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Measure aims to protect water, sewer districts
Governments that operate water and sewage facilities could be found liable for accidents that occur in irrigation and rainwater drainage ditches after two Colorado Supreme Court decisions in 2002.
By By: Sean Hadden
Governments that operate water and sewage facilities could be found liable for accidents that occur in irrigation and rainwater drainage ditches after two Colorado Supreme Court decisions in 2002.
To remedy this potentially costly scenario, several civic groups and others, including the Douglas County attorney, are pushing a law, House Bill 1288, in the existing session of the Colorado Legislature that would reverse the potential liability.
The cases, Colorado Springs v. Powell, and Longmont v. Henry-Hobbs, awarded damages after drownings in ditches, said Corolynne White, staff attorney for the Colorado Municipal League.
Because of the wording in these decisions, the court has interpreted irrigation and drainage ditches to be part of sanitation facilities, says a document from the league that describes HB 1288.
In one of the cases a city was found liable because it had a small financial interest in a private company that owned the irrigation ditch in which someone drowned, White said.
"It's a classic case of bad facts make bad law," she said. She said by her interpretation, the court felt empathy and wanted to compensate the families of the drowning victims.
But the legal can of worms the decisions open is potentially huge, she said, and many people around the state recognized it simultaneously.
Thus HB 1288 was born, White said.
The bill recently passed the Colorado House of Representatives and because of the Douglas County attorney's involvement in the bill, Sen. John Evans, R-Parker, will sponsor it in the Colorado Senate.
The bill is not yet scheduled for Senate committee hearings, said Douglas County spokeswoman Kristin French.
White said it is not fair to make any entity liable for any situation in which they have no control over the potential danger.
Under the Colorado Governmental Immunity Act, governments are immune to most liability because if not, the services they provide that the public depends on could face disruption or become prohibitively expensive.
Certain government installations, including public water and sanitation facilities, waive the immunity.
White said the waiver comes from a government's ability and responsibility to maintain and control these facilities and keep them safe for those who work in and visit them.
But should irrigation and drainage ditches continue to be considered part of sanitation facilities, there is no way governments could control all of them.
"There are literally thousands of miles of those ditches running next to nearly every road," White said. "[Sanitation facilities] don't have the ability to fence them and protect them and keep people out of them."
Including these ditches in the definition of sanitation facilities exposes governments, including counties, to potentially broad liability, the league document says.
HB 1288 is an effort to break the "legislative silence" to counter the effect of the court's interpretation.
To remedy this potentially costly scenario, several civic groups and others, including the Douglas County attorney, are pushing a law, House Bill 1288, in the existing session of the Colorado Legislature that would reverse the potential liability.
The cases, Colorado Springs v. Powell, and Longmont v. Henry-Hobbs, awarded damages after drownings in ditches, said Corolynne White, staff attorney for the Colorado Municipal League.
Because of the wording in these decisions, the court has interpreted irrigation and drainage ditches to be part of sanitation facilities, says a document from the league that describes HB 1288.
In one of the cases a city was found liable because it had a small financial interest in a private company that owned the irrigation ditch in which someone drowned, White said.
"It's a classic case of bad facts make bad law," she said. She said by her interpretation, the court felt empathy and wanted to compensate the families of the drowning victims.
But the legal can of worms the decisions open is potentially huge, she said, and many people around the state recognized it simultaneously.
Thus HB 1288 was born, White said.
The bill recently passed the Colorado House of Representatives and because of the Douglas County attorney's involvement in the bill, Sen. John Evans, R-Parker, will sponsor it in the Colorado Senate.
The bill is not yet scheduled for Senate committee hearings, said Douglas County spokeswoman Kristin French.
White said it is not fair to make any entity liable for any situation in which they have no control over the potential danger.
Under the Colorado Governmental Immunity Act, governments are immune to most liability because if not, the services they provide that the public depends on could face disruption or become prohibitively expensive.
Certain government installations, including public water and sanitation facilities, waive the immunity.
White said the waiver comes from a government's ability and responsibility to maintain and control these facilities and keep them safe for those who work in and visit them.
But should irrigation and drainage ditches continue to be considered part of sanitation facilities, there is no way governments could control all of them.
"There are literally thousands of miles of those ditches running next to nearly every road," White said. "[Sanitation facilities] don't have the ability to fence them and protect them and keep people out of them."
Including these ditches in the definition of sanitation facilities exposes governments, including counties, to potentially broad liability, the league document says.
HB 1288 is an effort to break the "legislative silence" to counter the effect of the court's interpretation.
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