CO Code § 24-10-118 (2021)
2021 Colorado Code|Title 24 - Government - State|Article 10 - Governmental Immunity|§ 24-10-118. Actions Against Public Employees - Requirements and Limitations

  Any action against a public employee, whether brought pursuant to this article, section 29-5-111, C.R.S., the common law, or otherwise, 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 the claimant and which arises out of injuries sustained from an act or omission of such employee which occurred or is alleged in the complaint to have occurred 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, shall be subject to the following requirements and limitations, regardless of whether or not such action against a public employee is one for which the public entity might be liable for costs of defense, attorney fees, or payment of judgment or settlement under section 24-10-110:   Compliance with the provisions of section 24-10-109, in the forms and within the times provided by section 24-10-109, shall be a jurisdictional prerequisite to any such action against a public employee, and shall be required whether or not the injury sustained is alleged in the complaint to have occurred as the result of the willful and wanton act of such employee, and failure of compliance shall forever bar any such action against a public employee. Any such action against a public employee shall be commenced within the time period provided for that type of action in articles 80 and 81 of title 13, C.R.S., relating to limitation of actions, or it shall be forever barred.    The maximum amounts that may be recovered in any such action against a public employee shall be as provided in section 24-10-114 (1), (2), and (3).    A public employee shall not be liable for punitive or exemplary damages arising out of an act or omission occurring during the performance of his duties and within the scope of his employment, unless such act or omission was willful and wanton.    The fact that a plaintiff sues both a public entity and a public employee shall not be deemed to increase any of the maximum amounts that may be recovered in any such action as provided in this section or in section 24-10-114.         A public employee shall be immune from liability in any claim for injury, whether brought pursuant to this article, section 29-5-111, C.R.S., the common law, or otherwise, 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). (2) (a) A public employee shall be immune from liability in any claim for injury, whether brought pursuant to this article, section 29-5-111, C.R.S., the common law, or otherwise, 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).    Any member of any state board, commission, or other advisory body appointed pursuant to statute, executive order, or otherwise, and any other person acting as a consultant or witness before any such body, shall be immune from liability in any civil action brought against said person for acts occurring while the person was acting as such a member, consultant, or witness, if such person was acting in good faith within the scope of such person's respective capacity, makes a reasonable effort to obtain the facts of the matter as to which action was taken, and acts in the reasonable belief that the action taken by such person was warranted by the facts. (2.5) If a public employee raises the issue of sovereign immunity prior to or after the commencement of discovery, the court shall suspend discovery; except that any discovery necessary to decide the issue of sovereign immunity shall be allowed to proceed, and the court shall decide such issue on motion. The court's decision on such motion shall be a final judgment and shall be subject to interlocutory appeal.       Nothing in this section shall be construed to allow any action which lies in tort or could lie in tort regardless of whether that may be the type of action or the form or relief chosen by a claimant to be brought against a public employee except in compliance with the requirements of this article.    The immunities provided for in this article shall be in addition to any common-law immunity applicable to a public employee.    Notwithstanding any provision of this article to the contrary, a public entity may, if it determines by resolution adopted at an open public meeting by the governing body of the public entity that it is in the public interest to do so, defend a public employee against a claim for punitive damages or pay or settle any punitive damage claim against a public employee.     Source: L. 79: Entire section added, p. 865, § 7, effective July 1. L. 85, 1st Ex. Sess.: IP(1) amended and (1)(c), (1)(d), (2), and (3) added, pp. 10, 11, §§ 7, 8, effective September 27. L. 86: Entire section added, p. 881, § 15, effective July 1 . L. 92: (1)(a) and (2) amended and (2.5) added, p. 1118, § 7, effective July 1.   ANNOTATION   <b> This section definitively expresses the intent to grant immunity to negligent employees of immune governmental entities. </b> The language in subsection (2)(a) that waives immunity under "the circumstances specified in section <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar10-s24-10-106" target="_self"> 24-10-106</a></cite> (1)" refers not only to the act of operating a motor vehicle but also to the ownership status of the vehicle. The motor vehicle must be "owned or leased" by the public entity. Therefore, county employee who caused an automobile accident while using his personal vehicle and acting in the course and scope of his employment was immune from liability under the Colorado Governmental Immunity Act (CGIA). Ceja v. Lemire, 143 P.3d 1093 (Colo. App. 2006), aff'd, 154 P.3d 1064 (Colo. 2007).   It is only where a plaintiff has stated a federal claim that a notice of claim provision may be struck down based on supremacy because allowing a federal claim to be limited by state law would defeat the objective of the federal law. King v. U.S., 53 F. Supp. 2d 1056 (D.Colo. 1999).   Trial court did not err in determining that plaintiff failed to give the statutory notice in medical malpractice action where plaintiff retained counsel and obtained a set of doctors' and hospital's medical records by December 1985 but filed no notice of claim until August 1987. Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991).   Substantial compliance with the 180-day notice provision is a condition precedent to any "action" brought under the CGIA, therefore, the time for filing minors' notice is not extended pursuant to the tolling provisions of § 13-81-103 until two years after the minors' legal representative is appointed. Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991).   Under the CGIA, proper notice of injury is a jurisdictional prerequisite when an alleged injurious act by a public employee occurs or is alleged to have occurred during the performance of the employee's duties and within the scope of the employee's employment. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).   Subsection (1)(a) of this section does not make compliance with § 24-10-109 (6) a jurisdictional prerequisite for suing public employees. Dicke v. Mabin, 101 P.3d 1126 (Colo. App. 2004).   Failure to comply with notice provisions in the CGIA barred bringing of tort action against a public employee for conduct occurring in scope of her employment. Running of notice prevented court from exercising subject matter jurisdiction and the court had no authorization to create exception to the no fault act. Shandy v. Lunceford, 886 P.2d 319 (Colo. App. 1994).   There is no requirement in this section that a notice of claim be provided to a public employee or that employee's attorney. Rather, this section only requires that a notice be sent to the attorney general when the state is involved, or to the governing body of the public entity involved or that entity's attorney. Barham v. Scalia, 928 P.2d 1381 (Colo. App. 1996).   Accident occurred during the performance of defendant's duties and within the scope of defendant's employment for the purpose of triggering the jurisdictional notice requirement of subsection (1)(a) upon a showing that the defendant was required to drive a patrol car to and from his private residence to perform his job properly, the state paid all operating costs of the vehicle while defendant was on call, and the defendant was not allowed to use the patrol car for personal reasons. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).   The question of whether a public employee acts within the scope of his employment is a question of sovereign immunity. As such, it is proper for a trial court to decide for the purposes of immunity whether an employee was acting within the scope of his employment on a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The trial court, however, must resolve disputed issues of fact before it decides whether it has subject matter jurisdiction over the claim. Gallagher v. Univ. of N. Colo., 54 P.3d 386 (Colo. 2002).   "Willful and wanton" conduct was adequately pleaded. Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994).   <b> Since the CGIA does not define the term "willful and wanton", the court followed a majority of courts that have addressed the issue and applied the definition set forth in the exemplary damages statute, <cite class="occo"><a href="gov.co.crs.title.13.html#t13-damagesandlimitationsonactions-ar21-p01-s13-21-102" target="_blank">§ 13-21-102</a></cite>(1)(b). </b> Cossio v. City &amp; County of Denver, 986 F. Supp. 1340 (D.Colo. 1997); O'Hayre v. Bd. of Educ. for Jefferson County Sch. Dist. R-1, 109 F. Supp. 2d 1284 (D.Colo. 2000); Dahn v. Adoption Alliance, 164 F. Supp. 3d 1294 (D.Colo. 2016), rev'd on other grounds sub nom. Dahn v. Amedei, 867 F.3d 1178 (10th Cir. 2017).   Mere negligence does not make conduct willful and wanton. To be willful and wanton, conduct must exhibit a conscious disregard for the danger. In re Estate of Bleck, 2016 CO 58, 379 P.3d 315.   State trooper's decision to end a traffic stop of a vehicle by following the vehicle to its destination instead of issuing a citation is not willful and wanton conduct. The decision was not needless or reckless but was simply a choice between logical alternatives that a reasonable officer would entertain. Moody v. Ungerer, 885 P.2d 200 (Colo. 1994).   Under the factual circumstances, police officer's actions were not willful and wanton and therefore did not approach the level of culpable conduct required to abrogate the immunity conferred by the CGIA where officer failed to offer a motorist a ride home following a traffic stop in which the officer ordered the driver not to drive, and the motorist was subsequently assaulted. Jarvis by and through Jarvis v. Deyoe, 892 P.2d 398 (Colo. App. 1994).   County sheriffs entitled to qualified immunity where the court found no evidence that their actions were willful and wanton. Conduct of sheriffs involved in executing an in rem seizure warrant did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Trujillo v. Simer, 934 F. Supp. 1217 (D.Colo. 1996).   <b> Outrageous conduct claims predicated on a lack of conduct, not on willful and wanton conduct, barred by operation of <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar10-s24-10-110" target="_self">§ 24-10-110</a></cite> (5). </b> Dahn v. Adoption Alliance, 164 F. Supp. 3d 1294 (D.Colo. 2016), rev'd on other grounds sub nom. Dahn v. Amedei, 867 F.3d 1178 (10th Cir. 2017).   Allegations that a school principal assaulted and battered a student were sufficient to meet the standard for willful and wanton claims. O'Hayre v. Bd. of Educ. for Jefferson County Sch. Dist. R-1, 109 F. Supp. 2d 1284 (D.Colo. 2000).   The plaintiff need not specifically use the word "intent" to plead an intentional act. O'Hayre v. Bd. of Educ. for Jefferson County Sch. Dist. R-1, 109 F. Supp. 2d 1284 (D.Colo. 2000).   Because a jury could find that public school teacher's actions in restraining a developmentally disabled child were willful and wanton, teacher not entitled to summary judgment. A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d 1226 (D.Colo. 2011).   Under the CGIA and the Child Protection Act of 1987, a public employee who is a mandatory reporter is immune from liability for reporting or failing to report child abuse unless the employee's conduct is willful and wanton. L.J. v. Carricato,2018 COA 3, 413 P.3d 1280.   Public employees' actions are willful and wanton when the employees are consciously aware that their acts or omissions create danger or risk to the safety of others, and they act or fail to act without regard to the danger or risk. A complaint must allege specific facts to support a reasonable inference the employee was consciously aware of the risk or danger and acted without regard to the danger or risk. L.J. v. Carricato,2018 COA 3, 413 P.3d 1280.   Public employee's knowledge and conscious disregard of a health danger to another may be sufficient to render the employee's conduct willful or wanton, it is not necessary for the employee to know the specific cause of potential injury or death for the employee's omissions to constitute willful or wanton conduct. Duke v. Gunnison County,2019 COA 170, 456 P.3d 38.   Where the court has determined that an equitable estoppel claim is not barred by sovereign immunity, as it does not lie in tort and could not lie in tort, whether or not a public employee's behavior was willful or wanton is irrelevant. Kohn v. City of Boulder, 919 P.2d 822 (Colo. App. 1995).   Trial court erred in limiting damages in regard to issues of material fact as to whether police officer's conduct was willful and wanton. DeForrest v. City of Cherry Hills Vill., 72 P.3d 384 (Colo. App. 2002).   This section provides for interlocutory review of a trial court's resolution of the issue -- no matter the grounds -- of sovereign immunity. All immunity created by subsection (2)(a) is sovereign immunity because subsection (2.5) makes any distinction between sovereign immunity and qualified immunity untenable for purposes of the CGIA. In re Estate of Bleck, 2016 CO 58, 379 P.3d 315.   Whether a public employee's conduct is willful and wanton under subsection (2)(a) implicates the public employee's sovereign immunity. Because a trial court must resolve all issues relating to sovereign immunity before trial, it errs if it fails to determine whether a public employee's conduct is willful and wanton before trial. In re Estate of Bleck, 2016 CO 58, 379 P.3d 315.   A challenge to the contents of a notice of claim raises an issue of "sovereign immunity" for purposes of subsection (2.5); the trial court's ruling in this case was a "final judgment" subject to interlocutory appeal. Bresciani v. Haragan, 968 P.2d 153 (Colo. App. 1998).   Reference to "final judgment" does not require the public entity to pursue an interlocutory appeal whenever a trial court denies its pre-trial motion to dismiss. Rather, the section merely provides that the trial court's ruling is subject to interlocutory appeal. Walton v. State, 968 P.2d 636 (Colo. 1998) (holding contrary to Buckles v. State, 952 P.2d 855 (Colo. App. 1998)).   When a summary judgment motion based on sovereign immunity is denied, the governmental entity or public employee may pursue an interlocutory review. Such a right also exists for defendants in 42 U.S.C. § 1983 claims pursuant to the principle of neutrality. Furlong v. Gardner, 956 P.2d 545 (Colo. 1998).   The failure of a public employee to perform his or her duties adequately does not convert the action into one based upon conduct outside the scope of his employment. Yonker by & through Helstrom v. Thompson, 939 P.2d 530 (Colo. App. 1997).   C.R.C.P. 54(b) certification not required for appeal from order granting or denying motion to dismiss based on governmental immunity. Richland Dev. Co. v. E. Cherry Creek Valley Water & San. Dist., 899 P.2d 371 (Colo. App. 1995).   Alleged willful and wanton conduct by public employees may not support an assertion of claims in tort against the public entity employer. Ramos v. City of Pueblo, 28 P.3d 979 (Colo. App. 2001); Carothers v. Archuleta County Sheriff, 159 P.3d 647 (Colo. App. 2006).   Applied in Patel v. Thomas, 793 P.2d 632 (Colo. App. 1990); Carothers v. Archuleta County Sheriff, 159 P.3d 647 (Colo. App. 2006); Holub v. Gdowski, 68 F. Supp. 3d 1329 (D.Colo. 2014), aff'd, 802 F.3d 1149 (10th Cir. 2015).