Prisoners’ Rights and the Colorado Governmental Immunity Act

bus crash
Photo: NBC/

In the wake of the tragedy that occurred Wednesday morning in West Texas where 10 people lost their lives after a prison transport bus collided with a freight train, the one thing that comes to a personal injury attorney’s mind is whether the families of those persons who were killed will have the right to file a wrongful death suit against the Texas state government.

Right now, we know that there were 10 people killed – 8 inmates and 2 prison guards – and 5 more injured.  The guards’ families might have a few options, but do the prisoners have the right to sue the state?

Were this to have happened in Colorado, the answer could be tricky.  Under Colorado’s Governmental Immunity Act, public entities and public employees are exempt from suit except in some very specific situations.

One of those exceptions is when a public employee negligently operates a motor vehicle.  This means that if the driver of the prison transport bus was driving in a negligent or reckless manner, the driver (sadly, deceased in the example), the Colorado Department of Corrections and the State of Colorado could be on the hook.

What we know from the news reporting so far is that the road on which the bus was driving was slick with ice; that there was a previous accident on the interstate that may have contributed to the bus losing control; and that, ultimately, the prison bus skidded off an icy highway, slid down an embankment, and collided with a passing freight train.

What makes this question complicated is that a public entity who runs a jail in a negligent manner can be held liable under Colorado’s Governmental Immunity Act.  It would not be a stretch to say that transporting prisoners from one jail to another jail or prison is one of the core functions of a jail.  Therefore, if a personal injury attorney could show that the the actual transport of the prisoners was negligent, then a plaintiff could possibly proceed under this theory.

In this example, for instance, we know that the prisoners were handcuffed together in pairs; that only the driver’s seat had a seatbelt; and that the prisoner transport bus did not have seat belts on the bench-type seats where the prisoners were seated.

But under Colorado law, claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction cannot sue the government for the negligent operation of a jail or prison.  Only those claimants who are incarcerated but not yet convicted of the crime for which they are being incarcerated can sue if they can show injury due to negligence.

Therefore, in this case, a smart Colorado personal injury attorney would not assert that the crash was the result of the negligent operation of a jail because the deceased prisoners in this case were already convicted.  Rather, he would assert that the crash was the result of a public employee’s negligent operation of a vehicle which would then expose the state to suit.  A smart insurance defense attorney, of course, would argue the exact opposite.

As you can see, the Governmental Immunity Act can be a tricky statute.  If you think you might have a claim against a public employee or public entity, call Your Denver Personal Injury Attorney Jeffry Dougan at 303-704-1222 today and set up your FREE initial consultation.  But don’t wait; these cases have very tight timelines.