.3d 884, aff'd, 2022 CO 56, 528 P.3d 899.

Claims barred under the CGIA because they do not or could not lie in tort. Employees' breach of contract claims alleging that defendant trustees participating in the trust breached their fiduciary duty and violated the implied covenant of good faith and fair dealing do not, and could not, lie in tort because the trustees' fiduciary duty was created by contract in the form of the trust agreements. Casey v. CHEIBA Trust, 2012 COA 134M, 310 P.3d 196, disavowed in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion stands for the proposition that courts may apply the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

Similarly, employees' claim that the colleges breached the implied covenant of good faith and fair dealing is a contractual claim not a claim that lies, or could lie, in tort. Casey v. CHEIBA Trust, 2012 COA 134M, 310 P.3d 196, disavowed in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion stands for the proposition that courts may apply the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

Inverse condemnation claims do not, and could not, lie in tort. An inverse condemnation claim is neither contractual nor tortious in nature and is not subject to the CGIA. Casey v. CHEIBA Trust, 2012 COA 134M, 310 P.3d 196, disavowed in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion stands for the proposition that courts may apply the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

Breach of contract claims that lie, or could lie, in tort. Employees' breach of contract claim alleging that defendants breached their fiduciary duties lies, or could lie, in tort because the contractual provisions concerning fiduciary duties, found in the trust agreements, only apply to the trustee defendants. The source of any fiduciary duty that the other defendants owe the employees thus lies outside the trust agreements, and would be found in statute or common law. Casey v. CHEIBA Trust, 2012 COA 134M, 310 P.3d 196, disavowed in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion stands for the proposition that courts may apply the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

Claim for relief based on mutual or unilateral mistake lies, or could lie, in tort because this claim is based on allegations of attorney misconduct or misrepresentation, which involve a special duty that could support a tort claim. Casey v. CHEIBA Trust, 2012 COA 134M, 310 P.3d 196, disavowed in City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 665, to the extent the opinion stands for the proposition that courts may apply the economic loss rule to determine whether a claim lies in tort or could lie in tort for purposes of the CGIA.

A claim that is supported by allegations of misrepresentation or fraud is likely a claim that could lie in tort. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008); City of Raton v. Ark. River Power Auth., 611 F. Supp. 2d 1190 (D. Colo. 2008); Grand Junction Peace Officers' Ass'n v. City of Grand Junction, 2024 COA 89, 558 P.3d 1021.

A claim for unjust enrichment can be predicated on either tort or contract. Because this particular unjust enrichment claim is predicated on tortious conduct and the nature of the injury arises out of a misrepresentation, this claim lies in tort or could lie in tort for purposes of the CGIA. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008); Grand Junction Peace Officers' Ass'n v. City of Grand Junction, 2024 COA 89, 558 P.3d 1021.

The CGIA bars claim for damages resulting from city's delay in issuing a certificate of occupancy. Because a building permit is not a contract that promises or impliedly promises subsequent issuance of a certificate of occupancy, the claim could only lie in tort. Patzer v. City of Loveland, 80 P.3d 908 (Colo. App. 2003).

The CGIA does not afford state agencies protection from plaintiff's promissory estoppel claims because promissory estoppel is a distinct contract claim. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo. 1996).

County is a "public entity" entitled to sovereign immunity. Am. Employers Ins. Co. v. Bd. of County Comm'rs, 547 F.2d 511 (10th Cir. 1976).

If § 24-10-106 (1)(d) is struck, county remains immune. If paragraph (d) of subsection (1) is struck from § 24-10-106, a county remains immune as to an accident occurring on a county road, because the effect of striking paragraph (d) would be not to extend the waiver of immunity to county roads but, rather, to rescind the waiver as to the roads described in paragraph (d). Am. Employers Ins. Co. v. Bd. of County Comm'rs, 547 F.2d 511 (10th Cir. 1976).

When claimed by a public entity before trial, the issue of governmental immunity is to be determined by the court. Generally, such issue is a question of subject matter jurisdiction to be decided pursuant to C.R.C.P. 12(b)(1). Kittinger v. City of Colo. Springs, 872 P.2d 1265 (Colo. App. 1993); Hendricks by & through Martens v. Weld, 895 P.2d 1120 (Colo. App. 1995).

Case remanded to trial court for further discovery on the issue of actual notice where trial court did not allow hold an evidentiary hearing or allow the plaintiff to conduct full discovery on the issue of whether defendant had actual notice of ice on the sidewalk outside a public building. Seder v. City of Ft. Collins, 987 P.2d 904 (Colo. App. 1999).

A state actor cannot avoid liability under a state immunity provision in an action brought under 42 U.S.C. § 1983. City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996).

The manner in which a claim is characterized is not controlling. When determining if a claim is barred by the CGIA, the dispositive question is whether the claim is a tort claim or could be a tort claim. City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996); City of Aspen v. Burlingame Ranch II Condo., 2024 CO 46, 551 P.3d 655.

Under the plain language of this section, the denial of a summary judgment motion asserting a sovereign immunity defense on behalf of a municipality is immediately appealable. City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996).

C.R.C.P. 54(b) certification not required for appeal from order granting or denying motion to dismiss based on governmental immunity. Richland Dev. Co. v. E. Cherry Creek Valley Water & San. Dist., 899 P.2d 371 (Colo. App. 1995).

Statutory limitation on judgment in § 24-10-114 is not an affirmative defense and is not waived if not presented in the pleadings, at trial, or in a motion for a new trial. City of Colo. Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979).

Later legislative enactment cannot effect a reversal of final appellate determination of the jurisdiction of the court under the CGIA. Powell v. City of Colo. Springs, 131 P.3d 1129 (Colo. App. 2005), aff'd, 156 P.3d 461 (Colo. 2007); Speight Family P'ship, LLLP v. City of Colo. Springs, 131 P.3d 1136 (Colo. App. 2005), aff'd, 155 P.3d 1099 (Colo. 2007).

Where there is a conflict between this statute and a rule which mandates that a judgment include any damages sustained, this statute governs and damages are not recoverable. Sherman v. Colo. Springs Planning Comm'n, 729 P.2d 1014 (Colo. App. 1986), aff'd, 763 P.2d 292 (Colo. 1988).

Express waiver of immunity bars defense. In claim against police officers and city, city waived immunity by confessing liability if arrestee prevailed on assault and battery claims against police, regardless of finding of negligence against city, and by stating as affirmative defense that arrestee's recovery was limited by CGIA, even though city incorrectly believed its self-insurance affected its immunity. Valdez v. City & County of Denver, 764 P.2d 393 (Colo. App. 1988) (decided under law in effect prior to 1986 amendment).

Sovereign immunity issues are neither jury questions nor matters to be determined according to summary judgment standards, but are to be determined by the court in accordance with C.R.C.P. 12(b)(1). Jarvis by & through Jarvis v. Deyoe, 892 P.2d 398 (Colo. App. 1994).

In resolving immunity issue the trial court did not limit itself to a consideration of the evidentiary materials submitted in support of and in opposition to the request for summary judgment, but instead properly conducted an evidentiary hearing and received testimony from witnesses. Cline v. Rabson, 862 P.2d 1035 (Colo. App. 1993).

A retaliatory discharge claim is a common law tort claim. Consequently, wrongful discharge claims are barred by the CGIA. Dyer v. Jefferson County Sch. Dist. R-1, 905 F. Supp. 864 (D. Colo. 1995).

Claims based on negligent misrepresentation or for estoppel of a municipality based on alleged misrepresentation are tort claims. Consequently, such claims are barred by this act. Arabasz v. Schwartzberg, 943 P.2d 463 (Colo. App. 1996).

The partial summary judgment granted to the defendant city is reviewable pursuant to this section because it was based on plaintiffs' argument that their equitable estoppel claim did not lie in tort and could not lie in tort and therefore was not barred by sovereign immunity. Kohn v. City of Boulder, 919 P.2d 822 (Colo. App. 1995).

Any appeal of the dismissal of a claim as barred by the CGIA must be sought immediately within the time limits specified in rule 4(a) of the Colorado appellate rules, or it is barred. Buckles v. State, Div. of Wildlife, 952 P.2d 855 (Colo. App. 1998).

Reference to "final judgment" does not require the public entity to pursue an interlocutory appeal whenever a trial court denies its pre-trial motion to dismiss. Rather, the section merely provides that the trial court's ruling is subject to interlocutory appeal. Walton v. State, 968 P.2d 636 (Colo. 1998) (holding contrary to Buckles v. State, 952 P.2d 855 (Colo. App. 1998)).

A trial court retains jurisdiction to hear the claims against nongovernmental defendants while an interlocutory appeal brought by a governmental entity pursuant to this section is pending. Christel v. EB Eng'g, Inc., 116 P.3d 1267 (Colo. App. 2005).

A district court's order that dismisses a plaintiff's claims for lack of subject matter jurisdiction due to a public entity being immune from suit under the CGIA but leaves plaintiff's other claims unresolved may be appealed by the plaintiff in either an immediate interlocutory appeal or an appeal filed at the conclusion of the case. Smith v. City & County of Denver, 2025 COA 70, 577 P.3d 477.

Applied in Gray v. City of Manitou Springs, 43 Colo. App. 60, 598 P.2d 527 (1979); Szymanski v. State Dept. of Hwys., 776 P.2d 1124 (Colo. App. 1989); Mentzel v. Judicial Dept., 778 P.2d 323 (Colo. App. 1989); State v. Zahourek, 935 P.2d 74 (Colo. App. 1996); Robinson v. Colo. State Lottery Div., 155 P.3d 409 (Colo. App. 2006), aff'd in part, rev'd in part on other grounds, 179 P.3d 998 (Colo. 2008).