specially concurring.
1 58 I agree with the result reached by the majority and with virtually all of its analysis. I write separately, however, because my analysis of the question as to whether a public entity may be held Hable for its own willful and wanton conduct differs from that of the majority.
*202159 As I understand it, Mr. Gray's family is asserting that defendants University of Colorado Hospital Authority and the University of Colorado Hospital can be held liable for their own willful and wanton conduct, which would allow the family to recover exemplary damages from these defendants. For two reasons, I disagree.
{ 60 First, in my view, such an argument is expressly precluded by section 24-10-114(4)(a), C.R.S.2011, which provides, in pertinent part, "A public entity shall not be liable either directly or by indemnification for punitive or exemplary damages," subject to an exception not applicable here.
T61 Second, I believe that the family's argument is inconsistent with section 24-10-114(1)(a), C.R.S.2011, which provides that when immunity is waived under the Colorado Governmental Immunity Act, the maximum amount that may recovered from one or more public entities and public employees for any injury to one person in any single occurrence is $150,000. This statutory limitation provides no exception for injuries resulting from an entity's willful and wanton conduct. Moreover, allowing recovery for exemplary damages beyond the statutory cap would be inconsistent with the General Assembly's goal of placing "an outer limit on the legal liability of a public entity in order to provide fiscal certainty to governmental operations and thereby secure the continuing availability of these services to the public." Lee v. Colo. Dep't of Health, 718 P.2d 221, 229 (Colo.1986).
{62 In so analyzing this issue, I respectfully disagree with the majority's reliance on the fact that section 24-10-106(1)(a)-(h), C.R.S.2011, which lists eight exceptions to a public entity's sovereign immunity, does not refer to the concept of willful and wanton conduct. As pertinent here, section 24-10-106(1)(b) provides an exception for a public entity's sovereign immunity for, among other things, injuries resulting from the operation of a public hospital. It does not except from the exception injuries resulting from the operation of a public hospital where the actor's conduct was willful and wanton. Nor would I expect it do so, because an allegation of willful and wanton conduct does not give rise to a separate claim for relief. See Harding Glass Co. v. Jones, 640 P.2d 1123, 1126 (Colo.1982) (noting that section 18-21-1102, C.R.S. 2011, which provides for the recovery of exemplary damages, does not create a separate legal right); State Farm Fire & Cas. Co. v. Bellino, 976 P.2d 342, 348 (Colo.App.1998) (noting that exemplary damages do not constitute a separate claim for relief). Moreover, each of the exceptions set forth in section 24-10-106(1)(a)-(h) describes a specific activity or condition. "Willful and wanton conduct," in contrast, refers to the level of egregiousness of an actor's conduct.
T 63 Ramos v. City of Pueblo, 28 P.3d 979, 980 (Colo.App.2001), on which the majority relies, is inapposite to the question of whether a public entity can be held liable for its own willful and wanton conduct. The division there was addressing a public entity's liability for the willful and wanton conduct of public employees. To the extent that the Ramos division's analysis can be construed as applicable to the question of whether an entity can be held liable for its own willful and wanton conduct, I respectfully disagree, for the reasons set forth above. See Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 20, -- P.3d --, 2012 WL 150079 (noting that one division of this court is not bound by the decision of another division).
64 For these reasons, I concur specially in Part II(B) of the majority opinion and join the remainder of the opinion in full.