In the wake of several high-profile school shootings in Colorado, the question of legal culpability of public schools and employees has come to light. Families of affected students quickly learned that a unique set of laws limits the legal actions available to them. Understanding the differences between lawsuits against public versus private entities may help victims seeking compensation manage their expectations and get a fairer outcome.
The doctrine of sovereign immunity is a key impediment to recovery against public entities and their employees. In many circumstances, it can be an absolute bar to a claim for damages. This can occur, for example, because the substantive law does not allow the suit to proceed against the public entity or employee or because an otherwise permissible suit is procedurally barred based on improper notice to the relevant government entity. Sovereign immunity exists on the assumption that governmental entities are exempt from the laws governing the general public. This does not mean that legal action against a public entity is impossible. There are, however, a different set of relevant laws.
The U.S. Government first created exemptions to sovereign immunity in 1946 by enacting the Federal Tort Claims Act (FTCA). These exemptions stipulate, among other things, that any plaintiff first file a claim with the agency in which the wrongdoing occurred, allowing sufficient opportunity to resolve the dispute outside of court. If the agency does not resolve it in a timely manner, the claim can go before a judge. The FTCA severely restricts the timeline during which legal action is permissible. Although the FTCA only applies to federal agencies, every state has passed some form of similar tort claims act. In Colorado, the Colorado Governmental Immunity Act is the relevant law, also known as the CGIA.
Under the CGIA, tort claims against a public entity and its employees are barred unless one of the enumerated waivers applies the particular circumstances giving rise to the injury. For example, the CGIA waives immunity against public employees who engage in “willful and wanton” conduct that causes injury. Another waiver exists when an injury is caused by a “dangerous condition” on a public roadway.
If a waiver does apply to the facts of a case, a plaintiff who seeks to assert a claim can have a narrow window to act. Federal tort claims have a window of two years after the incident during which the claim is valid. Under the CGIA, this window is just 180 days. Whichever law applies, plaintiffs, like many of the families affected by public school shootings, must file a “notice of claim” with the agency and allow them to independently resolve the dispute before going to court. If the agency does not resolve the dispute independently and in a timely manner, or if the agency rejects the dispute, the party can then bring the claim before a judge, which is then subject to any applicable statute of limitations.
If you believe you may have been injured as a result of the acts of a public entity and/or public employee you should promptly seek advice of experience counsel. The applicability of waivers under the CGIA can, and usually is, difficult to determine. Another minefield that can create negative case outcomes is the requirement of providing timely notice of a claim to the proper government agency or official. Failure to do so can result in forfeiture of the claim and lead to an assessment of attorneys’ fees against the unsuccessful plaintiff.