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Does Your State have a Governmental Immunity Act??

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  • Legalbear
    I am making a study on this. If you are outside Colorado, use this as a guide to what may exist as an answer to 11th Amendment immunity in your state. This is
    Message 1 of 1 , Jul 3, 2012
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      I am making a study on this. If you are outside Colorado, use this as a guide to what may exist as an answer to 11th Amendment immunity in your state. This is Colorado’s waiver of 11th Amendment immunity. Bear

       

      24-10-101. Short title

       

      This article shall be known and may be cited as the "Colorado Governmental Immunity Act".

       

      24-10-102. Declaration of policy

       

      It is recognized by the general assembly that the doctrine of sovereign immunity, whereunder the state and its political subdivisions are often immune from suit for injury suffered by private persons, is, in some instances, an inequitable doctrine. The general assembly also recognizes that the supreme court has abrogated the doctrine of sovereign immunity effective July 1, 1972, and that thereafter the doctrine shall be recognized only to such extent as may be provided by statute. The general assembly also recognizes that the state and its political subdivisions provide essential public services and functions and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions. The general assembly further recognizes that the taxpayers would ultimately bear the fiscal burdens of unlimited liability and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens. It is also recognized that public employees, whether elected or appointed, should be provided with protection from unlimited liability so that such public employees are not discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law. It is further recognized that the state, its political subdivisions, and the public employees of such public entities, by virtue of the services and functions provided, the powers exercised, and the consequences of unlimited liability to the governmental process, should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article. The general assembly also recognizes the desirability of including within one article all the circumstances under which the state, any of its political subdivisions, or the public employees of such public entities may be liable in actions which 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 a claimant and that the distinction for liability purposes between governmental and proprietary functions should be abolished.

       

      HISTORY: Source: L. 71: p. 1204, § 1. C.R.S. 1963: § 130-11-2.L. 79: Entire section amended, p. 862, § 1, effective July 1.L. 86: Entire section amended, p. 873, § 1, effective July 1.

       

      ANNOTATION

       

      The denial of compensation is the constitutional result of the doctrine of sovereign immunity. In re Air Crash Disaster at Stapleton, 720 F. Supp. 1465 (D. Colo. 1989).

       

      The Colorado Governmental Immunity Act is constitutional and classifications restricting recovery by various tort victims bear a rational relationship to the legitimate state interests of fiscal certainty. The fact that the state compensation insurance authority and the state compensation insurance fund were covered by the Colorado Governmental Immunity Act while private insurers were not was not a denial of equal protection. Simon v. State Compensation Ins. Auth., 903 P.2d 1139 (Colo. App. 1994), rev'd on other grounds, 946 P.2d 1298 (Colo. 1997).

       

      Just compensation clause of constitution creates exception to doctrine of governmental immunity. Srb v. Bd. of County Comm'rs, 43 Colo. App. 14, 601 P.2d 1082 (1979), cert. dismissed, 199 Colo. 496, 618 P.2d 1105 (1980).

       

      As does making of legislative contract. The making of a contract pursuant to legislative authority is a waiver by the state of its immunity from suit and of any statutory requirement for the filing of claims. Ace Flying Serv., Inc. v. Colo. Dept. of Agric., 136 Colo. 19, 314 P.2d 278 (1957) (decided under former CRS 53, § 130-2-1).

       

      The Colorado Governmental Immunity Act does not apply to claims based on federal civil rights violations. Martinez v. El Paso County, 673 F. Supp. 1030 (D. Colo. 1987).

       

      The Colorado Governmental Immunity Act governs the circumstances under which a person may maintain a tort action against the state, its political subdivisions, and its employees. Mesa County Valley Sch. Dist. v. Kelsey, 8 P.3d 1200 (Colo. 2000).

       

      No immunity for sister state's activities in this state. Where an injured party is a citizen of this state, injured in this state, and sues in the courts of this state, there is no immunity, by law or as a matter of comity, covering a sister state's activities in this state. Peterson v. State of Texas, 635 P.2d 241 (Colo. App. 1981).

       

      State statutory provisions control over conflicting city charter. If a city charter establishes a different notice of claim procedure, it conflicts with the state statutory provisions, and when a conflict exists in a matter of both statewide and local concern, the state statute controls. Lipira v. City of Thornton, 41 Colo. App. 401, 585 P.2d 932 (1978).

       

      The Colorado Governmental Immunity Act derogates Colorado's common law. Consequently, statute's immunity provisions are to be strictly construed. As a logical corollary, provisions withholding immunity are also to be strictly construed in the interest of compensating victims of governmental negligence. Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo. 2001); Podboy v. Fraternal Order of Police, 94 P.3d 1226 (Colo. App. 2004).

       

      The protections afforded under the Colorado Governmental Immunity Act attach on the date the negligence is alleged to have occurred. Muniz v. Garner, 921 F. Supp. 700 (D. Colo. 1996).

       

      Applied in City of Colo. Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979); South of Second Assocs. v. Georgetown, 199 Colo. 394, 609 P.2d 125 (1980); Forrest v. County Comm'rs, 629 P.2d 1105 (Colo. App. 1981); Young v. State, 642 P.2d 18 (Colo. App. 1981); Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d 422 (Colo. App. 1982).

       

      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 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.

       

      (1.5) "Health care practitioner" means a physician, dentist, clinical psychologist, or any other person acting at the direction or under the supervision or control of any such persons.

       

      (2) "Injury" means death, injury to a person, damage to or loss of property, of whatsoever kind, which, if inflicted by a private person, would 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 a claimant.

       

      (2.5) "Maintenance" means the act or omission of a public entity or public employee in keeping a facility in the same general state of repair or efficiency as initially constructed or in preserving a facility from decline or failure. "Maintenance" does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.

       

      (2.7) "Motor vehicle" means a motor vehicle as defined in section 42-1-102, C.R.S., and a light rail car or engine owned or leased by a public entity.

       

      (3) (a) "Operation" means the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public hospital, jail, or public water, gas, sanitation, power, or swimming facility. "Operation" does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility.

       

      (b) The term "operation" shall not be construed to include:

       

      (I) A failure to exercise or perform any powers, duties, or functions not vested by law in a public entity or employee with respect to the purposes of any public facility set forth in paragraph (a) of this subsection (3);

       

      (II) A negligent or inadequate inspection or a failure to make an inspection of any property, except property owned or leased by the public entity, to determine whether such property constitutes a hazard to the health or safety of the public.

       

      (4) (a) "Public employee" means an officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed, but does not include an independent contractor or any person who is sentenced to participate in any type of useful public service. For the purposes of this subsection (4), "authorized volunteer" means a person who performs an act for the benefit of a public entity at the request of and subject to the control of such public entity and includes a qualified volunteer as defined in section 24-32-2202 (6).

       

      (b) "Public employee" includes any of the following:

       

      (I) Any health care practitioner employed by a public entity, except for any health care practitioner who is employed on less than a full-time basis by a public entity and who additionally has an independent or other health care practice. Any such person employed on less than a full-time basis by a county or a district public health agency and who additionally has an independent or other health care practice shall maintain the status of a public employee only when such person engages in activities at or for the county or the district public health agency that are within the course and scope of such person's responsibilities as an employee of the county or the district public health agency. For purposes of this subparagraph (I), work performed as an employee of another public entity or of an entity of the United States government shall not be considered to be an independent or other health care practice.

       

      (II) Any health care practitioner employed part-time by and holding a clinical faculty appointment at a public entity as to any injury caused by a health care practitioner-in-training under such health care practitioner's supervision. Any such person shall maintain the status of a public employee when such person engages in supervisory and educational activities over a health care practitioner-in-training at a nonpublic entity if said activities are within the course and scope of such person's responsibilities as an employee of a public entity.

       

      (III) Any health care practitioner-in-training who is duly enrolled and matriculated in an educational program of a public entity and who is working at either a public entity or a nonpublic entity. Any such person shall maintain the status of a public employee when such person engages in professional or educational activities at a nonpublic entity if said activities are within the course and scope of such person's responsibilities as a student or employee of a public entity.

       

      (IV) Any health care practitioner who is a nurse licensed under article 38 of title 12, C.R.S., employed by a public entity. Any such person shall maintain the status of a public employee only when such person engages in activities at or for the public entity which are within the course and scope of such person's responsibilities as an employee of the public entity.

       

      (V) Any health care practitioner who volunteers services at or on behalf of a public entity, or who volunteers services as a participant in the community maternity services program;

       

      (VI) Any release hearing officer utilized by the department of corrections and the state board of parole pursuant to section 17-2-217 (1), C.R.S. A release hearing officer shall maintain the status of a public employee only when the release hearing officer engages in activities that are within the course and scope of his or her responsibilities as a release hearing officer.

       

      (VII) Any administrative hearing officer utilized by the department of corrections and the state board of parole pursuant to section 17-2-201 (3) (c) (I), C.R.S. An administrative hearing officer shall maintain the status of a public employee only when the administrative hearing officer engages in activities that are within the course and scope of his or her responsibilities as an administrative hearing officer.

       

      (5) "Public entity" means the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.

       

      (5.5) "Public sanitation facility" means structures and related apparatus used in the collection, treatment, or disposition of sewage or industrial wastes of a liquid nature that is operated and maintained by a public entity. "Public sanitation facility" does not include: A public water facility; a natural watercourse even if dammed, channelized, or containing storm water runoff, discharge from a storm sewer, or discharge from a sewage treatment plant outfall; a drainage, borrow, or irrigation ditch even if the ditch contains storm water runoff or discharge from storm sewers; a curb and gutter system; or other drainage, flood control, and storm water facilities.

       

      (5.7) "Public water facility" means structures and related apparatus used in the collection, treatment, or distribution of water for domestic and other legal uses that is operated and maintained by a public entity. "Public water facility" does not include: A public sanitation facility; a natural watercourse even if dammed, channelized, or used for transporting domestic water supplies; a drainage, borrow, or irrigation ditch even if dammed, channelized, or containing storm water runoff or discharge; or a curb and gutter system.

       

      (6) "Sidewalk" means that portion of a public roadway between the curb lines or the lateral lines of the traveled portion and the adjacent property lines which is constructed, designed, maintained, and intended for the use of pedestrians.

       

      HISTORY: Source: L. 71: p. 1205, § 1. C.R.S. 1963: § 130-11-3.L. 82: (4) amended, p. 604, § 6, effective July 1.L. 86: (1), (2), and (4) amended, p. 874, § 2, effective July 1.L. 87: (4) amended and (1.5) added, p. 929, § 1, effective June 20.L. 88: (4)(b)(I) amended and (4)(b)(IV) and (4)(b)(V) added, p. 893, § 1, effective March 20.L. 92: (1) and (5) amended and (6) added, p. 1115, § 1, effective July 1.L. 93: (4) amended, p. 571, § 1, effective April 30.L. 2002: (4)(b)(VI) added, p. 490, § 1, effective May 24.L. 2003: (1) and (3)(a) amended and (2.5), (5.5), and (5.7) added, p. 1343, § 2, effective July 1.L. 2004: (4)(b)(V) amended, p. 1200, § 61, effective August 4.L. 2007: (2.7) added, p. 1025, § 1, effective July 1.L. 2008: (4)(b)(VII) added, p. 32, § 1, effective March 13; (4)(b)(I) amended, p. 2051, § 2, effective July 1; (4)(a) amended, p. 610, § 2, effective August 5.

       

       

       

      Cross references: (1) For the exclusion of children ordered to participate in a work or community service program from the definition of "public employee", see § 19-2-308 (8).

       

      (2) For the legislative declaration contained in the 2003 act amending subsections (1) and (3)(a) and enacting subsections (2.5), (5.5), and (5.7), see section 1 of chapter 182, Session Laws of Colorado 2003.

      RECENT ANNOTATIONS

       

      Office of the Colorado state public defender is a "public entity" and its employees are "public employees" for purposes of the CGIA. Wallin v. McCabe, -- P.3d -- (Colo. App. 2011) published August 18, 2011 .

       

      Employee of private company that contracts with public entity to perform public services is not a "public employee" entitled to immunity under the CGIA; nor is his or her employer. Because employee worked for an independent contractor, employee was not a public employee. Henisse v. First Transit, Inc., 247 P.3d 577 (Colo. 2011).

      ANNOTATION

       

      Law reviews. For article, "Public Liability for Privately Employed Security Personnel", see 16 Colo. Law. 2175 (1987).

       

      To recover under the "dangerous condition" of the Colorado Governmental Immunity Act (CGIA), a plaintiff must show as a threshold jurisdictional matter that the condition upon which the plaintiff bases his tort claim existed because of the government's act or omission in maintaining or constructing the condition rather than the government's design of the condition. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997).

       

      Under the CGIA, the "dangerous condition" must be proximately caused by the negligent act or omission of the public entity in constructing or maintaining a public facility. Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000).

       

      A public entity constructs a building within the definition of "dangerous condition" even though it hires an independent contractor to perform the work for it. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000).

       

      The common meaning of the word "maintain", its legislative history, and Colorado case law support the court of appeals finding that a failure to "maintain" means a failure to keep a facility in the same general state of being, repair, or efficiency as initially constructed. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997).

       

      The duties of the public entity, for immunity purposes, to maintain do not include any duty to upgrade, modernize, or improve the design or construction of a facility. Springer v. City & County of Denver, 990 P.2d 1092 (Colo. App. 1999), rev'd on other grounds, 13 P.3d 794 (Colo. 2000).

       

      The duty to maintain does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility. Lyons v. City of Aurora, 987 P.2d 900 (Colo. App. 1999); Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000).

       

      The city's failure to make improvements for the safety of players on its public golf courses did not create a "dangerous condition" on the golf course for purposes of the CGIA. Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000).

       

      City is immune from liability for a roadway's abrupt transition at the ditch because the roadway was in the same condition as when it was originally constructed. Because the roadway remained unchanged, the city did not repair the roadway, and is immune from any claims for negligence for allowing this condition to exist. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997).

       

      A condition is "dangerous" only if it relates to the physical or structural condition of the facility at issue. King v. U.S., 53 F. Supp.2d 1056 (D. Colo. 1999).

       

      This section expressly excludes from the definition of "dangerous condition" any danger solely attributable to inadequate design. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997); Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000).

       

      The condition must be associated with construction or maintenance, not solely design. Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo. 2001).

       

      To be actionable, the state of the building or use of the building and the resulting injury therefrom must: (1) Have occurred in connection with a negligent act or omission of the governmental entity, not a third party; (2) be associated with "constructing" or "maintaining" the facility; and (3) not be due solely to the facility's design. Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo. 2001); Curtis v. Hyland Hills Park & Rec. Dist., 179 P.3d 81 (Colo. App. 2007).

       

      Absence of someone to regulate the spacing of people in rafts on a water attraction did not constitute a dangerous condition because there was no physical defect in attraction's construction or maintenance. Curtis v. Hyland Hills Park & Rec. Dist., 179 P.3d 81 (Colo. App. 2007).

       

      A "dangerous condition" exists in a public building only if the condition stems from a physical or structural defect in the building. Jenks v. Sullivan, 826 P.2d 825 (Colo. 1992); Seder v. City of Fort Collins, 987 P.2d 904 (Colo. App. 1999).

       

      Improper placement of stop sign is "dangerous condition". Improper placement of a stop sign is within the statutory definition of a "dangerous condition" for which a city may be held liable. Stephen v. City & County of Denver, 659 P.2d 666 (Colo. 1983).

       

      Private blasting activity adjacent to highway is a "dangerous condition". Belfiore v. Colo. Dept. of Hwys., 847 P.2d 244 (Colo. App. 1993).

       

      Jointer machine used in gunsmithing class was an integral part of the educational facility, a public school building, therefore, a dangerous condition of the jointer is a dangerous condition of the facility for purposes of the "public building" waiver of the CGIA. Longbottom v. State Bd. of Cmty. Colls., 872 P.2d 1253 (Colo. App. 1993).

       

      Phrase "or the use thereof" in definition of "dangerous condition" means the use of a physical condition of a public facility. Thus, the dangerous condition exception to sovereign immunity arises from the physical or structural state of the public building itself or from the use of the physical or structural state of the building, but not from conditions arising as a result of activities conducted within such building. Jenks v. Sullivan, 826 P.2d 825 (Colo. 1992).

       

      The term "public" in the definition of "dangerous condition" does not exclude a person in a public building at a city's invitation. It is the immunity created by the CGIA, and not the exceptions thereto, that must be strictly construed. Kittinger v. City of Colo. Springs, 872 P.2d 1265 (Colo. App. 1993).

       

      Failure to modify or improve traffic signals because of increased pedestrian traffic does not create a "dangerous condition". Karr v. City & County of Denver, 677 P.2d 1384 (Colo. App. 1984).

       

      Inadequate road design and lack of adequate traffic warning signs do not constitute "dangerous conditions" for which governmental immunity has been waived. Lafitte v. State Hwy. Dept., 885 P.2d 338 (Colo. App. 1994); Swieckowski v. City of Fort Collins, 923 P.2d 208 (Colo. App. 1995).

       

      The development of a dangerous condition of a public highway, subsequent to the initial design and construction of the highway creates in the state a duty to return the road to the same general state of being, repair, or efficiency as initially constructed. The duty to maintain requires the state only to rectify degradation not obsolescence. When an injury is caused by a breach of this duty, the CGIA waives the state's immunity in an action to recover therefore. Medina v. State, 35 P.3d 443 (Colo. 2001).

       

      The design of a public roadway will often contribute to injury, but it is only when the dangerous condition is solely attributable to design that the state is immune. Medina v. State, 35 P.3d 443 (Colo. 2001).

       

      The state has a duty to install safety devices only where their installation is necessary to mitigate an increase in risk attributable to a dangerous condition of the road that develops subsequent to the road's initial design and construction. Otherwise, requiring the state to install safety devices to mitigate the risk attributable to a dangerous condition inherent in the design of the road and persisting at the time of the injury would be to mandate that the state reduce the risk of injury below that which existed when the road was initially designed and constructed. Medina v. State, 35 P.3d 443 (Colo. 2001).

       

      Temporary traffic plan in place during upgrade of highway is a new design, so immunity is not waived for plaintiff's injuries resulting from defendants' failure to require or install concrete median barriers during the upgrade, even though the pre-upgrade highway had barriers. In re Estate of Grant, 181 P.3d 1202 (Colo. App. 2008).

       

      Mere accessibility of trash dumpster to the public did not convert it into a public sanitation facility for which the city's immunity has been waived. Delk v. City of Grand Junction, 958 P.2d 532 (Colo. App. 1998).

       

      Dangerous condition not found. Sierra v. City & County of Denver, 730 P.2d 902 (Colo. App. 1986).

       

      "Injury" includes a decrease in the value of property, where such decrease results from government's announcement of intent to take action physically affecting property at some time in the future. City of Lafayette v. Barrack, 847 P.2d 136 (Colo. 1993).

       

      "Injury" includes loss of consortium and gives rise to separate right of recovery. Lee v. Colo. Dept. of Health, 718 P.2d 221 (Colo. 1986).

       

      When commissioner of insurance immune from liability. Attempting to rehabilitate interinsurance exchange and reissuing certificate of authority to do business during the rehabilitation period were discretionary acts, clearly judgmental in nature, and the commissioner was immune from liability. Alias Smith & Jones, Inc. v. Barnes, 695 P.2d 302 (Colo. App. 1984).

       

      Industrial commission protected by sovereign immunity for failure to inspect machinery. The industrial commission is protected by the doctrine of sovereign immunity from any liability for injuries of a laborer which supposedly result from the commission's failure to inspect industrial machinery. Quintano v. Indus. Comm'n, 178 Colo. 131, 495 P.2d 1137 (1972) (decided prior to the 1986 amendment abolishing the industrial commission).

       

      The exclusion of independent contractors from the definition of "public employee" means that an independent contractor cannot, under any circumstances, gain immunity by reason of the CGIA's provisions, not that a public entity has immunity when it constructs a public building through the services of an independent contractor. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000).

       

      For purposes of the CGIA, a person may be simultaneously employed by both a public entity and a private entity. Henisse v. First Transit, Inc., 220 P.3d 980 (Colo. App. 2009).

       

      Private attorney hired by the board of directors of a hospital district is not a "public employee" for purposes of the CGIA. Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005).

       

      Defendants cannot be considered employees of the city and county of Denver as a matter of law and are thus not entitled to the CGIA's immunity. The city and county of Denver does not have the right to control defendants' performance as officers of the fraternal order of police (FOP); the complaint did not allege that defendants undertook the challenged action pursuant to their responsibilities as employees of Denver; and the city and county does not have the right to hire, appoint, or dismiss members and officers of the FOP. Podboy v. Fraternal Order of Police, 94 P.3d 1226 (Colo. App. 2004).

       

      Subparagraph (4)(b)(V) does not require that a health care practitioner prove that the practitioner is under the control of a public entity in order to qualify as a "public employee" under the CGIA. Plummer v. Little, 987 P.2d 871 (Colo. App. 1999).

       

      Business entity cannot be a "public employee". The definition includes only natural persons. Safari 300 v. Hamilton Family Enters., 181 P.3d 278 (Colo. App. 2007).

       

      City housing authority was a "public entity" within the plain and ordinary meaning of the CGIA. Allen v. City of Boulder Hous. Auth., 852 P.2d 1335 (Colo. App. 1993) (decided prior to 1992 amendment to subsection (5)).

       

      The university of Colorado and its governing board are "public entities" under this section. Uberoi v. Univ. of Colo., 713 P.2d 894 (Colo. 1986).

       

      State university a public entity within the meaning of the CGIA. State v. Zahourek, 935 P.2d 74 (Colo. App. 1996).

       

      Three-part balancing test applied to determine that the university of Colorado is characterized as an arm of the state and thus not a person for purposes of sovereign immunity in a 42 U.S.C. § 1983 claim. The factors considered were that the university serves a state function, the university has a significant lack of autonomy or independence from the state, and that the ultimate potential for state liability exists. Hartman v. Regents of the Univ. of Colo., 22 P.3d 524 (Colo. App. 2000), aff'd on other grounds, 45 P.3d 721 (Colo. 2002).

       

      Denver department of social services is a public entity under this section. Corbin by Corbin v. City & County of Denver, 735 P.2d 214 (Colo. App. 1987).

       

      The judicial department is a public entity, and a third party supervising a father's visitation was an "authorized volunteer" and thus a public employee. Yonker by & through Helstrom v. Thompson, 939 P.2d 530 (Colo. App. 1997).

       

      But the director and supervisors of the Adams county department of social services are not state employees under this section and are not entitled to indemnification from the state when they are sued as a result of their official duties. Norton v. Gilman, 949 P.2d 565 (Colo. 1997).

       

      By placing the term "instrumentality" in the context of other entities that are public in nature, the general assembly has expressed an intent to restrict the definition of that term only to those entities that are governmental in nature. There is no indication that the general assembly intended to expand the scope of the CGIA to include any private person or corporation that entered into some type of agreement with a public entity. Robinson v. Colo. State Lottery Div., 155 P.3d 409 (Colo. App. 2006), aff'd in part and rev'd in part on other grounds, 179 P.3d 998 (Colo. 2008); Moran v. Standard Ins. Co., 187 P.3d 1162 (Colo. App. 2008).

       

      A private person or corporation that is a licensed sales agent for the state is not an instrumentality. Robinson v. Colo. State Lottery Div., 155 P.3d 409 (Colo. App. 2006), aff'd in part and rev'd in part on other grounds, 179 P.3d 998 (Colo. 2008).

       

      Trust created to hold union pension fund assets and its board of trustees not "public entities". Trust created by transit union representing regional transportation district (RTD) hourly workers to hold assets of the union's pension plan and pay pension benefits not a public entity. Nor is the board of trustees that administers the pension plan. Walker v. Bd. of Trustees, Reg'l Transp. Dist., 76 F. Supp.2d 1105 (D. Colo. 1999).

       

      Individual members of board of trustees that administers union's pension plan cannot be considered public employees of RTD in carrying out their duties as fiduciaries of the plan. Walker v. Bd. of Trustees, Reg'l Transp. Dist., 76 F. Supp.2d 1105 (D. Colo. 1999).

       

      RTD and the board of trustees that administers the union's pension plan have a symbiotic relationship that permits the fair attribution of the board's conduct to the state, however. Because the general assembly created RTD as a political subdivision of the state pursuant to § 39-9-119 (1)(a) and required it to engage in mandatory collective bargaining and because that collective bargaining process created the board of trustees, it is only fair that the state should be held responsible for the board's decisions. Walker v. Bd. of Trustees, Reg'l Transp. Dist., 76 F. Supp.2d 1105 (D. Colo. 1999).

       

      Fraternal order of police (FOP) is not a separate entity created by an intergovernmental contract with the city and county of Denver and is therefore not a "public entity" for purposes of the CGIA. The Denver Municipal Code governs selection and recognition of the bargaining agent elected to represent the Denver sheriff department employees, and, pursuant to the code, the FOP was elected to represent the department employees. However, the code is not a contract between other governmental entities, it does not create the FOP, and it does not confer governmental status upon the FOP. Podboy v. Fraternal Order of Police, 94 P.3d 1226 (Colo. App. 2004).

       

      Plain language of the 2003 amendments does not indicate that the general assembly intended legislation addressing the definitions of "public sanitation facility", "public water facility", "maintenance", "operation", and "dangerous condition" to have retroactive effect. 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).

       

      1986 amendments to the definition of "dangerous condition" negate the proposition that the general assembly intended to distinguish between designs that are "inadequate" initially and designs which become "inadequate" over a period of time. Willer v. City of Thornton, 817 P.2d 514 (Colo. 1991).

       

      As an exception to CGIA, to establish "dangerous condition", plaintiff was required to show that ice constituted an unreasonable risk to the health or safety of the public, the town knew or should have known of the presence of the ice, and the presence of the ice was caused by the negligent act or omission of the town. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996).

       

      Trial court properly found that plaintiff adequately established ice constituted a "dangerous condition" for the purpose of a C.R.C.P. 12(b)(1) motion. Martinez v. Weld County Sch. Dist. RE-1, 60 P.3d 736 (Colo. App. 2002).

       

      The fact that the city had not received prior notice of the precise harm that occurred does not compel the conclusion that it did not have either constructive or actual knowledge of the alleged dangerous condition. Luenberger v. City of Golden, 990 P.2d 1145 (Colo. App. 1999).

       

      Town did not have notice of dangerous condition, preserving the town's immunity under the act where the public works director and finance director, officials authorized to receive complaints, did not know or receive complaints of ice on an unlit landing, when there was no evidence of the length of time the ice had been present or how the ice appeared. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996).

       

      While plaintiff may have sufficiently alleged an act of negligence, leaving a disabled and distraught child out of sight and reach in an unstable stroller, plaintiff did not demonstrate a sufficient connection between use of the state of the building and a construction or maintenance facility or omission for which defendant school district is responsible. Plaintiff's theory of the case amounts only to a claim that school district should have upgraded the design of the closet if it wished to use it as a "time out" room for students exhibiting disruptive behavior. As such, plaintiff's complaint lacked sufficient jurisdictional facts to support an immunity waiver under the provision of the CGIA waiving immunity for a dangerous condition of a public facility. Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo. 2001).

       

      Term "operation" must not be construed to include the failure to exercise or perform any powers, duties, or functions not vested by law in a public entity. An urban drainage and flood control district is not vested by law with a responsibility to own or acquire particular property or implement suggested improvements. Nothing in the "Urban Drainage and Flood Control Act" requires such affirmative action, and the district had no preexisting common law duty to act. Larry H. Miller Corp.-Denver v. Urban Drainage & Flood Control Dist., 64 P.3d 941 (Colo. App. 2003).

       

      Phrase "public water facility" includes a water meter pit. Montoya v. City of Westminster Dept. of Pub. Works, 181 P.3d 1197 (Colo. App. 2008).

       

      General assembly intended the term "public roadway", which is a highway designed for vehicular travel, to include the portion intended for pedestrian use. Colucci v. Town of Vail, 232 P.3d 218 (Colo. App. 2009).

       

      As defined in the CGIA, the term "sidewalk" includes a pedestrian overpass. In construing the term, trial court erred in referring to the definition of "roadway" as it appears in the motor vehicle laws, which d

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