dissenting in part:
I dissent from Part IV of the court’s opinion, in which a plurality of the court upholds the trial court’s entry of summary judgment against the claimants on their due process claim. I would hold that section 24-10-114(l)(b), 10A C.R.S. (1988), which places a $400,000 limitation on the cumulative recovery in tort for injuries and damages to two or more persons in any single occurrence, violates substantive due process of law under the Colorado Constitution when, as here, the limitation is applied in a manner that will bar any recovery by the claimants once the $400,000 limitation has been exhausted.
. I do not dispute the General Assembly’s right to limit an individual claimant’s tort recovery to $150,000. Although such limitation may be less than full compensation in a given case, it nonetheless is adequate to cover most tort claims filed against a public entity and is reasonably related to the governmental objective of safeguarding the fiscal integrity of the public entity in carrying out its many functions. In those rare cases where $150,000 is not adequate compensation, such award still provides the claimant with moderate compensatory damages and, in that respect, is far better than a legislatively decreed governmental immunity for all claims against a public entity. I also concede that the $400,-0000 per-occurrence limitation is not so inadequate as to be facially unconstitutional as violative of due process of law. Most tort claims against the state involve one or two claimants. Even when more than two persons might be injured in a single occurrence, the $400,000 per-occurrence limitation can often be applied in a manner that will provide all claimants with a moderate amount of compensation for their injuries and damages and still accommodate the governmental interest in maintaining fiscal integrity.
In the present case, however, the application of the $400,000 per-occurrence limitation to the thirty-four claimants, nine of whom are pursuing wrongful death claims, so limits what I view as a claimant’s legally protected property interest in receiving a moderate measure of compensation for injuries and damages caused by a public entity as to render that interest illusory in the extreme. I accordingly would not apply the $400,000 per-occurrence limitation as a bar to the claimants’ tort actions, but, rather, would permit each claimant to file and seek recovery for money damages up to $150,000 as provided by the per-claim limitation of section 24-10-114(l)(a), 10A C.R.S. (1988).
I.
I accept the proposition that the Colorado Constitution does not prohibit the General Assembly from altering the nature of a common law tort claim, from eliminating a common law right to damages so long as an adequate substitute remedy is provided, or from imposing reasonable monetary limitations on a tort claim. See generally Kandt v. Evans, 645 P.2d 1300 (Colo.1982); O’Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d 344 (1972). In Lee v. Department of Health, 718 P.2d 221 (Colo.1986), for example, we upheld the facial validity of the monetary limitations of the Colorado Governmental Immunity Act against an equal protection challenge.1 *799The fact that the monetary limitations do not facially violate a claimant’s right to equal protection of the laws under the Colorado Constitution, however, is not to say that such limitations may therefore be applied to any and all circumstances without implicating the due process rights of the victims of a governmental tort.
“[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). “ ‘Equal protection’ ... emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1973). Equal protection analysis, therefore, often involves an assessment of whether a statutory classification is unconstitutionally underinclusive by not including within the class all persons or groups who are similarly situated with respect to the purpose of the legislation or, alternatively, whether a statutory classification is unconstitutionally overinclusive by including within the class persons or groups who are not similarly situated with respect to the purpose of the statutory scheme. L. Tribe, American Constitutional Law 1446-50 (2d ed. 1988). Due process of law, in contrast, “emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.” Ross, 417 U.S. at 609, 94 S.Ct. at 2443. Substantive due process analysis, therefore, looks primarily to whether governmental power is arbitrarily directed against a person so as to deprive that person of a preexisting interest in life, liberty, or property. See People v. Max, 70 Colo. 100, 108-10, 198 P. 150, 154 (1921).
Furthermore, there is a significant difference between upholding the facial constitutionality of a statute and the separate question of the constitutional validity of applying the same statute to a particular set of circumstances. To hold that a statute sufficiently satisfies threshold standards of constitutionality to survive a facial challenge is not to imply that the statute is thereby immune from challenge on grounds of unconstitutional application. See, e.g., Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 337-38, 105 S.Ct. 3180, 3197-98, 87 L.Ed.2d 220 (1985) (O’Connor, J., concurring); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503-04, 102 S.Ct. 1186, 1195-*80096, 71 L.Ed.2d 362 (1982); Lee v. Smith, 772 P.2d 82, 85 (Colo.1989); New Safari Lounge v. Colorado Springs, 193 Colo. 428, 434-35, 567 P.2d 372, 377 (1977). The application of the $400,000 per-occurrence limitation to the claimants in this case is a striking example of applying the facial terms of a statute in a manner that deprives the claimants of a substantial property interest in violation of due process of law.
II.
A legislative enactment creates a legally protected interest when it creates an obligation on the part of the state to others, when it delineates the interest of potential claimants in a specific and concrete manner so as to permit judicial enforcement of the interest, and when it manifests an intent to benefit the class of which the claimants are members. See generally Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989). All three of these elements are present in the Colorado Governmental Immunity Act. First, section 24-10-106(1)(d), 10A C.R.S. (1988), specifically waives sovereign immunity for injuries resulting from a dangerous condition on a public highway. Second, inextricably intertwined with the specific right to recover against a public entity for injuries resulting from dangerous conditions on a public highway is the right of a tort claimant to recover an amount up to $150,000, as codified in section 24-10-114, 10A C.R.S. (1988). Third, the statutory right to recover an amount up to $150,000 is clearly intended to benefit persons such as the claimants in this case.
Construing sections 24-10-106(l)(d) and 24-10-114 as creating a legally protected property interest in recovering money damages from a public entity for injuries and damages tortiously inflicted by the public entity is in accord with basic concepts of fairness. Years ago this court held in Rosane v. Senger, 112 Colo. 363, 370, 149 P.2d 372, 375 (1944), that a legal right to recover damages for a tortiously inflicted injury is a property interest protected by due process of law. Our holding in Rosane is by no means unique in that respect. See, e.g., National Ass’n of Radiation Survivors v. Derwinski, 778 F.Supp. 1096 (N.D.Cal.1991) (on remand from Supreme Court’s decision rejecting facial due process challenge to $10 statutory limit on attorney fees for assisting with disability claims before Veterans Administration, federal district court holds statute violative of due process as applied to claimants’ constitutionally protected property interest in presenting complex claims for disability based on ionizing radiation); Condemarin v. University Hospital, 775 P.2d 348, 356-60 (Utah 1989) (Durham, J.) (holding that the balancing of statutory limitation on tort award against governmental entity and the purpose served by statutory limitation should be analyzed under due process, rather than equal protection, in order to take proper account of serious abrogation of important substantive right to recover for personal injuries caused by governmental entity). Moreover, no one today can seriously question the proposition that a person has an interest in freedom from bodily harm tortiously inflicted by a governmental entity and that such interest qualifies as a liberty interest for due process purposes. See Daniels v. Williams, 474 U.S. 327, 341, 106 S.Ct. 677, 679, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring). Finally, we have previously recognized that the heirs of a victim killed as a result of a governmental tort may rightfully claim “a personal constitutional liberty interest” in the continued life of their deceased spouse, parent, or child. Espinoza v. O’Dell, 633 P.2d 455, 463 (Colo.1981), cert. granted, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 109 (1981), cert. dismissed, 456 U.S. 430, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982). If a person has a liberty interest in personal security against gov-ernmentally inflicted bodily injury and also a “personal constitutional liberty interest” in the continued life of a spouse, parent, or child, it follows axiomatically that the same person should be accorded the right to seek some measure of moderate compensation to redress the unlawful governmental deprivations of those interests. Otherwise, *801the interests themselves become nothing more than legal fictions.
To be sure, the nature and extent of the property interest in recovering moderate compensation for injuries and damages caused by tortious governmental conduct finds its source in state law, specifically the Colorado Governmental Immunity Act, §§ 24-10-101 to -120, 10A C.R.S. (1988 & 1991 Supp.). The mere fact that a property interest originates in state law, however, does not mean that a statutory scheme that creates the property interest is beyond the pale of an unconstitutional application in violation of due process of law. The plurality accepts the fact that the statutory scheme waives sovereign immunity in tort for injuries resulting from a dangerous condition on a highway and grants the tort victim the statutory right to sue and recover from the public entity responsible for the dangerous condition a judgment not in excess of $150,000, §§ 24-10-106(l)(d) & 24-10-114(l)(a), 10A C.R.S. (1988), but then, enigmatically in my view, permits the $400,000 per-occurrence limitation to annul that same statutory right whenever the total damages awarded to other victims of the same disaster have exceeded the statutory limitation. In reaching that result, the plurality reasons that “[sjection 24-10-114 is a limited remedial statute” which “supplies a carefully defined range of remedies for causes of action created under other sections of the Act” and thus does not create a “cognizable interest in support of [the claimants’] due process claim.” Plurality op. at 792. The $400,000 per-occurrence limitation of section 24-10-114(1), however, can hardly be considered “remedial” when its application to the multi-victim disaster in this case results in depriving most of the injured claimants, as well as most of the heirs or representatives of those killed in the accident, of any legal redress whatever for their respective injuries and damages. I view the plurality’s rejection of the claimants’ due process claim as countenancing the very type of incongruous creation and annulment of a significant property interest that the doctrine of unconstitutional application was designed to prohibit.
The state may not grant the victim of a governmental tort a property interest in recovering a judgment against a public entity and then, in the same statutory scheme, so condition the right on circumstances beyond the control of the victim as to result in the abolition of the very interest created by the statute. In holding otherwise, the plurality employs a “bittersweet” analysis which requires a tort claimant to take the “bitter” per-occurrence limitation with the “sweet” statutory right to sue the governmental tortfeasor. That analysis, however, leads to the anomalous result of elevating the $400,000 limitation to the status of a fundamental defining element of the very interest created by the statute. A property interest, “cannot be defined by the procedures provided for its deprivation any more than can life or liberty.” Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). On August 10, 1987, therefore, when Department of Highways employees moved a 6.7-ton boulder off the side of a public highway and caused it to roll down Berthoud Pass and strike a bus and kill nine occupants and injure twenty-five occupants, each injured victim and the heirs or representatives of each deceased victim had a legislatively created and legally protected property interest in suing the state and in receiving a compensatory damages award, not to exceed $150,000, upon proving that the Department of Highways was legally at fault in causing the dangerous road condition.
III.
It should be kept in mind that this case comes to us on summary judgment and that, consequently, the trial court’s judgment can be affirmed only if this court is convinced that the application of the $400,-000 per-occurrence limitation would not violate due process of law under any set of factual circumstances disclosed by the record. E.g., Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988); Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo.1987); Mount Emmons Mining Co. v. Town of Crested *802Butte, 690 P.2d 231, 238-41 (Colo.1984). I am unable to conclude that the application of the statutory limitation is consonant with due process of law under the state of the record in this case.
The record shows that the costs incurred by only a few of the nine persons killed and the twenty-five persons injured in this disaster will exhaust the statutory per-occurrence limitation. A hospital that treated one of the victims killed in the accident has filed a lien for $327,907.60 for medical costs. In addition, one of the injured victims has tendered a notice of claim to the Attorney General alleging damages in the amount of $150,000, and another injured victim has filed a notice of claim in the amount of $500,000. The record also contains an affidavit from an experienced arbiter who reviewed the documents relating to the damages incurred by the claimants. The arbiter’s affidavit states that the probable aggregate of damage to all claimants and their families greatly exceeds $400,000 and that the damage to several individual claimants clearly exceeds $150,000. Obviously, therefore, if one wrongful death claimant receives $150,000, and the two other injured claimants collect $150,000 and $100,000 respectively on their claims, the remaining thirty-one victims will be left without any recourse whatever to obtain compensation for their injuries. Even if the $400,000 were to be divided equally among all claimants, the resulting award of approximately $11,000 to each claimant would amount to nothing more than an illusory remedy at best when the $11,000 is weighed against the staggering medical costs, injuries, lost wages, permanent disability, loss of earning capacity, pain and suffering, and loss of enjoyment of life incurred by the claimants.
Finally, so far as the record before us shows, permitting each claimant to sue the Department of Highways and recover a judgment for $150,000 would not endanger the fiscal integrity of the state. By statute, the Division of Risk Management is charged with the administration of the fund out of which claims against a state public entity are paid. §§ 24-30-1501 to - 1520, 10A C.R.S. (1986 & 1991 Supp.). The Risk Management Division, in the discovery phase of the case, produced several annual reports which it prepared for the General Assembly. The 1989 report, which is the latest in the record, shows that since the year 1985 the Division received state appropriations of approximately $7,000,000 and earned $549,922 in interest on those appropriations. 1989 Annual Report of Division of Risk Management at 2. During this same period the Division paid out only $927,437 in claims and set aside $1,707,861 in reserve for open claims. Id. at 4. The record also shows that a task force appointed by the Governor to study the liability limits of the Colorado Governmental Immunity Act found that approximately 1500 claims per year were filed against the state since 1985, that the average payment on these claims was $1,000, and that the largest payment was only $50,000. Governmental Immunity Limits Task Force Report to Governor and General Assembly at 3 (1988).2
Under the circumstances of this case, the application of the $400,000 per-occurrence limitation to the thirty-four claimants consigns them to running a “race to judgment” in order to vindicate their rights. The speed at which a judgment may be obtained in that race is, for all practical purposes, a matter of chance. Yet, to all who lose the race, the “law has become a *803phantom and justice a dream, and constitutional guarantees of the sacredness of life, liberty, and property, ‘a tale ... full of sound and fury, [signifying nothing.’” Max, 70 Colo. at 112, 198 P. at 155.
I accordingly dissent from the plurality’s rejection of the claimants’ due process claim.
MULLARKEY, J., joins in this dissent.
. In Lee v. Department of Health, 718 P.2d 221 (Colo.1986), Lawrence Wayne Lee was injured in an automobile accident and brought suit against the Department of Health for the negligence of its employee in causing the accident. Lee’s claim was in excess of the $150,000 limitation, and Lee’s wife sued for loss of consortium in the amount of $150,000. The jury by special verdict found that Lee sustained total damages of $606,409.36 as a result of the combined negli*799gence of the state employee and Lee, and attributed 51 percent of the negligence to the state employee and 49 percent to Lee. The jury made an identical apportionment of negligence on the wife’s claim for loss of consortium and determined that her total damages amounted to $100,000. The trial court reduced Lee’s award to $150,000 pursuant to the statutory per-claim limitation and also reduced the wife’s award, based on the imputed negligence of Lee, to $51,000.
Lee raised a multitude of issues on appeal, including the claim that the monetary limitations of the Governmental Immunity Act violate equal protection of the laws by effectuating an arbitrary classification between public entities, which are subject only to limited liability under the statutory scheme, and private tortfeasors, who are responsible for all harms caused by their negligence. In rejecting Lee's equal protection challenge, we concluded that the statutory classification relating to claims against a public entity, although treating public entities differently from private tortfeasors, was based on real differences in fact between governmental and private tortfeasors. Public entities, we held, "are responsible for providing a vast array of governmental services to the public and, as a result, are exposed to far greater liability and risks than a private individual.” 718 P.2d at 227. The legislative decision to limit the public entity’s liability, we stated, “proceeds from actual differences in the magnitude and character of the functions assumed by public entities and in the effect of greater potential liability exposure on the public entity’s ability to continue its governmental functions.” Id. We went on to conclude that the statutory classification “is reasonably related to the governmental objective of providing fiscal certainty in carrying out the manifold responsibilities of government.” Id. at 227-28.
Our decision in Lee resolved only the facial validity of the monetary limitations in the context of an equal protection challenge. We did not consider whether the $400,000 per-occurrence limitation would pass constitutional muster under a due process analysis when applied in a manner that deprives a tort claimant of any meaningful redress for injuries and damages suffered as a result of the legal fault of a governmental entity in performing an activity for which the state had expressly waived the defense of sovereign immunity.
. The task force recommended that section 24-10-114, 10A C.R.S. (1988), be amended by the addition of the following subsection:
(5) Notwithstanding the limits established in this section, a judgment or judgments may be claimed and rendered against the state in excess of these amounts, provided that the portion of the judgment or judgments which exceeds the limits shall not be paid until and unless the General Assembly authorizes payment of the whole portion or any part thereof which exceeds the limits. Any claimant may present proof of judgment to the General Assembly and request payment of that portion of the judgment which exceeds the limits. Any portion in excess of the limits shall be paid from the general fund or any other funds established by the General Assembly.
Governmental Immunity Limits Task Force Report to Governor and General Assembly at 2 (1988).