Bresciani v. Haragan

Judge CRISWELL

dissenting.

I am convinced that an action against a public employee under §24-10-118(1), C.R.S. 1998, based upon that employee’s alleged “willful and wanton” act or omission, does not give rise to a question of sovereign immunity under §24-10-118(2.5), C.R.S.1998. Hence, I respectfully dissent from the majority’s determination that we have jurisdiction over the present appeal.

Two sections of the Governmental Immunity Act (GIA), §§24-10-105 and 24-10-118, C.R.S.1998, describe a public employee’s immunity with respect to actions for injuries caused by that employee’s acts or omissions. Neither of them has been the subject of extended consideration by the supreme court.

Section 24-10-105 provides, simply, that no public employee shall be liable for injuries arising out of an act or omission during the performance and within the scope of his duties, except as otherwise provided in the GIA, “unless such act was willful and wanton.” (emphasis supplied) It also provides that no action may be brought against a public employee, “except in compliance with the requirements” of the GIA.

Section 24-10-118, then, is the statute that sets forth the “requirements” referred to by §24-10-105. Section 24-10-118(1) provides that “any action brought against a public employee” that lies in tort or could lie in tort, based upon an act or omission of that employee that is alleged to have occurred within the course and scope of his or her employment, “shall be subject to the ... requirements and limitations” set forth in the remainder of §24-10-118, “unless the act or omission causing such injury was willful and wanton .... ” (emphasis supplied)

On its face, then, if an action falls within the latter category, §24-10-118(1) does not require compliance with the remainder of that statute. Indeed, prior to the 1992 amendment to §24-10-118(1)(a), C.R.S.1998, see Colo. Sess. Laws 1992, ch. 172 at 1119, there was no requirement that any notice be given before commencing an action based upon an employee’s willful and wanton actions. Pacino v. Sanchez, 807 P.2d 1231 (Colo.App.1990).

However, §24-10-118(l)(a) now provides that in any action referred to in §24-10-118(1), there must be compliance with the notice provisions of §24-10-109, C.R.S.1998, as a “jurisdictional prerequisite to suit,” and that this notice is “required,” whether or not the claim is based upon an employee’s willful *161 and wanton act. The remaining requirements of §24-10-118 are not applicable to the issue presented here.

Section 2<H0-118(2)(a), C.R.S.1998, provides that a public employee “shall be immune from liability” for an act arising out of his duties, except in two circumstances, as follows:

“no immunity may be asserted in an action for injuries resulting from the circumstances specified” in §24-10-106(1), C.R.S.1998, which is the statute that describes the various circumstances in which a public entity may be sued, and in those instances in which “the act or omission causing such injury was willful and wanton.”

Finally, §24-10-118(2.5) provides that “[i]f a public employee raises the issue of sovereign immunity ” prior to trial, the court’s decision on that issue “shall be a final judgment and shall be subject to interlocutory appeal.” (emphasis supplied)

I do not suggest that these statutes are models for future legislative drafting. Indeed, the first proviso referred to in §24-10-118(2)(a) appears to be inconsistent with the immunity granted to employees by §24-10-105. Nevertheless, I am convinced that the intent reflected in the GIA was to create not one, but two, types of immunity for the benefit of public employees.

First, the employee has general immunity from suit for acts or omissions undertaken within the course and scope of employment, except under those circumstances described in §24-10-106(1) in which the public entity’s immunity is also waived. The public entity may ultimately be responsible for payment of any judgment rendered against the employee under such circumstances. See §24-10-110, C.R.S.1998. However, it is clear that, if the suit against the employee is of this type, all of the requirements of §24-10-118 must be met, and the providing of notice under §24-10-109 is, like a similar suit against an entity, a “jurisdictional prerequisite.” Henee, I am willing to assume that, for purposes of actions of this type against the employee, the immunity granted by the GIA is so akin to “sovereign immunity” that the court’s decision with respect to an immunity issue is immediately appealable under §24-10-118(2.5).

However, the GIA also authorizes an action against a public employee based upon that employee’s willful and wanton acts or omissions. And, if the employee has engaged in such acts or omissions, there is no immunity whether or not the acts or omissions occurred under the circumstances described in §24-10-106(1). Likewise, none of the “requirements and limitations” of §24-10-118 are applicable to such an action, except where otherwise specifically noted. And, in this respect, while notice under §24-10-109 is now “required” before such an action, the failure of which may “forever bar” that action, the GIA does not make such a notice a “jurisdictional prerequisite” for the assertion of these types of claims.

Hence, the immunity of an employee with respect to an action based upon willful and wanton conduct does not implicate any question of “sovereign immunity”; it involves the employee’s “qualified immunity” only. I conclude, therefore, that in an action of this type against a public employee, no issue of “sovereign immunity” is presented, and accordingly, §24-10-118(2.5) does not allow an interlocutory appeal.

As noted, there are few supreme court decisions that are relevant to this question.

In Trinity Broadcasting of Denver v. City of Westminster, 848 P.2d 916 (Colo.1993), the action was instituted against the public entity alone; no question relating to an employee’s immunity was presented. The same was true in Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996).

Further, in both Regional Transportation District v. Lopez, supra, and Fogg v. Macaluso, 892 P.2d 271 (Colo.1995), the trial court had dismissed plaintiffs complaint, resulting in a final judgment, so that the court had jurisdiction over the cause without reference to any special statute.

Finally, in the most recent case, Brock v. Nyland, 955 P.2d 1037 (Colo.1998), while both the entity and an employee were joined as defendants, there is no indication in the opinion that the employee’s liability was *162 based upon some alleged willful or wanton act or omission. On the contrary, the opinion of the division of this court that the supreme court was reviewing, Nyland v. Brock, 937 P.2d 806 (Colo.App.1996), indicates that both the individual, who was a bus driver, and the entity were sued under §24—10—106(1)(a), C.R.S.1998, because plaintiffs injuries resulted from the employee’s operation of a motor vehicle.

The only opinion that addresses the difference between the immunity granted a public entity and that granted a public employee is City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996). And, while that opinion does not adopt the specific analysis set forth above, it is generally supportive, in my view, of my conclusions here.

In Brace , both a city and two of its managerial employees were sued, the latter in their individual capacities, under both federal and state law. The state law claims asserted against the individuals were based upon their alleged willful, wanton, and retaliatory acts.

The supreme court determined that, when such a claim is asserted, the public employee possesses only a “qualified immunity” under the GIA, which is lost if the employee’s actions were willful and wanton. Noting that §24 — 10—118(2)(a) provides that a public employee “shall be immune from liability ” (emphasis supplied), and not immunity from suit, it concluded that the qualified immunity granted to an employee under the GIA provides only an affirmative defense to a plaintiffs claim; it does not give rise to a jurisdictional issue.

My reading of that portion of the GIA dealing with the liability of and suits against public employees, in light of the opinion in Brace , leads me to conclude that, if the action against the employee allegedly arises from one or more of the circumstances described in §24-10-106(1), the employee’s absolute immunity, which derives from the concept of sovereign immunity, is implicated, and any decision with respect thereto is immediately appealable under §24-10-118(2.5).

However, if the allegation is that the employee’s actions were willful and wanton, no sovereign immunity issue is presented; only the employee’s qualified immunity prevents the employee’s liability. And, any pre-trial determination upon this issue does not involve a question of sovereign immunity. In suits of this nature, therefore, there is no right to an interlocutory appeal.

Here, the only basis for the employees’ liability is their alleged willful and wanton actions. And, because such allegations present no issue respecting sovereign immunity, I conclude that this court lacks jurisdiction to review the trial court’s pre-trial rulings until a final judgment is entered.

For these reasons, I would dismiss this appeal for lack of jurisdiction.