Colorado’s damages cap set after 1987 bus tragedy

DENVER – The Lower North Fork Fire, which firefighters have been fighting since Monday, when strong winds whipped what had started as a controlled burn out of control, has likely already caused several millions of dollars in damages.

On Wednesday, the Colorado Forest Service accepted responsibility for starting the burn last week and apologized to homeowners.

And yet, the state, if sued by homeowners or insurance companies facing millions in payouts, would only be on the hook to pay a grand total of $600,000 – to be divided among all of the people who lost loved ones, their homes or other property or suffered injuries.

"What tort reform means is that injured people who need money to rebuild their lives cannot get that money," said Tom Russell, a professor at the University of Denver's Sturm College of Law.

The state-imposed cap on damages hasn't been raised in 25 years, since the last state-caused accident that tested Colorado's liability, a tragic incident in which a car-sized boulder crushed a tour bus driving along Berthoud Pass, where the state was clearing rock just above the road.

"It was clearly a negligent act by the state," recalled Wade Buchanan, who was a young policy analyst for Colorado's newly-minted Gov. Roy Romer when the incident occurred in August 1987. "There was supposed to have been a stoppage of traffic while they were clearing the boulders up above, and there hadn't been."

In an interview Thursday with FOX31 Denver, Buchanan recalled how Romer directed his entire staff to make things right.

"Here were all these people who, mostly, were guests in our state and we were responsible for this tragedy," said Buchanan, who was dispatched to Denver General Hospital, where he spent weeks at the bedside of a German teenager, Marcus Lang, who lay in a coma after being crushed by the boulder.

"He laid there in a coma for three months," Buchanan said. "And then he died a few months after going back to Germany."

In archival footage from 1987, Romer is shown in his office at the Capitol promising reporters that his administration would make things right with the victims' families.

"I'm accepting responsibility for the state," Romer said then. "And if there are any people out there who have a need, I'm going to meet that need, we'll let the law catch up to us later."

Romer promised that the state would pay medical costs for the injured, help bring family members to Colorado and provide counseling; and his admission that the state's liability cap, then set at $400,000, was far too low made national news.

"He was just a stand-up guy, and a very hands-on guy," Buchanan recalled. "He liked to think he could fix things."

Romer called together a task force and asked lawmakers to look at ways to make it easier for victims to claim damages against the state.

"We went in with an attitude that this is wrong and we needed to make it right," Buchanan said. "But we realized very quickly what a complex issue this actually is."

Colorado decided to raise the cap on damages it would pay in such an event from $400,000 to $600,000, which is where it still sits now.

As long as victims of the Lower North Fork Fire have insurance, they will simply be forced to pay their deductibles and their insurance companies should pick up the rest of the tab.

Gov. John Hickenlooper, who made his first tour of the fire line on Thursday a day after returning from a four-day trade mission to Mexico City, acknowledged the state's responsibility and the need to do right by the fire's victims, but also explained how the damages cap protects all Colorado taxpayers.

"As a community we have to decide, do we want our counties and our municipalities to be paying taxes to these insurance companies to protect us whenever a public official makes a mistake," Hickenlooper told reporters during a press conference in Conifer Thursday.

"We have to decide, do we want to spend our tax money making sure whenever a government official, a county person, a municipal worker, when they make a mistake, that the person who suffers from that mistake can be fully compensated."