A member of the state’s second-highest court has suggested lawmakers revise Colorado’s governmental immunity law to prevent public entities from torpedoing lawsuits by withholding the identity of the actual party responsible for an injury.

Last week, a three-judge panel for the Court of Appeals agreed Jaimi J. Mostellar’s lawsuit against Colorado Springs must be dismissed because she failed to provide notice of her claim within 182 days of her trip-and-fall, which the law requires.

Notably, Mostellar was not injured in Colorado Springs. She fell in Manitou Springs and originally alerted that jurisdiction well within the deadline. However, Manitou Springs did not disclose to Mostellar until more than a year later that Colorado Springs was actually responsible, through an intergovernmental agreement, for maintaining the defective infrastructure that caused Mostellar’s fall.

Judge Rebecca R. Freyre, while agreeing with the panel’s decision to dismiss Mostellar’s lawsuit, wrote separately to advocate for adjusting the hard 182-day notice requirement so that future government defendants cannot game the system.

Mostellar’s case illustrates “the real possibility that public entities can manipulate the jurisdictional 182-day notice requirement by failing to timely inform a plaintiff of intergovernmental agreements,” she wrote.

The Colorado Governmental Immunity Act, with limited exceptions, shields public entities from lawsuits over injuries they cause. Its purpose is to protect tax dollars and prevent a flood of lawsuits from disrupting government services. Among other requirements, plaintiffs must provide the government with notice of their claim within 182 days of injury, regardless of whether they have all relevant information about the circumstances.

On Aug. 26, 2021, Mostellar, who lives in Castle Rock, tripped and fell in Manitou Springs on the base of a bus stop sign that had been removed. She lost multiple teeth as a result. One hundred thirty-one days later, her lawyer notified Manitou Springs of the potential claim.

However, it was not until April 2023 — 600 days after the trip-and-fall — that Manitou Springs disclosed the existence of an intergovernmental agreement making Colorado Springs, not Manitou Springs, responsible for the bus stop sign.

Mostellar then sued Colorado Springs, prompting the city to raise a single argument: the lawsuit was barred because more than 182 days had gone by.

Last October, El Paso County District Court Judge Eric Bentley refused to dismiss the lawsuit. He acknowledged case law was “not 100% clear,” but he ultimately believed the 182-day clock did not begin to run until Mostellar learned of Colorado Springs’ potential responsibility for her injuries.

“Colorado Springs has not demonstrated (or even suggested) that its intergovernmental agreement regarding busing with Manitou Springs was widely known,” Bentley wrote, “or that Mostellar, with reasonable diligence, could or should have discovered it before Manitou Springs’ counsel informed her of it.”

Colorado Springs appealed the decision, prompting members of the appellate panel to express their discomfort at the notion that Mostellar would never have her day in court.

“How would a plaintiff in her circumstances have any idea about the existence of an intergovernmental agreement like that?” asked Judge Katharine E. Lum during oral arguments. “I mean, is the idea that OK, the conditions might be harsh, it might be a little unfair, but the statute sort of doesn’t care about that?”

“Yes, your honor, it is harsh,” responded W. Erik Lamphere of the Colorado Springs City Attorney’s Office. Governmental immunity “is meant to protect taxpayer funds. It’s an acknowledgement that municipalities and government agencies across the state are meant to provide essential services. And if they were treated as a private party, governments across the state would go bankrupt.”

“What’s to stop municipalities from trying to play hide-the-ball so that a plaintiff isn’t able to get notice to the correct entity in time?” wondered Lum.

The panel determined the text of the law and Colorado Supreme Court precedent meant that “substantial compliance” was insufficient. Instead, Mostellar had to alert Colorado Springs within 182 days of her injury, period.

Freyre, in her concurring opinion, suggested the legislature “consider statutory modifications” to prevent Mostellar’s situation from repeating.

“The city’s delay made it impossible for her to comply,” Freyre wrote, quoting from a 2003 Supreme Court opinion that warned, in a similar context, “governmental entities may not mislead potential claimants.”

Judge Matthew D. Grove, writing for himself and Lum in the Oct. 24 majority opinion, echoed Freyre’s concern that “this is a harsh result, and perhaps an inequitable one, under these circumstances.”

Mostellar’s attorney did not respond to a request for comment. A Manitou Springs spokesperson did not return an email from Colorado Politics asking about the city’s delay in disclosing the intergovernmental agreement.

The case is Mostellar v. City of Colorado Springs.