Kristensen v. Jones
| Decision Date | 13 March 1978 |
| Docket Number | No. C-1208,C-1208 |
| Citation | 195 Colo. 122,575 P.2d 854 |
| Parties | Kurt W. KRISTENSEN and Regional Transportation District, Petitioners, v. Sophronia J. JONES, Respondent. |
| Court | Colorado Supreme Court |
Walberg & Pryor, Hugh G. Bingham, Denver, for petitioners.
Prickey & Cairns, Richard H. Cairns, Dan W. Corson, Denver, for respondent.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Jeffrey G. Pearson, Asst. Atty. Gen., Denver, for amicus curiae The State of Colorado.
Yegge, Hall & Evans, David R. Brougham, Denver, for amicus curiae The Insurer for the State of Colorado.
On May 22, 1975, the respondent's car was involved in a collision with a bus owned by petitioner Regional Transportation District (RDT), and driven by one of its employees, petitioner Kurt W. Kristensen. Kristensen and an RTD supervisor talked with the respondent and filed accident reports with RTD that day. The reports, which were transmitted to RTD's insurance carrier the following day, included notations that the respondent had complained of pain in her shoulder. On June 6, 1975, RTD's insurance carrier paid for the damage to the respondent's car.
The respondent filed suit for damages for personal injuries on September 8, 1975, naming both RTD and the bus driver as defendants. The trial court dismissed the complaint because the respondent had failed to file the written notice required by the Colorado Governmental Immunity Act, 1 and rejected the respondent's arguments that she had substantially complied with the statute or that waiver or estoppel prevented RTD from asserting it as a defense. The court of appeals affirmed in part and reversed in part, holding that the complaint against RTD was properly dismissed, 2 but that the respondent's claim against the bus driver in his individual capacity was not barred by her failure to comply with the Immunity Act's notice requirements. Jones v. Kristensen, Colo.App., 563 P.2d 959 (1977). We granted certiorari, and now affirm the court of appeals' decision.
The petitioners first contend that the written notice of claim specified in section 24-10-109, supra, is a condition precedent to maintaining a suit against a public employee in his individual capacity. We do not agree.
Public employees generally have been personally liable for injuries caused by their negligent actions within the scope of employment even when the defense of sovereign immunity was available to their employers. Antonopoulos v. Town of Telluride, 187 Colo. 392, 532 P.2d 346 (1975); Liber v. Flor, 143 Colo. 205, 353 P.2d 590 (1960). Negligent operators of public vehicles have been included in this rule. See generally Prosser, Torts § 132 (4th Ed. 1971); 5A Personal Injury; Actions, Defenses and Damages, Public Officers and Employees § 1.01 et seq. (Bender), and cases cited there. An injured person's right to sue the negligent employee of an immune public entity derives from the common law, and we will not lightly infer a legislative abrogation of that right absent a clear expression of intent. Collard v. Hohnstein, 64 Colo. 478, 174 P. 596 (1918). 3 No such intent is either expressed or implied in the Immunity Act.
First of all, the legislative declaration of intent provides as follows:
Section 24-10-102, C.R.S. 1973 (emphasis added).
This declaration clearly indicates that the Immunity Act is designed to deal only with the liability of the ; there is no mention of individual employee liability.
Moreover, it is well-recognized, and specifically noted in section 24-10-102, supra, that the Immunity Act is a legislative response to this court's abolition of the common law sovereign immunity doctrine, 4 and was intended to define the bounds of public entity liability in light of our decision. Since the common law doctrine did not affect an individual employee's liability, it was not necessary that either this court's abrogation of that doctrine or the General Assembly's enactment of the Immunity Act deal with that liability, and neither our opinion nor the statute 5 did so. Antonopoulos v. Town of Telluride, supra.
Therefore, since the Immunity Act is directed only toward the liability of public entities, the notice of claim requirements of that act are, by their terms, inapplicable:
"Substantial compliance with the notice provisions of this section shall be a condition precedent to any action brought under the provisions of this article, and failure of substantial compliance shall be a complete defense to any such action." Section 24-10-109(1), C.R.S. 1973 (emphasis added).
It seems obvious that, since the respondent's claim against the bus driver individually was a common law claim and not "brought under" the Immunity Act, no notice of claim was required. Antonopoulos v. Town of Telluride, supra.
The petitioners also challenge the court of appeals' holding that if a claimant fails to give the notice required by section 24-10-109, a public entity cannot be liable under section 24-10-110 for a judgment against an employee in his individual capacity or for the employee's cost of defense. Having considered the petitioners' arguments and reviewed the Immunity Act as a whole, we conclude that the court of appeals' analysis is correct, and adequately disposes of the issue. As that court noted, to hold otherwise would enable claimants to reach a public entity's resources indirectly when failure to give notice prevents them from doing so directly under the Immunity Act. There is no indication in the statute that the General Assembly intended such a result.
Finally, the respondent challenges the court of appeals' decision regarding the issues of...
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