The State is historically protected from civil lawsuits under a legal principle called sovereign immunity. “At common law, no cause of action existed against a governmental entity.” Brown v. City of Casper, 2011 WY 35, 248 P.3d 1136, 1141 (Wyo. 2011).  Sovereign immunity simply means the state, even when it has negligently caused an accident or injury, is immune from being sued. However, because that sort of blanket immunity from wrongful actions of government agencies and employees can be, in some cases, an “inequitable doctrine,” see C.R.S. § 24-10-102,  the Colorado and Wyoming legislatures have both  passed legislation that create exceptions to the general rule of governmental immunity.

In Colorado, the exceptions to Sovern immunity fall into eight general areas:

  1. Operation of a motor vehicle owned or leased by a public entity, by a public employee while in the course of employment,
  2. Operation of a public hospital, correctional facility or jail,
  3. A dangerous condition of any public building,
  4. A dangerous condition of a public highway, road or street,
  5. A dangerous condition of any public hospital, jail, public facility located in any park or recreational area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility and,
  6. The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical faculty, power facility, or swimming facility by such public entity.
  7. The operation and maintenance of a qualified state capital asset that is the subject of a leveraged leasing agreement.
  8. Failure to perform an education employment required background check as described in 13-80-103.9, C.R.S.

Source: CGIA Summary | OSC

In Wyoming, claims are allowed for injuries arising from negligent acts or omissions in these areas of activity:

  1. Operating a motor vehicle: Wyo. Stat. § 1-39-105;
  2. Operating a building or park: Wyo. Stat. § 1-39-106;
  3. Airport operations: Wyo. Stat. § 1-39 107;
  4. Operating public utilities (gas, electric, water, etc.) and ground transportation: Wyo. Stat. § 1-39-108;
  5. Operating hospitals: Wyo. Stat. § 1-39-109; and
  6. Torts of police: Wyo. Stat. § 1-39-112.

Each state’s legislation has strict requirements that the government agency and/or employee that is alleged to have negligently caused injury must be provided timely written notice of the claims, before any lawsuit can be filed.  To comply with Wyoming’s Governmental Claims Act (W.S. § 1-39-113), formal signed notice must be filed, detailing the injury’s time, place, and circumstances, the involved government entity/employee (if known), your info, and the relief sought, within two years of the injury, sending it to the state’s Risk Management Section for claims against the state

Notice must also be filed in Colorado, C.R.S.  § 24-10-109(1), which allows only 182 days to provide notice to the governmental agencies and employees:

“Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as           provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.”

Under CRS § 24-10-106(2), the notice must contain:

  • the name and address of both the claimant and claimant’s attorney, if any;
  • a concise statement of the factual basis of the claim that includes the date, time, place, and circumstances of the act, omission, or event complained of;
  • the name and address of any public employee involved, when known;
  • a concise statement of the nature and the extent of the injury; and
  • a statement of the amount of monetary damages requested.

C.R.S. § 24-10-106(3)(a) states that if the claim is against the state or a state employee, the notice must be filed with the attorney general. If the claim is against any other public entity or employee thereof, the notice must be filed with the public entity’s governing body or the attorney representing the public entity.

In Wyoming, a written Notice of Claim must be presented with two (2) years of the alleged injury. Wyo. Stat. § 1 39-113. Compliance with Notice of Claim requirement does not have to be alleged in the complaint. Brown,  248 P.3d at 1147. Suit must be filed within one (1) year of written Notice of Claim. Wyo. Stat. § 1-39-114.

In Colorado, insofar as compliance with the statutory notice requirements is jurisdictional, to defeat a C.R.C.P. 12(b)(1) motion to dismiss,  a claimant must allege in the complaint that the claimant has complied with the jurisdictional prerequisite of filing a notice of claim. Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766, 769 (Colo.App. 2000).

After one has satisfied these strict pre-lawsuit requirements, a claimant is not “home free.” The amount of compensation one can recover is limited by statute.

The Wyoming Governmental Claims Act provides that the maximum liability of a governmental entity is limited to $250,000 to any claimant for any number of claims “arising out of a single transaction or occurrence” or $500,000 “for all claims of all claimants arising out of a single transaction or occurrence.” W.S. 1-39-118(a). The liability cap for medical malpractice cases against the State is $1,000,000.00.  W.S. 1-39-110(b). Federal claims, e.g., certain civil rights actions, are not subject to these limits.

For all claims for relief that accrue on or after January 1, 2022, and before January 1, 2026, the adjusted limitation is: $424,000 for any injury to one person in any single occurrence. A limit of  $1,195,000 is imposed  for any injury to two or more persons in any single occurrence; except that, in such instance, no person may recover in excess of $424,000.C.R.S. 24-10-114;  Limitations on Judgements

The Institute for Justice says “Wyoming earns an F for its immunity and accountability practices.” Wyoming – Institute for Justice  and “Colorado earns a C+ for its immunity and accountability practices.” Colorado – Institute for Justice  These assessments may be a bit harsh, but the fact remains that holding a governmental employee or agency accountable in Colorado and Wyoming will be a real challenge to meet strict requirements and face the prospects of recovering limited damages. Such claims can be successfully pursued, however. But carefully!