Today, the Colorado Supreme Court reversed the decision by the intermediate appellate court, in an important onion regarding the reach of Colorado's Governmental Immunity Act. In Henisse v. First Transit, The Supreme Court held that by the language of the Colorado Governmental Immunity Act, specifically section 24-10-103(4), the General Assembly did not intend for employees of independent contractors to be considered “public employee[s]” within the meaning of the Act.
Further, the independent contractor itself is not "protected" by the Act. Protection in this case means that if immunity is waived, any damages for which those who are otherwise covered by the Act may be found liable, are capped at $150,000.
The plaintiff was injured when her car collided with an RTD bus driven by an employee of First Transit, Inc., a private company which hires out "bus drivers" for various RTD bus routes under contract with RTD.
First Transit moved the trial court for a determination of law under a procedural mechanism which should be used more often: C.R.C.P. 56(h). The legal question was whether the Act's $150,000 damages cap applied to the bus driver and to First Transit. The trial court thought so, as did the court of appeals, which affirmed the trial court, holding that the bus driver was a common law employee of RTD and thus a “public employee” under the Act.
The Act provides that a public entity or a public employee acting within the scope of his or her employment “shall be immune from liability in all claims for injury which lie in tort or could lie in tort . . . .”
Under the old doctrine of expressio unius est exclusio alterius, because the General Assembly explicitly included some groups that would not normally be considered “public employee[s]” under the Act, the legislature necessarily excluded all others not fitting the definition.
The Supreme Court reached the right result in this case. Courts should be wary of limiting the rights of those injured unless a statute speaks clearly and with particularity.