Richardson ex rel. Richardson v. Starks, 00CA1583.

• Docket Nº: No. 00CA1583.
• Citation: 36 P.3d 168
• Case Date: July 19, 2001
• Court: Court of Appeals of Colorado

36 P.3d 168

Taylor RICHARDSON, by and through her next best friend, Amy RICHARDSON, Plaintiff-Appellee,
v.
Rachael STARKS and Denver Public Schools, Defendants-Appellants

No. 00CA1583.

Colorado Court of Appeals, Div. I.

July 19, 2001.

Certiorari Denied November 19, 2001.

36 P.3d 169

The Law Offices of James J. Peters, James J. Peters, Denver, CO, for Plaintiff-Appellee

Semple, Miller & Mooney, P.C., Patrick B. Mooney, Elizabeth J. Hyatt, Denver, CO, for Defendants-Appellants.

Opinion by Judge DAVIDSON.

Defendants, Rachael Starks and Denver Public Schools (DPS), appeal from the trial court's denial of their motion seeking dismissal, for lack of subject matter jurisdiction, of the complaint brought by plaintiff, Taylor Richardson, by and through her next best friend, Amy Richardson. We dismiss the appeal in part, reverse in part, and remand with directions.

In her complaint, plaintiff alleged that she was injured when another student assaulted her on the playground of her elementary school during gym class. Plaintiff alleged that Starks, who was the principal of the elementary school, was negligent in failing to supervise and in failing to protect her from the other student. Plaintiff sought to impose liability on DPS through the doctrine of respondeat superior.

Defendants moved to dismiss plaintiff's complaint under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2000, and C.R.C.P. 12(b)(5), for failure to state a claim for relief. Defendants argued that plaintiff's claims did not fall within any of the provisions for which immunity was waived under the GIA. Defendants also argued that plaintiff's claim against Starks must be dismissed because plaintiff failed to allege a specific factual basis for her claim that Starks had acted willfully and wantonly.

In response, plaintiff argued that defendants owed a duty to her because the incident occurred on school grounds. Plaintiff also argued that an exception to the immunity provided by the GIA exists when there is a special relationship between a public entity and a plaintiff. Plaintiff further argued that the allegations of the complaint were sufficient to show that the acts or omissions of Starks were willful and wanton.

Relying on the supreme court's decision in Jefferson County School District R-1 v. Justus, 725 P.2d 767 (Colo.1986), the trial court found that there was "an apparent exception to the sovereign immunity doctrine made for claims arising out of the school district's failure to protect children in its custody from the negligence of third parties, or for a school district's failure to perform duties of care voluntarily assumed by it." Accordingly, the court found that there was no jurisdictional bar as to plaintiff's claims against the school district.

With regard to plaintiff's claims against Starks, the court found that she was aware of the other student's hostility toward plaintiff, that she had promised that the prior incidents would not occur again, but that she failed to act to make good on her assurances. The court concluded that plaintiff's allegations were sufficient to suggest that Starks had acted willfully and wantonly in conscious disregard of the probability of injury to

36 P.3d 170

plaintiff. Defendants then brought this interlocutory appeal

I.

Defendants contend that the trial court erred in applying an exception to governmental immunity not set forth in § 24-10-106(1), C.R.S.2000. We agree.

Section 24-10-105, C.R.S.2000, provides that both public entities and public employees shall not be liable for actions that lie in tort or could lie in tort, except as provided in the GIA.

Section 24-10-106(1) sets forth six categories under which a public entity's immunity may be...