             Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.

                                                       ADVANCE SHEET HEADNOTE
                                                                September 12, 2016

                                       2016 CO 58

No. 14SC346, Martinez v. Estate of Bleck—Colorado Governmental Immunity Act—
Interlocutory Appeal—Sovereign Immunity—Willful and Wanton Conduct

        Steven Wayne Bleck was injured when Officer Jeffrey Martinez’s firearm

discharged during an attempt to subdue Bleck. Bleck filed a state law battery claim

against Martinez, and Martinez filed a motion to dismiss, claiming immunity under the

Colorado Governmental Immunity Act (“CGIA”). The trial court found that Bleck had

adequately pled willful and wanton conduct by Martinez and thus denied Martinez’s

motion. Martinez then filed an interlocutory appeal with the court of appeals. That

court held that it lacked jurisdiction to hear the appeal, because Martinez was only

entitled to qualified immunity, which is not appealable on an interlocutory basis, not

sovereign immunity, which is. The supreme court reverses, and concludes that whether

a public employee’s conduct is willful and wanton under the CGIA implicates

sovereign immunity. Thus, the plain language of the CGIA affords Martinez a right to

an interlocutory appeal. The supreme court further holds that the trial court erred in (1)

not deciding the issue of whether Martinez’s conduct was willful and wanton, and (2)

using a negligence standard to define willful and wanton. Accordingly, the supreme

court    remands    for   further    proceedings     consistent   with    this   opinion.
                     The Supreme Court of the State of Colorado
                       2 East 14th Avenue • Denver, Colorado 80203


                                       2016 CO 58

                          Supreme Court Case No. 14SC346
                        Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 12CA2637

                                        Petitioner:
                                   Jeffrey A. Martinez,
                                            v.
                                      Respondent:
The Estate of Steven Wayne Bleck, by Joanna Churchill, Personal Representative for Steven
                                    Bleck, deceased.

                                  Judgment Reversed
                                        en banc
                                   September 12, 2016


Attorneys for Petitioner:
Vaughan & DeMuro
Gordon L. Vaughan
David R. DeMuro
 Colorado Springs, Colorado

Attorneys for Respondent:
Bachus & Schanker, LLC
J. Kyle Bachus
Maaren L. Johnson
   Denver, Colorado

Attorneys for Amicus Curiae The Colorado Municipal League:
The Law Office of Steven J. Dawes, LLC
Steven J. Dawes
  Denver, Colorado


JUSTICE EID delivered the Opinion of the Court.
¶1     Upon obtaining information that Steven Wayne Bleck was suicidal and possibly

armed, officers with the Alamosa Police Department, including petitioner Jeffrey A.

Martinez, entered Bleck’s hotel room. After Bleck did not respond to the officers’

command to show his hands and lie down on the floor, Martinez approached him, and,

without holstering his weapon, attempted to subdue him. In the process, the firearm

discharged, injuring Bleck. As relevant here, Bleck brought suit against Martinez in

federal court, alleging excessive force and a state law battery claim. The federal court

granted summary judgment and dismissed Bleck’s federal claim, concluding that there

was no evidence that the shooting was intentional. After the federal district court

declined to assert supplemental jurisdiction over the state law battery claim, Bleck

refiled the claim in state district court in the proceeding before us.

¶2     Martinez filed a motion to dismiss pursuant to C.R.C.P. 12(b)(1) and 12(b)(5),

claiming that his actions were not “willful and wanton” and that therefore he was

entitled to immunity under section 24-10-118(2)(a) of the Colorado Governmental

Immunity Act (“CGIA”). §§ 24-10-101 to -120, C.R.S. (2016). The trial court denied the

motion, reasoning that Bleck had adequately pled willful and wanton conduct on

Martinez’s part by alleging that he engaged in conduct he “should have” known to be

dangerous in attempting to subdue Bleck without first holstering his firearm.

¶3     Martinez then filed an interlocutory appeal with the court of appeals. The court

concluded that it lacked jurisdiction to hear the appeal on the ground that Martinez was

only entitled to claim qualified immunity, which is not appealable on an interlocutory

basis, not sovereign immunity, which is. Estate of Bleck v. Martinez, 2014 COA 38,

                                              2
¶¶ 2–3, __ P.3d __ (“Estate of Bleck II”). Because it found it had no jurisdiction to hear

the interlocutory appeal, it did not consider the merits of Martinez’s claim that the trial

court applied the wrong standard for willful and wanton conduct in denying its motion

to dismiss.

¶4     We granted certiorari and now reverse. We first hold that, by its plain terms,

section 24-10-118(2.5), C.R.S. (2016), affords Martinez a right to file an interlocutory

appeal challenging the trial court’s determination that he was not entitled to immunity.

That section provides that when “a public employee raises the issue of sovereign

immunity” and immunity is denied, the employee may bring an interlocutory appeal of

the denial. The only “sovereign immunity” that can be “raised” by an employee is the

immunity described in section 24-10-118(2)(a), which provides that a public employee

“shall be immune from liability” for actions that arise in tort or could arise in tort unless

such actions were “willful and wanton.”          § 24-10-118(2)(a).   That is precisely the

immunity claim Martinez brought here. Indeed, the CGIA only refers to sovereign

immunity; the phrase “qualified immunity” does not appear in the statute. Therefore,

when Martinez claimed that he was entitled to immunity from suit because his actions

were not willful and wanton under section 24-10-118(2)(a), he was claiming sovereign

immunity, and was entitled to an interlocutory appeal of the denial of immunity under

section 24-10-118(2.5).

¶5     We further hold that the trial court erred in simply determining that Bleck had

adequately pled that Martinez’s conduct was willful and wanton; instead, the trial court

should have determined all issues relating to Martinez’s immunity claim, including

                                             3
factual issues, regardless of whether those issues are jurisdictional in nature.       See

Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916, 924–25 (Colo. 1993);

Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1259 (Colo. 2003). Because the trial

court did not determine whether Martinez’s conduct was willful and wanton, we

remand this case for such a determination and a Trinity hearing, if the court deems it

necessary.

¶6     Finally, we hold that, in concluding that Bleck adequately pled willful and

wanton conduct, the trial court erred in applying a negligence standard that Martinez

“should have” known his conduct was dangerous. On remand, the trial court should

determine whether Martinez’s conduct in discharging his weapon was willful and

wanton, meaning conduct that is “not only negligent, but exhibit[s] conscious disregard

for safety of others.” Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (citing Black’s

Law Dictionary 1434–35 (5th ed. 1979)) (emphasis added). We therefore reverse and

remand the case for further proceedings consistent with this opinion.

                                            I.

¶7     We take the following facts from the complaint. On August 6, 2010, a mental

health counselor called 911 and reported that Bleck was intoxicated, suicidal, and

possibly armed at a local hotel in Alamosa. The Alamosa Police Department dispatched

several officers, including Martinez, to the hotel to perform a welfare check. After the

officers confirmed that Bleck had checked into the hotel and had been drinking, they

received additional calls from the counselor reporting that Bleck had cut off all

communications and was threatening to “blow his head off.” The officers proceeded to


                                            4
Bleck’s room with a key card obtained from the hotel clerk. Martinez entered the room

without knocking, holding his duty weapon in his right hand, and the other officers

followed.

¶8    When they entered the room, Bleck was sitting on the bed facing away from

them. Unable to see his hands or whether he had a weapon, the officers commanded

Bleck to show his hands and lie down on the floor, but he did not respond. Martinez

then decided to physically take control of Bleck using a technique the parties refer to as

“going hands on.” Without holstering his weapon, Martinez approached Bleck, made

contact with him, and, while attempting to subdue him, discharged the firearm, striking

Bleck in the hip and causing injury.

¶9    Bleck filed suit against Martinez and the City of Alamosa in federal district court,

claiming that Martinez used excessive force in violation of the Fourth Amendment and

that the city inadequately trained and supervised Martinez in the use of force while

dealing with persons with mental health issues.1 He also filed a state law battery claim

against Martinez in the federal court action. On a motion for summary judgment, the

federal district court dismissed the federal claim against Martinez. Bleck v. City of

Alamosa, 839 F. Supp. 2d 1149, 1152 (D. Colo. 2012). It concluded that no Fourth

Amendment seizure occurred because, as Bleck’s own expert admitted, there was “no

evidence suggesting that the shooting was attributable to anything other than an

accidental discharge.” Id. at 1154. The court also dismissed the claim against the city


1Bleck passed away during the pendency of his appeal, and the Estate was substituted
as plaintiff-respondent. This opinion refers to the respondent as Bleck.

                                            5
and declined to exercise supplemental jurisdiction over the state law claim. Id. at 1155.

The Tenth Circuit affirmed the dismissal of the Fourth Amendment claim against

Martinez, albeit on different grounds, but remanded the claim against Alamosa, which

is not before us. Estate of Bleck v. City of Alamosa, 540 F. App’x 866, 873–74, 877 (10th

Cir. 2013) (“Estate of Bleck I”). It accepted the district court’s finding that Martinez did

not intend to shoot Bleck. See id. at 875.

¶10    Bleck refiled his battery claim against Martinez in state district court, the

proceeding at issue in this appeal. Martinez filed a motion to dismiss pursuant to

C.R.C.P. 12(b)(1) and 12(b)(5), claiming immunity under section 24-10-118(2)(a) of the

CGIA. The district court denied the motion. It reasoned that, where a plaintiff properly

alleges that a public employee acted willfully and wantonly, the employee is only

entitled to qualified immunity, not sovereign immunity. The court quoted Gallagher v.

Board of Trustees for University of Northern Colorado, 54 P.3d 386, 394 (Colo. 2002), for

the proposition that, “because qualified immunity is not a bar to suit, the trial court may

not decide the issue [of whether the employee’s conduct was willful and wanton] on a

C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.” Allegations

of willful and wanton conduct, the court continued, are to be determined at trial as long

as they are sufficiently pled by the plaintiff.

¶11    The court then found that the complaint adequately pled willful and wanton

conduct. In support of this conclusion, the trial court emphasized that Martinez was

alleged to have intentionally placed his hands on Bleck while holding his loaded

firearm in violation of police department policy, and that he “should have realized this

                                                  6
conduct was dangerous.” By proceeding with the “hands on maneuver” anyway, the

court continued, Martinez allegedly disregarded Bleck’s safety and Bleck suffered harm

as a result. The trial court held that these allegations sufficiently pled willful and

wanton conduct.

¶12      Martinez filed an interlocutory appeal under section 24-10-118(2.5). The court of

appeals, however, held that it lacked jurisdiction to hear the appeal. Estate of Bleck II,

¶¶ 2–3. It first noted that section 24-10-118(2.5) only authorizes interlocutory appeal

where the district court denies a motion asserting “sovereign immunity.” Id. at ¶ 8.

Citing City of Lakewood v. Brace, 919 P.2d 231, 245–46 (Colo. 1996), the court of appeals

agreed with the trial court that, where a complaint adequately alleges willful and

wanton conduct by a public employee, the defendant is not entitled to sovereign

immunity but only to qualified immunity. Estate of Bleck II, ¶ 9. Viewing qualified

immunity as a trial defense rather than a jurisdictional bar, the court concluded that “a

trial court’s determination of a C.R.C.P. 12(b) motion challenging whether an

employee’s conduct was willful and wanton is not subject to interlocutory appeal.” Id.

(citing Brace, 919 P.2d at 245; Gallagher, 54 P.3d at 394–95). Correspondingly, it held

that the trial court’s decision here was not subject to interlocutory review and thus

declined to review Martinez’s argument that the trial court applied the wrong standard

of willful and wanton conduct. Id. at ¶¶ 11, 19–20.

¶13      We granted certiorari and now reverse.2



2   We granted certiorari to review the following issues:

                                              7
                                              II.

¶14      Martinez argues that (1) the court of appeals erred in holding that the CGIA does

not authorize an interlocutory appeal challenging a trial court’s denial of a public

employee’s claim of immunity, and (2) the trial court applied the wrong definition of

“willful and wanton conduct.” We agree with Martinez on both counts.

                                              A.

¶15      The CGIA provides that public employees “shall be immune from liability” for

“all claims for injury which lie in tort or could lie in tort” that “arise[] 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.” § 24-10-118(2)(a), C.R.S. (2016). In addition, section 24-10-118(2.5) of the

CGIA permits public employees to “raise[] the issue of sovereign immunity prior to or

after the commencement of discovery,” in which case the trial court “shall suspend

discovery . . . except [that which is] necessary to decide the issue of sovereign

immunity,” and “shall decide such issue on motion.” § 24-10-118(2.5), C.R.S. (2016).




      1. Whether, where there are no disputed issues of material fact, a trial court’s denial
         of immunity on the basis of a claim of “willful and wanton conduct” is subject to
         interlocutory appeal.
      2. Whether, if the issue of denial of immunity is subject to interlocutory appeal, the
         district court improperly applied the Colorado Governmental Immunity Act’s
         “willful and wanton” conduct exception to immunity for public employees,
         C.R.S. § 24-10-118(2)(a), to deny defendant’s motion to dismiss plaintiff’s tort
         claim of battery arising out of defendant’s accidental discharge of his firearm.

                                               8
Section 24-10-118(2.5) further provides that the court’s decision regarding such a motion

is deemed a final judgment and “shall be subject to interlocutory appeal.”3

¶16      At issue in this case is whether the trial court’s denial of Martinez’s motion to

dismiss claiming immunity under the CGIA is subject to interlocutory appeal under

section 24-10-118(2.5). We hold that it is.

¶17      Martinez’s motion claimed immunity under section 24-10-118(2)(a) on the

ground that, at the time of the injury, he was performing his duties and acting within

the scope of his employment, and he did not act in a willful and wanton manner. He

thus “raise[d] the issue of sovereign immunity” under section 24-10-118(2.5). When his

motion was denied, it was deemed final and subject to interlocutory appeal under that

same section.

¶18      Echoing the trial court and court of appeals, however, Bleck argues that the

denial of Martinez’s motion is not subject to interlocutory appeal because he could not

raise the issue of “sovereign immunity,” which is subject to interlocutory appeal under

section 24-10-118(2.5), but only qualified immunity. We disagree with this argument

based on the plain language of the statute.




3   The complete text of section 24-10-118(2.5) provides:
         If a public employee raises the issue of sovereign immunity prior to or
         after the commencement of discovery, the court shall suspend discovery;
         except that any discovery necessary to decide the issue of sovereign
         immunity shall be allowed to proceed, and the court shall decide such
         issue on motion. The court’s decision on such motion shall be a final
         judgment and shall be subject to interlocutory appeal.

                                              9
¶19     The CGIA only ever refers to the immunity it confers as “sovereign immunity.”

See, e.g., § 24-10-106(1), C.R.S. (2016) (referring to the waiver of a public entity’s

“sovereign immunity”); § 24-10-108 (stating that “sovereign immunity” is a bar to suit

against a public entity for actions that lie in tort or could lie in tort). It is true that

section 24-10-118(2)(a) states that a “public employee shall be immune from liability,”

without further explanation of the type of immunity the public employee shall receive.

However, section 24-10-118(2.5) addresses what happens when “a public employee

raises the issue of sovereign immunity,” and explains that when the employee does so,

the trial court must address the “issue of sovereign immunity” and its decision is

“subject to interlocutory appeal.” The phrase “qualified immunity” is never used in

section 24-10-118(2)(a) or section 24-10-118(2.5); indeed, the phrase never appears in the

CGIA.     Thus, the immunity to which section 24-10-118(2)(a) refers is the same

“sovereign immunity” at issue in section 24-10-118(2.5). In other words, “sovereign

immunity” is the only immunity that a public employee can “raise[].”

¶20     Again echoing the trial court and the court of appeals, Bleck argues that this

result is foreclosed by City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996). In Brace,

the plaintiff, a Lakewood city employee, brought several claims against the city, the city

manager, and the assistant city manager in connection with the termination of his

employment, including two state law tort claims against the individual employees. Id.

at 235. The public employee defendants filed a motion for summary judgment, arguing

that the CGIA barred the tort claims. Id. at 236. The district court denied the motion on




                                            10
those claims after finding that genuine issues of material fact existed over whether the

employees’ conduct was “willful and wanton” under section 24-10-118(2)(a). Id.

¶21   This court affirmed the denial of the summary judgment motion and held that

the order was not immediately appealable. Id. at 245–46. To reach this holding, we

recognized two categories of immunity: “sovereign immunity,” to which public entities

are entitled under section 24-10-108 and section 24-10-118(2.5); and what we termed

“qualified immunity” as embodied in section 24-10-118(2)(a). Id. at 245. We reasoned

that because section 24-10-118(2)(a) employs the term “immunity,” rather than the

phrase “sovereign immunity,” it must refer to qualified immunity.          Id.   Qualified

immunity, we stated, “is not immunity from suit, but rather a defense that can be raised

by the public employee who is named in his or her individual capacity.”                Id.

“Sovereign immunity,” by contrast, “shall be a bar to any action.”           Id. (quoting

§ 24-10-108). Based on this distinction, we determined that “the legislature did not

intend an individual defendant’s immunity from tort suits, although derived from

sovereign immunity, to have the same initially preclusive effect from suit.” Id. at 246.

We reasoned that the “willful and wanton” standard of section 24-10-118(2)(a) bolstered

this conclusion because it “mandate[d] a fact-based determination . . . not susceptible to

resolution at an early stage in the litigation process before significant discovery has

been undertaken unless there are no disputed issues of fact.” Id.

¶22   We substantially limited our decision in Brace, however, in Gallagher v. Board of

Trustees for University of Northern Colorado, 54 P.3d 386, 394 (Colo. 2002). In that

case, as relevant here, the plaintiff sued an administrator at the University of Northern

                                           11
Colorado, where the plaintiff had previously worked, for defamation, alleging that the

administrator made a defamatory comment at a staff meeting. Id. at 388. The trial court

granted the administrator’s 12(b)(1) motion to dismiss after finding that he made the

comment within the scope of his employment under section 24-10-118(2)(a).4 Id. at 390.

The court of appeals affirmed. Id.

¶23   The plaintiff argued before us that the trial court improperly resolved a factual

issue—whether the administrator made the comments within the scope of his

employment—akin to the factual issue regarding willful and wanton at issue in Brace.

Id. at 393–94. He asserted that both issues implicated a public employee’s qualified

immunity, not sovereign immunity. Id. at 394. We rejected the plaintiff’s argument and

concluded that the “scope of employment” issue implicated sovereign immunity, not

qualified immunity. Id. at 395.

¶24   To distinguish Brace, we noted that, after the operative facts of that case but

before our resolution of it, the General Assembly added section 24-10-118(2.5), expressly

providing for interlocutory appeal of a district court’s decision regarding a public

employee’s defense of sovereign immunity. 54 P.3d at 394. We explained that section

24-10-118(2.5)’s “directive to treat the determination of a public employee’s sovereign

immunity as a pre-trial matter” would permit “the court to decide early whether the

case is a dispute between private parties or one which involves the government.” Id. at

395. Because the issue of whether an employee acted within the scope of employment

4The plaintiff did not allege that the comment was willful and wanton, so the only issue
was whether it occurred outside the scope of the administrator’s employment.
Gallagher, 54 P.3d at 395.

                                           12
was “a basic prerequisite for immunity” going to the core of whether the dispute

involved the government, we deemed it an issue “of sovereign, not qualified,

immunity” subject to interlocutory appeal. Id. The willful and wanton determination

at issue in Brace, we concluded, involved a less “basic” of a “prerequisite for

immunity.” Id.

¶25   Importantly, Gallagher makes clear that although we cited section 24-10-118(2.5)

in Brace as addressing “sovereign immunity,” see Brace, 919 P.2d at 245, we had no

opportunity to actually apply the provision in Brace because it was not the law when

the operative facts occurred. Gallagher, 54 P.3d at 395. Therefore, contrary to Bleck’s

argument, Brace could not have adopted a definitive construction of section

24-10-118(2.5) that would be applicable here. On the contrary, we conclude that the

adoption of section 24-10-118(2.5) renders Brace’s distinction between qualified and

sovereign immunity an untenable one, at least for purposes of the CGIA.5               As

developed above, section 24-10-118(2.5), by its plain terms, permits public employees to

“raise[] the issue of sovereign immunity,” and instructs that the trial court’s

determination of the issue is subject to interlocutory appeal.         This is thus the

“immunity” to which public employees are entitled under section 24-10-118(2)(a) for

claims that lie in tort or could lie in tort stemming from acts within the scope of

5 The defendant in Brace had asserted the well-recognized federal qualified immunity
defense against the plaintiff’s federal claims, and the trial court simply adopted the
same language to describe the defendant’s CGIA defense. 919 P.2d at 237. This court
seems to have simply accepted the trial court’s articulation of section 24-10-118(2)(a) as
providing “qualified immunity” as well. See id. In fact, the bulk of our opinion in
Brace considered the issue of federal qualified immunity, id. at 238–43, an issue we do
not address today.

                                           13
employment and in performance of duties that are not willful and wanton. Because

Martinez raised the issue of sovereign immunity in his motion to dismiss, he was

entitled to an interlocutory appeal of the district court’s denial of that motion.

¶26    It necessarily follows that the distinction we drew in Gallagher between

immunity claims that raise a “basic prerequisite for immunity” (that is, the scope of

employment determination) and those that do not (that is, the willful and wanton

determination) is also untenable.       Instead, we conclude that, like the scope of

employment issue, whether a public employee’s conduct is willful and wanton conduct

under section 24-10-118(2)(a) implicates a public employee’s sovereign immunity.

Therefore, we hold that section 24-10-118(2.5) provides for interlocutory review of a trial

court’s resolution of the issue—no matter the grounds—of whether a public employee is

entitled to sovereign immunity.       Accordingly, we disavow language in Brace and

Gallagher suggesting that because a public employee’s claim of immunity is not a claim

of sovereign immunity, its determination is not subject to interlocutory review. Brace,

919 P.2d at 245–46; Gallagher, 54 P.3d at 394–95.

¶27    It also follows that, in addition to interlocutory review, the determination

regarding a public employee’s claim to sovereign immunity is subject to all of the other

procedures applicable to sovereign immunity determinations. Thus, when a public

employee raises the issue of sovereign immunity, the trial court “shall suspend

discovery” except for “discovery necessary to decide the issue of sovereign immunity.”

§ 24-10-118(2.5). The trial court then “shall decide such issue [of sovereign immunity]

on motion,” a ruling that is subject to interlocutory review. Id. In interpreting the

                                             14
identical procedures for public entity immunity under section 24-10-108,6 we have held

that trial courts must resolve all issues pertaining to sovereign immunity prior to trial,

including factual issues, regardless of whether those issues pertain to jurisdiction.

Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916, 924–25 (Colo. 1993);

Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1259–60 (Colo. 2003). This may

require the trial court to hold an evidentiary, or “Trinity,” hearing in order to determine

whether immunity applies. Trinity, 848 P.2d at 925; Finnie, 79 P.3d at 1259–60. We hold

that Trinity and its progeny govern claims of public employee sovereign immunity as

well.

¶28      In this case, the trial court erred when it failed to determine whether Martinez’s

conduct was willful and wanton. Instead, it determined that Bleck had sufficiently pled

that Martinez acted in a willful and wanton manner, and that the ultimate

determination of whether he in fact acted willfully and wantonly had to be left to trial.

Because the trial court did not determine whether Martinez’s conduct was willful and

wanton, we remand this case for such a determination and a Trinity hearing, if the court

deems it necessary.




6   Section 24-10-108 provides:
         If a public entity raises the issue of sovereign immunity prior to or after
         the commencement of discovery, the court shall suspend discovery,
         except any discovery necessary to decide the issue of sovereign immunity
         and shall decide such issue on motion. The court's decision on such
         motion shall be a final judgment and shall be subject to interlocutory
         appeal.

                                             15
                                            B.

¶29    We now turn to Martinez’s argument that the trial court applied an incorrect

standard of willful and wanton conduct to determine that Bleck’s claim was sufficiently

pled. Because the proper definition of willful and wanton conduct is an issue that will

govern remand proceedings, we address that question here.7

¶30    In Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994), we observed that the CGIA

does not define willful and wanton conduct. We then cited to three definitions of

willful and wanton conduct from other contexts, finding that although these definitions

were “not specifically applicable in the context of what constitutes willful and wanton

conduct . . . , they persuade[d] us” that the defendant’s conduct at issue in that case was

not willful and wanton. Id. The parties here ask us to identify a single definition of

willful and wanton conduct that is applicable in the CGIA context. We need not choose

from among definitions, however, as they all share a common feature—namely, a

conscious disregard of the danger.

¶31    In Moody, for example, we cited Black’s Law Dictionary for the proposition that

willful and wanton conduct “must be not only negligent, but exhibit [a] conscious


7 At the outset, we disagree with Bleck’s argument that Martinez failed to preserve this
issue for our review. In particular, Bleck argues that Martinez did not argue for the
precise definition of willful and wanton that he now presents to this court. However,
Bleck does not dispute that Martinez raised the issue of what definition of willful and
wanton conduct should apply in this context, which is sufficient to preserve the issue
for our consideration.




                                            16
disregard for [the] safety of others.” 885 P.2d at 205 (citing Black’s Law Dictionary

1434–35 (5th ed. 1979)) (emphasis added). Similarly, we observed that the definition of

willful and wanton in the exemplary damages statute is conduct “purposefully

committed, which the actor must have realized as dangerous, done heedlessly and

recklessly, without regard to [the] consequences, or of the rights and safety of others,

particularly the plaintiff.” Id. (citing § 13-21-102(1)(b), 6A C.R.S. (1987)) (emphasis

added). Finally, we noted that such conduct, in the guest statute context, is that which

is “wholly disregardful of the rights, feelings and safety of others . . . at times even

imply[ing] an element of evil.” Id. (citing Pettingell v. Moede, 271 P.2d 1038, 1042

(Colo. 1954)) (emphasis added).

¶32   In this case, the trial court erred in applying a negligence standard, finding that

Bleck had sufficiently alleged that Martinez “should have realized” that his conduct

was dangerous. As we observed in Moody, however, willful and wanton conduct is not

merely negligent; instead, it must exhibit a conscious disregard for the danger.

Accordingly upon remand, in considering whether Martinez’s conduct was willful and

wanton, the trial court should determine whether Martinez’s conduct exhibited a

conscious disregard of the danger.

                                          III.

¶33   We reverse the court of appeals and remand for further proceedings consistent

with this opinion.




                                          17
