Hernandez v. City and County of Denver

          City and County of Denver District Court No. 17CV30467 Honorable A. Bruce Jones, Judge.

          Gerash Steiner P.C., Daniel P. Gerash, Eric L. Steiner, Denver, Colorado, for Plaintiff-Appellant.

          Kristin M. Bronson, City Attorney, Michelle A. Horn, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.

          OPINION

          NAVARRO JUDGE.

          ¶ 1 Generally, the Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2018, grants a public employee sovereign immunity from tort liability for any claim for injury arising out of the employee's act or omission occurring within the scope of employment, unless the employee's act or omission was willful and wanton. The CGIA provides, however, that a public employee may not assert such immunity in an action for injuries resulting from the negligent operation of a jail, regardless of whether the employee engaged in willful and wanton conduct. Under the statute's plain language, therefore, allegations that a public employee engaged in willful and wanton conduct in the operation of a jail do not raise an issue of sovereign immunity. As a result, we hold that a district court should not address such allegations via C.R.C.P. 12(b)(1) and the evidentiary hearing described in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993).

         ¶ 2 The district court here dismissed allegations by plaintiff, Stella J. Hernandez, that defendant, Tracey Dodson (a deputy sheriff), engaged in willful and wanton conduct in a jail where Hernandez was incarcerated. Because the court erred in addressing those allegations via Rule 12(b)(1) and a Trinity hearing, we vacate the order and remand for further proceedings.

         I. Preliminary Background Information

         ¶ 3 Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center (the jail), operated by the Denver Sheriff Department. She sued six jail employees, including Dodson, alleging negligence and willful and wanton conduct. Hernandez also sued the City and County of Denver, alleging negligence. Following a Trinity hearing, the district court found that Dodson and another defendant had not engaged in willful and wanton conduct; therefore, those defendants enjoyed immunity from suit on those allegations. Hernandez's negligence claims against Dodson and the other defendants were not dismissed, and those tort claims remain pending. Hernandez brought this interlocutory appeal in which she challenges only the court's (effective) dismissal of the willful and wanton allegations against Dodson. See § 24-10-118(2.5), C.R.S. 2018.

         ¶ 4 Before discussing the factual and procedural history in more detail, we will address the foundational law governing sovereign immunity.

         II. Foundational CGIA Law

         ¶ 5 The CGIA grants sovereign immunity to public entities and "is designed to shield public entities from tort liability, unless the circumstances of an asserted claim bring it within one (or more) of the statute's expressly defined waiver provisions." St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 12. Through the CGIA, the General Assembly sought to protect public entities not only from the costs of judgments but the costs of unnecessary litigation as well. Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1260-61 (Colo. 2003). Sovereign immunity thus protects a public entity from a "meaningless" trial. Id. at 1261. Consequently, jurisdictional prerequisites to suit as well as statutory defenses to claims may present immunity issues. See id. at 1255-56 (recognizing that, although the notice provisions of section 24-10-109(1), C.R.S. 2018, create a jurisdictional prerequisite to suit while the notice provisions of section 24-10-109(3) provide a statutory defense to claims, both raise immunity issues because both could bar a suit from proceeding). In short, a sovereign immunity issue is one that could afford the public entity immunity from suit. See id. at 1261; see also Trinity, 848 P.2d at 923 (recognizing that the CGIA "is not a tort accrual statute" but a "nonclaim statute").

         ¶ 6 Because an immunity issue may preclude a trial altogether, a trial court must resolve all such issues before trial, including questions about whether the plaintiff has complied with the CGIA's notice requirements and whether a waiver applies. See Martinez v. Estate of Bleck, 2016 CO 58, ¶ 27; see also § 24-10-108, C.R.S. 2018. Regardless of whether the immunity issue is jurisdictional, the trial court must resolve it employing "a procedure that mirrors C.R.C.P. 12(b)(1)." Finnie, 79 P.3d at 1259. This "may require the trial court to hold an evidentiary, or 'Trinity,' hearing in order to determine whether immunity applies." Martinez, ¶ 27 (citing Trinity, 848 P.2d at 925). In this procedure, the trial court, rather than a jury, is the finder of fact and resolves any factual dispute on which sovereign immunity depends. See Finnie, 79 P.3d at 1260-61; Trinity, 848 P.2d at 924. In addition, our supreme court has made clear that "Trinity and its progeny govern claims of public employee sovereign immunity as well." Martinez, ¶ 27 (emphasis added); see § 24-10-118(2.5).

         ¶ 7 The CGIA grants immunity to public entities "from liability in all claims for injury which lie in tort or could lie in tort regardless of whether this may be the type of action or the form of relief chosen by the claimant . . . ." § 24-10-106(1), C.R.S. 2018. Immunity is expressly waived, however, in certain situations, including in an action for injuries resulting from "[t]he operation of any . . . correctional facility . . . or jail by such public entity." § 24-10-106(1)(b). The waiver of sovereign immunity created in section 24-10-106(1)(b) applies to "claimants who are incarcerated but not yet convicted of the crime for which such claimants are being incarcerated if such claimants can show injury due to negligence." § 24-10-106(1.5)(b).

         ¶ 8 Regarding public employees, the CGIA states as follows:

A public employee shall be immune from liability in any claim for injury . . . which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant 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; except that no such immunity may be asserted in an action for injuries resulting from the circumstances specified in section 24-10-106(1).

§ 24-10-118(2)(a) (emphasis added).

         ¶ 9 Section 24-10-118(2)(a) thus provides a public employee immunity against tort liability except where (1) the act or omission causing injury was willful and wanton; or (2) the action is for injuries resulting from a circumstance identified in section 24-10-106(1). Ramos v. City of Pueblo, 28 P.3d 979, 980 (Colo.App. 2001); cf. State v. Nieto, 993 P.2d 493, 507 (Colo. 2000) ("Here, the negligent acts and omissions of defendants . . . were committed in the course of operating a correctional facility. These public employees . . . are not immune from liability pursuant to sections 24-10-118(2) and 24-10-106(1).").

         ¶ 10 Under the first exception, whether the employee's conduct was willful and wanton presents an issue of immunity that must be addressed before trial via Rule 12(b)(1), just like any other immunity issue. Martinez, ¶¶ 26-28. Under the second exception, however, whether the employee's conduct was willful and wanton is irrelevant to immunity. This second exception prohibits a public ...