L.J. v. Carricato

• Decision Date: 11 January 2018
• Docket Number: Court of Appeals No. 17CA0097
• Citation: 413 P.3d 1280
• Parties: L.J., individually and as surviving parent of D.J.M., deceased, Plaintiff-Appellee, v. Justin CARRICATO, individually and in his capacity as an officer with the City of Colorado Springs Police Department; and the City of Colorado Springs, Colorado, Defendants-Appellants.
• Court: Colorado Court of Appeals

413 P.3d 1280

L.J., individually and as surviving parent of D.J.M., deceased, Plaintiff-Appellee,

v.Justin CARRICATO, individually and in his capacity as an officer with the City of Colorado Springs Police Department; and the City of Colorado Springs, Colorado, Defendants-Appellants.

Court of Appeals No. 17CA0097

Colorado Court of Appeals, Div. VII.

Announced January 11, 2018

Deere Law, LLC, Joshua M. Deere, Colorado Springs, Colorado, for Plaintiff-Appellee

Wynetta Massey, City Attorney, W. Erik Lamphere, Division Chief, Colorado Springs, Colorado, for Defendants-Appellants

Opinion by JUDGE FOX

¶ 1 The City of Colorado Springs (City) and Officer Justin Carricato appeal the district court's partial denial of their motion to dismiss for lack of subject matter jurisdiction based upon the Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to - 102, C.R.S. 2017. We reverse the portions of the judgment on the claims against the City, the vicarious liability claim, and the exemplary damages claim. We remand the portion of the judgment relating to the claims against Officer Carricato.

I. Background

¶ 2 D.J.M., age two, died on January 17, 2015, after suffering a beating by his mother's boyfriend, R.A. D.J.M.'s father, L.J. (father), brought a wrongful death action against the City and Officer Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department (Department).

A. Facts Alleged in Father's Complaint

¶ 3 Father and M.J. (mother), D.J.M.'s mother, shared custody of D.J.M. in accordance with a temporary parenting time order. D.J.M. spent five days a week with mother and the other two with father. Parenting time exchanges took place at the Department's Sand Creek Division (Police Station).

¶ 4 In November 2014, father and his mother (grandmother) began noticing signs of physical trauma on D.J.M. such as marks, bruises, lacerations, and discoloration on his skin

and genitalia. D.J.M. lost weight and demonstrated signs of significant emotional trauma. By early December, he would cry and beg to stay with father and grandmother when he was dropped off at the Police Station for mother's parenting time.

¶ 5 On the first Saturday of December 2014, father told the Police Station's front desk attendant that he suspected D.J.M. was being abused by mother or R.A. He showed the attendant the marks and bruises on D.J.M., and said he did not want to turn D.J.M. over to mother. The attendant told father that he had to turn D.J.M. over to mother, or he would be arrested for refusing to obey a court order. The attendant told father he could not make an official police report at that time, but that he should take photographs of D.J.M.'s injuries. Over the next three weeks, father repeatedly showed D.J.M.'s marks and bruises and photos of the injuries to the Police Station attendant.

¶ 6 When father picked D.J.M. up at the Police Station on Christmas Day 2014, he was so concerned by D.J.M.'s condition that he insisted the police make an official report. The attendant told father to go home and call the police and an officer would visit them at their home. Father did so, and Officer Carricato responded to the call.

¶ 7 Officer Carricato visited father's home, where he interviewed father, took pictures of D.J.M., and made an internal police report. He reiterated that father must continue to abide by the court's parenting time order. Officer Carricato called mother from his police cruiser on Christmas Day; this was the only phone call he made to mother's home. Officer Carricato did not visit mother's house, speak to R.A., or have further meetings with father and D.J.M. No report was made to the El Paso County Department of Human Services or any other state or county agencies before D.J.M.'s death.

¶ 8 From December 25, 2014, to January 10, 2015, father and grandmother continued to make the same complaints at the Police Station when they dropped off D.J.M. On January 14, father learned that D.J.M. had been rushed to the hospital. D.J.M. had suffered serious injuries that were consistent with having been thrown against a wall. He was transferred to Children's Hospital in Denver where a portion of his skull was removed to alleviate brain swelling. After the surgery, he remained in a coma until he died on January 17, 2015.

¶ 9 The cause of death was homicide brought on by complications from blunt-force injuries. Detectives investigating the case determined that some of D.J.M.'s injuries were sustained weeks before the January 14 incident. They also confirmed that in the weeks preceding D.J.M.'s death, father had tried to bring D.J.M.'s injuries to the attention of the Colorado Springs police.

B. Procedural History and Standard of Review

¶ 10 Father's complaint alleges: (1) a violation of the reporting requirement of the Child Protection Act of 1987 (CPA), §§ 19-3-301 to - 318, C.R.S. 2017, by the City and Officer Carricato; (2) negligence (wrongful death) by the City and Officer Carricato; (3) negligence per se by the City and Officer Carricato; (4) a 42 U.S.C. § 1983 (2012) claim against the City and Officer Carricato; (5) vicarious liability against the City; and (6) an entitlement to exemplary damages under section 24-10-118(1)(c), C.R.S. 2017 against Officer Carricato.¹

¶ 11 Under the CPA, certain individuals—including police officers—are required to report known or suspected child abuse to the county department, local law enforcement agency, or through the child abuse hotline. § 16-2.5-101(1), C.R.S. 2017; § 19-3-304(1)(a)-(b)(2)(s), C.R.S. 2017. The county department or local law enforcement agency must then submit a report to the state department. § 19-3-307(1), C.R.S. 2017. Any person who willfully violates the reporting mandate commits a class three misdemeanor and "[s]hall be liable for damages proximately caused thereby." § 19-3-304(4)(a)-(b).

¶ 12 The City and Officer Carricato moved to dismiss the state law claims.² They argued that (1) father's claims were barred by the CGIA, and (2) father failed to plead a specific factual basis showing willful and wanton conduct by Officer Carricato.

¶ 13 The district court determined that while the negligence claims for wrongful death and negligence per se were barred by the CGIA, the claim for violation of the CPA was not barred because it was not a claim based in tort. The district court allowed the claim for vicarious liability to stand insofar as it related to the violation of the CPA. Finally, the district court found, without conducting a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster , 848 P.2d 916 (Colo. 1993), that the complaint alleged a sufficient factual basis to support a claim of willful and wanton behavior.

¶ 14 We review the district court's interpretation of the CGIA de novo. Gray v. Univ. of Colo. Hosp. Auth. , 2012 COA 113, ¶ 16, 284 P.3d 191.

II. Analysis

¶ 15 The City and Officer Carricato argue that the district court erred because (1) the CGIA bars the claim for violation of the CPA, and (2) father's complaint does not allege specific facts sufficient to support a finding that Officer Carricato's conduct was willful and wanton.³ No Colorado case discusses the intersection of the CGIA and the CPA. We hold that the CGIA bars the claim against the City for a violation of the CPA because the claim lies or could lie in tort. Thus, the district court improperly denied that part of the motion to dismiss. We remand to the district court on the claims against Officer Carricato for a determination of whether his conduct was willful and wanton. We conclude that the claims for vicarious liability against the City must be dismissed. Finally, we agree that the claim for exemplary damages against Officer Carricato was prematurely pleaded.

A. Public Entity Immunity

¶ 16 Under the CGIA, "[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." § 24-10-106(1), C.R.S. 2017. Under the CGIA, "the state and its subdivisions are subject to the same liability as private entities, unless the General Assembly has affirmatively protected the state from liability through immunity legislation." C.K. v. People in Interest of L.K. , 2017 CO 111, ¶ 12, 407 P.3d 566 (citation omitted). Because the CGIA altered the common law of negligence, we strictly construe its grant of sovereign immunity and interpret its waiver provisions broadly. Burnett v. State Dep't of Nat. Res. , 2013 COA 42, ¶ 7, 350 P.3d 853, aff'd, 2015 CO 19, 346 P.3d 1005 ; see also Medina v. State , 35 P.3d 443, 453 (Colo. 2001) ; Herrera v. City & Cty. of Denver , 221 P.3d 423, 425 (Colo. App. 2009). "Nonetheless, we interpret a statute to give words and phrases their plain meaning in order to give effect to the intent of the legislature." Burnett , ¶ 7.

1. Waivers of Sovereign Immunity

¶ 17 The CGIA lists specific exceptions where sovereign immunity for public entities is waived. § 24-10-106(1)(a)-(i). As relevant here, sovereign immunity is waived for claims brought under a statutory scheme that fits within one of the specific waiver provisions. See State v. Moldovan , 842 P.2d 220, 228 (Colo. 1992) (sustaining a motorist's claim against the Division of Highways for failure to maintain fences pursuant to the Fence Law because the Fence Law fit within the statutory exception for injuries resulting from a dangerous condition on a public highway, § 24-10-106(1)(d)(I) ).

¶ 18 Additionally, sovereign immunity can be waived for claims seeking equitable, remedial, and non-compensatory relief. City of Colorado Springs v. Conners , 993 P.2d 1167, 1176 (Colo. 2000) ("The CGIA's grant of immunity does not protect public entities from suits for non-compensatory relief de [s]igned to redress general harms or prohibited conduct under statutes like the [Civil Rights Act]."); Colo. City...