Faber v. State

353 P.2d 609, 143 Colo. 240, 1960 Colo. LEXIS 559

• Court: Supreme Court of Colorado
• Decided: May 31, 1960
• Docket: 18700
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the Court.

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, 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 Denver v. Madison, No. 18,365, announced January 11, 1960, 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 So. Dak. 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.

Mr. Justice Hall and Mr. Justice Frantz dissent.