The King is Vulnerable

To place the subject matter of this column in its proper setting-we turn to England-the source of many of our laws.

Early in English legal history, a doctrine evolved around the notion that "the King can do no wrong." It was called "sovereign immunity." Under that principal, British subjects were denied the right to recover damages against the crown or officials or employees of the monarchy for injuries they sustained at the hands of the regally blessed.

Thus, if a royal knight had negligently failed to rein his steed, allowing him to gallop over and destroy a beautiful flower garden, the garden owner could not have recovered for his loss in the English courts.

Perhaps losing sight of the principles upon which our nation declared its independence from the English Crown, the courts of this country generally adopted the English "sovereign immunity" doctrine. Accordingly, if a city employee, while driving on city business, negligently upends a pedestrian, the injured party would have had no redress.

However, in recent years several state courts, the U.S. Congress and the legislatures of a number of the states have either abolished or eroded sovereign immunity laws.

For example, Colorado has a Governmental Immunity Act (Colorado Revised Statutes, Section 24-10-104, et seq.) which partially abrogates sovereign immunity for certain types of governmental wrongdoings. That Act also renders the doctrine unavailable to Colorado governmental bodies to the extent that they have insurance covering the particular claims involved.

Now to the meat.

Because of notions of sovereign immunity, the courts of many states have held that county or municipal building authorities could not be held legally responsible for negligence in failing to detect building code violations in construction they were charged to inspect.


- For instance, Colorado has a statute which generally adopts all of the laws of England existing in the year 1607, excerpt those laws "local to that kingdom." Section 2-4-111, Colorado Revised Statutes.

If, for example, a furnace installation which had been inspected by a local building inspector had not, in fact, been vented according to local building code and the residents of the building were asphyxiated, they or their survivors could not have recovered against the governmental entity for injuries or death if the doctrine of sovereign immunity was applied.

However, the Colorado Court of Appeals has very recently taken the opposite position. It held that La Plata County could be held liable for damages to an injured man who fell off a balcony built contrary to the county building code. Moreland v. Board of County Commissioners, 725 P.2d 1 (Colo. App. 1986). It is important to note that in that particular case the county did have insurance covering claims of this nature and therefore the Colorado Governmental Immunity Act insurance provisions mentioned above applied.

The Colorado court reasoned that the county building authority had a duty to exercise reasonable care to protect against foreseeable injuries in their administration and inspection activities. It reasoned that by adopting a building code (the Uniform Building Code) the County Commissioners "...took affirmative action to alleviate the hazards of poor construction standards, [and that] a common law duty to use reasonable care arose."

The effect of this decision upon Colorado governmental bodies may be significant. It may well lead to desirable overall improvement in the quality of the building department plan reviews and inspections, to the substantial benefit of the public.

That obviously could lead to increased building permit costs, but perhaps the additional expense would be justified by the additional protection which may be afforded. On the other hand, the case may result in further aggravating the problems that Colorado governmental entities have been experiencing in obtaining insurance coverage at tolerable rates.

In any event, the Moreland case represents an important decision which will undoubtedly have a significant impact in the future.

The "King" is vulnerable-and may be liable.