24CA0219 Southway v Crone 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0219 Grand County District Court No. 22CV30063 Honorable Mary C. Hoak, Judge
Cynthia Southway and Hayden Southway,
Plaintiffs-Appellees,
v.
John Crone,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Anthony J. DiCola, Hot Sulphur Springs, Colorado, for Plaintiffs-Appellees
Lasater & Martin, P.C., Peter H. Doherty, Greenwood Village, Colorado, for Defendant-Appellant ¶1 Defendant John Crone (Crone) appeals the district court’s
order denying his motion to dismiss the defamation claim brought
by plaintiffs Cynthia Southway and Hayden Southway (collectively,
the Southways) under the Colorado Governmental Immunity Act
(CGIA), sections 24-10-101 to -120, C.R.S. 2024. We reverse the
order and remand for additional findings.
I. Background
¶2 The parties in this matter were each involved with local
government affairs in the town of Grand Lake, Colorado. Cynthia1
served on the town’s Board of Trustees starting in April 2018 while
her husband, Hayden, had been a member of the Planning and
Zoning Commission. Cynthia was also a part of the hiring
committee that selected Crone as Town Manager in October 2019.
¶3 After Crone was hired, several conflicts arose between him and
the Southways. Cynthia challenged Crone’s use of government-
owned vehicles, a proposed salary increase for his role, his
1 Because Cynthia and Hayden Southway share the same last
name, we use their first names when referring to them individually. We mean no disrespect in doing so.
1 treatment of town employees, and an alleged conflict of interest
related to Crone’s purchase of a property.
¶4 Meanwhile, Crone began conducting an investigation into a
Grand Lake property that the Southways leased from the property
owner for horse grazing and breeding. He expressed concern that
(1) the Southways’ use of their leased property for for-profit
ranching violated the governing zoning ordinances and (2) the same
use formed the basis for the property’s “agricultural” classification
for tax purposes, causing the town to lose significant property tax
revenue. Crone testified that the investigation fell within his
purview as Town Manager because both zoning and property use
had tax implications, and his job was to “build up” the tax base of
the town.
¶5 The parties communicated about the zoning and taxation
issues in January and February 2021 but did not reach any
resolution.
¶6 In September 2021, Cynthia reminded the executive
committee of the Board of Trustees that Crone’s annual job
performance evaluation should have been started the prior month.
On September 14, Cynthia followed up with Grand Lake’s mayor,
2 urging him to start Crone’s evaluation ahead of recall elections
scheduled for the following month.
¶7 The next day, Crone sent an email about the Southways’
leased property from his town-issued email account to the Grand
Lake mayor and trustees (September 15 email). The email — the
subject of the Southways’ defamation claim against Crone — read
as follows:
Trustees,
In January of this year, I discovered that Trustee Southway had been conspiring with the owners of the 15-acre parcel where the Southways keep their horses to have the property assessed as agricultural. In order to be assessed as agricultural, the property must be used for a for-profit ranch. Town Code does not allow such use in any of our zoning areas. In their various roles as Trustee and as a Planning Commissioner, knowledge of the Town Codes can be imputed to the Southways. In fact, Hayden Southway was actually on the Planning Commission the last time that this property’s zoning was revised. County Assessor Tom Weydert served on the Town Board at times when this scheme was in operation and never informed the Town despite his oath to uphold the Town code. As a result of the scheme, in 2021 only $22.02 in taxes were charged against the 15.4 acre parcel. In contrast, I have paid $1,023.48 on my .2 acre parcel on the edge of town. Over the years, the Southways scheme has cost the
3 Town, the school district, the rec. district, the fire department, and other public entities tens of thousands of dollars in lost revenue (if not hundreds of thousands).
Trustee Southway was informed of their illegal actions in January. At that time, I treated the Southways as I treat any code violators: I informed them of their illegal actions and offered them several options to correct their actions. The Mayor, the then Mayor Pro Tem, and our Town Attorney were all included in the discussions. To date, the Southways have not taken any actions to correct their violations. In fact, recent actions taken by the Southways indicate that they have no intention of cooperating with the Town to solve this very distressing situation.
As a result of the Southways’ resistance to take responsibility for their illegal actions, I feel compelled to officially bring these ethical violations to the Board’s attention for action. I am also meeting with the District Attorney for the 14th Judicial District to ask for a criminal investigation.
Please feel free to contact me with any questions.
John F. Crone, J.D.
¶8 The Southways then filed the underlying defamation suit
against Crone, alleging that the September 15 email resulted in
harm to their reputation, credit standing, and profits from their
personal businesses. Crone moved to dismiss, asserting that he
4 was entitled to immunity under the CGIA because he was acting
within the scope of his employment and his actions were not “willful
and wanton.”
¶9 The district court entered an order addressing Crone’s
underlying contention that willful and wanton conduct required the
conscious disregard of a risk of physical harm to the plaintiff. The
court concluded it did not, ruling,
[W]illful and wanton conduct generally means a conscious disregard for the danger or consequences of one’s actions to the rights and safety of others. The Court agrees with the Southways that willful and wanton conduct does not necessarily equate to a conscious disregard of the danger of the physical safety of others.
¶ 10 The court also concluded that the scope of Crone’s
employment and the nature of his conduct presented disputed
issues of fact, so it ordered an evidentiary hearing pursuant to
Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916 (Colo. 1993) (Trinity hearing).
¶ 11 After the Trinity hearing, the court concluded that Crone was
acting within the scope of his employment when he sent the
September 15 email, but he wasn’t immune from liability because
5 his conduct was willful and wanton. Accordingly, it denied Crone’s
motion to dismiss. Crone appeals.
II. Foundational CGIA Law
¶ 12 The CGIA shields governmental entities and public employees
from tort liability in certain circumstances. See § 24-10-102, C.R.S.
2024. A “public employee” is an officer or employee of a “public
entity,” and a “public entity” includes any “political subdivision” of
the state “organized pursuant to law.” § 24-10-103(4)(a), (5), C.R.S.
2024.2
¶ 13 Section 24-10-118(2)(a), C.R.S. 2024, provides:
A public employee shall be immune from liability in any claim for injury . . . which lies in tort or could lie in tort . . . 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.
(Emphasis added.)
¶ 14 Thus, as relevant here, the CGIA provides a public employee
with immunity from tort liability except when (1) the conduct that
caused the injury was willful and wanton or (2) the conduct
2 It’s undisputed that Crone is a public employee.
6 occurred outside of the scope of employment. Hernandez v. City &
Cnty. of Denver, 2018 COA 151, ¶ 9.
¶ 15 Whether a public employee is immune from suit under the
CGIA is a question of subject-matter jurisdiction that must be
determined pursuant to C.R.C.P. 12(b)(1). Trinity Broadcasting, 848
P.2d at 923-25. The district court must resolve all issues
pertaining to sovereign immunity — and may be required to hold a
Trinity hearing where appropriate — prior to trial. Martinez v. Est.
of Bleck, 2016 CO 58, ¶ 27 (holding that “Trinity and its progeny
govern claims of public employee sovereign immunity”). In a Trinity
hearing, “the trial court, rather than a jury, is the finder of fact and
resolves any factual dispute on which sovereign immunity
depends.” Hernandez, ¶ 6; see also Tidwell v. City & Cnty. of
Denver, 83 P.3d 75, 85-86 (Colo. 2003) (“When the alleged
jurisdictional facts are in dispute, the trial court should conduct an
evidentiary hearing and enter findings of fact.”).
III. “Willful and Wanton” Standard
¶ 16 Crone contends that the district court erred by determining
that his September 15 email constituted “willful and wanton”
conduct. He argues, as he did below, that (1) willful and wanton
7 conduct requires a disregard of a risk of physical injury and (2) even
if it doesn’t, the district court erred by concluding that his conduct
was willful and wanton. We reject Crone’s first argument but,
because we can’t discern whether the court correctly applied the
willful and wanton standard, we reverse and remand for further
findings.
A. Standard of Review
¶ 17 An appellate court will not disturb a trial court’s findings of
jurisdictional fact following a Trinity hearing unless they are clearly
erroneous. Medina v. State, 35 P.3d 443, 452 (Colo. 2001); Maphis
v. City of Boulder, 2022 CO 10, ¶ 14. However, we review de novo
whether the trial court applied the correct legal standard in
determining whether Crone’s conduct was willful and wanton,
Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d
892, 897-98 (Colo. 2008), and whether it correctly interpreted the
CGIA, Medina, 35 P.3d at 452-53.
¶ 18 When interpreting a statute, “we look to the entire statutory
scheme in order to give consistent, harmonious, and sensible effect
to all of its parts, and we avoid constructions that would render any
words or phrases superfluous or that would lead to illogical or
8 absurd results.” Elder v. Williams, 2020 CO 88, ¶ 18. “We do not
add or subtract words from the statute, and if the language is
unambiguous, we ‘give effect to its plain and ordinary meaning and
look no further.’” City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶
12 (quoting Smokebrush Found. v. City of Colorado Springs, 2018
CO 10, ¶ 18).
B. Martinez v. Estate of Bleck
¶ 19 In Martinez, the plaintiff sued an Alamosa police officer for
excessive force and battery when the officer injured the plaintiff
through accidental discharge of his police weapon. 2016 CO 58,
¶ 1. The officer moved to dismiss the claim, arguing that he was
immune from liability because his conduct was not willful and
wanton. Id. at ¶ 2. The trial court denied the motion to dismiss,
concluding, as relevant here, that the defendant “should have”
known that his conduct was dangerous. Id. at ¶¶ 10-11.
¶ 20 The Colorado Supreme Court reversed. Id. at ¶ 6. After
observing that the CGIA doesn’t define willful and wanton conduct,
the court turned to earlier definitions of such conduct from other
contexts:
9 • Willful and wanton conduct “must be not only negligent,
but exhibit [a] conscious disregard for [the] safety of others.”
Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (quoting
Black’s Law Dictionary 1434-35 (5th ed. 1979)) (emphasis
added).
• For purposes of exemplary damages, willful and wanton
conduct is “purposefully committed which the actor must
have realized as dangerous, done heedlessly and recklessly,
without regard to consequences, or of the rights and safety of
others, particularly the plaintiff.” Id. (quoting § 13-21-
102(1)(b), C.R.S. 1987) (emphasis added).
• In the automobile guest statute, willful and wanton conduct
was defined as action that is “wholly disregardful of the
rights, feelings and safety of others . . . at times even
imply[ing] an element of evil.” Id. (alteration in original)
(quoting Pettingell v. Moede, 271 P.2d 1038, 1042 (1954))
(emphasis added).
¶ 21 The Martinez court declined to choose a single definition of
willful and wanton conduct for the CGIA, noting that the common
thread between all other definitions is “a conscious disregard of the
10 danger.” Martinez, ¶ 30. Accordingly, the supreme court held that
the trial court erred by wrongly applying the negligence standard
(“should have” known) when determining whether the police officer’s
conduct was willful and wanton. Id. at ¶ 6. It directed the trial
court on remand to instead consider whether the officer’s conduct
exhibited a “conscious disregard for safety of others.” Id.
C. Analysis
1. Risk of Physical Injury Not Required
¶ 22 Relying on Martinez, Crone argues that, for a defendant’s
conduct to be willful and wanton, the defendant must consciously
disregard a “probable risk of physical injury” to the plaintiff. We
reject his argument for two reasons.
¶ 23 First, Crone’s interpretation would effectively make it
impossible for a plaintiff to sue a public employee for actions
resulting in nonphysical injuries so long as the employee’s actions
occurred within the scope of their employment. Such a result is
contrary to the plain language of the CGIA.
¶ 24 Under section 24-10-118(2)(a), public employees who act in a
willful and wanton manner — even if acting within the scope of
their employment — have no immunity “from any claim for injury
11 that lies in tort . . . or could lie in tort.” (Emphasis added.) The
CGIA broadly defines “injury” to include “death, injury to a person,
damage to or loss of property, of whatsoever kind, which, if inflicted
by a private person, would lie in tort or could lie in tort.” § 24-10-
103(2). Interpreting this section, the Colorado Supreme Court has
concluded that “the plain terms of section 24-10-103(2) clearly
express an intent to include within the meaning of ‘injury’ any type
of injury that would be actionable in tort if inflicted by a private
person.” Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230 (Colo.
1986) (holding that loss of consortium is an “injury” under the CGIA
that gives rise to a separate right of recovery for a spouse).3
Damage to one’s reputation from defamatory statements has long
been recognized as a personal injury in tort. See Keohane v.
Stewart, 882 P.2d 1293, 1297-98 (Colo. 1994) (discussing the
history of defamation claims).
3 At the time Lee was decided, the CGIA defined “injury” as “death,
injury to a person, [and] damages to or loss of property, of whatsoever kind, which would be actionable in tort if inflicted by a private person.” Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230 (Colo. 1986) (alteration in original) (quoting § 24-10-103(2), C.R.S. 1982). The minor differences between the 1982 version of the CGIA and the current version don’t affect our analysis.
12 ¶ 25 Thus, sections 24-10-118(2)(a) and 24-10-103(2), read
together, reveal that the legislature plainly intended for plaintiffs
suffering nonphysical injuries to be able to seek redress if those
injuries were caused by a public employee’s willful and wanton
conduct. Because we must construe the CGIA’s grant of immunity
narrowly and its waiver provisions broadly, County of Jefferson v.
Stickle, 2024 CO 7, ¶ 10, we reject Crone’s definition of “willful and
wanton.”
¶ 26 Second, Martinez doesn’t stand for the principle that a
defendant must disregard a risk of physical injury to act in a willful
and wanton manner. In fact, the supreme court specifically
declined to adopt a single definition for willful and wanton conduct
under the CGIA. Martinez, ¶ 30. To the extent Martinez references
risks to a plaintiff’s physical safety, it didn’t do so to limit the
applicability of the “willful and wanton” exception to circumstances
involving a risk of physical harm. Rather, as the district court
correctly observed, the disregard of danger to one’s physical safety
was relevant in Martinez simply because the plaintiff’s claim
involved physical injury from the discharge of a weapon. And the
common defining feature of willful and wanton conduct articulated
13 in Martinez — a “conscious disregard of the danger” — is broad
enough to apply to both physical and nonphysical danger or risk.
Id.
¶ 27 Here, the district court concluded that “willful and wanton
conduct generally means a conscious disregard for the danger or
consequences of one’s actions to the rights and safety of others.”
This standard is consistent with the principles articulated in
Martinez, and it is supported by at least one prior decision from a
division of this court applying a similar standard in a defamation
claim against a public employee. See Wilson v. Meyer, 126 P.3d
276, 282 (Colo. App. 2005) (noting that the plaintiff must allege
specific facts to show that the public employee “was aware [that]
[their] conduct would cause the alleged harm” or that their conduct
“was specifically calculated to cause the alleged harm”).
¶ 28 We further conclude that, because defamation claims generally
seek to remedy injury to one’s reputation, the danger or risk that
Crone must consciously disregard is the danger that he might
damage someone’s reputation by spreading untrue statements
about that person. Cf. Duke v. Gunnison Cnty. Sheriff’s Off., 2019
COA 170, ¶ 37 (holding that, in cases involving physical injury or
14 death, willful and wanton conduct requires “knowledge and
conscious disregard of a health danger to another”).
2. Trial Court Application of Willful and Wanton Standard
¶ 29 Although we agree that the district court generally articulated
the correct standard for willful and wanton conduct, additional
findings are necessary for us to discern whether the court correctly
applied the standard.
¶ 30 After the Trinity hearing, the district court entered a verbal
order explaining its reasoning for denying Crone’s motion to
dismiss. The court concluded that Crone’s conduct exhibited a
“conscious disregard of the danger and consequences of his actions
as to the rights . . . of the Southway[s]” because (1) the language
Crone used in the September 15 email was “hyperbol[ic],”
“exaggerated,” and “scathing”; (2) the accusations of conspiracy
were “serious”; and (3) the court saw no evidence of any conspiracy.
¶ 31 However, shortly after reaching the conclusion that Crone
exhibited a “conscious disregard” of the danger, the court said that
Crone “did not think of what the reactions or the consequences”
would be when he sent the email, concluding “that’s why it’s
willful[] and wanton conduct because Mr. Crone didn’t think.” If
15 Crone “didn’t think” of the consequences of his actions, he couldn’t
have consciously disregarded them. See Martinez, ¶ 32
(distinguishing between whether the defendant “should have
realized” the danger of his conduct and whether he “conscious[ly]
disregard[ed]” it). Due to these conflicting findings, we can’t discern
whether the court correctly applied the willful and wanton standard
in concluding that Crone’s actions rose to that level. We therefore
reverse the district court’s order and remand the case with
instructions to reconsider, based on the existing record, whether
Crone consciously disregarded the danger or risk that he might
cause reputational harm by spreading untrue statements that paint
the subject of the statements in a negative light. Cf. In re Parental
Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 43 (reversing a
district court order and remanding for new findings under the legal
standard set forth in the opinion).
IV. Disposition
¶ 32 The order is reversed, and the case is remanded for further
findings based on the existing record and consistent with this
opinion.
JUDGE FREYRE and JUDGE GROVE concur.