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 January 11, 2018
2018COA3
No. 17CA0097, L.J. v. Carricato — Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver — Actions Against Public Employees; Dependency and Neglect — Child Protection Act of 1987
A division of the court of appeals considers whether the
Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,
C.R.S. 2017, bars claims against a city and a police officer for
alleged violation of the Child Protection Act of 1987 (CPA), §§ 19-3-
301 to -318, C.R.S. 2017. The division concludes that the two
statutes do not conflict. Thus, the CGIA bars the claim against the
city for alleged violation of the CPA because the claim lies or could
lie in tort. Additionally, the claim against the city for vicarious
liability must be dismissed because public entities do not waive
immunity for an employee’s willful and wanton conduct. The division also concludes, based on Martinez v. Estate of
Bleck, 2016 CO 58, that the claims against the police officer must
be remanded for a Trinity hearing to allow the district court to
determine whether the officer’s conduct was in fact willful and
wanton.
Finally, the division concludes that the claim for exemplary
damages against the police officer was prematurely pled.
Accordingly, the division reverses the judgment and remands
the case in part with directions. COLORADO COURT OF APPEALS
Court of Appeals No. 17CA0097 El Paso County District Court No. 15CV33722 Honorable Robin Chittum, Judge
L.J., individually and as surviving parent of D.J.M., deceased,
Plaintiff-Appellee,
v.
Justin Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department; and the City of Colorado Springs, Colorado,
Defendants-Appellants.
JUDGMENT REVERSED IN PART AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE FOX Freyre and Kapelke*, JJ., concur
Announced January 11, 2018
Deere Law, LLC, Joshua M. Deere, Colorado Springs, Colorado, for Plaintiff- Appellee
Wynetta Massey, City Attorney, W. Erik Lamphere, Division Chief, Colorado Springs, Colorado, for Defendants-Appellants
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 The City of Colorado Springs (City) and Officer Justin
Carricato appeal the district court’s partial denial of their motion to
dismiss for lack of subject matter jurisdiction based upon the
Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -102,
C.R.S. 2017. We reverse the portions of the judgment on the claims
against the City, the vicarious liability claim, and the exemplary
damages claim. We remand the portion of the judgment relating to
the claims against Officer Carricato.
I. Background
¶2 D.J.M., age two, died on January 17, 2015, after suffering a
beating by his mother’s boyfriend, R.A. D.J.M.’s father, L.J.
(father), brought a wrongful death action against the City and
Officer Carricato, individually and in his capacity as an officer with
the City of Colorado Springs Police Department (Department).
A. Facts Alleged in Father’s Complaint
¶3 Father and M.J. (mother), D.J.M.’s mother, shared custody of
D.J.M. in accordance with a temporary parenting time order.
D.J.M. spent five days a week with mother and the other two with
father. Parenting time exchanges took place at the Department’s
Sand Creek Division (Police Station).
1 ¶4 In November 2014, father and his mother (grandmother) began
noticing signs of physical trauma on D.J.M. such as marks,
bruises, lacerations, and discoloration on his skin and genitalia.
D.J.M. lost weight and demonstrated signs of significant emotional
trauma. By early December, he would cry and beg to stay with
father and grandmother when he was dropped off at the Police
Station for mother’s parenting time.
¶5 On the first Saturday of December 2014, father told the Police
Station’s front desk attendant that he suspected D.J.M. was being
abused by mother or R.A. He showed the attendant the marks and
bruises on D.J.M., and said he did not want to turn D.J.M. over to
mother. The attendant told father that he had to turn D.J.M. over
to mother, or he would be arrested for refusing to obey a court
order. The attendant told father he could not make an official
police report at that time, but that he should take photographs of
D.J.M.’s injuries. Over the next three weeks, father repeatedly
showed D.J.M.’s marks and bruises and photos of the injuries to
the Police Station attendant.
¶6 When father picked D.J.M. up at the Police Station on
Christmas Day 2014, he was so concerned by D.J.M.’s condition
2 that he insisted the police make an official report. The attendant
told father to go home and call the police and an officer would visit
them at their home. Father did so, and Officer Carricato responded
to the call.
¶7 Officer Carricato visited father’s home, where he interviewed
father, took pictures of D.J.M., and made an internal police report.
He reiterated that father must continue to abide by the court’s
parenting time order. Officer Carricato called mother from his
police cruiser on Christmas Day; this was the only phone call he
made to mother’s home. Officer Carricato did not visit mother’s
house, speak to R.A., or have further meetings with father and
D.J.M. No report was made to the El Paso County Department of
Human Services or any other state or county agencies before
D.J.M.’s death.
¶8 From December 25, 2014, to January 10, 2015, father and
grandmother continued to make the same complaints at the Police
Station when they dropped off D.J.M. On January 14, father
learned that D.J.M. had been rushed to the hospital. D.J.M. had
suffered serious injuries that were consistent with having been
thrown against a wall. He was transferred to Children’s Hospital in
3 Denver where a portion of his skull was removed to alleviate brain
swelling. After the surgery, he remained in a coma until he died on
January 17, 2015.
¶9 The cause of death was homicide brought on by complications
from blunt-force injuries. Detectives investigating the case
determined that some of D.J.M.’s injuries were sustained weeks
before the January 14 incident. They also confirmed that in the
weeks preceding D.J.M.’s death, father had tried to bring D.J.M.’s
injuries to the attention of the Colorado Springs police.
B. Procedural History and Standard of Review
¶ 10 Father’s complaint alleges: (1) a violation of the reporting
requirement of the Child Protection Act of 1987 (CPA), §§ 19-3-301
to -318, C.R.S. 2017, by the City and Officer Carricato; (2)
negligence (wrongful death) by the City and Officer Carricato; (3)
negligence per se by the City and Officer Carricato; (4) a 42 U.S.C. §
1983 (2012) claim against the City and Officer Carricato; (5)
vicarious liability against the City; and (6) an entitlement to
4 exemplary damages under section 24-10-118(1)(c), C.R.S. 2017
against Officer Carricato.1
¶ 11 Under the CPA, certain individuals — including police officers
— are required to report known or suspected child abuse to the
county department, local law enforcement agency, or through the
child abuse hotline. § 16-2.5-101(1), C.R.S. 2017;
§ 19-3-304(1)(a)-(b)(2)(s), C.R.S. 2017. The county department or
local law enforcement agency must then submit a report to the
state department. § 19-3-307(1), C.R.S. 2017. Any person who
willfully violates the reporting mandate commits a class three
misdemeanor and “[s]hall be liable for damages proximately caused
thereby.” § 19-3-304(4)(a)-(b).
¶ 12 The City and Officer Carricato moved to dismiss the state law
claims.2 They argued that (1) father’s claims were barred by the
1 The second, third, and fourth claims are not at issue on this appeal because the parties did not contest those portions of the motion to dismiss. 2 Because the fourth claim raised a 42 U.S.C. § 1983 (2012) claim,
the City and Officer Carricato first removed the case to the United States District Court for the District of Colorado. The federal district court dismissed the section 1983 claim, declined to exercise supplemental jurisdiction over the state law claims, and remanded the case to the El Paso County District Court.
5 CGIA, and (2) father failed to plead a specific factual basis showing
willful and wanton conduct by Officer Carricato.
¶ 13 The district court determined that while the negligence claims
for wrongful death and negligence per se were barred by the CGIA,
the claim for violation of the CPA was not barred because it was not
a claim based in tort. The district court allowed the claim for
vicarious liability to stand insofar as it related to the violation of the
CPA. Finally, the district court found, without conducting a hearing
under Trinity Broadcasting of Denver, Inc. v. City of Westminster,
848 P.2d 916 (Colo. 1993), that the complaint alleged a sufficient
factual basis to support a claim of willful and wanton behavior.
¶ 14 We review the district court’s interpretation of the CGIA de
novo. Gray v. Univ. of Colo. Hosp. Auth., 2012 COA 113, ¶ 16.
II. Analysis
¶ 15 The City and Officer Carricato argue that the district court
erred because (1) the CGIA bars the claim for violation of the CPA,
and (2) father’s complaint does not allege specific facts sufficient to
support a finding that Officer Carricato’s conduct was willful and
6 wanton.3 No Colorado case discusses the intersection of the CGIA
and the CPA. We hold that the CGIA bars the claim against the City
for a violation of the CPA because the claim lies or could lie in tort.
Thus, the district court improperly denied that part of the motion to
dismiss. We remand to the district court on the claims against
Officer Carricato for a determination of whether his conduct was
willful and wanton. We conclude that the claims for vicarious
liability against the City must be dismissed. Finally, we agree that
the claim for exemplary damages against Officer Carricato was
prematurely pleaded.
A. Public Entity Immunity
¶ 16 Under the CGIA, “[a] public entity shall be immune from
liability in all claims for injury which lie in tort or could lie in tort
regardless of whether that may be the type of action or the form of
relief chosen by the claimant except as provided otherwise in this
section.” § 24-10-106(1), C.R.S. 2017. Under the CGIA, “the state
and its subdivisions are subject to the same liability as private
3Because we decline to address the new arguments raised by the City in its reply brief, Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1187 n.3 (Colo. App. 2011), we need not strike portions of the City’s reply brief as father requests via motion.
7 entities, unless the General Assembly has affirmatively protected
the state from liability through immunity legislation.” C.K. v. People
in Interest of L.K., 2017CO111, ¶ 12 (citation omitted). Because the
CGIA altered the common law of negligence, we strictly construe its
grant of sovereign immunity and interpret its waiver provisions
broadly. Burnett v. State Dep’t of Nat. Res., 2013 COA 42, ¶ 7, aff’d,
2015 CO 19; see also Medina v. State, 35 P.3d 443, 453 (Colo.
2001); Herrera v. City & Cty. of Denver, 221 P.3d 423, 425 (Colo.
App. 2009). “Nonetheless, we interpret a statute to give words and
phrases their plain meaning in order to give effect to the intent of
the legislature.” Burnett, ¶ 7.
1. Waivers of Sovereign Immunity
¶ 17 The CGIA lists specific exceptions where sovereign immunity
for public entities is waived. § 24-10-106(1)(a)-(i). As relevant here,
sovereign immunity is waived for claims brought under a statutory
scheme that fits within one of the specific waiver provisions. See
State v. Moldovan, 842 P.2d 220, 228 (Colo. 1992) (sustaining a
motorist’s claim against the Division of Highways for failure to
maintain fences pursuant to the Fence Law because the Fence Law
8 fit within the statutory exception for injuries resulting from a
dangerous condition on a public highway, § 24-10-106(1)(d)(I)).
¶ 18 Additionally, sovereign immunity can be waived for claims
seeking equitable, remedial, and non-compensatory relief. City of
Colorado Springs v. Conners, 993 P.2d 1167, 1176 (Colo. 2000)
(“The CGIA’s grant of immunity does not protect public entities from
suits for non-compensatory relief de[s]igned to redress general
harms or prohibited conduct under statutes like the [Civil Rights
Act].”); Colo. City Metro. Dist. v. Graber & Son’s Inc., 897 P.2d 874,
877 (Colo. App. 1995) (holding that the CGIA does not shield public
entities from remedial provisions allowing an award of attorney fees
against a public entity that brings a frivolous claim); cf. Colo. Dep’t
of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008)
(“[W]e have never suggested that claims for relief developed and
historically administered by courts of chancery or equity, rather
than courts of law, necessarily fall outside the coverage of the
[CGIA].”).
¶ 19 Here, the City is undisputedly a “public entity.”
§ 24-10-103(5), C.R.S. 2017; Springer v. City & Cty. of Denver, 13
P.3d 794, 799 (Colo. 2000) (“Cities and counties are within the
9 definition of ‘public entity.’”). The exceptions to sovereign immunity
are not applicable here because (1) the enumerated statutory
exceptions are not at issue; (2) the CPA does not fit within any of
the statutory exceptions; and (3) father is not requesting equitable,
remedial, or non-compensatory remedies. Thus, the question is
whether father’s claims against the City lie in tort or could lie in
tort. We conclude that they do.
2. Claims that Lie in Tort or Could Lie in Tort
¶ 20 Whether a claim lies in tort or could lie in tort “depends on the
factual basis underlying the claim and, specifically, the nature of
the alleged injury.” First Nat’l Bank of Durango v. Lyons, 2015 COA
19, ¶ 13; see Brown Grp., 182 P.3d at 690 (“[T]he notion of a ‘tort’ is
notoriously difficult to define with any degree of precision[.]”). We
assess the pleadings and undisputed evidence to determine whether
“the injury arises either out of conduct that is tortious in nature or
out of the breach of a duty recognized in tort law.” Robinson v.
Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). We also
consider whether the relief requested “seeks to compensate the
plaintiff for that injury.” Id.
10 ¶ 21 Here, father’s claims against the City lie in tort or could lie in
tort. Father argues that the duties imposed by the CPA originate
from the statute and not from a general duty of care. However, we
must look to the injury underlying the statutory claims. See Lyons,
¶¶ 13, 15; see also City of Arvada ex rel. Arvada Police Dep’t v.
Denver Health & Hosp. Auth., 2017 CO 97, ¶ 39 (“The CGIA does
not, however, grant immunity to public entities for non-tort claims,
including claims based on ‘contractual relations or a distinctly
non-tortious statutorily-imposed duty.’” (quoting Brown Grp., 182
P.3d at 691)) (emphasis added).
¶ 22 In Lyons, the question was whether a bank’s claim under the
Colorado Securities Act (CSA) was a claim that lies in tort or could
lie in tort. Lyons, ¶ 1. The division concluded it was because in
essence the CSA claim was a claim for common law fraud alleging
that the bank purchased bonds in reliance on false statements or
omissions of material fact and sustained financial loss as a result.
Id. at ¶ 15. Similarly, the essence of father’s claim is that the City
breached a duty of care owed to D.J.M. which caused his death.
See Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 102 (Colo. 1995)
(“The cause of action created by [the Wrongful Death Act] arises out
11 of tortious acts which injured the decedent and resulted in the
decedent’s death; the survivors’ right of action is derivative of and
dependent upon the right of action which the decedent would have
had, had she survived her injuries.”). The civil liability the CPA
allows is rooted in traditional tort principles. § 19-3-304(4) (“Any
person who willfully violates [the reporting provisions]. . . [s]hall be
liable for damages proximately caused thereby.”) (emphasis added);
Walcott v. Total Petroleum, Inc., 964 P.2d 609, 611 (Colo. App. 1998)
(“Negligence claims cannot succeed without showing that a duty
existed and that the breach of the duty was a proximate cause of
the injuries alleged.”). Because father’s claims against the City are
rooted in the tort of negligence, the motion to dismiss this claim
was improperly denied.
3. Conflicting Statutes
¶ 23 Father argues that the CGIA and CPA conflict and thus the
CPA — the statute with the later effective date (1987 versus 1971
for the CGIA) — must prevail. § 2-4-206, C.R.S. 2017 (“If statutes
enacted at the same or different sessions of the general assembly
are irreconcilable, the statute prevails which is latest in its effective
12 date.”). But, we are not persuaded that the CGIA and CPA are
irreconcilable.
¶ 24 When possible, “we interpret conflicting statutes in a manner
that harmonizes the statutes[.]” City of Florence v. Pepper, 145 P.3d
654, 657 (Colo. 2006). A statutory construction that would lead to
repeal by implication is not favored unless it is unavoidable. Id.
“The intent to repeal by implication ‘must appear clearly,
manifestly, and with cogent force.’” Id. (quoting Prop. Tax Adm’r v.
Prod. Geophysical Servs., 860 P.2d 514, 518 (Colo. 1993)). In
Pepper, two statutes were in clear conflict on whether a city had the
discretion to exclude volunteer reserve police officers from workers’
compensation coverage because of the statutes’ differing definitions
of “employee.” 145 P.3d at 657-58. The supreme court held that
the more recent statute manifested a clear intent by the General
Assembly to mandate workers’ compensation coverage for volunteer
reserve police officers; thus the conflicting, earlier statute was
repealed by implication. Id. at 660.
¶ 25 Here, the CPA manifests no intent to repeal the CGIA by
implication. The CPA was passed in 1987, recognizing that
“reporting of child abuse is a matter of public concern.” Ch. 138,
13 sec. 1, § 19-3-302, 1987 Colo. Sess. Laws 762. Persons who
properly report information about known or suspected child abuse
are immune from liability. § 19-3-309, C.R.S. 2017 (“Any
person . . . participating in good faith in the making of a report . . .
shall be immune from any liability . . . .”). When first enacted, the
immunity provision read, “[a]ny person . . ., participating in good
faith in the making of a report . . . shall be immune from any
liability, civil or criminal, or termination of employment that
otherwise might result by reason of such reporting.” Ch. 138, sec.
1, § 19-3-309, 1987 Colo. Sess. Laws 770.
¶ 26 In 1989, the immunity provision was amended to include an
immunity waiver “unless a court of competent jurisdiction
determines that such person’s behavior was willful, wanton, and
malicious.” Ch. 169, sec. 7, § 19-3-309, 1989 Colo. Sess. Laws
916. Thus, persons who report child abuse under section 19-3-304
are immune from liability unless their conduct is willful, wanton,
and malicious.
¶ 27 The term “any person” is not defined in the definitions section
of the Children’s Code, which contains the CPA. See § 19-1-103,
C.R.S. 2017. To determine the meaning of “any person” we first
14 consider whether “the statutory language has a plain and
unambiguous meaning.” Bryant v. Cmty. Choice Credit Union, 160
P.3d 266, 274 (Colo. App. 2007). “The plainness or ambiguity of
statutory language is determined by reference to the language itself,
the specific context in which that language is used, and the broader
context of the statute as a whole.” Id. (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997)). The CPA lists persons required to
report child abuse in section 19-3-304(2)(a)-(mm). All the
references are clearly to persons because they are to specific
occupations — such as physicians, dentists, or psychologists — or
employees of particular organizations — such as public or private
school employees, workers in the state department of human
services, or employees of county departments of health, human
services, or social services. § 19-3-304(2)(a), (d), (l), (p), (cc), (ll).
Nowhere does section 19-3-304(2) include a specific entity as a
mandatory reporter; only the entities’ employees are required to
report. Thus, the CPA unambiguously defines “any person” to
mean people in specific occupations or employed by certain entities
or any other individual who knows of or suspects child abuse.
§ 19-3-304(3) (“[A]ny other person may report . . . .”).
15 ¶ 28 Because the CPA does not mention entities, the CGIA, which
clearly discusses public entities, controls on issues of public entity
immunity. § 24-10-106(1); see Jenkins v. Pan. Canal Ry. Co., 208
P.3d 238, 241 (Colo. 2009) (“[W]e generally only look to a statute’s
plain language . . . .”). As the statutes’ language is clear and
unambiguous, we need not look to their legislative histories. Id.
¶ 29 The CGIA clearly distinguishes between public entities and
public employees because it discusses their respective immunity in
two different sections — section 24-10-106 discusses public entity
immunity and section 24-10-118 discusses public employee
immunity. The two immunity provisions are not identical. Public
entities enjoy sovereign immunity for tort claims unless a specific
statutory exception is met. § 24-10-106(1)(a)-(i). In contrast, the
immunity provision for public employees does not contain specific
statutory exceptions. See § 24-10-118. Rather, public employees
are immune from liability for tort claims unless their act or
omission was willful and wanton. § 24-10-118(1); see also § 19-3-
309.
¶ 30 The CGIA defines public employee as “an officer, employee,
servant, or authorized volunteer of the public entity, whether or not
16 compensated, elected, or appointed . . . .” § 24-10-103(4)(a), C.R.S.
2017. Thus, where the CPA includes in its list of “any person”
persons who are public employees, their sovereign immunity is
governed by the CGIA. See Pepper, 145 P.3d at 657 (“Where
possible, we interpret conflicting statutes in a manner that
harmonizes the statutes and gives meaning to other potentially
conflicting statutes.”). The CGIA, § 24-10-118(1), and CPA, §§ 19-3-
304, -309, read together, provide that a public employee who is a
mandatory reporter is immune from liability for reporting or failing
to report child abuse unless his conduct is willful and wanton. See
Town of Minturn v. Tucker, 2013 CO 3, ¶ 27 (“[W]e presume the
General Assembly meant what it said.”). Thus, we reject father’s
argument that the two statutes are irreconcilable. Accordingly, we
now address the issue whether Officer Carricato’s conduct was
willful and wanton.
B. Public Employee Immunity
¶ 31 Because the court did not determine whether Officer
Carricato’s conduct was willful and wanton, we remand for such a
17 determination following a Trinity hearing. Martinez v. Estate of
Bleck, 2016 CO 58, ¶ 28. 4
¶ 32 Public employees enjoy sovereign immunity for conduct which
lies in tort or could lie in tort that “arises out of injuries sustained
from an act or omission of such employee which occurred or is
alleged in the complaint to have occurred 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.”
§ 24-10-118(1).5 “In any action in which allegations are made that
an act or omission of a public employee was willful and wanton, the
specific factual basis of such allegations shall be stated in the
complaint.” § 24-10-110(5)(a), C.R.S. 2017.
¶ 33 The CGIA does not define the phrase “willful and wanton
conduct.” Martinez, ¶ 30. Our supreme court has looked to various
4 While the City cited Martinez v. Estate of Bleck, 2016 CO 58, to the district court, it did not emphasize its holding or the importance of a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). 5 We note that section 24-10-118(2)(a) adds that, in addition to
waiving immunity for willful and wanton conduct, a public employee cannot assert immunity when the public entity faces liability under one of the section 24-10-106(1) waivers. But, those waiver provisions are not at issue here.
18 definitions of “willful and wanton conduct.” Id.; see, e.g., Moody v.
Ungerer, 885 P.2d 200, 205 (Colo. 1994) (looking to the definition of
“willful and wanton” in section 13-21-102(1)(b), C.R.S. 1987, to
determine exemplary damages). The supreme court has declined to
pick one single definition for willful and wanton because “they all
share a common feature — namely, a conscious disregard of the
danger.” Martinez, ¶ 30. Thus, public employees’ actions are willful
and wanton when the employees are “consciously aware that their
acts or omissions create danger or risk to the safety of others, and
they then act, or fail to act, without regard to the danger or risk.”
Gray, ¶ 39. A complaint cannot merely assert that a public
employee’s acts or omissions were willful and wanton. Id. at ¶ 40.
At a minimum, the complaint must allege “‘specific facts to support
a reasonable inference’ that the employee was consciously aware
that his or her acts or omissions created danger or risk to the safety
of others, and that he or she acted, or failed to act, without regard
to the danger or risk.” Id. (citations omitted).
¶ 34 However, it is not enough for the district court to merely
determine that the complaint adequately alleged that the conduct
was willful and wanton. Martinez, ¶ 5. The district court must
19 determine whether the conduct was in fact willful and wanton. Id.
at ¶ 28. Immunity under the CGIA is a subject matter jurisdiction
question that is determined according to C.R.C.P. 12(b)(1). Trinity,
848 P.2d at 924-25. The plaintiff bears the burden of proving
jurisdiction. Dennis ex rel. Heyboer v. City & Cty. of Denver, 2016
COA 140, ¶ 15. The district court “may allow limited discovery and
conduct an evidentiary hearing” — a Trinity hearing — to determine
jurisdiction. Trinity, 848 P.2d at 924. Trinity hearings now “include
all issues of immunity, including facts not directly disputed by the
parties.” Dennis ex rel. Heyboer, ¶ 2. But see Medina, 35 P.3d at
452 (“[I]f all relevant evidence is presented to the trial court, and the
underlying facts are undisputed, the trial court may decide the
jurisdictional issue as a matter of law . . . .”).
¶ 35 Here, in its order regarding the motion to dismiss, the district
court stated, “There are no facts at issue necessary for the [c]ourt to
make this determination. There is also no need for a hearing.”
Thus, the district court ruled on the motion to dismiss without
conducting a Trinity hearing. The court further concluded that the
question whether Officer Carricato’s conduct was willful and
wanton was an “ultimate decision of fact for the jury.” Examination
20 of the operative complaint and answer reveals that whether Officer
Carricato acted willfully and wantonly is disputed. In Martinez, the
supreme court determined that the district court erred in merely
determining that the complaint sufficiently pleaded that a police
officer’s conduct was willful and wanton and concluding that the
ultimate determination had to be left to trial. Martinez, ¶ 28. Thus,
we remand for the district court to determine, after a hearing,
whether Officer Carricato’s conduct was willful and wanton.
C. Vicarious Liability
¶ 36 Although the parties did not brief the issue, we conclude that
the vicarious liability claims against the City must be dismissed.
¶ 37 The vicarious liability claims against the City for negligence
per se and wrongful death based on Officer Carricato’s conduct are
claims that lie in tort or could lie in tort; thus, they are barred by
the CGIA. See Lyons, ¶ 36. The City’s liability under a vicarious
liability theory is not based on the City’s own negligent acts. Id.
Rather, it is based on the City’s vicarious liability for acts taken by
Officer Carricato within the scope of his employment. Id. Thus, the
claims for vicarious liability based on negligence per se and
wrongful death sound in tort.
21 ¶ 38 The claim against the City for vicarious liability based on
Officer Carricato’s failure to report under the CPA must also be
dismissed. Even if Officer Carricato’s conduct was willful and
wanton, “the CGIA does not provide for the waiver of the sovereign
immunity of public entities from suit based either on their own
willful and wanton acts or omissions, or their employees’ willful and
wanton acts or omissions.” Gray, ¶ 27; see § 24-10-106(1)(a)-(i)
(waiving public entity sovereign immunity for only the listed
statutory exceptions, not for willful and wanton conduct); see also §
24-10-110-(1)(a) (Public entities are liable for the costs of defending
their employees from claims arising out of “injuries sustained from
an act or omission of such employee occurring during the
performance of his duties and within the scope of his employment,
except where such act or omission is willful and wanton.”). Thus,
the vicarious liability claim against the City, based on Officer
Carricato’s failure to report under the CPA, must be dismissed.
D. Exemplary Damages
¶ 39 Officer Carricato argues briefly in a footnote that the claim for
exemplary damages cannot stand because it was improperly
22 pleaded and that exemplary damages cannot be awarded against a
police officer. We agree that the claim was improperly pleaded.
¶ 40 The CGIA allows a claim for exemplary damages against public
employees only if their conduct was willful and wanton.
§ 24-10-118(1)(c). Similarly, in an action for wrongful death,
exemplary damages may only be awarded where “the death
complained of is attended by circumstances of . . . willful and
wanton conduct . . . .” § 13-21-203(3)(a), C.R.S. 2017.
Additionally, the claim for exemplary damages may not be included
in the initial claim for relief. § 13-21-203(3)(c)(I). Exemplary
damages claims must be included in an amendment to the
pleadings at least sixty days after the exchange of initial disclosures
and “the plaintiff establishes prima facie proof of a triable issue.”
Id. Here, father included the claim for exemplary damages in his
initial complaint; thus, the exemplary damages claim was
¶ 41 Once the Trinity hearing is concluded, the district court can
revisit this issue, including if necessary the availability of such
damages against a peace officer pursuant to section 13-21-203(6).
23 III. Conclusion
¶ 42 We reverse the portion of the judgment denying the motion to
dismiss the violation of the CPA claim against the City. We remand
for a hearing on the portion of the judgment concerning whether
Officer Carricato’s conduct was willful and wanton. We reverse the
portion of the judgment denying the motion to dismiss the vicarious
liability claims against the City. We reverse the portion of the
judgment allowing the claim for exemplary damages to stand as it is
currently pleaded.
JUDGE FREYRE and JUDGE KAPELKE concur.