State Ex Rel. Colorado State Claims Board of the Division of Risk Management v. DeFoor , 16 Brief Times Rptr. 203 ( 1992 )

Justice MULLARKEY

specially concurring in part and dissenting in part:

I.

I specially concur in Part V of the majority opinion which remands for trial the claims asserted pursuant to 42 U.S.C. § 1983 (1988) (“1983 claims”) against the individual state defendants. The 1983 claims allege that: (1) the individual defendants were “grossly negligent, reckless, and showed deliberate indifference to the public safety and human life” with respect to formulating and executing the Colorado Department of Highways (“Highways”) policies on removing boulders from the Berthoud Pass road, and (2) the individual defendants’ actions and inactions violated the complainants’ due process protected rights to life, liberty, personal security and safe travel.

Taken in a light most favorable to the claimants, the facts show that Highways employee Phillip Pacheco deliberately pushed a 6.7 ton boulder off a switchback and over a steep incline directly above a well-traveled road. It rolled down the mountainside nearly 800 feet and struck the bus in which the claimants were riding. The custom and policy of clearing the road in such a dangerous manner had been followed by Highways for years. Prior experience, as well as a Highways-conducted study showing that neither trees nor cement and steel guardrails could be relied upon to halt a rolling boulder on a steep slope, made the defendants aware that the boulder was likely to roll onto the road below. Pacheco was the only employee working at the site at the time, and there were no flaggers or other devices to stop traffic on the road below. Thus, the evidence in the record supports the allegations of the 1983 claims that the individual employees’ acts and omissions were grossly negligent, reckless or deliberately indifferent to public safety and human life.

I agree that the allegations adequately state 1983 claims. In Espinoza v. O’Dell, 633 P.2d 455, 464 (Colo.1981), cert. granted 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 109 (1981), and cert. dismissed 456 U.S. 430, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982), we upheld a 1983 claim asserting a protected liberty interest in the children of a man who was shot and killed by police officers and we concluded that there must be a remedy when “the government itself becomes the source of danger to an individual’s rights.” In Uberoi v. University of Colorado, 713 P.2d 894, 903 (Colo.1986), we held that allegations of gross negligence, recklessness or intentional conduct are sufficient to raise 1983 claims under the due process clause. Read together, Espinoza and Uberoi support the 1983 claims now before us.

Moreover, other jurisdictions have upheld 1983 claims similar to those presented here. See, e.g., Morrison v. Washington County, 700 F.2d 678 (11th Cir.1983), cert. denied 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983) (reinstating 1983 claim against a public hospital where the hospital had an “unruly” patient jailed and the patient died while in jail); Ruge v. City of Bellevue, 892 F.2d 738 (8th Cir.1989) (1983 claim held stated by estate of worker killed in a trench cave-in where defendant city had deliberate policy of not shoring its trenches). See also William Burnham, Separating Constitutional and Common-Law Torts: A Critique and a Proposed Constitutional Theory of Duty, 73 Minn. L.Rev. 515, 518-19 (1989) (discussing the origins of deliberate indifference 1983 claims in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)).

Our decision reversing the trial court’s dismissal of the 1983 claims necessarily rejects the qualified immunity defense asserted by the individual state defendants on appeal. The 1983 claims were clearly established under the test developed in Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987), and Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). I recognize that, on remand, the defendants again may claim qualified immunity contending that their conduct was objectively reasonable. Guider v. Smith, 431 Mich. 559, 431 N.W.2d 810, 816, n. 15 (1988) (trial court may consider immunity claims on motion to dismiss, motion for summary judgment and as defense to liability in trial on the merits). But, if so asserted, the qualified immunity claim must await a trial on the merits because conduct cannot be both deliberately indifferent as the claimants allege and objectively reasonable. See David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U.Pa.L.Rev. 23, 57 (1989) (deliberate indifference precludes finding of objective reasonableness required to prove qualified immunity). Accordingly, these claims should proceed to trial.

II.

I agree with Justice Quinn that the $400,-000 per occurrence cap contained in section 24-10-114(1)(b), 10A C.R.S. (1988), is unconstitutional but I write separately because my reasoning differs in part from his. In my view, there is no rational basis for the $400,000 cap and I would strike the cap as violating the equal protection guarantees of the state and federal constitutions. This issue was not before the court in Lee v. Department of Health, 718 P.2d 221 (Colo.1986), and, for that reason, Lee is not dis-positive. Accordingly, I join Justice Quinn’s dissent from Part IV of the plurality opinion and I also dissent from Part II of the majority opinion.

It is clear that, for purposes of state liability, the governmental immunity act creates two categories of injured persons. The first category is those injured in incidents involving only one or two victims. The second category is persons injured in incidents involving more than two victims. Victims in the first category may collect $150,000 per person while recovery in the second category is limited to $400,000 in total. As the number of victims in a single incident increases, the amount recoverable per person decreases until, in a case like this, only a token recovery is possible for each individual.

The validity of these two categories must be tested under the rational basis standard. That test requires that “the statutory classification has a reasonable basis in fact and bears a reasonable relationship to a legitimate governmental interest.” Lee, 718 P.2d at 227. In our jurisprudence, the rational basis test is not a “rubber stamp” signalling automatic approval of the challenged legislation but rather it requires a careful consideration of the reasonableness of the legislative classifications at issue. Recently, in Gallegos v. Phipps, 779 P.2d 856 (Colo.1989), we applied the rational basis test and struck down a statute which attempted to reinstate the common law categories of trespasser, licensee and invitee for purposes of premises liability. We found that the duties imposed on landowners were not rationally related to the categories of injured persons created by the statute. Id. at 862 (the statutorily created hierarchy of duties “bears no rational relationship to a legitimate governmental interest and can be justified neither historically nor logically.”). See also Austin v. Litvak, 682 P.2d 41 (Colo.1984) (plurality opinion) (invalidating medical malpractice statute of repose under rational basis test).

Here the reasonableness of the two statutory categories must be evaluated in light of the stated goal of providing fiscal certainty to the state. Lee, 718 P.2d at 227-28. The legislature’s different treatment of the two categories is arbitrary because no limitation at all is placed on the total claims paid or the number of claims paid in a given time period. The legislature may not have to do exact justice when drafting its statutes but the fit here is so rough and the adverse consequences are so great that the $400,000 limitation cannot stand. Consistent with the fiscal certainty goal, the $150,000 per person limit should be applied to the single incident, multiple victim case.

For these reasons, I dissent from Parts II and IV.

QUINN, J., joins in Part I of this concurrence and dissent.