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L.J. v. Carricato

Court of Appeals of Colorado, Seventh Division

January 11, 2018

L.J., individually and as surviving parent of D.J.M., deceased, Plaintiff-Appellee,
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.

         El Paso County District Court No. 15CV33722 Honorable Robin Chittum, Judge

          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


          FOX, JUDGE.

          ¶ 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).

         ¶ 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 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 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 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 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, ...

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