Opinion by JUDGE NAVARRO
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver — Actions Against Public Employees
A division of the Colorado Court of Appeals considers the district court's dismissal of a pretrial detainee's allegations that she suffered injuries resulting from a jail employee's willful and wanton conduct during the operation of the jail. The division concludes that these allegations do not implicate the employee's sovereign immunity under the Colorado Governmental Immunity Act because such immunity is waived for injuries resulting from the operation of a jail by a public entity. Because the allegations of willful and wanton conduct do not raise an immunity issue, the district court erred by dismissing them before trial via C.R.C.P. 12(b)(1) and a hearing of the type described in Trinity Broadcasting of Denver, Inc. allegations via Rule 12(b)(1) and a Trinity hearing, we vacate the order and remand for further proceedings.
I. Preliminary Background Information
¶ 3 Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center (the jail), operated by the Denver Sheriff Department. She sued six jail employees, including Dodson, alleging negligence and willful and wanton conduct. Hernandez also sued the City and County of Denver, alleging negligence. Following a Trinity hearing, the district court found that Dodson and another defendant had not engaged in willful and wanton conduct; therefore, those defendants enjoyed immunity from suit on those allegations. Hernandez's negligence claims against Dodson and the other defendants were not dismissed, and those tort claims remain pending. Hernandez brought this interlocutory appeal in which she challenges only the court's (effective) dismissal of the willful and wanton allegations against Dodson. See § 24-10-118(2.5), C.R.S. 2018. ¶ 4 Before discussing the factual and procedural history in more detail, we will address the foundational law governing sovereign immunity.
II. Foundational CGIA Law
¶ 5 The CGIA grants sovereign immunity to public entities and "is designed to shield public entities from tort liability, unless the circumstances of an asserted claim bring it within one (or more) of the statute's expressly defined waiver provisions." St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 12. Through the CGIA, the General Assembly sought to protect public entities not only from the costs of judgments but the costs of unnecessary litigation as well. Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1260-61 (Colo. 2003). Sovereign immunity thus protects a public entity from a "meaningless" trial. Id. at 1261. Consequently, jurisdictional prerequisites to suit as well as statutory defenses to claims may present immunity issues. See id. at 1255-56 (recognizing that, although the notice provisions of section 24-10-109(1), C.R.S. 2018, create a jurisdictional prerequisite to suit while the notice provisions of section 24-10-109(3) provide a statutory defense to claims, both raise immunity issues because both could bar a suit from proceeding). In short, a sovereign immunity issue is one that could afford the public entity immunity from suit. See id. ¶ 7 The CGIA grants immunity to public entities "from liability in all claims for injury which lie in tort or could lie in tort regardless of whether this may be the type of action or the form of relief chosen by the claimant . . . ."§ 24-10-106(1), C.R.S. 2018. Immunity is expressly waived, however, in certain situations, including in an action for injuries resulting from "[t]he operation of any . . . correctional facility . . . or jail by such public entity." § 24-10-106(1)(b). The waiver of sovereign immunity created in section 24-10-106(1)(b) applies to "claimants who are incarcerated but not yet convicted of the crime for which such claimants are being incarcerated if such claimants can show injury due to negligence." § 24-10-106(1.5)(b). ¶ 8 Regarding public employees, the CGIA states as follows:
A public employee shall be immune from liability in any claim for injury . . . which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant and which arises out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing such injury was willful and wanton;
except that no such immunity may be asserted in an action for injuries resulting from the circumstances specified in section 24-10-106(1) .
§ 24-10-118(2)(a) (emphasis added). ¶ 9
Section 24-10-118(2)(a) thus provides a public employee immunity against tort liability except where (1) the act or omission causing injury was willful and wanton;
or (2) the action is for injuries resulting from a circumstance identified in
section 24-10-106(1).
Ramos v.
City of Pueblo, 28 P.3d 979, 980 (Colo. App. 2001);
cf.
State v.
Nieto, 993 P.2d 493, 507 (Colo. 2000) ("Here, the negligent acts and omissions of defendants . . . were committed in the course of operating a correctional facility. These public employees . . . are not immune from liability pursuant to
sections 24-10-118(2) and 24-10-106(1)."). ¶ 10 Under the first exception, whether the employee's conduct was willful and wanton presents an issue of immunity that must be
addressed before trial via Rule 12(b)(1), just like any other immunity issue.
Martinez, ¶¶ 26-28. Under the second exception, however, whether the employee's conduct was willful and wanton is irrelevant to immunity. This second exception prohibits a public employee from asserting immunity whenever the public entity's immunity has been waived under
section 24-10-106(1).
III. Additional Facts and Procedure
¶ 11 According to Hernandez's complaint, she was intoxicated when she arrived at the jail's intake section. At some point, she stumbled and fell, hitting her head. Several deputies on duty, including Dodson, witnessed the fall. During a nurse's examination, Hernandez complained of a very bad headache. A short time later, she was allowed to visit the restroom, where she remained unattended for thirty minutes. She was then discovered lying on the restroom floor in "severe medical distress." She was transported to a hospital and underwent emergency surgery due to "severe neurological injury." Hernandez claimed that she suffered serious brain injury and permanent disability that could have been prevented had she received prompt medical attention. addressing the allegations of willful and wanton conduct only. From the outset, the parties disagreed about whether Hernandez's allegations of willful and wanton conduct raised an issue of sovereign immunity under section 24-10-118(2)(a), Trinity, and its progeny. If so, the court could make factual findings and finally determine — per Rule 12(b)(1) — whether defendants' conduct was willful and wanton. Hernandez disagreed with that approach. Because her allegations did not implicate sovereign immunity, she argued that the "Court's not making a final determination on willful and wanton conduct." Rather, the "Court's essentially acting as a gatekeeper, to decide whether there's enough evidence" for the issue to go to the jury. ¶ 15 Defendants argued instead that the district court should substantively and finally determine whether the individual defendants should face liability for willful and wanton conduct. Defendants explained that
in this case, the Court is not applying immunity waiver elements to determine whether a case against a governmental entity
should move forward. Rather, the Court is required to make a factual finding as to whether Defendants Dodson and Frank should face personal liability for alleged willful and wanton conduct.
¶ 16 Hernandez maintained that the utility and effect of the
Trinity hearing here differed from the typical case, given the waiver of immunity in the jail context. She explained that
in many cases a
Trinity hearing is truly jurisdictional. In this case it's not even jurisdictional. If this Court holds that we don't meet the threshold on willful and wanton? These Defendants are still in the case, we still have negligence claims against them. The claims go forward. This Court will retain jurisdiction over them.
. . . .
[T]he willful and wanton affects the measure of damage. It doesn't affect the ability to pursue the suit, under the [C]GIA. And, that's why it's not truly jurisdictional in the way that some other [C]GIA issues are.
¶ 17 Ruling from the bench, the district court acknowledged that "[t]he waiver [of immunity under the CGIA] that applies here is . . . with respect to the operation of a jail." The court thus noted that, regardless of how it ruled on the willful and wanton allegations, it had jurisdiction over all defendants and the underlying negligence
claims against them would continue. Nonetheless, the court decided that it, rather than the jury, should determine whether the individual defendants acted willfully and wantonly. ¶ 18 The court then made extensive factual findings, including resolving some factual disputes against Hernandez (e.g., the court found that she was left alone in the restroom for only about ten minutes, not thirty). The court concluded that "there has not been a showing of willful and wanton conduct by a preponderance of the evidence. Therefore, the . . . sovereign immunity of [Dodson and Frank] remains[,] and they are not subject to individual personal liability under the [CGIA]." In effect, the court dismissed the allegations of willful and wanton conduct. As noted, Hernandez appeals this ruling with respect to Dodson only.
On the first day of the hearing, Hernandez dropped the willful and wanton conduct allegations against all defendants except Tracey Dodson and Joshua Frank.
IV. Analysis
¶ 19 Hernandez contends that "there was no issue before the [district court] regarding jurisdiction or immunity" because Dodson's immunity was waived under section 24-10-118(2)(a) and section 24-10-106(1)(b). Hence, Hernandez argues, the question whether Dodson's conduct was willful and wanton went only to the amount and kind of damages that Hernandez could seek from not pertain to jurisdiction or immunity because Dodson cannot assert immunity in this case according to sections 24-10-118(2)(a) and 24-10-106(1)(b). For that reason, Hernandez objected to the court's addressing those allegations under Rule 12(b)(1) and resolving factual disputes. So, her arguments squarely presented the question whether the court used the correct procedure and standards when dismissing the allegations of willful and wanton conduct.
Dodson concedes that the "right of a plaintiff to seek exemplary damages against any defendant is governed by C.R.S. § 13-21-102 which provides that exemplary damages may be awarded for injuries attended by circumstances of fraud, malice, or willful and wanton conduct."
A. Standard of Review
¶ 24 This case raises a question of statutory interpretation, which we review de novo. Medina v. State, 35 P.3d 443, 452-53 (Colo. 2001). Our primary task is to give effect to the legislature's intent. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. We look initially to the statute's language, ascribing words their plain and ordinary meanings, and look no further if the plain language reveals a clear legislative intent. Springer v. City & Cty. of Denver, 13 P.3d 794, 799 (Colo. 2000).
B. Application
¶ 25 As the district court explained, section 24-10-106(1)(b) — the waiver of sovereign immunity for injuries resulting from the the CGIA. Accordingly, the district court erred in resolving those allegations by way of Rule 12(b)(1) and a Trinity hearing.
A jury's decision not to award exemplary damages against a public employee would not mean that the employee was immune from those damages. It would simply mean the jury found that the evidence did not satisfy the burden of proof for awarding such damages. --------
V. Other Contentions and Remand Directions
¶ 34 Hernandez asks us to treat Dodson's motion to dismiss and request for a Trinity hearing as a summary judgment motion and then to hold that relief under summary judgment standards is improper. We see no need to do so. Dodson did not seek summary judgment in the district court. Nor has she even suggested that she is entitled to summary judgment on this record. ¶ 35 The only issue before us is whether the district court properly dismissed Hernandez's allegations of willful and wanton conduct under Rule 12(b)(1) after a Trinity hearing. We hold that the court did not. Rule 12(b)(1) and the Trinity procedure do not apply to the allegations because they do not raise an issue of sovereign immunity. ¶ 36 On remand, the district court should treat the allegations of willful and wanton conduct just like any other allegations, except to the extent they are offered in support of exemplary damages. If, for instance, Hernandez asks to amend her complaint to seek exemplary damages, the court must address that request pursuant to section 13-21-102(1.5)(a). The court must decide whether she presented prima facie proof of willful and wanton conduct, either through discovery, offer of proof, or other evidentiary means. See Stamp v. Vail Corp., 172 P.3d 437, 448-50 (Colo. 2007) (addressing nearly identical procedure for alleging exemplary damages under section 13-21-203(3)(c)(I), C.R.S. 2018); see also Ferrer, ¶¶ 46, 53 (addressing standards for asserting exemplary damages claim under section 13-21-102(1.5)(a)); cf. § 13-25-127(2), C.R.S. 2018 (stating that exemplary damages may be awarded only if ultimately proved beyond a reasonable doubt).
VI. Conclusion
¶ 37 We vacate the order dismissing the willful and wanton allegations, and we remand for such further proceedings as the district court deems appropriate. JUDGE J. JONES and JUDGE MILLER concur.