     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 11, 2018

                                 2018COA3

No. 17CA0097, L.J. v. Carricato — Government — Colorado
Governmental Immunity Act — Immunity and Partial Waiver —
Actions Against Public Employees; Dependency and Neglect —
Child Protection Act of 1987

     A division of the court of appeals considers whether the

Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,

C.R.S. 2017, bars claims against a city and a police officer for

alleged violation of the Child Protection Act of 1987 (CPA), §§ 19-3-

301 to -318, C.R.S. 2017. The division concludes that the two

statutes do not conflict. Thus, the CGIA bars the claim against the

city for alleged violation of the CPA because the claim lies or could

lie in tort. Additionally, the claim against the city for vicarious

liability must be dismissed because public entities do not waive

immunity for an employee’s willful and wanton conduct.
     The division also concludes, based on Martinez v. Estate of

Bleck, 2016 CO 58, that the claims against the police officer must

be remanded for a Trinity hearing to allow the district court to

determine whether the officer’s conduct was in fact willful and

wanton.

     Finally, the division concludes that the claim for exemplary

damages against the police officer was prematurely pled.

     Accordingly, the division reverses the judgment and remands

the case in part with directions.
COLORADO COURT OF APPEALS


Court of Appeals No. 17CA0097
El Paso County District Court No. 15CV33722
Honorable Robin Chittum, Judge


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.


                          JUDGMENT REVERSED IN PART
                      AND CASE REMANDED WITH DIRECTIONS

                                    Division VII
                              Opinion by JUDGE FOX
                          Freyre and Kapelke*, JJ., concur

                           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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶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).


                                    1
¶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


                                   2
 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


                                   3
  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




                                     4
  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



  1 The second, third, and fourth claims are not at issue on this
  appeal because the parties did not contest those portions of the
  motion to dismiss.
  2 Because the fourth claim raised a 42 U.S.C. § 1983 (2012) claim,

  the City and Officer Carricato first removed the case to the United
  States District Court for the District of Colorado. The federal
  district court dismissed the section 1983 claim, declined to exercise
  supplemental jurisdiction over the state law claims, and remanded
  the case to the El Paso County District Court.

                                    5
  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.

                               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




                                      6
  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


  3Because we decline to address the new arguments raised by the
  City in its reply brief, Valentine v. Mountain States Mut. Cas. Co.,
  252 P.3d 1182, 1187 n.3 (Colo. App. 2011), we need not strike
  portions of the City’s reply brief as father requests via motion.

                                       7
  entities, unless the General Assembly has affirmatively protected

  the state from liability through immunity legislation.” C.K. v. People

  in Interest of L.K., 2017CO111, ¶ 12 (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, aff’d,

  2015 CO 19; 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




                                     8
  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 Metro. Dist. v. Graber & Son’s Inc., 897 P.2d 874,

  877 (Colo. App. 1995) (holding that the CGIA does not shield public

  entities from remedial provisions allowing an award of attorney fees

  against a public entity that brings a frivolous claim); cf. Colo. Dep’t

  of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008)

  (“[W]e have never suggested that claims for relief developed and

  historically administered by courts of chancery or equity, rather

  than courts of law, necessarily fall outside the coverage of the

  [CGIA].”).

¶ 19   Here, the City is undisputedly a “public entity.”

  § 24-10-103(5), C.R.S. 2017; Springer v. City & Cty. of Denver, 13

  P.3d 794, 799 (Colo. 2000) (“Cities and counties are within the


                                     9
  definition of ‘public entity.’”). The exceptions to sovereign immunity

  are not applicable here because (1) the enumerated statutory

  exceptions are not at issue; (2) the CPA does not fit within any of

  the statutory exceptions; and (3) father is not requesting equitable,

  remedial, or non-compensatory remedies. Thus, the question is

  whether father’s claims against the City lie in tort or could lie in

  tort. We conclude that they do.

             2.    Claims that Lie in Tort or Could Lie in Tort

¶ 20   Whether a claim lies in tort or could lie in tort “depends on the

  factual basis underlying the claim and, specifically, the nature of

  the alleged injury.” First Nat’l Bank of Durango v. Lyons, 2015 COA

  19, ¶ 13; see Brown Grp., 182 P.3d at 690 (“[T]he notion of a ‘tort’ is

  notoriously difficult to define with any degree of precision[.]”). We

  assess the pleadings and undisputed evidence to determine whether

  “the injury arises either out of conduct that is tortious in nature or

  out of the breach of a duty recognized in tort law.” Robinson v.

  Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). We also

  consider whether the relief requested “seeks to compensate the

  plaintiff for that injury.” Id.




                                     10
¶ 21   Here, father’s claims against the City lie in tort or could lie in

  tort. Father argues that the duties imposed by the CPA originate

  from the statute and not from a general duty of care. However, we

  must look to the injury underlying the statutory claims. See Lyons,

  ¶¶ 13, 15; see also City of Arvada ex rel. Arvada Police Dep’t v.

  Denver Health & Hosp. Auth., 2017 CO 97, ¶ 39 (“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.’” (quoting Brown Grp., 182

  P.3d at 691)) (emphasis added).

¶ 22   In Lyons, the question was whether a bank’s claim under the

  Colorado Securities Act (CSA) was a claim that lies in tort or could

  lie in tort. Lyons, ¶ 1. The division concluded it was because in

  essence the CSA claim was a claim for common law fraud alleging

  that the bank purchased bonds in reliance on false statements or

  omissions of material fact and sustained financial loss as a result.

  Id. at ¶ 15. Similarly, the essence of father’s claim is that the City

  breached a duty of care owed to D.J.M. which caused his death.

  See Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 102 (Colo. 1995)

  (“The cause of action created by [the Wrongful Death Act] arises out


                                     11
  of tortious acts which injured the decedent and resulted in the

  decedent’s death; the survivors’ right of action is derivative of and

  dependent upon the right of action which the decedent would have

  had, had she survived her injuries.”). The civil liability the CPA

  allows is rooted in traditional tort principles. § 19-3-304(4) (“Any

  person who willfully violates [the reporting provisions]. . . [s]hall be

  liable for damages proximately caused thereby.”) (emphasis added);

  Walcott v. Total Petroleum, Inc., 964 P.2d 609, 611 (Colo. App. 1998)

  (“Negligence claims cannot succeed without showing that a duty

  existed and that the breach of the duty was a proximate cause of

  the injuries alleged.”). Because father’s claims against the City are

  rooted in the tort of negligence, the motion to dismiss this claim

  was improperly denied.

                         3.    Conflicting Statutes

¶ 23   Father argues that the CGIA and CPA conflict and thus the

  CPA — the statute with the later effective date (1987 versus 1971

  for the CGIA) — must prevail. § 2-4-206, C.R.S. 2017 (“If statutes

  enacted at the same or different sessions of the general assembly

  are irreconcilable, the statute prevails which is latest in its effective




                                     12
  date.”). But, we are not persuaded that the CGIA and CPA are

  irreconcilable.

¶ 24   When possible, “we interpret conflicting statutes in a manner

  that harmonizes the statutes[.]” City of Florence v. Pepper, 145 P.3d

  654, 657 (Colo. 2006). A statutory construction that would lead to

  repeal by implication is not favored unless it is unavoidable. Id.

  “The intent to repeal by implication ‘must appear clearly,

  manifestly, and with cogent force.’” Id. (quoting Prop. Tax Adm’r v.

  Prod. Geophysical Servs., 860 P.2d 514, 518 (Colo. 1993)). In

  Pepper, two statutes were in clear conflict on whether a city had the

  discretion to exclude volunteer reserve police officers from workers’

  compensation coverage because of the statutes’ differing definitions

  of “employee.” 145 P.3d at 657-58. The supreme court held that

  the more recent statute manifested a clear intent by the General

  Assembly to mandate workers’ compensation coverage for volunteer

  reserve police officers; thus the conflicting, earlier statute was

  repealed by implication. Id. at 660.

¶ 25   Here, the CPA manifests no intent to repeal the CGIA by

  implication. The CPA was passed in 1987, recognizing that

  “reporting of child abuse is a matter of public concern.” Ch. 138,


                                     13
  sec. 1, § 19-3-302, 1987 Colo. Sess. Laws 762. Persons who

  properly report information about known or suspected child abuse

  are immune from liability. § 19-3-309, C.R.S. 2017 (“Any

  person . . . participating in good faith in the making of a report . . .

  shall be immune from any liability . . . .”). When first enacted, the

  immunity provision read, “[a]ny person . . ., participating in good

  faith in the making of a report . . . shall be immune from any

  liability, civil or criminal, or termination of employment that

  otherwise might result by reason of such reporting.” Ch. 138, sec.

  1, § 19-3-309, 1987 Colo. Sess. Laws 770.

¶ 26   In 1989, the immunity provision was amended to include an

  immunity waiver “unless a court of competent jurisdiction

  determines that such person’s behavior was willful, wanton, and

  malicious.” Ch. 169, sec. 7, § 19-3-309, 1989 Colo. Sess. Laws

  916. Thus, persons who report child abuse under section 19-3-304

  are immune from liability unless their conduct is willful, wanton,

  and malicious.

¶ 27   The term “any person” is not defined in the definitions section

  of the Children’s Code, which contains the CPA. See § 19-1-103,

  C.R.S. 2017. To determine the meaning of “any person” we first


                                     14
consider whether “the statutory language has a plain and

unambiguous meaning.” Bryant v. Cmty. Choice Credit Union, 160

P.3d 266, 274 (Colo. App. 2007). “The plainness or ambiguity of

statutory language is determined by reference to the language itself,

the specific context in which that language is used, and the broader

context of the statute as a whole.” Id. (quoting Robinson v. Shell Oil

Co., 519 U.S. 337, 341 (1997)). The CPA lists persons required to

report child abuse in section 19-3-304(2)(a)-(mm). All the

references are clearly to persons because they are to specific

occupations — such as physicians, dentists, or psychologists — or

employees of particular organizations — such as public or private

school employees, workers in the state department of human

services, or employees of county departments of health, human

services, or social services. § 19-3-304(2)(a), (d), (l), (p), (cc), (ll).

Nowhere does section 19-3-304(2) include a specific entity as a

mandatory reporter; only the entities’ employees are required to

report. Thus, the CPA unambiguously defines “any person” to

mean people in specific occupations or employed by certain entities

or any other individual who knows of or suspects child abuse.

§ 19-3-304(3) (“[A]ny other person may report . . . .”).


                                      15
¶ 28     Because the CPA does not mention entities, the CGIA, which

  clearly discusses public entities, controls on issues of public entity

  immunity. § 24-10-106(1); see Jenkins v. Pan. Canal Ry. Co., 208

  P.3d 238, 241 (Colo. 2009) (“[W]e generally only look to a statute’s

  plain language . . . .”). As the statutes’ language is clear and

  unambiguous, we need not look to their legislative histories. Id.

¶ 29     The CGIA clearly distinguishes between public entities and

  public employees because it discusses their respective immunity in

  two different sections — section 24-10-106 discusses public entity

  immunity and section 24-10-118 discusses public employee

  immunity. The two immunity provisions are not identical. Public

  entities enjoy sovereign immunity for tort claims unless a specific

  statutory exception is met. § 24-10-106(1)(a)-(i). In contrast, the

  immunity provision for public employees does not contain specific

  statutory exceptions. See § 24-10-118. Rather, public employees

  are immune from liability for tort claims unless their act or

  omission was willful and wanton. § 24-10-118(1); see also § 19-3-

  309.

¶ 30     The CGIA defines public employee as “an officer, employee,

  servant, or authorized volunteer of the public entity, whether or not


                                    16
  compensated, elected, or appointed . . . .” § 24-10-103(4)(a), C.R.S.

  2017. Thus, where the CPA includes in its list of “any person”

  persons who are public employees, their sovereign immunity is

  governed by the CGIA. See Pepper, 145 P.3d at 657 (“Where

  possible, we interpret conflicting statutes in a manner that

  harmonizes the statutes and gives meaning to other potentially

  conflicting statutes.”). The CGIA, § 24-10-118(1), and CPA, §§ 19-3-

  304, -309, read together, provide that a public employee who is a

  mandatory reporter is immune from liability for reporting or failing

  to report child abuse unless his conduct is willful and wanton. See

  Town of Minturn v. Tucker, 2013 CO 3, ¶ 27 (“[W]e presume the

  General Assembly meant what it said.”). Thus, we reject father’s

  argument that the two statutes are irreconcilable. Accordingly, we

  now address the issue whether Officer Carricato’s conduct was

  willful and wanton.

                    B.   Public Employee Immunity

¶ 31   Because the court did not determine whether Officer

  Carricato’s conduct was willful and wanton, we remand for such a




                                   17
  determination following a Trinity hearing. Martinez v. Estate of

  Bleck, 2016 CO 58, ¶ 28. 4

¶ 32   Public employees enjoy sovereign immunity for conduct which

  lies in tort or could lie in tort that “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.”

  § 24-10-118(1).5 “In any action in which allegations are made that

  an act or omission of a public employee was willful and wanton, the

  specific factual basis of such allegations shall be stated in the

  complaint.” § 24-10-110(5)(a), C.R.S. 2017.

¶ 33   The CGIA does not define the phrase “willful and wanton

  conduct.” Martinez, ¶ 30. Our supreme court has looked to various



  4 While the City cited Martinez v. Estate of Bleck, 2016 CO 58, to the
  district court, it did not emphasize its holding or the importance of
  a hearing under Trinity Broadcasting of Denver, Inc. v. City of
  Westminster, 848 P.2d 916 (Colo. 1993).
  5 We note that section 24-10-118(2)(a) adds that, in addition to

  waiving immunity for willful and wanton conduct, a public
  employee cannot assert immunity when the public entity faces
  liability under one of the section 24-10-106(1) waivers. But, those
  waiver provisions are not at issue here.

                                      18
  definitions of “willful and wanton conduct.” Id.; see, e.g., Moody v.

  Ungerer, 885 P.2d 200, 205 (Colo. 1994) (looking to the definition of

  “willful and wanton” in section 13-21-102(1)(b), C.R.S. 1987, to

  determine exemplary damages). The supreme court has declined to

  pick one single definition for willful and wanton because “they all

  share a common feature — namely, a conscious disregard of the

  danger.” Martinez, ¶ 30. Thus, 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 then act, or fail to act, without regard to the danger or risk.”

  Gray, ¶ 39. A complaint cannot merely assert that a public

  employee’s acts or omissions were willful and wanton. Id. at ¶ 40.

  At a minimum, the complaint must allege “‘specific facts to support

  a reasonable inference’ that the employee was consciously aware

  that his or her acts or omissions created danger or risk to the safety

  of others, and that he or she acted, or failed to act, without regard

  to the danger or risk.” Id. (citations omitted).

¶ 34   However, it is not enough for the district court to merely

  determine that the complaint adequately alleged that the conduct

  was willful and wanton. Martinez, ¶ 5. The district court must


                                     19
  determine whether the conduct was in fact willful and wanton. Id.

  at ¶ 28. Immunity under the CGIA is a subject matter jurisdiction

  question that is determined according to C.R.C.P. 12(b)(1). Trinity,

  848 P.2d at 924-25. The plaintiff bears the burden of proving

  jurisdiction. Dennis ex rel. Heyboer v. City & Cty. of Denver, 2016

  COA 140, ¶ 15. The district court “may allow limited discovery and

  conduct an evidentiary hearing” — a Trinity hearing — to determine

  jurisdiction. Trinity, 848 P.2d at 924. Trinity hearings now “include

  all issues of immunity, including facts not directly disputed by the

  parties.” Dennis ex rel. Heyboer, ¶ 2. But see Medina, 35 P.3d at

  452 (“[I]f all relevant evidence is presented to the trial court, and the

  underlying facts are undisputed, the trial court may decide the

  jurisdictional issue as a matter of law . . . .”).

¶ 35   Here, in its order regarding the motion to dismiss, the district

  court stated, “There are no facts at issue necessary for the [c]ourt to

  make this determination. There is also no need for a hearing.”

  Thus, the district court ruled on the motion to dismiss without

  conducting a Trinity hearing. The court further concluded that the

  question whether Officer Carricato’s conduct was willful and

  wanton was an “ultimate decision of fact for the jury.” Examination


                                      20
  of the operative complaint and answer reveals that whether Officer

  Carricato acted willfully and wantonly is disputed. In Martinez, the

  supreme court determined that the district court erred in merely

  determining that the complaint sufficiently pleaded that a police

  officer’s conduct was willful and wanton and concluding that the

  ultimate determination had to be left to trial. Martinez, ¶ 28. Thus,

  we remand for the district court to determine, after a hearing,

  whether Officer Carricato’s conduct was willful and wanton.

                          C.   Vicarious Liability

¶ 36   Although the parties did not brief the issue, we conclude that

  the vicarious liability claims against the City must be dismissed.

¶ 37   The vicarious liability claims against the City for negligence

  per se and wrongful death based on Officer Carricato’s conduct are

  claims that lie in tort or could lie in tort; thus, they are barred by

  the CGIA. See Lyons, ¶ 36. The City’s liability under a vicarious

  liability theory is not based on the City’s own negligent acts. Id.

  Rather, it is based on the City’s vicarious liability for acts taken by

  Officer Carricato within the scope of his employment. Id. Thus, the

  claims for vicarious liability based on negligence per se and

  wrongful death sound in tort.


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¶ 38   The claim against the City for vicarious liability based on

  Officer Carricato’s failure to report under the CPA must also be

  dismissed. Even if Officer Carricato’s conduct was willful and

  wanton, “the CGIA does not provide for the waiver of the sovereign

  immunity of public entities from suit based either on their own

  willful and wanton acts or omissions, or their employees’ willful and

  wanton acts or omissions.” Gray, ¶ 27; see § 24-10-106(1)(a)-(i)

  (waiving public entity sovereign immunity for only the listed

  statutory exceptions, not for willful and wanton conduct); see also §

  24-10-110-(1)(a) (Public entities are liable for the costs of defending

  their employees from claims arising out of “injuries sustained from

  an act or omission of such employee occurring during the

  performance of his duties and within the scope of his employment,

  except where such act or omission is willful and wanton.”). Thus,

  the vicarious liability claim against the City, based on Officer

  Carricato’s failure to report under the CPA, must be dismissed.

                        D.    Exemplary Damages

¶ 39   Officer Carricato argues briefly in a footnote that the claim for

  exemplary damages cannot stand because it was improperly




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  pleaded and that exemplary damages cannot be awarded against a

  police officer. We agree that the claim was improperly pleaded.

¶ 40   The CGIA allows a claim for exemplary damages against public

  employees only if their conduct was willful and wanton.

  § 24-10-118(1)(c). Similarly, in an action for wrongful death,

  exemplary damages may only be awarded where “the death

  complained of is attended by circumstances of . . . willful and

  wanton conduct . . . .” § 13-21-203(3)(a), C.R.S. 2017.

  Additionally, the claim for exemplary damages may not be included

  in the initial claim for relief. § 13-21-203(3)(c)(I). Exemplary

  damages claims must be included in an amendment to the

  pleadings at least sixty days after the exchange of initial disclosures

  and “the plaintiff establishes prima facie proof of a triable issue.”

  Id. Here, father included the claim for exemplary damages in his

  initial complaint; thus, the exemplary damages claim was

  prematurely pleaded.

¶ 41   Once the Trinity hearing is concluded, the district court can

  revisit this issue, including if necessary the availability of such

  damages against a peace officer pursuant to section 13-21-203(6).




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                            III.   Conclusion

¶ 42   We reverse the portion of the judgment denying the motion to

  dismiss the violation of the CPA claim against the City. We remand

  for a hearing on the portion of the judgment concerning whether

  Officer Carricato’s conduct was willful and wanton. We reverse the

  portion of the judgment denying the motion to dismiss the vicarious

  liability claims against the City. We reverse the portion of the

  judgment allowing the claim for exemplary damages to stand as it is

  currently pleaded.

       JUDGE FREYRE and JUDGE KAPELKE concur.




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