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
November 19, 2020
2020COA163
No. 19CA0546, Cisneros v. Elder — Government — Colorado
Governmental Immunity Act — Immunity and Partial Waiver —
Jail or Correctional Facility
The Colorado Governmental Immunity Act provides a right to
sue only for statutorily specified acts of government entities. In this
suit, plaintiff Saul Cisneros seeks damages for an intentional act
committed by Sheriff Bill Elder, namely, false imprisonment for
failure to release Cisneros from the county jail. Because section 24-
10-106(1.5)(b), C.R.S. 2019, of the Act does not provide a right to
sue a jailor for intentional acts, a division of the Court of Appeals
reverses the district court’s order that declined to dismiss the suit.
The special concurrence would reach the same result but
would not resort to section 24-10-106(1.5)(b)’s legislative history in
doing so.
The dissent would find that section 24-10-106(1.5)(b) waives
sovereign immunity for injuries resulting from the operation of a jail
even if those injuries were caused by intentional conduct.
COLORADO COURT OF APPEALS 2020COA163
Court of Appeals No. 19CA0546
El Paso County District Court No. 18CV32870
Honorable Eric Bentley, Judge
Saul Cisneros,
Plaintiff-Appellee,
v.
Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE TERRY
Johnson, J., specially concurs
Richman, J., dissents
Announced November 19, 2020
Holland & Hart LLP, Stephen G. Masciocchi, Peter A. Kurtz, Denver, Colorado;
Mark Silverstein, Arielle Herzberg, Denver, Colorado, for Plaintiff-Appellee
Diana K. May, County Attorney, Mary Ritchie, Assistant County Attorney,
Colorado Springs, Colorado, for Defendant-Appellant
¶1 Plaintiff, Saul Cisneros, is no longer being held in jail by
defendant, Bill Elder, the Sheriff of El Paso County. In this action,
Cisneros seeks money damages for having been wrongfully held
there.
¶2 State and local governmental entities in Colorado, including
jails and the people who run them, are generally immune from
being sued. Cisneros chose to sue under the Colorado
Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S.
2020, which waives sovereign immunity — in other words, allows
suit against governmental entities and public employees — under
specified circumstances. If there is not a statute that gives a right
to sue a governmental entity or employee, a plaintiff’s suit against
the entity or employee must be dismissed.
¶3 In this case, Cisneros argued that a statute that allows suit to
be brought against Elder for negligence also allowed Elder to be
sued for intentional conduct — specifically, the decision to keep
Cisneros imprisoned even though his daughter had posted bond to
secure his conditional release. The district court read the pertinent
provision of the CGIA to permit the suit to go forward against Elder.
1
¶4 We reverse this decision for a simple reason: “negligence”
means negligence; it does not mean intentional conduct. The
General Assembly never meant for this statute to apply to
intentional conduct. Because we are bound by the General
Assembly’s legislative intent in enacting the pertinent provision, we
must reverse the district court’s decision.
I. Background
¶5 Under federal law, Immigration and Customs Enforcement
(ICE) may request that state or local law enforcement continue
detaining an inmate after the state’s authority to imprison that
inmate has expired. Such a request is made when ICE believes that
an inmate may be removable from the United States. This
continued detainment, often referred to as an “ICE hold,” gives ICE
officials time to take the inmate into federal custody.
¶6 Elder created a written policy and practice of complying with
requests for ICE holds. Upon receipt of either an ICE immigration
detainer or administrative warrant, he would continue to detain
inmates who had posted bond, completed their sentence, or
otherwise resolved their criminal case.
2
¶7 Cisneros was arrested and detained at El Paso County’s
Criminal Justice Center. After his daughter posted the $2,000
bond set by the court, Cisneros was not released from custody.
Instead, Elder placed an ICE hold on Cisneros and continued to
detain him for four additional months.
¶8 Cisneros and another person brought a class action lawsuit in
state court against Elder seeking declaratory, mandamus, and
injunctive relief. The complaint in that case alleged that by
continuing to detain inmates after they had posted bond or
completed their sentence, Elder exceeded his authority under state
law.
¶9 After a preliminary injunction was granted in that case,
Cisneros was released from custody. Cisneros then brought this
lawsuit against Elder, alleging that his continued detainment
constituted false imprisonment. Elder moved to dismiss Cisneros’s
complaint under C.R.C.P. 12(b)(1), asserting that he is immune
from liability under the CGIA. After concluding that any immunity
had been waived because Cisneros’s alleged injury occurred during
Elder’s operation of a jail, the district court denied Elder’s motion.
3
II. CGIA’s Waiver of Immunity for the Operation of a Jail Does Not
Apply to Intentional Torts
¶ 10 Elder contends that the district court erred by concluding that
the CGIA’s waiver of governmental immunity for the operation of a
jail applies to injuries caused by intentional torts. We conclude,
based on the statute’s language and legislative history, that section
24-10-106(1.5)(b), C.R.S. 2020, does not waive immunity for
injuries caused by intentional torts.
A. Preservation and Standard of Review
¶ 11 Elder preserved this issue for appeal.
¶ 12 Governmental immunity implicates issues of subject matter
jurisdiction, which are determined in accordance with C.R.C.P.
12(b)(1). Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1383-
84 (Colo. 1997). If the relevant facts underlying a trial court’s
jurisdictional findings are undisputed and the issue presents a
question of law, then appellate review is de novo. Daniel v. City of
Colorado Springs, 2014 CO 34, ¶ 10. Here, because the relevant
facts are undisputed and the district court’s holding turns on its
interpretation of the CGIA, our review is de novo. See Fogg v.
4
Macaluso, 892 P.2d 271, 273 (Colo. 1995) (the construction of a
statute is a question of law subject to de novo review).
B. The CGIA’s Partial Waiver of Governmental Immunity for
Injuries Resulting from Negligence in the Operation of a Jail
¶ 13 Under the CGIA, “[a] public entity shall be immune from
liability in all claims for injury which” lie or could lie in tort. § 24-
10-106(1). Immunity is waived in actions for injuries resulting from
a public entity’s or employee’s operation of a jail or correctional
facility. § 24-10-106(1)(b). But that waiver only applies when a
claimant “who [is] incarcerated but not yet convicted . . . can show
injury due to negligence.” § 24-10-106(1.5)(b). The issue here —
whether the phrase “injury due to negligence” includes injuries that
result from intentional torts — is one of first impression.
C. Construction of the Statutory Immunity Waiver
¶ 14 In construing a statute, our primary purpose is to ascertain
and give effect to the legislature’s intent. McCoy v. People, 2019 CO
44, ¶ 37. To do this, we first look to the language of the statute,
seeking to give its words and phrases their plain and ordinary
meanings. Id. In so doing, we consider “the statute as a whole,
construing each provision consistently and in harmony with the
5
overall statutory design.” Whitaker v. People, 48 P.3d 555, 558
(Colo. 2002).
¶ 15 If a statute is clear and unambiguous, we need look no further
than the plain language to determine the statute’s meaning.
McCoy, ¶ 37.
¶ 16 But if the statute is ambiguous, we may consider other
factors, including canons of statutory construction and legislative
history. Id.; Hotsenpiller v. Morris, 2017 COA 95, ¶ 2; § 2-4-203,
C.R.S. 2020; see also People v. Butler, 2017 COA 117, ¶¶ 23-25 (a
statute is ambiguous if it is susceptible of more than one
reasonable understanding). And “the reasons for and the
significant circumstances leading up to the enactment [of a law]
may be noticed in confirmation of the meaning conveyed by the
words used.” United States v. Mo. Pac. R.R. Co., 278 U.S. 269, 278
(1929).
1. Section 24-10-106(1.5)(b)’s Plain Language
¶ 17 Cisneros contends that section 24-10-106(1.5)(b) can be read
as encompassing intentional torts because the statute does not say
that the CGIA’s waiver applies only if the claimant can “show injury
6
due to negligence,” and that the statute “sets a floor, not a ceiling,”
for imposing liability. This argument is refuted by the statutory
language.
¶ 18 Section 24-10-106(1.5)(b) states that, for the operation of a
jail, sovereign immunity is waived if a pretrial detainee can show
“injury due to negligence.” Id. (emphasis added). This provision
makes no reference to intentional actions or intentional torts.
Instead, the sole focus is on negligence.
¶ 19 The inclusion of certain items implies the exclusion of others.
Cain v. People, 2014 CO 49, ¶ 13 (discussing the legislative
interpretation canon, expressio unius est exclusio alterius), as
modified (July 2, 2014). Because the plain language of section 24-
10-106(1.5)(b) references only negligence, the waiver of sovereign
immunity under that provision must be read as applying only to
injuries caused by negligence, and not to injuries caused by
intentional torts. See Cain, ¶ 13 (holding, based on the canon of
expressio unius, that the General Assembly’s inclusion of “a single,
specific, narrow exception” meant that the General Assembly
intended “that there be no other exceptions” to the statute); see also
7
Dubois v. Abrahamson, 214 P.3d 586, 588 (Colo. App. 2009)
(appellate courts may not read additional terms into, or modify, a
statute’s explicit language).
¶ 20 Governmental immunity can only be waived by express
statutory provision. Pack v. Ark. Valley Corr. Facility, 894 P.2d 34,
37 (Colo. App. 1995) (if no express waiver of immunity has been
granted, a court may not imply such a waiver). Simply put, unless
the legislature has created liability by statute for a given type of
governmental conduct, governmental entities are immune from suit.
¶ 21 Because sovereign immunity for the operation of a jail is
waived only when an inmate’s injury is the result of negligence, we
must conclude that the waiver of immunity under section 24-10-
106(1.5)(b) does not apply to injuries caused by intentional torts.
¶ 22 Cisneros’s sole claim is for false imprisonment, and in that
claim, he asserts only intentional conduct — namely, that Elder
“knowingly and intentionally restricted [Cisneros’s] freedom of
movement,” and did so “without legal justification.” Thus, liability
is not waived for the alleged conduct under the CGIA.
8
2. Culpable Mental States
¶ 23 Citing a criminal statute, Cisneros argues that our reading of
the CGIA disregards the legal principle that more culpable mental
states subsume less culpable ones. See § 18-1-503(3), C.R.S. 2020
(“If a statute provides that criminal negligence suffices to establish
an element of an offense, that element also is established if a
person acts recklessly, knowingly, or intentionally.”). Laying aside
the dubious proposition that a criminal law concept can be applied
in the civil, governmental immunity context, we are not persuaded
by this argument.
¶ 24 It is settled Colorado law that negligence and intentional torts
are two different things. See Redden v. SCI Colo. Funeral Servs.,
Inc., 38 P.3d 75, 80-81 (Colo. 2001) (“Fault is broader than
negligence, including, for example, intentional torts . . . .”), as
modified on denial of reh’g (Jan. 14, 2002). And although there are
different levels of negligence, such as simple negligence and gross
negligence, those levels of negligence are still distinct from
intentional actions. See White v. Hansen, 837 P.2d 1229, 1233
(Colo. 1992) (“The common thread that separates [willful and
9
wanton misconduct, willful and wanton negligence, gross
negligence, reckless conduct, and reckless negligence] from
ordinary negligence is that the defendant’s conduct is so aggravated
as to be all but intentional.”) (emphasis added).
¶ 25 Further, by its very definition, negligence does not include
intentional acts. Black’s Law Dictionary (11th ed. 2019) (defining
negligence as “any conduct that falls below the legal standard
established to protect others against unreasonable risk of harm,
except for conduct that is intentionally . . . disregardful of others’
rights”) (emphasis added). Therefore, we are not persuaded by
Cisneros’s argument that because intentional acts subsume
negligent ones, section 24-10-106(1.5)(b) must apply to intentional
torts.
3. Legislative History
¶ 26 It can be argued that because the CGIA is in derogation of the
common law of negligence, courts should broadly construe the
statute’s provisions that waive immunity in the interest of
compensating victims injured by the negligence of government
agents. See Lopez v. City of Grand Junction, 2018 COA 97, ¶ 18
10
(“Because governmental immunity from suit derogates the common
law of negligence, courts must strictly construe the CGIA provisions
that grant immunity . . . [while] broadly constru[ing] the [CGIA]
provisions that waive immunity . . . .”).
¶ 27 But we can’t adopt a broad reading of section 24-10-
106(1.5)(b) unless we were to see at least some ambiguity in the
statutory language, which, as we have said, we do not. Even so, for
the sake of completeness, we will review the legislative history of
subsection (1.5)(b), as the district court did. See Mo. Pac. R.R. Co.,
278 U.S. at 278 (holding that the reasons for and the significant
circumstances leading up to the enactment of a law “may be noticed
in confirmation of the meaning conveyed by the words used”). That
history reinforces our reading of the statute.
¶ 28 As originally drafted, section 24-10-106(1.5)(b) would have
reinstated sovereign immunity for all injuries resulting from the
operation of a jail. H.B. 94-1284, 59th Gen. Assemb., 2d Reg. Sess.
(Colo. 1994) (as reengrossed, Apr. 12, 1994). The bill was then
amended to waive immunity for pretrial detainees “only if the
person [could] show injury due to negligence.” H.B. 94-1284, 59th
11
Gen. Assemb., 2d Reg. Sess. (Colo. 1994) (as revised, May 9, 1994)
(emphasis added). In the final version of the bill, the word “only”
(italicized above) was removed and the law, as enacted, then read,
“The waiver of sovereign immunity [applies] to claimants who are
incarcerated but not yet convicted . . . if such claimants can show
injury due to negligence.” H.B. 94-1284, 59th Gen. Assemb., 2d
Reg. Sess. (Colo. 1994) (as re-revised, May 10, 1994) (emphasis
added).
¶ 29 Cisneros contends that this statutory development of section
24-10-106(1.5)(b) demonstrates that the statute applies to
intentional torts. Again, according to Cisneros, because section 24-
10-106(1.5)(b) does not state that claimants can only show injury
due to negligence, claimants must therefore be able to show injury
from causes other than negligence, including intentional torts. We
disagree, because we conclude that the remaining legislative
history, consistent with the statute’s plain language, refutes such
an interpretation.
¶ 30 House and senate hearings on the need for section 24-10-
106(1.5)(b) demonstrate that this statute was introduced in
12
response to concerns about inmates bringing frivolous negligence
claims against jails and correctional facilities. Hearing on H.B.
1284 before the S. Judiciary Comm., 59th Gen. Assemb., 2d Reg.
Sess. (Apr. 18, 1994); Hearing on H.B. 1284 before H. State Affairs
Comm., 59th Gen. Assemb., 2d Reg. Sess. (Feb. 17, 1994).
¶ 31 Intentional torts were not a reason for the introduction of this
bill. Hearing on H.B. 1284 before the S. Judiciary Comm., 59th
Gen. Assemb., 2d Reg. Sess. (Apr. 18, 1994); Hearing on H.B. 1284
before H. State Affairs Comm., 59th Gen. Assemb., 2d Reg. Sess.
(Feb. 17, 1994). In fact, all of the examples that legislators pointed
to in demonstrating the need for this law concerned negligence, not
intentional acts. Hearing on H.B. 1284 before the S. Judiciary
Comm., 59th Gen. Assemb., 2d Reg. Sess. (Apr. 18, 1994). And in
the Senate’s second reading, Senator Dick Mutzebaugh — one of
the bill’s sponsors — said that the bill was intended to deal with
nuisance lawsuits involving “negligence and things like that.” 2d
Reading on H.B. 1284 before the S., 59th Gen. Assemb., 2d Reg.
Sess. (May 9, 1994).
13
¶ 32 The legislative history also shows that the bill’s sponsors
believed that the law would not cover intentional acts. People v.
Zapotocky, 869 P.2d 1234, 1239 (Colo. 1994) (noting that the
statements of a bill’s sponsor “should be accorded substantial
weight”).
¶ 33 During the House State Affairs Committee’s hearing on the
bill, one sponsor, Representative Martha Kreutz, remarked that
“malicious conduct,” such as intentionally withholding food or
medicine from inmates, would be dealt with via a federal civil rights
claim under 42 U.S.C. § 1983 (2018) and would not implicate the
proposed legislation. Hearing on H.B. 1284 before the H. State
Affairs Comm., 59th Gen. Assemb., 2d Reg. Sess. (Feb. 17, 1994).
¶ 34 And Senator Jim Rizzuto, during the Senate’s third reading,
asked Senator Mutzebaugh whether the bill’s reference to
negligence encompassed acts greater than negligence, such as gross
negligence or intentional torts. 3d Reading on H.B. 1284 before the
S., 59th Gen. Assemb., 2d Reg. Sess. (May 10, 1994). Senator
Mutzebaugh responded that he believed that if an inmate was
14
intentionally injured, that would constitute a section 1983 civil
rights violation and that he did not “want to get into that area.” Id.
¶ 35 We conclude that this legislative history — specifically the
bill’s sponsors’ repeated statements that intentional acts would not
be handled under this law — refutes Cisneros’s argument that
section 24-10-106(1.5)(b) applies to intentional torts. The history
confirms our reading of section 24-10-106(1.5)(b): the law’s waiver
of governmental immunity applies only to injuries resulting from
negligence. See Mo. Pac. R.R. Co., 278 U.S. at 278 (legislative
history can be used to confirm a statute’s plain meaning).
D. Takeaways
¶ 36 It is not the proper role of this court to condone or condemn
Elder’s actions. Our role is limited to deciding the entirely separate
question of whether section 24-10-106(1.5)(b) provides a remedy for
those actions.
¶ 37 Our careful review of section 24-10-106(1.5)(b) itself, as well as
the legislative history behind the statute, convinces us that it
cannot be relied on to provide a remedy for intentional conduct; it
applies only to negligent conduct that results in injury. It may
15
strike reasonable people the same way as it did the district court,
that if liability is waived for negligent conduct, it should also be
waived for intentional conduct. But we are bound to apply the law
as written, and the pertinent provision of the CGIA simply does not
permit imposition of governmental liability for intentional conduct.
¶ 38 We therefore reverse the district court’s ruling and remand for
the district court to dismiss Cisneros’s complaint with prejudice.
III. Other Issues
¶ 39 Our determination that the complaint must be dismissed with
prejudice obviates the need for us to address the parties’ remaining
arguments.
IV. Conclusion
¶ 40 The order denying Elder’s motion to dismiss is reversed, and
this case is remanded to the district court for the court to dismiss
Cisneros’s complaint with prejudice.
JUDGE JOHNSON specially concurs.
JUDGE RICHMAN dissents.
16
JUDGE JOHNSON, specially concurring.
¶ 41 I agree with the majority that the Colorado Governmental
Immunity Act (CGIA) only waives immunity for acts that occur in
the course of operating a jail if the pretrial detainee shows “injury
due to negligence.” § 24-10-106(1)(b), (1.5)(b), C.R.S. 2020
(emphasis added). As a result, the district court erred when it
denied the sheriff’s motion to dismiss, as his conduct was
intentional. The sheriff intentionally promulgated a policy and
intentionally implemented a practice where he continued to hold
detainees following lawful authority (i.e., when bond was posted) at
the request of the Immigration and Customs Enforcement (ICE),
under what are known as ICE holds. But because Judge Terry’s
opinion in my view unnecessarily relies on legislative history to
bolster its analysis, I specially concur.
¶ 42 “If courts can give effect to the ordinary meaning of words
used by the [General Assembly], the statute should be construed as
written, giving full effect to the words chosen, as it is presumed that
the General Assembly meant what it clearly said.” State v. Nieto,
993 P.2d 493, 500 (Colo. 2000). The majority correctly concludes,
17
based on the plain language of section 24-10-106(1.5)(b), that
‘“[n]egligence’ means negligence; it does not mean intentional
conduct.” Supra ¶ 4.
¶ 43 The concept of negligence governing CGIA claims is hardly
groundbreaking; indeed, the purpose of the CGIA is not only to limit
the state from unlimited legal liability, but also to ‘“allow the
common law of negligence to operate against governmental entities
except to the extent it has barred suit against them.’” Medina v.
State, 35 P.3d 443, 453 (Colo. 2001) (quoting Walton v. State, 968
P.2d 636, 643 (Colo. 1998)). Therefore, while the General Assembly
may certainly choose to make negligent conduct committed by
individuals who operate a jail the “floor” and intentional conduct
the “ceiling,” the plain language limiting waiver of immunity to
injuries “due to negligence” in section 24-10-106(1.5)(b) gives no
room for such an interpretation. See Humane Soc’y of Pikes Peak
Region v. Indus. Claim App. Off., 26 P.3d 546, 548 (Colo. App. 2001)
(“[I]f our interpretation of the clear language used in the statute
does not correspond to the General Assembly’s intent, it is for that
body, not this court, to rewrite it.”).
18
¶ 44 When a statute’s interpretation may be discerned from the
plain language, as here, there is no need to resort to what are
referred to as the canons of statutory construction. Those canons
include looking at the statute’s context, prior law, the consequences
of a given construction, the goal of the statutory scheme, or as the
majority did here, the legislative history. Hotsenpiller v. Morris,
2017 COA 95, ¶ 19; see also § 2-4-203(1)(a), (c), (e), (g), C.R.S.
2020.
¶ 45 Judge Terry’s opinion relies on United States v. Mo. Pac. R.R.
Co., 278 U.S. 269, 278 (1929), to justify analyzing the legislative
history because “the reasons for and the significant circumstances
leading up to the enactment [of a law] may be noticed in
confirmation of the meaning conveyed by the words used.” Supra ¶
16. Missouri Pacific Railroad, based on my research, has not been
cited by another Colorado appellate court until now. Using
legislative history in this manner is contrary to the rule that we
must give effect to the plain language of a statute, giving words
their plain and ordinary meanings. See Roup v. Com. Rsch., LLC,
2015 CO 38, ¶ 8.
19
¶ 46 Even assuming use of legislative history for this purpose is
appropriate, in this circumstance it invites confusion more than it
confirms the conclusion of Judge Terry’s opinion. After selective
use of the legislative history by Judge Terry’s opinion, the dissent
responds in kind. On the one hand, Judge Terry’s opinion points to
legislative history to posit that the General Assembly was not
necessarily concerned about the intentional acts of jailers, as such
wrongful conduct could be vindicated in a civil rights lawsuit.
Supra Part II.C.3 (majority opinion). On the other hand, the dissent
points to statements in which legislators use negligence to set a
“minimal” standard, but say that if a person could show injury
caused by something greater, like gross negligence, those injuries
would also be encompassed in the waiver of immunity under
section 24-10-106(1.5)(b). Infra Part II (Richman, J., dissenting).
¶ 47 Highlighting the differing views in which the legislative history
is used should not be read to imply that this interpretative aid
cannot, in appropriate circumstances, be effective in discerning
legislative intent. But I reject the notion that consideration of
20
legislative history is needed in this case to reach the majority’s plain
language conclusion.
¶ 48 For similar reasons, I disagree with the dissent’s use of
legislative history because section 24-10-106(1.5)(b) is not
ambiguous or in conflict with another provision.
¶ 49 The dissent’s position is that the “literal” interpretation of
section 24-10-106(1.5)(b) leads to an absurd result. Specifically, an
injured party may sue for a jailer’s negligent conduct, but for
intentional conduct a lawsuit is barred. As a result, the dissent
resorts to the use of legislative history to discern that the General
Assembly could not possibly have meant what the words plainly
state. But the dissent’s interpretation requires adding words to the
provision, such as injury “due to at least negligence” or injury “due
to at minimum negligence.” Even broadly interpreting the waiver
provisions in the CGIA, as we are directed to do, see Burnett v. State
Dep’t of Nat. Res., 2015 CO 19, ¶ 11, the conclusion reached by the
dissent is not possible without changing the legislation. And we do
not add language to legislative enactments. Smokebrush Found. v.
City of Colorado Springs, 2018 CO 10, ¶ 18.
21
¶ 50 Likewise, while we strive to avoid absurd results in giving a
statute effect, waiving immunity contrary to the plain language is a
policy decision better left to the General Assembly, and it is not for
the court to impose its prerogative. Bermel v. BlueRadios, Inc.,
2019 CO 31, ¶ 37 (courts cannot substitute their policy judgments
for those of the General Assembly).1
¶ 51 Because Judge Terry’s opinion looks at the legislative history
of section 24-10-106(1.5)(b), instead of limiting its analysis to the
plain language of the statute, I specially concur in the judgment.
1 Instead of amending the CGIA to ensure intentional conduct was
covered for individuals operating jails, in 2019 the General
Assembly introduced HB 19-1124, which Governor Jared Polis
signed into law. That law now expressly prohibits Colorado law
enforcement officials from detaining inmates on ICE hold requests
or administrative warrants. See § 24-76.6-102(2), C.R.S. 2020.
22
JUDGE RICHMAN, dissenting.
¶ 52 The majority reverses the district court’s order denying
defendant’s motion to dismiss under the Colorado Governmental
Immunity Act (CGIA), sections 24-10-101 to -120, C.R.S. 2020, by
concluding that section 24-10-106(1.5)(b), C.R.S. 2020, of the CGIA
waives immunity for injuries resulting from the operation of a jail
only when the claimant alleges a form of negligence, and not an
intentional tort. Because I disagree with the majority’s construction
of the statute, I respectfully dissent.
¶ 53 Section 24-10-106 provides, as relevant here:
(1) A public entity shall be immune from
liability in all claims for injury which lie in tort
or could lie in tort regardless of whether that
may be the type of action or the form of relief
chosen by the claimant except as provided
otherwise in this section. Sovereign immunity
is waived by a public entity in an action for
injuries resulting from:
....
(b) The operation of any . . . correctional
facility, as defined in section 17-1-102, C.R.S.,
or jail by such public entity;
....
(e) A dangerous condition of any . . . jail . . . .
23
....
(1.5)(a) The waiver of sovereign immunity
created in paragraphs (b) and (e) of subsection
(1) of this section does not apply to claimants
who have been convicted of a crime and
incarcerated in a correctional facility or jail
pursuant to such conviction, and such
correctional facility or jail shall be immune
from liability as set forth in subsection (1) of
this section.
(b) The waiver of sovereign immunity created in
paragraphs (b) and (e) of subsection (1) of this
section does apply 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.
¶ 54 Defendant does not dispute that plaintiff’s claim for wrongful
imprisonment is a tort claim. He argues that plaintiff’s injuries did
not arise from the operation of a jail or from acts of negligence, and
that plaintiff, at most, has a civil rights claim that is not available
against him under applicable federal law. The district court
rejected each of these arguments. The majority does not reach the
several rulings of the district court. Instead, the majority reverses
the district court by simply concluding that section 24-10-
24
106(1.5)(b) waives immunity in an action for injuries resulting from
the operation of a jail only for claims of negligence.
¶ 55 I disagree with this interpretation of the statute because it is
not supported by the plain language of the statute read as a whole,
or by the purpose of the CGIA. In interpreting a statute, courts
“endeavor to effectuate the purpose of the legislative scheme[,] . . .
we read that scheme as a whole, giving consistent, harmonious,
and sensible effect to all of its parts, and we must avoid
constructions that would . . . lead to illogical or absurd results.”
McCoy v. People, 2019 CO 44, ¶ 38.
I. Plain Language
¶ 56 The CGIA is intended to counteract inequitable effects of the
doctrine of sovereign immunity by defining the circumstances under
which the government may be liable. See § 24-10-102, C.R.S. 2020
(the declaration of policy); see also Daniel v. City of Colorado
Springs, 2014 CO 34, ¶ 13 (noting that permitting parties to seek
redress for injuries caused by a public entity is a basic purpose of
the CGIA). Because governmental immunity under the CGIA is in
derogation of common law, Colorado courts narrowly construe the
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CGIA’s immunity provisions and broadly construe its waiver
provisions. Daniel, ¶ 13. Broadly construing the CGIA’s waiver
provisions permits parties to seek redress for injuries caused by a
public entity, “one of the basic but often overlooked” purposes of
the CGIA. Id. (quoting State v. Moldovan, 842 P.2d 220, 222 (Colo.
1992)).
¶ 57 This case requires us to construe the CGIA’s waiver of
immunity for the operation of a jail, a waiver contained in section
24-10-106.
¶ 58 Section 24-10-106(1)(b) waives sovereign immunity for claims
which lie in tort for injuries resulting from the operation of a jail by
a public entity. That waiver does not differentiate between injuries
caused by intentional torts and unintentional torts. Section 24-10-
106(1.5)(a) then restores the immunity against claimants who are
incarcerated in a jail pursuant to a conviction, with no
differentiation between claimants alleging intentional as opposed to
unintentional torts. The following section — section 24-10-
106(1.5)(b) — does not similarly restore immunity against claimants
who are incarcerated but not yet convicted. Instead, it affirms that
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the waiver of immunity in section 24-10-106(1)(b) still applies to
those claimants.
¶ 59 Although the last clause of that section provides “if such
claimants can show injury due to negligence,” I do not agree with
the majority that this clause limits the waiver of governmental
immunity only to negligence claims, for four reasons.
¶ 60 First, the majority’s interpretation, although literal, is illogical
in the context of the legislative scheme and the purpose of the CGIA
waivers of immunity. Permitting parties to seek redress for injuries
caused by a public entity is a basic purpose of the CGIA. Daniel,
¶ 13; see § 24-10-102. The purpose of the relevant section is to
waive immunity for injuries resulting from the operation of a jail.
See § 24-10-106(1)(b). To conclude that there is a waiver for the
negligent operation of a jail, but not for the commission of an
intentional tort by the jailer, turns the purpose of the statute, and
the purpose of immunity waivers in general, on its head. We do not
interpret statutes in a manner that leads to illogical or absurd
results. See State v. Nieto, 993 P.2d 493, 500 (Colo. 2000); see also
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§ 2-4-201(1)(c), C.R.S. 2020 (“A just and reasonable result is
intended . . . .”).
¶ 61 Second, the conclusion that “negligence” is intended as a
minimal standard in section 24-10-106(1)(b) is bolstered by the use
of that standard in other provisions of the CGIA. I read sections 24-
10-106(4) and 24-10-106.3(8), C.R.S. 2020 — specifying that there
is no waiver for strict liability, and that a showing of negligence is
required to establish a waiver — to mean that negligence is a
minimum to establish a waiver of immunity. This interpretation is
also consistent with the overall CGIA scheme of waiving immunity
when the government engages in more culpable actions. “The law
of torts recognizes that a defendant who intentionally causes harm
has greater culpability than one who negligently does so.” Moore v.
W. Forge Corp., 192 P.3d 427, 441 (Colo. App. 2007) (quoting Mayer
v. Town of Hampton, 497 A.2d 1206, 1209 (N.H. 1985)); see also
People v. Rigsby, 2020 CO 74, ¶ 21 (observing a hierarchy of
culpable mental states for criminal behavior in which “intentionally”
is the most culpable and “criminal negligence” is the least culpable).
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¶ 62 In line with this hierarchy of culpability, CGIA sections 24-10-
106(4) and 24-10-106.3(8) waive immunity for the more culpable
negligence, but not for the less culpable strict liability; and CGIA
sections 24-10-105(1), 24-10-106.3(4), and 24-10-118(1), C.R.S.
2020, waive immunity for public employee conduct that was the
more culpable willful or wanton, but not for the less culpable
negligence. The CGIA must be read “as a whole, giving consistent,
harmonious, and sensible effect to all of its parts.” McCoy, ¶ 38.
¶ 63 Third, Colorado courts have consistently rejected strict
constructions of CGIA waivers where such constructions would
improperly vitiate the practical operation of those waivers. Daniel,
¶ 21.
¶ 64 And finally, although we must give effect to the statute’s plain
and ordinary meaning, the intention of the legislature will prevail
over a literal interpretation of the statute that leads to an absurd
result. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023,
1031 (Colo. 1998).
¶ 65 I note that defendant, apparently acknowledging the illogical
application of limiting this provision to claims of negligence,
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concedes for purposes of argument that the waiver of immunity
would apply to “intentional torts that involve personal injury, such
as assault or battery resulting in physical injury,” but not to claims
that raise “civil rights concerns.” Yet defendant does not offer a
principled reason to differentiate between physical injury and
wrongful imprisonment, which could also result in physical,
economic, and emotional injury. Moreover, neither the majority nor
defendant points to any authority holding that any waiver of
immunity under the CGIA does not apply to intentional torts.
II. Legislative History
¶ 66 Assuming a conflict between the initial provisions of the
statute waiving immunity for all injuries resulting from the
operation of a jail and the last clause of subsection (1.5)(b) referring
to negligence, this conflict creates an uncertainty or ambiguity as to
the legislative intent. Judge Terry’s opinion rejects an ambiguity in
the language, yet it examines the legislative history of section 24-
10-106(1.5)(b). Because, as suggested by Judge Terry’s opinion,
courts may notice the circumstances leading up to the enactment of
a law to confirm the meaning conveyed by the words used, I agree
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that we should look at the legislative history. The parties’ briefs
both present their respective views of the legislative history.
¶ 67 However, contrary to the conclusions of Judge Terry’s opinion,
I read the legislative history of section 24-10-106(1.5)(b) to support
my interpretation that the legislature intended to waive immunity
not just for negligence claims, but also for more serious torts
including gross negligence and intentional torts.
¶ 68 Judge Terry’s opinion’s recitation of the chronology of House
Bill 94-1284’s journey is accurate, to a point. The most significant
fact is that in May 1994, the language of the proposed amendment
to the statute read “only if the person [could] show injury due to
negligence,” but in the final version, the word “only” was deleted.
See H.B. 94-1284, 59th Gen. Assemb., 2d Reg. Sess. (Colo. 1994)
(as revised, May 9, 1994); H.B. 94-1284, 59th Gen. Assemb., 2d
Reg. Sess. (Colo. 1994) (as re-revised, May 10, 1994).
¶ 69 In discussing this revision, Senator Jim Rizzuto asked whether
the provision would apply to “anything greater than mere
negligence,” such as “gross negligence or intentional actions,”
noting that “I’d hate to have some person . . . in some jail or some
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Department of Corrections saying ‘No, it wasn’t negligence. We
meant to beat him up.’” 3d Reading on H.B. 1284 before the S.,
59th Gen. Assemb., 2d Reg. Sess. (May 10, 1994). Senator Dick
Mutzebaugh, the Senate sponsor, explained that he intended to
address a court decision holding a jail “administratively
responsible” for a person “just because he’s incarcerated.” Id. He
wanted to impose a “very minimal standard” for the claimant to
“show some negligence” before the government could be liable. Id.
He elaborated that “gross negligence would have been a higher
standard than I . . . particularly wanted.” Id. Another senator then
asked the sponsor if his intent as sponsor, and the Senate’s intent,
was to require “a mere minimum of negligence, that’s enough, but
that if somebody claims that it was more than that, then that
doesn’t become a defense for the sovereign immunity to apply.” Id.
The sponsor replied, “If, for instance, the claimant can show gross
negligence, then he would have right to pursue his action under
this bill.” Id. The bill then passed the Senate by a 22-12 majority.
Id.
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¶ 70 Judge Terry’s opinion points to a statement from a sponsor in
the House who stated, with respect to H.B. 94-1284, that
“malicious conduct” would be dealt with via a federal civil rights
claim and would not implicate the proposed legislation. But that
comment was made in February 1994, well before the above
colloquy in the Senate and the amendment to the proposed
subsection.
¶ 71 Plaintiff contends, and I agree, that the May 10 colloquy
between the Senate sponsor and voting senators shows that the
General Assembly sought to avoid strict liability for operations of a
jail or correctional facility, and intended to set a minimum showing
for liability by requiring that a facility was at least negligent toward
incarcerated persons not yet convicted. Nothing in this discussion
suggests that the legislature intended the waiver of immunity to be
limited to cases of negligence, and not applicable to more serious
torts such as gross negligence or intentional conduct.
¶ 72 When a person operating a jail acts with wrongful intent, the
person also acts at least negligently by unreasonably neglecting the
rights of the injured claimant. “[P]roving a culpable mental state
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necessarily establishes any lesser culpable mental state(s).” People
v. Struckmeyer, 2020 CO 76, ¶ 6.
¶ 73 The majority correctly states that negligence and intentional
torts are two different things, and there are different levels of
negligence, citing White v. Hansen, 837 P.2d 1229 (Colo. 1992).
But, as the majority acknowledges, those statements in White were
made in the context of determining whether a party’s negligence
could be so aggravated as to amount to all but intentional conduct.
They were not made in a context asking whether established
intentional conduct encompasses negligence.
¶ 74 And while the majority points to a definition of “negligence”
from Black’s Law Dictionary, it fails to note that immediately after
the listing, Black’s inserts the following quote from The Enforcement
of Morals 36 (1968), by Patrick Devlin: “Negligence in law ranges
from inadvertence that is hardly more than accidental to sinful
disregard of the safety of others.” And Black’s immediately defines
additional types of negligence, including gross negligence and willful
and wanton negligence, as “a conscious, voluntary act or omission
in reckless disregard of a legal duty and of the consequences to
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another.” Thus, negligence in the law is not so simply limited as
the majority would have us believe from the dictionary definition.
¶ 75 For these reasons, I would affirm the district court’s ruling
that the CGIA does not provide immunity for defendant against the
wrongful imprisonment claim pleaded by plaintiff. The district
court correctly concluded the claim arises from the operation of a
jail, that plaintiff was incarcerated but not yet convicted of a crime,
and that the availability of a civil rights claim does not bar plaintiff’s
state law tort claim.
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