Gallegos v. City of Monte Vista

976 P.2d 299, 1998 Colo. J. C.A.R. 2725, 1998 Colo. App. LEXIS 145, 1998 WL 282778
CourtColorado Court of Appeals
DecidedMay 28, 1998
DocketNo. 97CA0532
StatusPublished
Cited by4 cases

This text of 976 P.2d 299 (Gallegos v. City of Monte Vista) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallegos v. City of Monte Vista, 976 P.2d 299, 1998 Colo. J. C.A.R. 2725, 1998 Colo. App. LEXIS 145, 1998 WL 282778 (Colo. Ct. App. 1998).

Opinion

Opinion by

Judge DAVIDSON.

Plaintiff, Solomon E. Gallegos, appeals from the dismissal of his complaint against defendant, the City of Monte Vista. We reverse and remand with directions.

On July 23, 1994, plaintiff was stopped by an officer of the Monte Vista Police Department for failing to stop at a posted stop sign. After completing an investigation, the officer determined that probable cause existed to arrest plaintiff for driving under the influence of alcohol.

According to plaintiffs complaint, while being transported to the police station, plaintiff informed the officer that he was a diabetic and needed insulin. The officer refused both this request and a subsequent request plaintiff made when he reached the police station.

At the police station, plaintiff told the officer that he would commit suicide if he was incarcerated. The officer then placed plaintiff in a jail cell without confiscating his shoes, belt, or other personal items. Approximately 20 minutes later, plaintiff attempted to commit suicide using his belt. The complaint further alleges that he suffered serious and permanent injuries.

On April 9, 1996, approximately 20 months after his attempted suicide, plaintiff brought this action naming only the City as a defendant. Plaintiffs first claim for relief was based upon the alleged negligence of the arresting officer in failing to take precautions in the jail concerning his health and safety. He also brought a second claim for relief based upon the negligent disclosure of medical information obtained by two other officers.

The City answered the complaint and subsequently filed a motion to dismiss or, alternatively, for summary judgment. The City argued that plaintiffs claims were barred by the one-year statute of limitations set forth in § 13 — 80—103(l)(c), C.R.S.1997, which addresses, inter alia, actions against police officers. The City also argued that plaintiffs second claim for relief, for negligent disclosure of medical information, was barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.1997.

The trial court granted the City’s motion, finding that the one-year statute of limitations applied and barred plaintiffs claims against the City. The court alternatively found that plaintiffs second claim for relief was barred by the GIA. Plaintiff does not appeal this latter determination. Therefore, only the propriety of the trial court’s ruling as to the first claim for relief is before us for review.

Plaintiff contends that the trial court erred in determining that his complaint against the City was barred by the one-year statute of limitations applicable to actions against police officers. We agree.

Section § 13-80-102, C.R.S.1997, provides in relevant part as follows:

(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter:
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(h) All actions against any public or governmental entity or any employee of a public or governmental entity, except as [301]*301otherwise provided in this section or section 13-80-103....

As pertinent here, § 13-80-103, C.R.S. 1997, provides that:

(1)The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter:
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(c) All actions against sheriffs, coroners, police officers, firefighters, national guardsmen, or any other law enforcement authority....

Thus, an action against a public entity or public employee, generally, is subject to the two-year statute of limitations. However, when the action is against a person described in § 13 — 80—103(l)(c), it is subject to a one-year limitations period. Delta Sales Yard v. Patten, 892 P.2d 297 (Colo.1995).

Here, plaintiffs complaint included allegations which, fairly read, may be characterized as a claim against the City for the negligent operation of a jail. See § 24-10-106(l)(b), C.R.S.1997; Howard v. City & County of Denver, 837 P.2d 255, 257 (Colo.App.1992) (“duties in keeping [jail] are to receive and safely detain every person duly committed thereto”).

However, because in its motion to dismiss the City argued, and plaintiff agreed, that plaintiffs claim was grounded on a theory of respondeat superior, the trial court reasoned that the one-year statute of limitations, otherwise applicable to police officers employed by the City, necessarily barred plaintiffs claim. The trial court agreed with the City’s assertion that, because under a theory of respondeat superior the liability of an employer is derivative of the liability of its employee, the expiration of the statute of limitations applicable to the police officer precluded plaintiffs suit against the City.

On appeal, plaintiff argues that the trial court’s determination that his claim against the City was barred by the statute of limitations applicable to a police officer employed by the City was incorrect. We agree. We conclude that: (1) a procedural bar to suit against an employee does not necessarily bar a respondeat superior claim against the employer; and (2) the one-year limitations period set forth in § 13-80-103(l)(c) does not apply to plaintiffs action against the City.

A.

First, we do not agree with the City that an affirmative defense available to bar an action against an employee, such as the statute of limitations here, necessarily bars an action against the employer sued under a theory of respondeat superior.

In an action brought by a third party, an employer may be vicariously liable for the negligence of an employee on respondeat superior grounds. In such action, while the employee may be a proper party, he or she is not a necessary party. See Lytle v. Kite, 728 P.2d 305 (Colo.1986) (claims against employers and employees by third party are separate claims); see also CJI-Civ.3d 8:1-8:5 (1991).

In a tort action, such as here, the doctrine of respondeat superior imputes only the negligent acts of the employee to the employer. Thus, although a finding that an employee is not negligent requires a finding that the employer is not legally responsible, an action may proceed against an employer if the claim against the employee has been dismissed or barred, not on the merits of the claim, but on procedural grounds. See Cheney v. Hailey, 686 P.2d 808 (Colo.App.1984) (a dismissal which does not favorably absolve or exonerate the employee does not bar a respondeat superior claim against the employer). See also Nieto v. State, 952 P.2d 834 (Colo.App.1997) (cert. granted

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976 P.2d 299, 1998 Colo. J. C.A.R. 2725, 1998 Colo. App. LEXIS 145, 1998 WL 282778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-city-of-monte-vista-coloctapp-1998.