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ADVANCE SHEET HEADNOTE

October 10, 2017

2017 CO 97

No. 16SC184, City of Arvada ex rel. Arvada Police Department v. Denver Health and 

Hospital Authority—Prisons—Costs of Incarceration

Arvada police arrested a severely injured man and sent him to Denver Health. 

Denver Health sued Arvada for the cost of care, claiming that section 16-3-401, C.R.S.

(2017), which says that persons in custody “shall be . . . provided . . . medical 

treatment,” required Arvada to pay the hospital for the detainee’s care. The supreme 

court clarifies (1) that whether a statute provides a private right of action is a question 

of standing and (2) that the same test for a private right of action under Allstate 

Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992) applies for claims against both 

governmental and non-governmental defendants. Applying Parfrey to Denver Health’s 

statutory claim here, the supreme court holds that section 16-3-401 does not provide 

hospitals a private right of action to sue police departments for the cost of providing 

healthcare to persons in custody. Accordingly, it concludes, the trial court erred by 

granting summary judgment to Denver Health on the statutory claim. The supreme 

court remands for consideration of Denver Health’s unjust enrichment claim based on 

Arvada’s statutory duty to provide care for persons in custody.

 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2017 CO 97

Supreme Court Case No. 16SC184

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 15CA164

Petitioners:

City of Arvada ex rel. Arvada Police Department,

v.

Respondent:

Denver Health and Hospital Authority.

Judgment Reversed 

en banc

October 10, 2017

Attorneys for Petitioners:

Christopher K. Daly, City Attorney

Arvada, Colorado

Vaughan & DeMuro

David R. DeMuro

Denver, Colorado

Attorneys for Respondent:

Ruegsegger Simons Smith & Stern, LLC

Jeff C. Staudenmayer

Denver, Colorado

Attorneys for Amici Curiae The Cities of Black Hawk and Northglenn and the Towns 

of Hudson, Mountain View, and Parker:

Hoffmann, Parker, Wilson & Carberry, P.C.

Corey Y. Hoffmann

Hilary M. Graham

Denver, Colorado

Attorneys for Amicus Curiae City and County of Denver:

Kristin Bronson, City Attorney
2

T. Shaun Sullivan, Assistant City Attorney

Tracy A. Davis, Assistant City Attorney

Joshua L. Roberts, Assistant City Attorney

Denver, Colorado

Attorneys for Amicus Curiae Colorado Hospital Association:

Polsinelli PC

Gerald A. Niederman

Ann McCullough

Bennett L. Cohen

Denver, Colorado

Attorneys for Amici Curiae Colorado Intergovernmental Risk Sharing Agency and 

the Cities of Lakewood and Aurora:

Senter Goldfarb & Rice, LLC

Eric M. Ziporin

Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court.

JUSTICE GABRIEL concurs.

JUSTICE COATS concurs in the judgment in part, and JUSTICE EID joins in the 

concurrence in the judgment in part.

JUSTICE MÁRQUEZ does not participate.
3

¶1 When Arvada police officers responded to a reported domestic disturbance in 

Terry Ross’s home, Ross slipped into a bedroom and shot himself. Severely injured but 

still alive, he needed immediate medical care. Officers radioed for an ambulance whose 

crew delivered him to Denver Health Medical Center, a public hospital. There, doctors 

treated Ross’s wounds as Arvada officers kept watch over him. When Ross, and later 

his estate, could not pay for his care, Denver Health billed Arvada nearly $30,000. The 

question presented is essentially whether Arvada must pay the tab. 

¶2 The trial court and court of appeals said yes; both read Colorado’s “Treatment 

while in custody” statute as entitling Denver Health to relief. Relying on Poudre Valley 

Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), the trial court 

decided the statute assigned police departments (or any agency that detains people) a 

duty to pay healthcare providers for treatment of those in custody. The court of appeals 

affirmed on essentially the same grounds.

¶3 We conclude the statute does not create any duty to a healthcare provider. We 

further conclude, however, that Denver Health’s claim for unjust enrichment survives. 

Because that claim is contractual, we conclude the Colorado Governmental Immunity 

Act does not prohibit it. We therefore reverse the judgment of the court of appeals in 

part and remand for further proceedings consistent with this opinion. 

I. Facts and Procedural History

¶4 Investigating a reported domestic disturbance, Arvada Police Officers Lechuga 

and Schlesser arrived at Terry Ross’s home. He allowed them inside. After some 

conversation, he escaped into a bedroom where, Officer Schlesser worried, he may have 
4

hidden a gun. She ran after him, drew her own gun, and yelled at him to stop. 

Reaching the bedroom door just as it was closing, the officer saw Ross holding what she 

thought might be a handgun and feared he might shoot her. She fired at him. The door 

swung shut. When Officer Schlesser reopened the door and began to explore the room, 

she discovered that although her shot had missed Ross, he had shot himself and was 

bleeding from his head. 

¶5 Officer Schlesser radioed to say she had detained Ross and that he needed 

immediate medical attention for the gunshot wound. An ambulance transported Ross 

to Denver Health. Arvada officers accompanied him to the hospital, where they 

photographed and interviewed him. After Ross received treatment, an Arvada police 

officer remained outside the room until the end of his shift, and the Denver Sheriff’s 

Department, as part of its routine duty for Denver Health’s secure wing, monitored the 

room for the balance of Ross’s brief stay. 

¶6 The bill for Ross’s care at Denver Health totaled just under $35,000. 

¶7 About a month after he left the hospital, Ross committed suicide. When he died, 

he had not yet paid for his Denver Health treatment, but his estate contributed about 

$6,000, bringing the remaining total to about $29,000. Denver Health then billed that

amount to Arvada. 

¶8 Arvada refused to pay, and Denver Health sued the city to recover the funds.

The hospital alleged two theories of liability: First, Colorado’s “Treatment while in 

custody” statute, § 16-3-401, C.R.S. (2017), entitled it to recover Ross’s remaining cost of 

care from Arvada, and second, the common law implied a contract requiring Arvada to 
5

repay Denver Health. Arvada defended on three grounds: First, the statute did not 

create a private right of action; second, it received no benefit from Denver Health to 

support its implied-contract claim; and third, the Colorado Governmental Immunity 

Act (“CGIA”), § 24-10-106(1), C.R.S. (2017), barred Denver Health’s claims because they 

could sound in tort. 

¶9 The parties stipulated to a set of operative facts and both sought summary 

judgment, which the trial court granted in Denver Health’s favor. The court reasoned

that section 16-3-401 required Arvada to pay for Ross’s care, and that it therefore 

entitled Denver Health to repayment. Because the trial court resolved the claim on 

statutory grounds, it did not reach Denver Health’s equitable, implied-contract claim. 

As to Arvada’s contention that the CGIA barred the suit, the trial court concluded 

otherwise, reasoning Denver Health’s claims were contractual and therefore outside the 

CGIA’s scope. 

¶10 Arvada appealed. The division below, relying on Poudre Valley, concluded 

section 16-3-401 required Arvada to pay for Ross’s medical expenses. Because the 

statute imposed a duty to provide medical care, the division reasoned, it similarly 

imposed a duty to pay for that care. 

¶11 The division further rejected Arvada’s arguments that the statute did not 

(1) express a clear intent to impose civil liability on government agencies for payment of 

medical care, or (2) create a private right of action for medical providers. Like the 

division in Poudre Valley, the division in this case reasoned that the traditional limits 

on court-created civil private rights of action did not apply because Denver Health did 
6

not allege a statutory breach creating damages. Instead, the court of appeals observed, 

“[T]he hospital helped Arvada fulfill its statutory obligations by providing medical 

treatment to a person in Arvada’s custody.” Denver Health & Hosp. Auth. v. City of 

Arvada ex. rel. Arvada Police Dep’t, 2016 COA 12, ¶ 36, ___ P.3d ___.

¶12 As to Arvada’s contention that, irrespective of the statutory issue, the CGIA 

barred Denver Health’s claims, the division again disagreed. It concluded that Denver 

Health’s theory of liability, however characterized, sounded solely in contract—not 

tort—and thus the CGIA could not immunize Arvada from suit. 

¶13 Concluding the trial court properly resolved the case in Denver Health’s favor, 

the division upheld that court’s grant of summary judgment. Arvada petitioned this 

court for certiorari. We granted the petition.1

II. Standard of Review

¶14 This court reviews a grant of summary judgment de novo. W. Elk Ranch, L.L.C. 

v. United States, 65 P.3d 479, 481 (Colo. 2002). We also review de novo whether the 

CGIA bars a particular claim because that determination raises a question of statutory 

construction. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). 

 

1 We granted review of the following issues:

1. Whether the court of appeals erred by creating a civil private right of action in 

the code of criminal procedure, benefitting medical providers against 

government entities, where no mention of any civil remedy against government 

exists. 

2. Whether the court of appeals erred in failing to follow Colorado Supreme Court 

law that a claim for unjust enrichment could lie in tort and is thereby governed 

by the Colorado Governmental Immunity Act.
7

III. Analysis

¶15 We resolve the issues raised in three steps. First, we clarify our framework for 

implied-private-right-of-action analysis, and then, applying that framework, we 

conclude section 16-3-401 does not create a claim entitling Denver Health to relief. The 

statute does not identify a duty owed to healthcare providers, does not indicate a 

legislative intent to create a right of action, and does not suggest that imputing one 

would comport with the legislative scheme. Second, we note that although Denver 

Health’s statutory claim fails, its unjust-enrichment claim remains. Third, because 

Denver Health’s unjust-enrichment claim sounds in contract, we conclude the CGIA 

presents no bar to that claim. Therefore, we reverse and remand for consideration of 

Denver Health’s unjust-enrichment claim.

A. Section 16-3-401 Does Not Entitle Denver Health to 

Repayment

¶16 Both the trial court and the division below concluded section 16-3-401 entitles

Denver Health to collect the remaining cost of Ross’s care from Arvada. We disagree. 

Our analysis, though, begins with a detour in which we explain that courts must 

consider whether a statute creates a private right of action as a matter of standing, and 

that they must apply the same analysis irrespective of whether the alleged right of 

action reaches a government or private defendant. Then, we outline the required 

analysis, apply that test, and conclude the statute does not create a private right of 

action. 
8

1. Whether a Statute Creates a Private Right of Action Is a 

Question of Standing

¶17 Denver Health urges us to conclude section 16-3-401 entitles the hospital to a 

judgment against Arvada without first deciding whether the statute creates a claim a 

court can resolve. But we cannot avoid that preliminary issue, so we take it up now.

¶18 The law does not supply a remedy for every wrong, and the courts may redress a 

right abridged or a duty breached only if the plaintiff has standing—the right to raise a 

legal argument or claim. See City of Greenwood Vill. v. Petitioners for the Proposed 

City of Centennial, 3 P.3d 427, 436 (Colo. 2000). A court considering standing in effect 

asks, “Is a court the proper place to resolve this dispute?” 

¶19 In Colorado, a plaintiff seeking to demonstrate standing must have suffered 

(1) an injury-in-fact to (2) a legally protected interest. Ainscough v. Owens, 90 P.3d 851, 

855 (Colo. 2004) (citing Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977)). This 

two-element analysis—the Wimberly test—ensures that the power to create prospective 

laws remains vested in the General Assembly. Id. at 856. A court can often resolve a 

dispute, but so too can the legislature, and safeguarding each institution’s integrity 

requires the judiciary to refrain from answering those questions better addressed by

another branch of government. See Davis v. Passman, 442 U.S. 228, 253 (1979). 

¶20 Under the Wimberly test, proving injury alone does not suffice. The plaintiff 

must hold a legal interest protecting against the injury alleged, and courts must 

therefore ask “whether the plaintiff has a claim for relief under the constitution, the 

common law, a statute, or a rule or regulation.” Ainscough, 90 P.3d at 856. Stated 
9

differently, the court must conclude the injury is actionable. Cloverleaf Kennel Club, 

Inc. v. Colo. Racing Comm’n, 620 P.2d 1051, 1058 (Colo. 1980). 

¶21 When a statute does not specify what constitutes an actionable injury, we look to 

the law of implied private rights of action to determine whether the statute might still 

create a claim conferring standing.2 See id. We don’t often find such a claim. To the 

contrary, our reluctance to speak over legislative silence unites our implied-privateright-of-action opinions. 

¶22 Making that point nearly a half-century ago, we said, “If the General Assembly 

has the intent that [private parties] use [a] statute as the basis for civil liability, then its 

expression of this intent should be loud and clear, I.e., by authorizing the remedy. This 

is not a subject in which we should attempt to infer such a legislative intent.” Quintano 

v. Indus. Comm’n, 495 P.2d 1137, 1139 (Colo. 1972). More recently, we have required a 

“clear expression” of legislative intent before installing a private right of action in a 

statute otherwise silent on the matter. State v. Moldovan, 842 P.2d 220, 227 (Colo. 1992) 

(discussing Quintano, 495 P.2d at 1138–39 and Bd. of Cty. Comm’rs v. Moreland, 764 

P.2d 812, 818–19 (Colo. 1988)). 

 

2 We do not intend for this observation to cast doubt on our well-established law 

regarding taxpayer standing, a doctrine not implicated here. E.g., Conrad v. City and 

Cty. of Denver, 656 P.2d 662, 668 (Colo. 1982) (observing taxpayers enjoy an “economic 

interest in having their tax dollars spent in a constitutional manner” and that 

unconstitutional spending can therefore contribute to injury-in-fact under the Wimberly

test). 
10

2. The Same Implied-Private-Right-of-Action Analysis Applies 

to Governmental and Non-governmental Defendants

¶23 We have expressed the same concerns no matter the legal theory and no matter 

the defendant. Although our implied-private-right-of-action cases typically concern 

torts, e.g., Moldovan, 842 P.2d at 226–27, we have analyzed other implied statutory 

claims as well, e.g., Bd. of Cty. Comm’rs v. Pfeifer, 546 P.2d 946, 948–49 (Colo. 1976) 

(holding statute did not create claim to set aside improper conveyance). We similarly 

hesitate to imply a private right of action irrespective of whether the defendant is a state 

actor or a private party. See Moldovan, 842 P.2d at 226–27 (state actor); Allstate Ins. Co. 

v. Parfrey, 830 P.2d 905, 910 (Colo. 1992) (private party). 

¶24 To be sure, some of our earlier cases suggested a two-track analysis—one for 

governmental defendants and another for private defendants—perhaps as the vestige of 

a time when sovereign immunity remained a question for the courts. But those paths 

have since converged. So, although in Parfrey we addressed our analysis to 

“nongovernmental defendants,” 830 P.2d at 911, later that year, we conducted the 

functional equivalent of that analysis with the state as the defendant in Moldovan, 842 

P.2d at 226–27. And in Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo. 

1997), a private-defendant case, we drew from both our governmental- and 

private-defendant opinions without noting any distinction—a distinction we perceive 

as existing more in word than in deed. We therefore take this opportunity to make 
11

explicit the approach implicit in our opinions: The same implied-private-right-of-action 

analysis applies irrespective of the defendant’s governmental status.3

3. Under the Parfrey Test, Section 16-3-401 Does Not Create an 

Implied Private Right of Action

¶25 As with all matters of statutory interpretation, our fundamental task must be to 

discern and effectuate the legislature’s intent. When, as here, “a claimant alleges that a 

statute, ordinance, or regulation implicitly creates a private right of action, the critical 

question is whether the legislature intended such a result.” Magness, 946 P.2d at 923.

¶26 Generally, if the legislature includes a remedy in the statute at issue, we will 

conclude it did not intend for the courts to create others. See Parfrey, 830 P.2d at 910; 

Pfeifer, 546 P.2d at 948–49. But if the statute “is totally silent on the matter of remedy,” 

then the court “must determine whether a private civil remedy reasonably may be 

implied.” Parfrey, 830 P.2d at 910. 

¶27 Answering that question requires the court to examine three factors: (1) “whether 

the plaintiff is within the class of persons intended to be benefitted by the legislative 

enactment”; (2) “whether the legislature intended to create, albeit implicitly, a private 

right of action”; and (3) “whether an implied civil remedy would be consistent with the 

purposes of the legislative scheme.” Id. at 911. Only after a court has determined a 

 

3 Two years ago, we reached the same conclusion in Taxpayers for Public Education v. 

Douglas County School District, 2015 CO 50, 351 P.3d 461 (2015). The Supreme Court 

subsequently vacated that opinion, however, in Douglas County School District v. 

Taxpayers for Public Education, 137 S. Ct. 2327 (2017). Because we perceive that 

decision as unrelated to our implied-private-right-of-action analysis, and because our 

vacated opinion no longer holds precedential value, we have revisited this issue and 

reach the same conclusion.
12

statute has satisfied these factors can it conclude the legislature clearly expressed its 

intent to create a cause of action conferring standing on the claimant. 

¶28 Here, the parties dispute whether we should read a private right of action into 

the following language:

Persons arrested or in custody shall be treated humanely and provided 

with adequate food, shelter, and, if required, medical treatment. Anyone 

receiving medical treatment while held in custody may be assessed a 

medical treatment charge as provided in section 17-26-104.5, C.R.S.

§ 16-3-401(2). Because the statute does not already identify a remedy for breach of its 

provisions, we begin with the Parfrey analysis.4

¶29 The case for a claim falters from the first step: Section 16-3-401 does not reveal

legislative intent to benefit healthcare providers like Denver Health. Instead, titled 

“Treatment while in custody,” it describes the duties owed to a person in custody, 

medical care numbering one among several. Id. And that section appears within a 

larger enactment concerning “Rights of persons in custody.” Tit. 16, art. 3, pt. 4, C.R.S. 

(2017). Both that section and the larger enactment focus solely on the rights and duties 

of a confining state entity with respect to the person in its custody—not on the third 

parties who might incidentally assist a detaining government in fulfilling its statutory 

duties. 

 

4 Although section 16-3-401(2) allows a confining entity to assess a treatment charge as 

provided in section 17-26-104.5, C.R.S. (2017), that remedy concerns a duty distinct from 

the one alleged here. That is, although section 17-26-104.5 plausibly places on a 

detainee the duty to repay a county jail for treatment the jail provided on his behalf, it 

does not illuminate whether the legislature intended to create (1) a duty requiring local 

governments to repay medical providers or (2) a remedy for the breach of that duty. 
13

¶30 As to Parfrey’s second factor, the legislature’s silence regarding any duty owed 

to medical providers suggests it did not intend to create a right of action in favor of 

those providers. Moreover, the legislation here lacks other indicia of intent to create a 

private right of action. 

¶31 In Moldovan, 842 P.2d at 221, a motorist injured after crashing into a cow on a 

state highway asked us to impute a private right of action into Colorado’s Fence Law. 

(That law required the state highway department to erect fencing to prevent errant 

animals from venturing onto its roads. Id. at 225–26.) We concluded the legislature 

intended for the statute to create a private right of action against the state because 

(1) the state owed a duty directly to the plaintiff and (2) the legislature had waived 

sovereign immunity for dangerous conditions on public roads. Id. at 228. 

¶32 Similarly, in Parfrey, 830 P.2d at 911, we concluded the legislature implicitly 

intended to create a private right of action for an insured against his insurance company 

when (1) doing so would incentivize the insurer to perform its express statutory 

obligation to the insured, and (2) failing to create a cause of action would have left an 

insured without any of the benefits promised under the statute.

¶33 Here, at most, the legislature has chosen against extending sovereign immunity 

to contractual claims. See § 24-10-106(1); Colo. Dep’t of Transp. v. Brown Grp. Retail, 

Inc., 182 P.3d 687, 690–91 (Colo. 2008). But it has not created a duty to medical 

providers similar to the state’s duty to motorists in Moldovan or the insurer’s duty to 

the insured in Parfrey. See § 16-3-401. 
14

¶34 Furthermore, we need not find a right of action for hospitals to ensure the 

detaining government fulfills its duty to supply its detainees with medical care. As 

Denver Health explains, federal law requires it to treat patients needing emergency care

and prevents it from asking whether or how the patient will pay. See 42 U.S.C. 

§ 1395dd(a), (b) (2016). Finding a private right of action, then, wouldn’t change the 

hospital’s decision to provide care or the city’s ability to procure care in an emergency. 

In other, less dire situations, a government could contract with a provider for the care it 

must deliver—and if it opted not to pay, the case would be based on the contract, not 

the statute. Thus, we cannot say that to ensure a detainee receives the care the statute 

promises him we must impute a private right of action for hospitals. 

¶35 Finally, we cannot conclude that imputing a private right of action would be 

consistent with the purposes of the legislative scheme. The provision of section 

16-3-401 at issue was introduced in the 1972 enactment of the Colorado Code of 

Criminal Procedure. Ch. 44, sec. 1, § 39-3-401, 1972 Colo. Sess. Laws 190, 202. The 

overall purpose of the Code is “to provide for the just determination of every criminal 

proceeding.” § 16-1-103, C.R.S. (2017). Implementing section 16-3-401 served that 

broad purpose by codifying the common law rule that prisoners must be cared for by 

the public who sanctions their detention. See, e.g., Spicer v. Williamson, 132 S.E. 291, 

293 (N.C. 1926) (“It is but just that the public be required to care for the prisoner, who 

cannot, by reason of the deprivation of his liberty, care for himself.”).

5 It likewise 

 

5 This rule has since been recognized as constitutionally required under the Eighth 

Amendment for convicted prisoners, Estelle v. Gamble, 429 U.S. 97, 103 (1976), and
15

served the Code’s more specific purpose of preserving “the fundamental human rights 

of individuals.” § 16-1-103. These purposes don’t jibe with an intent to create a private 

right of action for medical providers.

¶36 We therefore decline to read a private right of action into section 16-3-401 and 

disapprove of the analysis below concluding otherwise. We similarly overrule Poudre 

Valley to the extent it conflicts with our conclusion here. 

B. Denver Health Might Still Recover on a Theory of Unjust 

Enrichment

¶37 Although we conclude that the court of appeals erred in finding section 16-3-401 

creates a private right of action, Denver Health could still prevail on its 

implied-contract/unjust-enrichment claim. As a judicially created, equitable cause of 

action, an unjust-enrichment claim does not depend on any contract, written or oral, but 

instead arises from a “contract implied in law.” Lewis v. Lewis, 189 P.3d 1134, 1141 

(Colo. 2008) (quoting DCB Constr. Co. v. Cent. City Dev. Co., 965 P.2d 115, 119 (Colo. 

1998)). To recover under an unjust-enrichment theory, a plaintiff must prove three 

elements: “(1) [T]he defendant received a benefit (2) at the plaintiff’s expense (3) under 

circumstances that would make it unjust for the defendant to retain the benefit without

commensurate compensation.” Id. Denver Health argues that Arvada received a 

benefit at Denver Health’s expense because the statute obligated Arvada to provide the 

medical treatment that Denver Health provided to Ross. Neither the trial court nor the 

court of appeals reached this claim, and we decline to do so in the first instance. 

 

under the Due Process Clause for pretrial detainees, City of Revere v. Mass. Gen. Hosp., 

463 U.S. 239, 244 (1983). 
16

¶38 So, the implied-contract/unjust-enrichment claim remains, but is it barred by the 

CGIA? We turn now to that question.

C. The Colorado Governmental Immunity Act Does Not Bar 

Denver Health’s Claim

¶39 The CGIA bars public liability for all claims for injury that lie in tort or could lie 

in tort, unless the claim falls within an exception to that immunity. § 24-10-106(1);

Robinson, 179 P.3d at 1003. The CGIA does not, however, grant immunity to public 

entities for non-tort claims, including claims based on “contractual relations or a 

distinctly non-tortious statutorily-imposed duty.” Brown Grp., 182 P.3d at 691. 

¶40 The key question, then, is whether the claim here lies in tort or could lie in tort. 

To answer it, we look first to “the nature of the injury and the relief sought” in the case 

at bar. Robinson, 179 P.3d at 1003. If the alleged injury requiring relief results from 

tortious conduct or breach of a tort duty, then, it likely falls within the CGIA, even if the 

claimant has characterized its cause of action as contractual. Id. at 1003, 1005. 

¶41 Applying these considerations to the unjust-enrichment claim discussed above, 

we conclude it does not and cannot lie in tort, and thus the CGIA presents no bar to 

suit. Arvada offers only an implausible hypothetical to support its contention that the 

facts here amount to a tort claim—that Denver Health could have argued Arvada 

misrepresented its intention to pay for Ross’s care and thereby induced the hospital to 

care for him. But as we observed above, federal law already required Denver Health to 

treat Ross. And once he arrived on the hospital steps, Arvada’s representations no 

longer dictated whether Ross would receive care. Regardless, the facts do not disclose 
17

misrepresentation. When the hospital presented an Arvada Officer with a “Guarantee 

of Payment for Patient/Inmate” form, the officer signed it but noted next to the medical 

expenses, “suspect is responsible—he shot self.”

¶42 We will not shoehorn contractual facts into a tort theory. See id. at 1007 

(explaining that we apply a “case-by-case analysis” to determine whether an unjust 

enrichment claim could lie in tort); cf. Bd. of Cty. Comm’rs v. DeLozier, 917 P.2d 714, 

717 (Colo. 1996) (holding estoppel claim could not lie in tort where “the facts that 

support [the] claim could not support a claim for fraud or misrepresentation”). Denver 

Health, by virtue of its statutory obligation, performed a service normally covered 

under contract. Arvada never promised to pay for that service, and has in fact refused 

to pay, but it may have received a benefit. We therefore concluded above that the law 

supplies a relationship that could require Arvada to compensate Denver Health for 

Ross’s care—a relationship we described as arising from a “contract implied in law.”

Supra, maj. op. at ¶ 37. This equitable claim therefore more closely resembles one 

sounding in contract and cannot lie in tort. As a result, the CGIA does not stand in its 

way. 

IV. Conclusion

¶43 Colorado’s “Treatment while in custody” statute does not create a claim a court 

may hear, in large part because it does not create any duty owed to a healthcare 

provider, much less a claim to recover for a breach of that duty. Still, having concluded 

as much, we further conclude that Denver Health’s request for relief potentially finds 

purchase in the equitable remedy of unjust enrichment. And because Arvada may have 
18

had a statutory duty to care for Ross that it placed on Denver Health—an institution 

which could not refuse the task—the district court should address whether it would be 

unjust for Arvada to retain the benefit, if any, of Denver Health’s performance without 

paying for it. Finally, because that remedy is contractual and could not lie in tort, we 

conclude the Colorado Governmental Immunity Act does not stand in its way. We 

therefore reverse the judgment of the court of appeals to the extent it held the statute 

supplied a right of action to Denver Health, and we remand for further proceedings 

consistent with this opinion.

JUSTICE GABRIEL concurs.

JUSTICE COATS concurs in the judgment in part, and JUSTICE EID joins in the 

concurrence in the judgment in part.

JUSTICE MÁRQUEZ does not participate.
1

JUSTICE GABRIEL, concurring.

¶44 I join the majority’s opinion in full. I write separately, however, to explain why I 

believe that the conclusion that the law dictates with respect to section 16-3-401(2), 

C.R.S. (2017), may lead to unfair results and thus cries out for legislative clarification.

I. Analysis

¶45 The principal issue in this case boils down to this: when Arvada brought a 

person in its custody to Denver Health for treatment and Denver Health provided such 

treatment, does section 16-3-401(2) require Arvada to pay for the cost of that treatment, 

or should Denver Health, and ultimately Denver taxpayers, bear this cost?

¶46 In my view, the intuitive answer to this question is clear: Arvada, as the party 

that requested the treatment, should pay, just like it must pay for the adequate food and 

shelter that section 16-3-401(2) requires it to provide to persons who are arrested or in 

its custody. I do not believe that anyone disputes that Arvada would be required to pay 

for medical treatment if that treatment were provided to a person in custody in an 

Arvada institution. I see no reason why the result should be different were Arvada to 

transport the same person to Denver Health for treatment. The person remains in 

Arvada’s custody, and the statutory duty to provide treatment remains the same. See

§ 16-3-401(2). Indeed, concluding that Denver Health must bear the costs in such a 

scenario creates a perverse incentive for cities having custody over persons in need of 

treatment to transport such persons to Denver Health in order to avoid incurring the 

costs. Such a result makes little sense to me, and it seems particularly unjust to Denver 
2

taxpayers, who could end up bearing costs that should rightly be borne by the 

taxpayers of the cities holding the persons in need of treatment.

¶47 Nonetheless, under existing law, I cannot conclude that section 16-3-401(2) 

evinces a clear legislative intent to allow Denver Health to assert a statutory claim for 

the costs at issue.

¶48 We have long held that we will not infer a private right of action based on a 

statutory violation unless we discern a clear legislative intent to create such a cause of 

action. See, e.g., Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo. 1997); Bd. 

of Cty. Comm’rs v. Moreland, 764 P.2d 812, 817 (Colo. 1988); Quintano v. Indus. 

Comm’n, 495 P.2d 1137, 1139 (Colo. 1972).

¶49 Here, I cannot say that section 16-3-401(2) evinces the requisite clear legislative 

intent to recognize a statutory cause of action. This is particularly true given that 

section 16-3-401(2) itself expressly provides for the assessment of costs to the person 

receiving treatment. See § 16-3-401(2) (“Anyone receiving medical treatment while 

held in custody may be assessed a medical treatment charge as provided in section 

17-26-104.5, C.R.S.”); see also § 17-26-104.5(3), C.R.S. (2017) (“When a person is held in 

custody in a county jail, the person shall be primarily responsible for the payment of the 

cost of medical care provided to the person for a self-inflicted injury or a condition that 

was preexisting prior to the person’s arrest and shall be charged for the medical care by 

the provider of care.”).

¶50 The fact that in section 16-3-401(2), the General Assembly assessed certain costs 

to persons receiving treatment shows that the legislature knew how to allocate the 
3

burden of payment when it intended to do so. In these circumstances, I cannot read 

into section 16-3-401(2) a clear legislative intent to require Arvada to bear the costs in 

the scenario presented in this case.

¶51 In reaching this conclusion, I am unpersuaded by Denver Health’s assertion that 

cases like Gerrity Oil, Moreland, and Quintano are distinguishable because they 

concerned breaches of statutory duties whereas in the present case, Denver Health 

assisted Arvada in complying with its statutory duty. Although I acknowledge this 

distinction, I do not believe that our case law regarding implied statutory rights of 

action has drawn so fine a line. In any event, the question of whether we may infer 

from a statute a private right of action must turn on the legislature’s intent, and here, it 

is what I perceive to be a lack of clarity as to the legislature’s intent that compels me to 

concur in the majority’s decision.

II. Conclusion

¶52 For the foregoing reasons, I believe that settled law requires me to conclude that 

section 16-3-401(2) does not support Denver Health’s statutory claim to recover the 

costs of services that it provided to Mr. Ross. It is not clear to me, however, that this is

the legislature’s intended result, particularly given the inequitable outcomes that could

flow from such a conclusion.

¶53 Accordingly, although I join in the majority’s opinion, I echo the sentiments 

expressed by Judge Vogt in her special concurrence below that the issues in this case cry 

out for resolution by the General Assembly. Denver Health & Hosp. Auth. v. City of 
4

Arvada ex rel. Arvada Police Dep’t, 2016 COA 12, ¶ 50, ___ P.3d ___, ___ (Vogt, J., 

specially concurring). I hope it will take up the mantle.
1

JUSTICE COATS, concurring in the judgment in part.

¶54 Unlike the majority, I would reverse the judgment of the court of appeals and 

order that the case be returned to the district court for entry of an order granting 

Arvada’s motion for summary judgment. I do not believe the judgment of the court of 

appeals implicates our jurisprudence concerning the statutory creation of private rights 

of action at all, much less requires us to separately address the question of standing. 

Furthermore, I would find that section 16-3-401 of the revised statutes not only fails to 

impose upon Arvada a duty to bear the ultimate cost of Ross’s medical treatment but, in 

fact, expressly absolves Arvada of any such responsibility. And finally, even if the 

statute actually did impose such a duty on custodians, as the court of appeals held, I 

would find it to be a duty implied in law, for the breach of which and corresponding 

damages for which the assertion of governmental immunity would be available. I 

therefore do not join the majority opinion, and I concur only in that portion of its 

judgment reversing the judgment of the court of appeals.

¶55 Notwithstanding Arvada’s characterization, I believe the court of appeals finds a 

statutory duty of custodians to shoulder the expense of caring for those in its custody 

but not a statutorily created right of action by providers against that custodian. While I 

disagree that the statute imposes liability on custodians for this expense, I do so from a 

simple construction of sections 16-3-401(2) and 17-26-104.5.

¶56 I believe the majority’s analysis goes awry from its very inception by 

understanding Denver Health to be claiming, and the court of appeals judgment as 

upholding, an entitlement to a statutorily created, implied private right of action for the 
2

violation of a statutory obligation. Our jurisprudence upon which the majority relies, 

see, e.g., Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992); Bd. of Cty. Comm’rs v. 

Moreland, 764 P.2d 812 (Colo. 1988), addresses the question whether the violation of a 

statutorily or administratively imposed obligation was intended by the enacting body 

not only to have consequences in terms of governmental enforcement but also to permit 

a private action by the intended beneficiaries of that obligation. Denver Health, 

however, makes no claim to a statutorily created private right of action, asserting 

instead merely a claim in the nature of restitution for satisfying or helping to satisfy 

Arvada’s duty to provide medical treatment for those in its custody. By the same token,

the court of appeals expressly distinguishes our private right of action jurisprudence 

from its holding on the grounds that it does not find any violation of what it interprets 

to be Arvada’s statutorily imposed duty of care, but simply that the statute implicitly 

imposes upon it a responsibility to bear the costs of such care, by whomever it is 

provided.

¶57 Rather than the creation of a private right of action, the majority should have 

been concerned with the question whether the clear duty of law enforcement authorities 

to care for persons in their custody, whether imposed solely by statute or already 

existing at law, implies an obligation to bear the cost of medical treatment provided 

those persons, such that anyone providing that medical treatment would have a claim, 

in the nature of restitution or unjust enrichment, for the recovery of its costs. Whether 

the custodian would be expressly obligated to make restitution by the relationship 

alone or, if not, that it would simply be unjust to permit the custodian to retain the 
3

benefit it received as the result of another having provided such treatment, any 

entitlement to reimbursement by a provider would necessarily be dependent upon the 

custodian’s having received a benefit, which in turn would be dependent upon the 

exclusivity of the custodian’s obligation to provide medical care for its prisoners and 

therefore its obligation to bear the cost of that care. Section 16-3-401(2) in no way 

implies that custodians will be liable for the costs of medical care provided to persons 

in their custody; to the contrary, it specifies that the person in custody himself shall be 

ultimately responsible for the cost of such care, which may be assessed against him as 

provided by statute. §16-3-401(2), C.R.S. (2017) (“Anyone receiving medical treatment 

while held in custody may be assessed a medical treatment charge as provided in 

section 17-26-104.5, C.R.S.”).

¶58 While I agree with the majority’s conclusions that section 16-3-401 does not 

identify any duty of custodians to healthcare providers whatsoever or relieve those 

providers of any separate duties they clearly have to treat patients needing emergency 

care, without regard for payment, maj. op. ¶¶ 33–34, I do not agree that these 

conclusions derive in any way from our statutorily created private right of action 

jurisprudence, or even that the question whether a private right of action was intended 

necessarily implicates the doctrine of standing. While the question whether a particular 

claimant may bring a particular action may be said to involve standing, in the mundane 

sense that any party asserting a claim must have standing to do so, the question 

whether a private right of action has been statutorily created does not always implicate 
4

the doctrine of standing, and in Parfrey and those cases relying on it, we have not 

addressed the creation of a private right of action in terms of the standing doctrine. 

¶59 For the very reason that the statute not only fails to identify a duty owed to 

healthcare providers but actually makes clear that the inmate being treated ultimately 

bears the obligation for his own medical expenses, I also disagree with the majority’s 

remand for consideration of Denver Health’s claim of unjust enrichment. Arvada could 

have benefitted from Denver Health’s medical services, a necessary element of any 

claim of unjust enrichment, only to the extent that Arvada was ultimately responsible 

for the cost of the health care. In the absence of any such responsibility, Arvada could 

not have been unjustly enriched. 

¶60 Finally, even if the issue of unjust enrichment were not already disposed of for 

this reason, I disagree with the majority’s determination that Denver Health’s unjust 

enrichment claim would not be subject to our statutory provisions for governmental 

immunity because it is based on “contractual relations” or “contractual facts.” Maj. op. 

¶¶ 39, 42. While the majority does not appear to repeat the mistake of the court of 

appeals in categorizing all implied contracts, including those implied in law along with 

those implied in fact, as contractual rather than tortious in nature, see Robinson v. Colo. 

State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008); see also Colo. Dep’t of Transp. v. 

Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008), it nevertheless appears to suggest 

that the officer’s signature on a hospital form implicates promissory estoppel or some 

other contract-related, rather than tort-related, claim. Maj. op. ¶¶ 41–42. As Denver 

Health itself conceded, the signed form was irrelevant and implied nothing about its 
5

claim for unjust enrichment. Whatever may have been the majority’s rationale for 

finding that the claim could not lie in tort, I would find that even if the statutory 

interpretation of Denver Health and the court of appeals were correct, the duty at issue 

in section 16-3-401 would be one of general care, deriving not from any implicit 

agreement or promise on the custodian’s part but strictly from its special relationship 

with the persons restrained in its custody.

¶61 Despite fundamentally disagreeing with almost all of the majority opinion, I 

share with it a common conclusion that section 16-3-401(2) does not impose upon 

custodians any duty whatsoever with regard to healthcare providers. I therefore 

respectfully concur in that part of its judgment.

I am authorized to state that JUSTICE EID joins in this concurrence in the 

judgment in part.