FLOOD09315

• County: Statewide
• Basin: Statewide
• Title: General Principles of Drainage Law Outline
• Date: 1/15/1980
• Floodplain - Doc Type: Educational/Technical/Reference Information

liable under the doctrine of respondeat superior for the acts of
officers, agents, or employees that are governmental in nature,
but is liable for negligent acts of its agents in the performance
of duties relating to proprietary or private corporatE ourposes
of the city. Denver v. Madison, 142 Colo. 1,351 P.2C 826 (1960).
The construction, maintenance and repair of drainage i.ffi'?rovements
have been regarded as proprietary or corporate functions. Denver
v. Maurer, 47 Colo. 209, 106 P. 875 (1910). Although the govern-
mental-proprietary distinction has been abolished by etatute in
Colorado, the distL.ctior. apparently still obtains whenever lithe
injury arises from the act, or failure to act, of a public employee
would be or heretofore has been personally immune from liability."
C.R.S. ~24-10-106. Thus, a municipality m"y be held liable for
the acts of its officers, agents or employees for injuries res~ltin.
from negligent construction, maintenance, or dar.gerous cor.ditions
of a public facility. C.R.S. ~24-10-106 (l)(e), (1)(0. However,
it is not clear whether, in Colorado, liability attaches or, con-
versely, whether the defense of governmental immunity applies to
the adoption, selection, or approval of a defective EJ-an or design.
The governmental immunity statute provides for a waiver of governmertal
immunity when L1juries result froD the operation and maintenance or
dangerous conditio" of a public facility. C.R.S. ~24..10-106 (1) (e),
(1) (f). The statute a Iso states that Ila dangerous condition shall
not exist solely because the design of any facility.. .is inadequate
in relation to its present use.n C.R.S. ~24-l0-l03 C). Since the
distinction between construction an~ design is often vague, it is
difficult to predict how the Colorado courts will approach municipal
liability for injuries resulting from adoption, selection, or approval
of a defective plan or design by municipal officers, agents, or employees.

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Before an individual ca~ recover from a public entity for injuries
caused by the public entity or one of its employees, Coloradols
governmental immunity statute requires written notice within ninety
days after the date of discovery of the injury to the public entity
involved. Otherwise, failure to notify is a complete defense to a
personal injury action against a municipality. C.R.S. 124-10-109.
Kristensen v. Jones, 575 P.2d 854 (1978).

2. Municipal Liability for Acts of Developers.

Unless an ordinance or statute imposes a duty on a
municipality to prevent or protect land from surface water drainage,
a municipality will not incur liability for wrongfully issuing
building permits, failing to enforce an ordinance, or approvin~
defective subdivision plans. Breiner v. C & P Homebuilder's, Inc.,
536 F.2d 27 (3rd Cir. 1976), reversing the District Court. (In suit
by landowners in adjacent township against borough, its engineers,
and subdivision developer for damages caused by increased flow of
surface water from development where borough approved subdivision

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