Colorado House Bill 12-1361


HOUSE BILL 12-1361
BY REPRESENTATIVE(S) Gardner B. and Gerou, Barker, Casso,
Ferrandino, Fischer, Hamner, Hullinghorst, Kagan, Kefalas, Kerr A.,
Kerr J., Looper, Pabon, Pace, Peniston, Priola, Scott, Solano, Summers,
Todd, Williams A., Young;
also SENATOR(S) Cadman and Nicholson, Neville, Boyd, Heath, Jahn,
Lambert, Lundberg, Morse, Newell, Schwartz.
CONCERNING CLAIMS AGAINST THE STATE ARISING UNDER THE “COLORADO
GOVERNMENTAL IMMUNITY ACT”.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 24-10-103, amend (1);
and add (1.3), (3.5), and (7) as follows:
24-10-103. Definitions. As used in this article, unless the context
otherwise requires:
(1) “Dangerous condition” means a physical condition of a facility
or the use thereof that constitutes an unreasonable risk to the health or
safety of the public, which is known to exist or which in the exercise of
reasonable care should have been known to exist and which condition is
proximately caused by the negligent act or omission of the public entity or
NOTE: The governor signed this measure on 6/4/2012.
________
Capital letters indicate new material added to existing statutes; dashes through words indicate
deletions from existing statutes and such material not part of act.
public employee in constructing or maintaining such facility. For the
purposes of this subsection (1), a dangerous condition should have been
known to exist if it is established that the condition had existed for such a
period and was of such a nature that, in the exercise of reasonable care, such
condition and its dangerous character should have been discovered. A
dangerous condition shall not exist solely because the design of any facility
is inadequate. The mere existence of wind, water, snow, ice, or temperature
shall not, by itself, constitute a dangerous condition “CONTROLLED
AGRICULTURAL BURN” MEANS A TECHNIQUE USED IN FARMING TO CLEAR THE
LAND OF ANY EXISTING CROP RESIDUE, KILL WEEDS AND WEED SEEDS, OR TO
REDUCE FUEL BUILDUP AND DECREASE THE LIKELIHOOD OF A FUTURE FIRE.
(1.3) “DANGEROUS CONDITION” MEANS EITHER A PHYSICAL
CONDITION OF A FACILITY OR THE USE THEREOF THAT CONSTITUTES AN
UNREASONABLE RISK TO THE HEALTH OR SAFETY OF THE PUBLIC, WHICH IS
KNOWN TO EXIST OR WHICH IN THE EXERCISE OF REASONABLE CARE SHOULD
HAVE BEEN KNOWN TO EXIST AND WHICH CONDITION IS PROXIMATELY
CAUSED BY THE NEGLIGENT ACT OR OMISSION OF THE PUBLIC ENTITY OR
PUBLIC EMPLOYEE IN CONSTRUCTING OR MAINTAINING SUCH FACILITY. FOR
THE PURPOSES OF THIS SUBSECTION (1.3), A DANGEROUS CONDITION SHOULD
HAVE BEEN KNOWN TO EXIST IF IT IS ESTABLISHED THAT THE CONDITION HAD
EXISTED FOR SUCH A PERIOD AND WAS OF SUCH A NATURE THAT, IN THE
EXERCISE OF REASONABLE CARE, SUCH CONDITION AND ITS DANGEROUS
CHARACTER SHOULD HAVE BEEN DISCOVERED. A DANGEROUS CONDITION
SHALL NOT EXIST SOLELY BECAUSE THE DESIGN OF ANY FACILITY IS
INADEQUATE. THE MERE EXISTENCE OF WIND, WATER, SNOW, ICE, OR
TEMPERATURE SHALL NOT, BY ITSELF, CONSTITUTE A DANGEROUS
CONDITION.
(3.5) “PRESCRIBED FIRE” MEANS THE APPLICATION OF FIRE IN
ACCORDANCE WITH A WRITTEN PRESCRIPTION FOR VEGETATIVE FUELS AND
EXCLUDES A CONTROLLED AGRICULTURAL BURN.
(7) “STATE” MEANS THE GOVERNMENT OF THE STATE; EVERY
EXECUTIVE DEPARTMENT, BOARD, COMMISSION, COMMITTEE, BUREAU, AND
OFFICE; AND EVERY STATE INSTITUTION OF HIGHER EDUCATION, WHETHER
ESTABLISHED BY THE STATE CONSTITUTION OR BY LAW, AND EVERY
GOVERNING BOARD THEREOF. “STATE” DOES NOT INCLUDE THE JUDICIAL
DEPARTMENT, A COUNTY, MUNICIPALITY, CITY AND COUNTY, SCHOOL
DISTRICT, SPECIAL DISTRICT, OR ANY OTHER KIND OF DISTRICT,
PAGE 2-HOUSE BILL 12-1361
INSTRUMENTALITY, POLITICAL SUBDIVISION, OR PUBLIC CORPORATION
ORGANIZED PURSUANT TO LAW.
SECTION 2. In Colorado Revised Statutes, add 24-10-106.1 as
follows:
24-10-106.1. Immunity and partial waiver – claims against the
state – injuries from prescribed fire – on or after January 1, 2012.
(1) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE STATE
SHALL BE IMMUNE FROM LIABILITY IN ALL CLAIMS FOR INJURY THAT LIE IN
TORT OR COULD LIE IN TORT REGARDLESS OF WHETHER THAT MAY BE THE
TYPE OF ACTION OR THE FORM OF RELIEF CHOSEN BY THE CLAIMANT EXCEPT
AS PROVIDED OTHERWISE IN THIS SECTION OR SECTION 24-10-106. IN
ADDITION TO ANY OTHER CLAIMS FOR WHICH THE STATE WAIVES IMMUNITY
UNDER THIS ARTICLE, SOVEREIGN IMMUNITY IS WAIVED BY THE STATE IN AN
ACTION FOR INJURIES RESULTING FROM A PRESCRIBED FIRE STARTED OR
MAINTAINED BY THE STATE OR ANY OF ITS EMPLOYEES ON OR AFTER
JANUARY 1, 2012.
(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CONSTITUTE
A WAIVER OF SOVEREIGN IMMUNITY IF THE INJURY ARISES FROM ANY ACT,
OR FAILURE TO ACT, OF A STATE EMPLOYEE IF THE ACT IS THE TYPE OF ACT
FOR WHICH THE STATE EMPLOYEE WOULD BE OR HERETOFORE HAS BEEN
PERSONALLY IMMUNE FROM LIABILITY.
(3) IN ADDITION TO THE IMMUNITY PROVIDED UNDER SUBSECTION (1)
OF THIS SECTION, THE STATE SHALL ALSO HAVE THE SAME IMMUNITY AS A
STATE EMPLOYEE FOR ANY ACT OR FAILURE TO ACT FOR WHICH A STATE
EMPLOYEE WOULD BE OR HERETOFORE HAS BEEN PERSONALLY IMMUNE
FROM LIABILITY.
(4) NO RULE OF LAW IMPOSING ABSOLUTE OR STRICT LIABILITY
SHALL BE APPLIED IN ANY ACTION AGAINST THE STATE FOR AN INJURY
RESULTING FROM A PRESCRIBED FIRE STARTED OR MAINTAINED BY THE
STATE OR ANY OF ITS EMPLOYEES. NO LIABILITY SHALL BE IMPOSED IN ANY
SUCH ACTION UNLESS NEGLIGENCE IS PROVEN.
SECTION 3. In Colorado Revised Statutes, 24-10-114, amend (5)
as follows:
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24-10-114. Limitations on judgments – recommendation to
general assembly – authorization of additional payment.
(5) Notwithstanding the maximum amounts that may be recovered from a
public entity set forth in subsection (1) of this section, a judgment or
judgments may be claimed and rendered against the state AN AMOUNT MAY
BE RECOVERED FROM THE STATE UNDER THIS ARTICLE in excess of the
maximum amounts only if PARAGRAPH (a) OR (b) OF THIS SUBSECTION (5)
APPLIES:
(a) The general assembly acting by bill authorizes payment of all or
a portion of the ANY judgment which AGAINST THE STATE THAT exceeds the
maximum amount. Any claimant may present proof of judgment to the
general assembly and request payment of that portion of the judgment
which exceeds the maximum amount. Any portion of a judgment approved
for payment by the general assembly shall be paid from the general fund.
(b) THE STATE CLAIMS BOARD CREATED IN SECTION 24-30-1508 (1),
ACTING IN ACCORDANCE WITH ITS AUTHORITY UNDER SECTION 24-30-1515,
COMPROMISES OR SETTLES A CLAIM ON BEHALF OF THE STATE FOR THE
MAXIMUM LIABILITY LIMITS UNDER THIS ARTICLE AND DETERMINES, IN ITS
SOLE DISCRETION, TO RECOMMEND TO THE GENERAL ASSEMBLY THAT THE
GENERAL ASSEMBLY, BY BILL, AUTHORIZE ALL OR ANY PORTION OF AN
ADDITIONAL PAYMENT. IN DETERMINING WHETHER TO MAKE SUCH
RECOMMENDATION, THE CLAIMS BOARD SHALL CONSIDER INTERESTS OF
FAIRNESS, THE PUBLIC INTEREST, AND THE INTERESTS OF THE STATE. A
RECOMMENDATION MADE UNDER THIS PARAGRAPH (b) SHALL NOT INCLUDE
PAYMENT FOR NONECONOMIC LOSS OR INJURY AND SHALL BE REDUCED TO
THE EXTENT THE CLAIMANT’S LOSS IS OR WILL BE COVERED BY ANOTHER
SOURCE, INCLUDING, WITHOUT LIMITATION, ANY INSURANCE PROCEEDS THAT
HAVE BEEN PAID OR WILL BE PAID, AND NO INSURER SHALL HAVE A RIGHT OF
SUBROGATION, ASSIGNMENT, OR ANY OTHER RIGHT AGAINST THE CLAIMANT
OR THE STATE FOR ANY ADDITIONAL PAYMENT OR ANY PORTION OF SUCH
PAYMENT THAT IS APPROVED BY THE GENERAL ASSEMBLY.ANY ADDITIONAL
PAYMENT OR ANY PORTION OF SUCH PAYMENT APPROVED BY THE GENERAL
ASSEMBLY SHALL BE PAID FROM THE GENERAL FUND.
SECTION 4. In Colorado Revised Statutes, 24-30-1509, add (1) (d)
as follows:
24-30-1509. Powers and duties of the board. (1) The board shall
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have the following powers and duties:
(d) TO DETERMINE WHETHER TO RECOMMEND TO THE GENERAL
ASSEMBLY THAT THE GENERAL ASSEMBLY, BY BILL, AUTHORIZE ALL OR ANY
PORTION OF AN ADDITIONAL PAYMENT TO A CLAIMANT IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 24-10-114 (5) (b).
SECTION 5. Applicability. The provisions of this act apply to
claims asserted against the state on or after January 1, 2012.
PAGE 5-HOUSE BILL 12-1361
SECTION 6. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, and safety.
____________________________ ____________________________
Frank McNulty Brandon C. Shaffer
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Marilyn Eddins Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
John W. Hickenlooper
GOVERNOR OF THE STATE OF COLORADO
PAGE 6-HOUSE BILL 12-1361




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