Faber v. State

Decision Date31 May 1960
Docket NumberNo. 18700,18700
Citation143 Colo. 240,353 P.2d 609
PartiesGrace FABER and Bert Faber, Plaintiffs in Error, v. STATE of Colorado and Department of Highways of the State of Colorado, Defendants in Error.
CourtColorado Supreme Court

Tilly & Skelton, Judge Wilbur M. Alter, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Holloway, Asst. Atty. Gen., for defendants in error.

Henry & Adams, S. Arthur Henry, Victor Quinn, Denver, amicus curiae.

MOORE, Justice.

Grace Faber and Bert Faber, to whom we will refer as plaintiffs, filed an action against defendants, the State of Colorado and the Department of Highways, in which they sought to recover damages for alleged tortious acts.

The attorney general, on behalf of defendants, filed a motion to dismiss the action. The motion set forth two grounds, viz.: (1) The statute of limitations; and (2) 'That these defendants are immune from liability in tort, * * *.' The trial court sustained the second ground of the motion to dismiss and entered judgment accordingly. Plaintiffs are before this court on writ of error.

Plaintiffs argue that both the federal and state constitutions require that the state be held liable in tort. They offer three different theories. It is chiefly argued that due process of law requires such a holding. It is also contended that equal protection of the law, and sections 3 and 6 of Article II of the Colorado Constitution require that the state be held liable for damages in actions founded on tort.

Counsel for plaintiffs rely on Boxberger v. State Highway Department, 126 Colo. 438, 250 P.2d 1007; Ace Flying Service, Inc. v. Colorado Department of Agriculture, et al., 136 Colo. 19, 314 P.2d 278; and Colorado Racing Commission, et al. v. Brush Racing Association, Inc., 136 Colo. 279, 316 P.2d 582. None of those cases involved a claim for damages for injuries resulting from negligence of agents of instrumentalities of the state. They involved the right of persons to sue the state in actions founded on contract, and are authority for the proposition that where the state enters into contractual relations, the persons dealing with the state are entitled to enforce the contractual rights arising therefrom by resort to judicial proceedings, and the state cannot defeat the action by reliance upon a claim of sovereign immunity from suit.

The due process clause and other constitutional provisions relied on by plaintiffs operate only to prohibit the deprivation of 'rights' where such 'rights' exist under substantive law. In this jurisdiction and generally throughout the country, it has been uniformly held that in the absence of a statute creating such liability, the state and its instrumentalities are not liable in tort. Under the substantive law the claimed 'right' is nonexistent. The equal protection of the laws provision of the federal constitution, U.S.Const. Amend. 14, and sections 3 and 6, Article II of the Colorado Constitution, which declare certain rights to be inalienable and guarantee judicial process for their protection, are not violated by application of the rule that the state and its instrumentalities are not liable in tort actions. Our recent opinion in City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826, contains citations to a number of cases which control the result in the instant case.

We recognize that there have been numerous criticisms of the rule applied in this case, emanating from various legal writers, judges and students of the law. However, their criticisms and comments should be addressed to the legislature where constitutional authority rests to amend the law. Jerauld County v. Saint Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571; Maffei v. Incorporated Town of Kemmerer, Wyo., 338 P.2d 808; Lee v. Dunklee, 84 Ariz. 260, 326 P.2d 1117; Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762.

The judgment is affirmed.

HALL and FRANTZ, JJ., dissent.

FRANTZ, Justice (dissenting).

I am not in accord with the reasoning or the result of the majority opinion in this case. What I said in City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826, and what has been said by Mr. Justice HALL and by myself in the case of Liber v. Flor, Colo., 353 P.2d 593, 602, apply with equal force to this case.

In the majority opinion it is stated that:

'We recognize that there have been numerous criticisms of the rule applied in this case, emanating from various legal writers, judges and students of the law. However, their criticisms and comments should be addressed to the legislature where constitutional authority rests to amend the law.'

I take issue with the suggestion that any modification of the rule applied by the majority be addressed to the legislature 'where constitutional authority rests to amend the law.' The suggested legislation is unnecessary, because the constitution has already recognized and preserved that right of the plaintiffs, in that men have certain 'natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives * * * and of seeking and obtaining their safety * * *.' Integrity of the complete physical person is constitutionally guaranteed, and there is no need for the legislature to grant what is already insured preservation by this fundamental document.

HALL, Justice (dissenting).

I respectfully dissent from the majority opinion for the reasons I have expressed in Liber v. Flor, et al., Colo., 353 P.2d 593, and for further reasons as herein set forth.

The majority opinion states:

'* * * The equal protection of the laws provision of the federal constitution, and sections 3 and 6, Article II of the Colorado Constitution, which declare certain rights to be inalienable and guarantee judicial process for their protection, are not violated by application of the rule that the state and its instrumentalities are not liable in tort actions. * * *.'

Such statement may serve to convince Fabers that they cannot win, but affords no explanation as to why they must suffer from injuries inflicted upon them through negligent acts of others and without redress. Their constitutional rights are rendered meaningless by this language.

The majority opinion acknowledges the fact...

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12 cases
  • Smith v. State
    • United States
    • Idaho Supreme Court
    • August 5, 1970
    ...v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965); Berger v. Dept. of Highways, 143 Colo. 246, 353 P.2d 612 (1960); Faber v. Dept. of Highways, 143 Colo. 240, 353 P.2d 609 (1960); Wilmington Housing Authority v. Williamson, 228 A.2d 782 (Del.1967); Pereira v. State Road Dept., 178 So.2d 626 (Fl......
  • Evans v. Board of County Com'rs of El Paso County
    • United States
    • Colorado Supreme Court
    • March 22, 1971
    ...Rock, Bish, and Board of Comr's v. Adler, 69 Colo. 290, 194 P. 621 (1920), another of the Bish progeny. Next were Faber v. State, 143 Colo. 240, 353 P.2d 609 (1960), and Berger v. Department of Highways, 143 Colo. 246, 353 P.2d 612 (1960). The sovereign immunity in Faber was predicated upon......
  • State By and Through Colorado State Claims Bd. of Div. of Risk Management v. DeFoor
    • United States
    • Colorado Supreme Court
    • August 10, 1987
    ...unless there exists a deprivation of a property interest, there can be no denial of substantive due process. See Faber v. State, 143 Colo. 240, 241, 353 P.2d 609, 610 (1960) (due process operates to prohibit deprivation of rights where such rights exist under substantive Under the Fourteent......
  • Hemenway v. Presbyterian Hospital Ass'n of Colo.
    • United States
    • Colorado Supreme Court
    • October 24, 1966
    ...trial court in its findings. This we are unwilling to do. The following language from the opinion of this court in Faber v. State of Colorado, 143 Colo. 240, 353 P.2d 609, is equally applicable here: 'We recognize that there have been numerous criticisms of the rule applied in this case, em......
  • Request a trial to view additional results
2 books & journal articles
  • Governmental Immunity Act Developments
    • United States
    • Colorado Bar Association Colorado Lawyer No. 08-1988, August 1988
    • Invalid date
    ...e.g., Counterclaims of Defendants Clarendon National Insurance Co. and San Juan Tours, Inc., note 1, supra. 7. See, e.g., Faber v. State, 143 Colo. 240, 353 P.2d 609 (1960); Abeyta v. City and County of Denver, 165 Colo. 58, 437 P.2d 67 (1968). 8. Evans v. Board of County Commissioners, 174......
  • Trinity Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
    • United States
    • Colorado Bar Association Colorado Lawyer No. 33-12, December 2004
    • Invalid date
    ...1989); and Ruland, "The Changing Concept of Governmental Immunity," 23 The Colorado Lawyer 603 (March 1994). 6. See, e.g., Faber v. State, 353 P.2d 609 (Colo. 7. Evans v. Bd. of Cty. Comm'rs, 482 P.2d 968 (Colo. 1971); Flourney v. Sch. Dist. No. 1, 482 P.2d 966 (Colo. 1971); Proffitt v. Sta......

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