Breach of Contract is Not Tort

Governmental Immunity Act does not shield City from Property Owner’s Breach of Contract Claim

May 10, 2023

The City of Colorado Springs contracted with an owner to construct a water quality pond on its property to protect downstream developments and City infrastructure after the Waldo Canyon Fire. When the pond failed to operate as intended the property owner sued the City for breach of contract. Notwithstanding the written contract between the parties, the City claimed the owner’s claim was barred by the Colorado Governmental Immunity Act. The District Court denied the City’s motion to dismiss and the City appealed. In April, 2023, Court of Appeals made short work of the City’s contention when it determined the City was bound by its contractual obligations to the property owner. If a governmental entity is not bound by the contracts it executes by claiming governmental immunity, no one would contract with them. The case was remanded to the District Court for a jury trial on the merits. Murray Weiner argued the case in the Court of Appeals. Mulliken Weiner Berg & Jolivet, P.C. partner, Erin Leach, and Bruce Wright of Flynn & Wright, LLC assisted with the appeal.

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