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.
County District Court No. 15CV33722 Honorable Robin Chittum,
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
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.
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).
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
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,
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.
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.
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. 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
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