The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 18, 2018
2018COA151
No. 17CA2064 Hernandez v. City & County of Denver —
Government — Colorado Governmental Immunity Act —
Immunity and Partial Waiver — Actions Against Public
Employees
A division of the Colorado Court of Appeals considers the
district court’s dismissal of a pretrial detainee’s allegations that she
suffered injuries resulting from a jail employee’s willful and wanton
conduct during the operation of the jail. The division concludes
that these allegations do not implicate the employee’s sovereign
immunity under the Colorado Governmental Immunity Act because
such immunity is waived for injuries resulting from the operation of
a jail by a public entity. Because the allegations of willful and
wanton conduct do not raise an immunity issue, the district court
erred by dismissing them before trial via C.R.C.P. 12(b)(1) and a
hearing of the type described in Trinity Broadcasting of Denver, Inc.
v. City of Westminster, 848 P.2d 916 (Colo. 1993).
COLORADO COURT OF APPEALS 2018COA151
Court of Appeals No. 17CA2064
City and County of Denver District Court No. 17CV30467
Honorable A. Bruce Jones, Judge
Stella J. Hernandez,
Plaintiff-Appellant,
v.
City and County of Denver, Colorado; and Tracey Dodson,
Defendants-Appellees.
ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE NAVARRO
J. Jones and Miller*, JJ., concur
Announced October 18, 2018
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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
1
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.
2
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.
3
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).
4
¶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:
5
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
6
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
employee from asserting immunity whenever the public entity’s
immunity has been waived under section 24-10-106(1).
III. Additional Facts and Procedure
¶ 11 According to Hernandez’s complaint, she was intoxicated when
she arrived at the jail’s intake section. At some point, she stumbled
and fell, hitting her head. Several deputies on duty, including
Dodson, witnessed the fall. During a nurse’s examination,
Hernandez complained of a very bad headache. A short time later,
she was allowed to visit the restroom, where she remained
unattended for thirty minutes. She was then discovered lying on
the restroom floor in “severe medical distress.” She was
transported to a hospital and underwent emergency surgery due to
“severe neurological injury.” Hernandez claimed that she suffered
serious brain injury and permanent disability that could have been
prevented had she received prompt medical attention.
7
¶ 12 Hernandez alleged negligence on the part of all defendants
(including Denver) as well as willful and wanton conduct on the
part of all individual defendants (including Dodson). Defendants
moved to dismiss pursuant to Rule 12(b)(5). They also argued,
citing Martinez, that Hernandez’s allegations of willful and wanton
conduct implicated the individual defendants’ immunity under
section 24-10-118(2)(a). They requested a Trinity hearing to
address those allegations.
¶ 13 The district court denied relief under Rule 12(b)(5). The court
noted that Hernandez’s allegations of willful and wanton conduct
were not themselves separate claims, but rather “description[s] of
the degree of negligence being asserted by [Hernandez] against the
individual Defendants, as required by the [CGIA], § 24-10-118, to
overcome immunity.” The court found that “the complaint
adequately alleges willful and wanton conduct against the
individual Defendants.” The court “reserve[d] ruling on whether to
hold a Trinity hearing” pending further input from the parties.
¶ 14 Apparently, defendants later renewed their request for a
Trinity hearing because the court held one, covering three days and
8
addressing the allegations of willful and wanton conduct only.1
From the outset, the parties disagreed about whether Hernandez’s
allegations of willful and wanton conduct raised an issue of
sovereign immunity under section 24-10-118(2)(a), Trinity, and its
progeny. If so, the court could make factual findings and finally
determine — per Rule 12(b)(1) — whether defendants’ conduct was
willful and wanton. Hernandez disagreed with that approach.
Because her allegations did not implicate sovereign immunity, she
argued that the “Court’s not making a final determination on willful
and wanton conduct.” Rather, the “Court’s essentially acting as a
gatekeeper, to decide whether there’s enough evidence” for the issue
to go to the jury.
¶ 15 Defendants argued instead that the district court should
substantively and finally determine whether the individual
defendants should face liability for willful and wanton conduct.
Defendants explained that
in this case, the Court is not applying
immunity waiver elements to determine
whether a case against a governmental entity
1On the first day of the hearing, Hernandez dropped the willful and
wanton conduct allegations against all defendants except Tracey
Dodson and Joshua Frank.
9
should move forward. Rather, the Court is
required to make a factual finding as to
whether Defendants Dodson and Frank should
face personal liability for alleged willful and
wanton conduct.
¶ 16 Hernandez maintained that the utility and effect of the Trinity
hearing here differed from the typical case, given the waiver of
immunity in the jail context. She explained that
in many cases a Trinity hearing is truly
jurisdictional. In this case it’s not even
jurisdictional. If this Court holds that we don’t
meet the threshold on willful and wanton?
These Defendants are still in the case, we still
have negligence claims against them. The
claims go forward. This Court will retain
jurisdiction over them.
....
[T]he willful and wanton affects the measure of
damage. It doesn’t affect the ability to pursue
the suit, under the [C]GIA. And, that’s why it’s
not truly jurisdictional in the way that some
other [C]GIA issues are.
¶ 17 Ruling from the bench, the district court acknowledged that
“[t]he waiver [of immunity under the CGIA] that applies here is . . .
with respect to the operation of a jail.” The court thus noted that,
regardless of how it ruled on the willful and wanton allegations, it
had jurisdiction over all defendants and the underlying negligence
10
claims against them would continue. Nonetheless, the court
decided that it, rather than the jury, should determine whether the
individual defendants acted willfully and wantonly.
¶ 18 The court then made extensive factual findings, including
resolving some factual disputes against Hernandez (e.g., the court
found that she was left alone in the restroom for only about ten
minutes, not thirty). The court concluded that “there has not been
a showing of willful and wanton conduct by a preponderance of the
evidence. Therefore, the . . . sovereign immunity of [Dodson and
Frank] remains[,] and they are not subject to individual personal
liability under the [CGIA].” In effect, the court dismissed the
allegations of willful and wanton conduct. As noted, Hernandez
appeals this ruling with respect to Dodson only.
IV. Analysis
¶ 19 Hernandez contends that “there was no issue before the
[district court] regarding jurisdiction or immunity” because
Dodson’s immunity was waived under section 24-10-118(2)(a) and
section 24-10-106(1)(b). Hence, Hernandez argues, the question
whether Dodson’s conduct was willful and wanton went only to the
amount and kind of damages that Hernandez could seek from
11
Dodson (e.g., exemplary damages), not to whether Dodson was
immune from suit. See § 24-10-118(1)(c) (providing that a public
employee may be liable for exemplary damages if her conduct was
willful and wanton). Hernandez concludes, therefore, that the
district court erred in effectively dismissing the allegations of willful
and wanton conduct under a Rule 12(b)(1) standard following a
Trinity hearing.
¶ 20 According to Dodson, however, Hernandez did not preserve the
question whether the willful and wanton allegations concerned
damages (rather than immunity) because she did not assert a claim
for exemplary damages in the district court. For three reasons,
Dodson is mistaken.
¶ 21 First, Hernandez stated in her complaint the factual basis for
her claim that Dodson’s conduct was willful and wanton, as
required by section 24-10-110(5)(a). Regardless of whether
Hernandez seeks exemplary damages, her allegations of willful and
wanton conduct are relevant to whether the statutory damages cap
applies to her claims against Dodson. See § 24-10-114, C.R.S.
2018; § 24-10-118(1)-(1)(b); DeForrest v. City of Cherry Hills Village,
72 P.3d 384, 386-88 (Colo. App. 2002). And Hernandez expressly
12
argued in the district court that the willful and wanton allegations
“affect[] the measure of damage.”
¶ 22 Second, Hernandez could not seek exemplary damages in her
initial complaint; she first had to demonstrate to the court a triable
issue of such damages (i.e., Dodson’s conduct was willful and
wanton). See § 13-21-102(1.5)(a), C.R.S. 2018; cf. Ferrer v.
Okbamicael, 2017 CO 14M, ¶ 44 (“Exemplary damages do not
present a separate, distinct cause of action, but, rather, depend on
an underlying claim for actual damages.”).2 Before she did so,
defendants moved to dismiss and sought a Trinity hearing. At that
hearing, the court found that Dodson’s conduct was not willful and
wanton. The court later acknowledged that, had Hernandez
prevailed at the Trinity hearing, she likely would have requested to
amend her complaint to seek exemplary damages. Her inability to
do so, however, does not mean that she failed to preserve the issue.
¶ 23 Third, and most importantly, Hernandez plainly argued to the
district court that her allegations of willful and wanton conduct do
2 Dodson concedes that the “right of a plaintiff to seek exemplary
damages against any defendant is governed by C.R.S. § 13-21-102
which provides that exemplary damages may be awarded for
injuries attended by circumstances of fraud, malice, or willful and
wanton conduct.”
13
not pertain to jurisdiction or immunity because Dodson cannot
assert immunity in this case according to sections 24-10-118(2)(a)
and 24-10-106(1)(b). For that reason, Hernandez objected to the
court’s addressing those allegations under Rule 12(b)(1) and
resolving factual disputes. So, her arguments squarely presented
the question whether the court used the correct procedure and
standards when dismissing the allegations of willful and wanton
conduct.
A. Standard of Review
¶ 24 This case raises a question of statutory interpretation, which
we review de novo. Medina v. State, 35 P.3d 443, 452-53 (Colo.
2001). Our primary task is to give effect to the legislature’s intent.
Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. We look
initially to the statute’s language, ascribing words their plain and
ordinary meanings, and look no further if the plain language reveals
a clear legislative intent. Springer v. City & Cty. of Denver, 13 P.3d
794, 799 (Colo. 2000).
B. Application
¶ 25 As the district court explained, section 24-10-106(1)(b) — the
waiver of sovereign immunity for injuries resulting from the
14
negligent operation of a jail — applies to this action. Accordingly,
the exception to a public employee’s immunity in section 24-10-
118(2)(a) that applies where the public entity’s immunity has been
waived governs here and precludes Dodson from asserting
immunity. As noted, this bar to immunity does not depend on
whether her acts or omissions were willful and wanton. To
illustrate, the supreme court in Nieto concluded that, because the
public employees’ negligent conduct occurred during the operation
of a correctional facility, they were not immune from suit, pursuant
to sections 24-10-118(2) and 24-10-106(1). 993 P.2d at 506-07.
The supreme court made no mention of the employees’ conduct
being willful and wanton or the need for a Trinity hearing to
determine whether the employees were immune.
¶ 26 Naturally, then, the question whether Dodson’s conduct was
willful and wanton does not present an issue of sovereign immunity
for the district court to determine before trial via Rule 12(b)(1) and a
Trinity hearing. Although Dodson relies heavily on Martinez, the
exception to the public employee’s immunity alleged there did not
rely on the public entity’s waiver of immunity under section 24-10-
106(1). Rather, that case concerned the exception to an employee’s
15
immunity in section 24-10-118(2)(a) that applies if the employee’s
conduct was willful and wanton. See Martinez, ¶¶ 27-28. In
Martinez, therefore, the district court was required to address the
allegations of willful and wanton conduct before trial under
Rule 12(b)(1).
¶ 27 Indeed, the fact that, despite the district court’s ruling in this
case, the underlying negligence claims against Dodson and the
other defendants remain pending for trial confirms that
Hernandez’s allegations of willful and wanton conduct do not put
Dodson’s immunity at issue. As discussed, a sovereign immunity
issue within the meaning of the CGIA is one that could stop the
litigation in its tracks by providing the defendant immunity from
suit. See Nieto, 993 P.2d at 507 (distinguishing between immunity
from suit under the CGIA and some protection from liability). The
allegations of willful and wanton conduct against Dodson do not
present such an issue.
¶ 28 Still, Dodson contends that the allegations of willful and
wanton conduct raise an immunity issue because they could affect
whether (1) the statutory damages cap applies; (2) she is liable for
exemplary damages; and (3) her employer is liable to pay any
16
judgment against her. See § 24-10-118(1)-(1)(b) (damages cap
applies unless public employee’s conduct was willful and wanton);
§ 24-10-118(1)(c) (public employee is not liable for exemplary
damages unless conduct was willful and wanton); see also § 24-10-
110(1)(b)(I) (public entity is liable for judgment against public
employee unless employee’s conduct was willful and wanton); § 24-
10-114(4)(a) (public entity is not ordinarily liable, either directly or
by indemnification, for exemplary damages).
¶ 29 Doubtless, these statutory provisions are important to public
employees like Dodson. But they are not immunity provisions. On
the contrary, they apply when a public employee is not immune
from suit — that is, when the claim against the employee can go to
trial and actual damages may be awarded to the plaintiff. See
DeForrest, 72 P.3d at 386-88 (recognizing that, when immunity has
been waived under section 24-10-106(1), a public employee may be
liable for actual damages above the ordinary statutory cap and for
exemplary damages if the employee’s conduct was willful and
wanton); Ramos, 28 P.3d at 980 (noting that section 24-10-
110(1)(b)(I) addresses payment of judgments entered against public
employees after trial).
17
¶ 30 If the public employee were immune from suit, there could be
no trial, much less damages and a judgment for which the employee
could be liable. When, instead, an employee may not assert
immunity from suit — because, for example, immunity has been
waived under section 24-10-106(1) — the action may go to trial,
where the trier of fact may determine whether the employee is liable
for actual damages. The questions whether the statutory damages
cap applies, whether the employee is also liable for exemplary
damages, and who is liable to pay any judgment can be resolved at
trial as well. Cf. Lee v. Colo. Dep’t of Health, 718 P.2d 221, 226
(Colo. 1986) (recognizing that trial court may apply damages cap to
reduce jury’s award).3
¶ 31 Dodson also maintains that the allegations of willful and
wanton conduct raise an issue of immunity because they could
affect whether her employer is liable for the costs of her defense and
attorney fees. True, a public entity is liable for a public employee’s
costs of defense and reasonable attorney fees unless the employee’s
3 A jury’s decision not to award exemplary damages against a public
employee would not mean that the employee was immune from
those damages. It would simply mean the jury found that the
evidence did not satisfy the burden of proof for awarding such
damages.
18
conduct was willful and wanton. § 24-10-110(1)(a), (1.5); Middleton
v. Hartman, 45 P.3d 721, 728 (Colo. 2002).
¶ 32 But these provisions do not afford immunity from suit.
Instead, they address who is liable for paying for the employee’s
legal defense. The General Assembly has chosen to make a public
entity liable for a public employee’s defense costs except where the
employee’s conduct was willful and wanton. See Middleton, 45 P.3d
at 728 (“If the state chooses to pay defense costs for its employees,
it has voluntarily assumed that liability.”). Consistent with this
policy choice, the CGIA provides that, if the employee’s conduct is
found to be willful and wanton after the public entity has paid for
the employee’s defense, the entity may seek reimbursement of costs
and attorney fees from the employee. See § 24-10-110(1.5)(a); see
also Middleton, 45 P.3d at 728 (recognizing that a public employee
may be entitled to indemnification by the state for the employee’s
defense costs if the plaintiff fails to prove that the employee acted
willfully and wantonly). In any event, these payment provisions
have nothing to do with immunity from suit.
¶ 33 Given all this, we conclude that Hernandez’s allegations of
willful and wanton conduct do not raise an immunity issue under
19
the CGIA. Accordingly, the district court erred in resolving those
allegations by way of Rule 12(b)(1) and a Trinity hearing.
V. Other Contentions and Remand Directions
¶ 34 Hernandez asks us to treat Dodson’s motion to dismiss and
request for a Trinity hearing as a summary judgment motion and
then to hold that relief under summary judgment standards is
improper. We see no need to do so. Dodson did not seek summary
judgment in the district court. Nor has she even suggested that she
is entitled to summary judgment on this record.
¶ 35 The only issue before us is whether the district court properly
dismissed Hernandez’s allegations of willful and wanton conduct
under Rule 12(b)(1) after a Trinity hearing. We hold that the court
did not. Rule 12(b)(1) and the Trinity procedure do not apply to the
allegations because they do not raise an issue of sovereign
immunity.
¶ 36 On remand, the district court should treat the allegations of
willful and wanton conduct just like any other allegations, except to
the extent they are offered in support of exemplary damages. If, for
instance, Hernandez asks to amend her complaint to seek
exemplary damages, the court must address that request pursuant
20
to section 13-21-102(1.5)(a). The court must decide whether she
presented prima facie proof of willful and wanton conduct, either
through discovery, offer of proof, or other evidentiary means. See
Stamp v. Vail Corp., 172 P.3d 437, 448-50 (Colo. 2007) (addressing
nearly identical procedure for alleging exemplary damages under
section 13-21-203(3)(c)(I), C.R.S. 2018); see also Ferrer, ¶¶ 46, 53
(addressing standards for asserting exemplary damages claim
under section 13-21-102(1.5)(a)); cf. § 13-25-127(2), C.R.S. 2018
(stating that exemplary damages may be awarded only if ultimately
proved beyond a reasonable doubt).
VI. Conclusion
¶ 37 We vacate the order dismissing the willful and wanton
allegations, and we remand for such further proceedings as the
district court deems appropriate.
JUDGE J. JONES and JUDGE MILLER concur.
21