     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
                                                            October 18, 2018

                               2018COA151

No. 17CA2064 Hernandez v. City & County of Denver —
Government — Colorado Governmental Immunity Act —
Immunity and Partial Waiver — Actions Against Public
Employees

     A division of the Colorado Court of Appeals considers the

district court’s dismissal of a pretrial detainee’s allegations that she

suffered injuries resulting from a jail employee’s willful and wanton

conduct during the operation of the jail. The division concludes

that these allegations do not implicate the employee’s sovereign

immunity under the Colorado Governmental Immunity Act because

such immunity is waived for injuries resulting from the operation of

a jail by a public entity. Because the allegations of willful and

wanton conduct do not raise an immunity issue, the district court

erred by dismissing them before trial via C.R.C.P. 12(b)(1) and a

hearing of the type described in Trinity Broadcasting of Denver, Inc.
v. City of Westminster, 848 P.2d 916 (Colo. 1993).
COLORADO COURT OF APPEALS                                         2018COA151


Court of Appeals No. 17CA2064
City and County of Denver District Court No. 17CV30467
Honorable A. Bruce Jones, Judge


Stella J. Hernandez,

Plaintiff-Appellant,

v.

City and County of Denver, Colorado; and Tracey Dodson,

Defendants-Appellees.


                         ORDER VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VII
                         Opinion by JUDGE NAVARRO
                        J. Jones and Miller*, JJ., concur

                         Announced October 18, 2018


Gerash Steiner P.C., Daniel P. Gerash, Eric L. Steiner, Denver, Colorado, for
Plaintiff-Appellant

Kristin M. Bronson, City Attorney, Michelle A. Horn, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellees


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Generally, the Colorado Governmental Immunity Act (CGIA),

 §§ 24-10-101 to -120, C.R.S. 2018, grants a public employee

 sovereign immunity from tort liability for any claim for injury

 arising out of the employee’s act or omission occurring within the

 scope of employment, unless the employee’s act or omission was

 willful and wanton. The CGIA provides, however, that a public

 employee may not assert such immunity in an action for injuries

 resulting from the negligent operation of a jail, regardless of

 whether the employee engaged in willful and wanton conduct.

 Under the statute’s plain language, therefore, allegations that a

 public employee engaged in willful and wanton conduct in the

 operation of a jail do not raise an issue of sovereign immunity. As a

 result, we hold that a district court should not address such

 allegations via C.R.C.P. 12(b)(1) and the evidentiary hearing

 described in Trinity Broadcasting of Denver, Inc. v. City of

 Westminster, 848 P.2d 916 (Colo. 1993).

¶2    The district court here dismissed allegations by plaintiff, Stella

 J. Hernandez, that defendant, Tracey Dodson (a deputy sheriff),

 engaged in willful and wanton conduct in a jail where Hernandez

 was incarcerated. Because the court erred in addressing those


                                    1
 allegations via Rule 12(b)(1) and a Trinity hearing, we vacate the

 order and remand for further proceedings.

             I.     Preliminary Background Information

¶3    Hernandez sustained injuries while a pretrial detainee at the

 Denver Detention Center (the jail), operated by the Denver Sheriff

 Department. She sued six jail employees, including Dodson,

 alleging negligence and willful and wanton conduct. Hernandez

 also sued the City and County of Denver, alleging negligence.

 Following a Trinity hearing, the district court found that Dodson

 and another defendant had not engaged in willful and wanton

 conduct; therefore, those defendants enjoyed immunity from suit on

 those allegations. Hernandez’s negligence claims against Dodson

 and the other defendants were not dismissed, and those tort claims

 remain pending. Hernandez brought this interlocutory appeal in

 which she challenges only the court’s (effective) dismissal of the

 willful and wanton allegations against Dodson. See § 24-10-

 118(2.5), C.R.S. 2018.

¶4    Before discussing the factual and procedural history in more

 detail, we will address the foundational law governing sovereign

 immunity.


                                   2
                   II.     Foundational CGIA Law

¶5    The CGIA grants sovereign immunity to public entities and “is

 designed to shield public entities from tort liability, unless the

 circumstances of an asserted claim bring it within one (or more) of

 the statute’s expressly defined waiver provisions.” St. Vrain Valley

 Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 12. Through the CGIA,

 the General Assembly sought to protect public entities not only

 from the costs of judgments but the costs of unnecessary litigation

 as well. Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1260-

 61 (Colo. 2003). Sovereign immunity thus protects a public entity

 from a “meaningless” trial. Id. at 1261. Consequently,

 jurisdictional prerequisites to suit as well as statutory defenses to

 claims may present immunity issues. See id. at 1255-56

 (recognizing that, although the notice provisions of section 24-10-

 109(1), C.R.S. 2018, create a jurisdictional prerequisite to suit while

 the notice provisions of section 24-10-109(3) provide a statutory

 defense to claims, both raise immunity issues because both could

 bar a suit from proceeding). In short, a sovereign immunity issue is

 one that could afford the public entity immunity from suit. See id.




                                    3
 at 1261; see also Trinity, 848 P.2d at 923 (recognizing that the CGIA

 “is not a tort accrual statute” but a “nonclaim statute”).

¶6    Because an immunity issue may preclude a trial altogether, a

 trial court must resolve all such issues before trial, including

 questions about whether the plaintiff has complied with the CGIA’s

 notice requirements and whether a waiver applies. See Martinez v.

 Estate of Bleck, 2016 CO 58, ¶ 27; see also § 24-10-108, C.R.S.

 2018. Regardless of whether the immunity issue is jurisdictional,

 the trial court must resolve it employing “a procedure that mirrors

 C.R.C.P. 12(b)(1).” Finnie, 79 P.3d at 1259. This “may require the

 trial court to hold an evidentiary, or ‘Trinity,’ hearing in order to

 determine whether immunity applies.” Martinez, ¶ 27 (citing

 Trinity, 848 P.2d at 925). In this procedure, the trial court, rather

 than a jury, is the finder of fact and resolves any factual dispute on

 which sovereign immunity depends. See Finnie, 79 P.3d at 1260-

 61; Trinity, 848 P.2d at 924. In addition, our supreme court has

 made clear that “Trinity and its progeny govern claims of public

 employee sovereign immunity as well.” Martinez, ¶ 27 (emphasis

 added); see § 24-10-118(2.5).




                                     4
¶7    The CGIA grants immunity to public entities “from liability in

 all claims for injury which lie in tort or could lie in tort regardless of

 whether this may be the type of action or the form of relief chosen

 by the claimant . . . .” § 24-10-106(1), C.R.S. 2018. Immunity is

 expressly waived, however, in certain situations, including in an

 action for injuries resulting from “[t]he operation of any . . .

 correctional facility . . . or jail by such public entity.” § 24-10-

 106(1)(b). The waiver of sovereign immunity created in section 24-

 10-106(1)(b) applies to “claimants who are incarcerated but not yet

 convicted of the crime for which such claimants are being

 incarcerated if such claimants can show injury due to negligence.”

 § 24-10-106(1.5)(b).

¶8    Regarding public employees, the CGIA states as follows:




                                     5
            A public employee shall be immune from
            liability in any claim for injury . . . 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).

  § 24-10-118(2)(a) (emphasis added).

¶9     Section 24-10-118(2)(a) thus provides a public employee

  immunity against tort liability except where (1) the act or omission

  causing injury was willful and wanton; or (2) the action is for

  injuries resulting from a circumstance identified in section 24-10-

  106(1). Ramos v. City of Pueblo, 28 P.3d 979, 980 (Colo. App.

  2001); cf. State v. Nieto, 993 P.2d 493, 507 (Colo. 2000) (“Here, the

  negligent acts and omissions of defendants . . . were committed in

  the course of operating a correctional facility. These public

  employees . . . are not immune from liability pursuant to sections

  24-10-118(2) and 24-10-106(1).”).

¶ 10   Under the first exception, whether the employee’s conduct was

  willful and wanton presents an issue of immunity that must be


                                    6
  addressed before trial via Rule 12(b)(1), just like any other

  immunity issue. Martinez, ¶¶ 26-28. Under the second exception,

  however, whether the employee’s conduct was willful and wanton is

  irrelevant to immunity. This second exception prohibits a public

  employee from asserting immunity whenever the public entity’s

  immunity has been waived under section 24-10-106(1).

               III.     Additional Facts and Procedure

¶ 11   According to Hernandez’s complaint, she was intoxicated when

  she arrived at the jail’s intake section. At some point, she stumbled

  and fell, hitting her head. Several deputies on duty, including

  Dodson, witnessed the fall. During a nurse’s examination,

  Hernandez complained of a very bad headache. A short time later,

  she was allowed to visit the restroom, where she remained

  unattended for thirty minutes. She was then discovered lying on

  the restroom floor in “severe medical distress.” She was

  transported to a hospital and underwent emergency surgery due to

  “severe neurological injury.” Hernandez claimed that she suffered

  serious brain injury and permanent disability that could have been

  prevented had she received prompt medical attention.




                                     7
¶ 12   Hernandez alleged negligence on the part of all defendants

  (including Denver) as well as willful and wanton conduct on the

  part of all individual defendants (including Dodson). Defendants

  moved to dismiss pursuant to Rule 12(b)(5). They also argued,

  citing Martinez, that Hernandez’s allegations of willful and wanton

  conduct implicated the individual defendants’ immunity under

  section 24-10-118(2)(a). They requested a Trinity hearing to

  address those allegations.

¶ 13   The district court denied relief under Rule 12(b)(5). The court

  noted that Hernandez’s allegations of willful and wanton conduct

  were not themselves separate claims, but rather “description[s] of

  the degree of negligence being asserted by [Hernandez] against the

  individual Defendants, as required by the [CGIA], § 24-10-118, to

  overcome immunity.” The court found that “the complaint

  adequately alleges willful and wanton conduct against the

  individual Defendants.” The court “reserve[d] ruling on whether to

  hold a Trinity hearing” pending further input from the parties.

¶ 14   Apparently, defendants later renewed their request for a

  Trinity hearing because the court held one, covering three days and




                                    8
  addressing the allegations of willful and wanton conduct only.1

  From the outset, the parties disagreed about whether Hernandez’s

  allegations of willful and wanton conduct raised an issue of

  sovereign immunity under section 24-10-118(2)(a), Trinity, and its

  progeny. If so, the court could make factual findings and finally

  determine — per Rule 12(b)(1) — whether defendants’ conduct was

  willful and wanton. Hernandez disagreed with that approach.

  Because her allegations did not implicate sovereign immunity, she

  argued that the “Court’s not making a final determination on willful

  and wanton conduct.” Rather, the “Court’s essentially acting as a

  gatekeeper, to decide whether there’s enough evidence” for the issue

  to go to the jury.

¶ 15   Defendants argued instead that the district court should

  substantively and finally determine whether the individual

  defendants should face liability for willful and wanton conduct.

  Defendants explained that

             in this case, the Court is not applying
             immunity waiver elements to determine
             whether a case against a governmental entity

  1On the first day of the hearing, Hernandez dropped the willful and
  wanton conduct allegations against all defendants except Tracey
  Dodson and Joshua Frank.

                                    9
            should move forward. Rather, the Court is
            required to make a factual finding as to
            whether Defendants Dodson and Frank should
            face personal liability for alleged willful and
            wanton conduct.

¶ 16   Hernandez maintained that the utility and effect of the Trinity

  hearing here differed from the typical case, given the waiver of

  immunity in the jail context. She explained that

            in many cases a Trinity hearing is truly
            jurisdictional. In this case it’s not even
            jurisdictional. If this Court holds that we don’t
            meet the threshold on willful and wanton?
            These Defendants are still in the case, we still
            have negligence claims against them. The
            claims go forward. This Court will retain
            jurisdiction over them.

            ....

            [T]he willful and wanton affects the measure of
            damage. It doesn’t affect the ability to pursue
            the suit, under the [C]GIA. And, that’s why it’s
            not truly jurisdictional in the way that some
            other [C]GIA issues are.

¶ 17   Ruling from the bench, the district court acknowledged that

  “[t]he waiver [of immunity under the CGIA] that applies here is . . .

  with respect to the operation of a jail.” The court thus noted that,

  regardless of how it ruled on the willful and wanton allegations, it

  had jurisdiction over all defendants and the underlying negligence



                                    10
  claims against them would continue. Nonetheless, the court

  decided that it, rather than the jury, should determine whether the

  individual defendants acted willfully and wantonly.

¶ 18   The court then made extensive factual findings, including

  resolving some factual disputes against Hernandez (e.g., the court

  found that she was left alone in the restroom for only about ten

  minutes, not thirty). The court concluded that “there has not been

  a showing of willful and wanton conduct by a preponderance of the

  evidence. Therefore, the . . . sovereign immunity of [Dodson and

  Frank] remains[,] and they are not subject to individual personal

  liability under the [CGIA].” In effect, the court dismissed the

  allegations of willful and wanton conduct. As noted, Hernandez

  appeals this ruling with respect to Dodson only.

                           IV.     Analysis

¶ 19   Hernandez contends that “there was no issue before the

  [district court] regarding jurisdiction or immunity” because

  Dodson’s immunity was waived under section 24-10-118(2)(a) and

  section 24-10-106(1)(b). Hence, Hernandez argues, the question

  whether Dodson’s conduct was willful and wanton went only to the

  amount and kind of damages that Hernandez could seek from


                                    11
  Dodson (e.g., exemplary damages), not to whether Dodson was

  immune from suit. See § 24-10-118(1)(c) (providing that a public

  employee may be liable for exemplary damages if her conduct was

  willful and wanton). Hernandez concludes, therefore, that the

  district court erred in effectively dismissing the allegations of willful

  and wanton conduct under a Rule 12(b)(1) standard following a

  Trinity hearing.

¶ 20   According to Dodson, however, Hernandez did not preserve the

  question whether the willful and wanton allegations concerned

  damages (rather than immunity) because she did not assert a claim

  for exemplary damages in the district court. For three reasons,

  Dodson is mistaken.

¶ 21   First, Hernandez stated in her complaint the factual basis for

  her claim that Dodson’s conduct was willful and wanton, as

  required by section 24-10-110(5)(a). Regardless of whether

  Hernandez seeks exemplary damages, her allegations of willful and

  wanton conduct are relevant to whether the statutory damages cap

  applies to her claims against Dodson. See § 24-10-114, C.R.S.

  2018; § 24-10-118(1)-(1)(b); DeForrest v. City of Cherry Hills Village,

  72 P.3d 384, 386-88 (Colo. App. 2002). And Hernandez expressly


                                     12
  argued in the district court that the willful and wanton allegations

  “affect[] the measure of damage.”

¶ 22   Second, Hernandez could not seek exemplary damages in her

  initial complaint; she first had to demonstrate to the court a triable

  issue of such damages (i.e., Dodson’s conduct was willful and

  wanton). See § 13-21-102(1.5)(a), C.R.S. 2018; cf. Ferrer v.

  Okbamicael, 2017 CO 14M, ¶ 44 (“Exemplary damages do not

  present a separate, distinct cause of action, but, rather, depend on

  an underlying claim for actual damages.”).2 Before she did so,

  defendants moved to dismiss and sought a Trinity hearing. At that

  hearing, the court found that Dodson’s conduct was not willful and

  wanton. The court later acknowledged that, had Hernandez

  prevailed at the Trinity hearing, she likely would have requested to

  amend her complaint to seek exemplary damages. Her inability to

  do so, however, does not mean that she failed to preserve the issue.

¶ 23   Third, and most importantly, Hernandez plainly argued to the

  district court that her allegations of willful and wanton conduct do

  2 Dodson concedes that the “right of a plaintiff to seek exemplary
  damages against any defendant is governed by C.R.S. § 13-21-102
  which provides that exemplary damages may be awarded for
  injuries attended by circumstances of fraud, malice, or willful and
  wanton conduct.”

                                      13
  not pertain to jurisdiction or immunity because Dodson cannot

  assert immunity in this case according to sections 24-10-118(2)(a)

  and 24-10-106(1)(b). For that reason, Hernandez objected to the

  court’s addressing those allegations under Rule 12(b)(1) and

  resolving factual disputes. So, her arguments squarely presented

  the question whether the court used the correct procedure and

  standards when dismissing the allegations of willful and wanton

  conduct.

                         A.    Standard of Review

¶ 24   This case raises a question of statutory interpretation, which

  we review de novo. Medina v. State, 35 P.3d 443, 452-53 (Colo.

  2001). Our primary task is to give effect to the legislature’s intent.

  Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. We look

  initially to the statute’s language, ascribing words their plain and

  ordinary meanings, and look no further if the plain language reveals

  a clear legislative intent. Springer v. City & Cty. of Denver, 13 P.3d

  794, 799 (Colo. 2000).

                              B.   Application

¶ 25   As the district court explained, section 24-10-106(1)(b) — the

  waiver of sovereign immunity for injuries resulting from the


                                    14
  negligent operation of a jail — applies to this action. Accordingly,

  the exception to a public employee’s immunity in section 24-10-

  118(2)(a) that applies where the public entity’s immunity has been

  waived governs here and precludes Dodson from asserting

  immunity. As noted, this bar to immunity does not depend on

  whether her acts or omissions were willful and wanton. To

  illustrate, the supreme court in Nieto concluded that, because the

  public employees’ negligent conduct occurred during the operation

  of a correctional facility, they were not immune from suit, pursuant

  to sections 24-10-118(2) and 24-10-106(1). 993 P.2d at 506-07.

  The supreme court made no mention of the employees’ conduct

  being willful and wanton or the need for a Trinity hearing to

  determine whether the employees were immune.

¶ 26   Naturally, then, the question whether Dodson’s conduct was

  willful and wanton does not present an issue of sovereign immunity

  for the district court to determine before trial via Rule 12(b)(1) and a

  Trinity hearing. Although Dodson relies heavily on Martinez, the

  exception to the public employee’s immunity alleged there did not

  rely on the public entity’s waiver of immunity under section 24-10-

  106(1). Rather, that case concerned the exception to an employee’s


                                    15
  immunity in section 24-10-118(2)(a) that applies if the employee’s

  conduct was willful and wanton. See Martinez, ¶¶ 27-28. In

  Martinez, therefore, the district court was required to address the

  allegations of willful and wanton conduct before trial under

  Rule 12(b)(1).

¶ 27   Indeed, the fact that, despite the district court’s ruling in this

  case, the underlying negligence claims against Dodson and the

  other defendants remain pending for trial confirms that

  Hernandez’s allegations of willful and wanton conduct do not put

  Dodson’s immunity at issue. As discussed, a sovereign immunity

  issue within the meaning of the CGIA is one that could stop the

  litigation in its tracks by providing the defendant immunity from

  suit. See Nieto, 993 P.2d at 507 (distinguishing between immunity

  from suit under the CGIA and some protection from liability). The

  allegations of willful and wanton conduct against Dodson do not

  present such an issue.

¶ 28   Still, Dodson contends that the allegations of willful and

  wanton conduct raise an immunity issue because they could affect

  whether (1) the statutory damages cap applies; (2) she is liable for

  exemplary damages; and (3) her employer is liable to pay any


                                    16
  judgment against her. See § 24-10-118(1)-(1)(b) (damages cap

  applies unless public employee’s conduct was willful and wanton);

  § 24-10-118(1)(c) (public employee is not liable for exemplary

  damages unless conduct was willful and wanton); see also § 24-10-

  110(1)(b)(I) (public entity is liable for judgment against public

  employee unless employee’s conduct was willful and wanton); § 24-

  10-114(4)(a) (public entity is not ordinarily liable, either directly or

  by indemnification, for exemplary damages).

¶ 29   Doubtless, these statutory provisions are important to public

  employees like Dodson. But they are not immunity provisions. On

  the contrary, they apply when a public employee is not immune

  from suit — that is, when the claim against the employee can go to

  trial and actual damages may be awarded to the plaintiff. See

  DeForrest, 72 P.3d at 386-88 (recognizing that, when immunity has

  been waived under section 24-10-106(1), a public employee may be

  liable for actual damages above the ordinary statutory cap and for

  exemplary damages if the employee’s conduct was willful and

  wanton); Ramos, 28 P.3d at 980 (noting that section 24-10-

  110(1)(b)(I) addresses payment of judgments entered against public

  employees after trial).


                                     17
¶ 30   If the public employee were immune from suit, there could be

  no trial, much less damages and a judgment for which the employee

  could be liable. When, instead, an employee may not assert

  immunity from suit — because, for example, immunity has been

  waived under section 24-10-106(1) — the action may go to trial,

  where the trier of fact may determine whether the employee is liable

  for actual damages. The questions whether the statutory damages

  cap applies, whether the employee is also liable for exemplary

  damages, and who is liable to pay any judgment can be resolved at

  trial as well. Cf. Lee v. Colo. Dep’t of Health, 718 P.2d 221, 226

  (Colo. 1986) (recognizing that trial court may apply damages cap to

  reduce jury’s award).3

¶ 31   Dodson also maintains that the allegations of willful and

  wanton conduct raise an issue of immunity because they could

  affect whether her employer is liable for the costs of her defense and

  attorney fees. True, a public entity is liable for a public employee’s

  costs of defense and reasonable attorney fees unless the employee’s

  3 A jury’s decision not to award exemplary damages against a public
  employee would not mean that the employee was immune from
  those damages. It would simply mean the jury found that the
  evidence did not satisfy the burden of proof for awarding such
  damages.

                                    18
  conduct was willful and wanton. § 24-10-110(1)(a), (1.5); Middleton

  v. Hartman, 45 P.3d 721, 728 (Colo. 2002).

¶ 32   But these provisions do not afford immunity from suit.

  Instead, they address who is liable for paying for the employee’s

  legal defense. The General Assembly has chosen to make a public

  entity liable for a public employee’s defense costs except where the

  employee’s conduct was willful and wanton. See Middleton, 45 P.3d

  at 728 (“If the state chooses to pay defense costs for its employees,

  it has voluntarily assumed that liability.”). Consistent with this

  policy choice, the CGIA provides that, if the employee’s conduct is

  found to be willful and wanton after the public entity has paid for

  the employee’s defense, the entity may seek reimbursement of costs

  and attorney fees from the employee. See § 24-10-110(1.5)(a); see

  also Middleton, 45 P.3d at 728 (recognizing that a public employee

  may be entitled to indemnification by the state for the employee’s

  defense costs if the plaintiff fails to prove that the employee acted

  willfully and wantonly). In any event, these payment provisions

  have nothing to do with immunity from suit.

¶ 33   Given all this, we conclude that Hernandez’s allegations of

  willful and wanton conduct do not raise an immunity issue under


                                    19
  the CGIA. Accordingly, the district court erred in resolving those

  allegations by way of Rule 12(b)(1) and a Trinity hearing.

          V.     Other Contentions and Remand Directions

¶ 34   Hernandez asks us to treat Dodson’s motion to dismiss and

  request for a Trinity hearing as a summary judgment motion and

  then to hold that relief under summary judgment standards is

  improper. We see no need to do so. Dodson did not seek summary

  judgment in the district court. Nor has she even suggested that she

  is entitled to summary judgment on this record.

¶ 35   The only issue before us is whether the district court properly

  dismissed Hernandez’s allegations of willful and wanton conduct

  under Rule 12(b)(1) after a Trinity hearing. We hold that the court

  did not. Rule 12(b)(1) and the Trinity procedure do not apply to the

  allegations because they do not raise an issue of sovereign

  immunity.

¶ 36   On remand, the district court should treat the allegations of

  willful and wanton conduct just like any other allegations, except to

  the extent they are offered in support of exemplary damages. If, for

  instance, Hernandez asks to amend her complaint to seek

  exemplary damages, the court must address that request pursuant


                                    20
  to section 13-21-102(1.5)(a). The court must decide whether she

  presented prima facie proof of willful and wanton conduct, either

  through discovery, offer of proof, or other evidentiary means. See

  Stamp v. Vail Corp., 172 P.3d 437, 448-50 (Colo. 2007) (addressing

  nearly identical procedure for alleging exemplary damages under

  section 13-21-203(3)(c)(I), C.R.S. 2018); see also Ferrer, ¶¶ 46, 53

  (addressing standards for asserting exemplary damages claim

  under section 13-21-102(1.5)(a)); cf. § 13-25-127(2), C.R.S. 2018

  (stating that exemplary damages may be awarded only if ultimately

  proved beyond a reasonable doubt).

                          VI.     Conclusion

¶ 37   We vacate the order dismissing the willful and wanton

  allegations, and we remand for such further proceedings as the

  district court deems appropriate.

       JUDGE J. JONES and JUDGE MILLER concur.




                                      21
