Carothers v. Archuleta County Sheriff

• Citation: 159 P.3d 647
• Decision Date: 15 June 2006
• Docket Number: No. 04CA0998.,No. 04CA0762.,04CA0762.,04CA0998.
• Parties: Rick CAROTHERS and Cindy Carothers, individually and as next friends and guardians of Garrett Carothers, Plaintiffs-Appellees and Cross-Appellants, v. ARCHULETA COUNTY SHERIFF and Deputy Tom Gaskins, Defendants-Appellants and Cross-Appellees.
• Court: Court of Appeals of Colorado

159 P.3d 647

Rick CAROTHERS and Cindy Carothers, individually and as next friends and guardians of Garrett Carothers, Plaintiffs-Appellees and Cross-Appellants, v. ARCHULETA COUNTY SHERIFF and Deputy Tom Gaskins, Defendants-Appellants and Cross-Appellees.

No. 04CA0762.

No. 04CA0998.

Colorado Court of Appeals. Division I.

June 15, 2006.

Lambdin & Chaney, LLP, L. Kathleen Chaney, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants.

Doehling & Driscoll, P.C., Gary L. Doehling, Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendant-Appellant and Cross-Appellee Archuleta County Sheriff.

Vaughan & DeMuro, Gordon L. Vaughan, Mary Kominek Linden, Colorado Springs, Colorado, for Defendant-Appellant and Cross-Appellee Deputy Tom Gaskins.

VOGT, J.

Defendants, Archuleta County Sheriff and Deputy Tom Gaskins, appeal the trial court's orders denying their motions to dismiss claims brought by plaintiffs, Rick Carothers and Cindy Carothers. Plaintiffs cross-appeal the trial court's order dismissing their claims against the Sheriff individually. We dismiss the appeal in part, affirm in part, reverse in part, and remand for further proceedings.

Plaintiffs brought this action against defendants and other parties after their eight-year-old son sustained serious injuries in a dog attack. According to the complaint, a neighbor had seen the dogs running loose and acting aggressively and had called the Sheriff. Deputy Gaskins was dispatched, but he did not immediately respond, choosing instead to "tend to personal matters" and arriving only after the injured child had been taken from the scene by emergency medical personnel. The complaint further alleged that the Sheriff had an agreement with the defendant property owners' association to handle complaints of dangerous or threatening dogs, but did not have proper equipment or personnel to do so; that the Sheriff rarely responded timely to complaints; and that Deputy Gaskins had not been properly trained and was not qualified for his position.

Plaintiffs asserted claims against Gaskins for extreme and outrageous conduct (claim six), and for willful and wanton conduct justifying punitive damages (claim eight). They also asserted a claim for damages for willful and wanton conduct against the Sheriff, based on the Sheriff's own acts or omissions and on a theory of respondeat superior (claim eight). Claim nine, for breach of contract against the Sheriff, was based on a theory that plaintiffs were third-party beneficiaries of the agreement between the Sheriff and the property owners' association to provide animal control services.

Gaskins and the Sheriff moved for dismissal pursuant to C.R.C.P. 12(b)(1) and (5), asserting governmental immunity. The trial court denied the motions "except as to the extent any claim for willful and wanton conduct is pled against Defendant Sheriff individually."

In its initial order of March 3, 2004, the trial court observed that both defendants were asserting immunity under the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.S.2005, but that, except for the issue of sufficient notice under the CGIA, the case presented only questions of qualified immunity, not sovereign immunity. Thus, the court concluded, the issue to be resolved pursuant to C.R.C.P. 12(b)(5) was whether plaintiffs had sufficiently pled allegations of willful and wanton conduct. The court then concluded that (1) the complaint sufficiently alleged willful and wanton conduct on the part of Gaskins; (2) the outrageous conduct claim against Gaskins would not be dismissed because reasonable persons could differ on whether Gaskins' conduct was outrageous; (3) the Sheriff had not waived sovereign immunity as to the acts and omissions set forth in the complaint, but he could nevertheless be vicariously liable under § 30-10-506, C.R.S.2005, for the willful and wanton conduct of his deputies; (4) plaintiffs had sufficiently pled such respondeat superior liability; (5) the breach of contract claim was not one that could lie in tort and therefore was not barred under the CGIA; and (6) the notice given by plaintiffs pursuant to the CGIA was sufficient.

On April 9, 2004, after plaintiffs filed a third amended complaint and defendants again moved for dismissal, the trial court entered a second order. In it the court adopted its March 3, 2004, order and, as pertinent here, found that the CGIA "create[d] a tort for willful and wanton conduct" that was sufficiently pled against Gaskins. The court subsequently certified its two orders as final pursuant to C.R.C.P. 54(b).

GASKINS' APPEAL

Gaskins challenges, on various grounds, the trial court's refusal to dismiss plaintiffs' claims against him. We conclude that, with the exception of his contention regarding the sufficiency of plaintiffs' notice, his claims are not properly before us for review. We therefore dismiss his appeal except as to the notice issue.

I.

Absent an exception provided by rule or statute, a final judgment is a jurisdictional prerequisite to appellate review in this court. See § 13-4-102(1), C.R.S.2005; Steven A. Gall, P.C. v. District Court, 965 P.2d 1268 (Colo.1998); Yadon v. Lowry, 126 P.3d 332 (Colo.App.2005).

A.

Unless its sovereign immunity has been waived, a public entity is immune from suit under the CGIA for injuries that lie in tort or could lie in tort. A trial court's ruling on a question of sovereign immunity raised by a public entity or public employee is a final, appealable judgment. See §§ 24-10-106, 24-10-108, 24-10-118(2.5), C.R.S.2005; City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996).

A public employee is immune from liability on tort claims arising out of an act or omission of the employee during the performance of his or her duties and within the scope of his or her employment, unless the act or omission causing such injury was willful and wanton. See §§ 24-10-105, 24-10-118(2)(a), C.R.S.2005; Richardson v. Starks, 36 P.3d 168 (Colo.App.2001).

The immunity afforded to public employees under §§ 24-10-105 and 24-10-118(2)(a) is a qualified immunity, and it is lost if the employee's act was "willful and wanton." Whether conduct was willful and wanton must generally be determined at trial. Thus, when a trial court refuses to dismiss on the basis of allegations of willful and wanton conduct that would eliminate the employee's immunity, its order is not immediately appealable, and we are without jurisdiction to consider such an appeal. Richardson v. Starks, supra; see also City of Lakewood v. Brace, supra.

However, when a public employee challenges the sufficiency of the plaintiffs' notice of claim, the challenge raises an issue of sovereign immunity, and the trial court's decision is immediately appealable pursuant to § 24-10-118(2.5). Bresciani v. Haragan, 968 P.2d 153 (Colo.App.1998).

A trial court's order denying a motion to dismiss pursuant to C.R.C.P. 12(b)(5) is likewise not an appealable final order. Podboy v. Fraternal Order of Police, 94 P.3d 1226 (Colo.App.2004).

B.

As noted, the trial court declined to dismiss plaintiffs' claims against Gaskins because the willful and wanton conduct claim had been sufficiently pled and because a reasonable jury could find outrageous conduct based on the facts alleged. Under the authorities set forth above, these rulings are not presently appealable.

Additionally, we do not agree with Gaskins that, under Finnie v. Jefferson County School District R-1, 79 P.3d 1253 (Colo. 2003), the trial court's ruling that the CGIA "creates a tort for willful and wanton conduct" raises an issue of sovereign immunity that is immediately appealable by him under § 24-10-118(2.5). Finnie was an appeal from an order granting a school district's motion to dismiss for lack of proper notice, and the trial courts ruling on that issue was immediately appealable. See Bresciani v. Haragan, supra. We are aware of no authority that would give us jurisdiction to review Gaskins' challenge to the ruling by the trial court here.

However, this ruling, as well as the parties' arguments regarding the existence or nonexistence of a duty, also bears on the Sheriff's potential liability — an issue properly before us for review. We thus address some of Gaskins' contentions, which are incorporated by reference in the Sheriff's appeal, later in this opinion.

C.

Additionally, the issues raised by Gaskins are not presently reviewable based on the trial court's subsequent certification of its orders as final pursuant to C.R.C.P. 54(b).

C.R.C.P. 54(b) permits a court, in an action involving multiple parties or multiple claims for relief, to direct entry of a final judgment as to fewer than all the claims or parties. The rule provides an exception to the general rule that an entire case must be resolved by a final judgment before an appeal is brought. Accordingly, our jurisdiction to entertain the appeal of a decision so certified depends upon the correctness of the certification. Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982).

A trial court may issue a C.R.C.P. 54(b) certification only if three requirements are met: (1) the decision certified must be a ruling upon an entire claim for relief; (2) the decision certified must be final in the sense of an ultimate disposition of an individual claim; and (3) the trial court must determine that there is no just reason for delay in entry of a final judgment on the claim. While the "no just reason for delay" question is committed to the trial court's discretion, that court's determinations regarding the other two requirements are "not truly discretionary." The trial court cannot, in the exercise of its discretion, treat as final that which is not final. Lytle v. Kite, 728 P.2d 305, 308 (Colo.1986); see also Harding Glass Co., supra. Thus, we review de novo the legal sufficiency of the trial court's C.R.C.P. 54(b) certification. Harding Glass Co., supra.

Here, the orders denying the motions to dismiss do not...