Stella J. Hernandez, Plaintiff-Appellant,
City and County of Denver, Colorado; and Tracey Dodson, Defendants-Appellees.
and County of Denver District Court No. 17CV30467 Honorable
A. Bruce Jones, Judge.
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
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
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.
4 Before discussing the factual and procedural history in
more detail, we will address the foundational law governing
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
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