v. Elder

v
         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
                                                          November 19, 2020

                               2020COA163

No. 19CA0546, Cisneros v. Elder — Government — Colorado
Governmental Immunity Act — Immunity and Partial Waiver —
Jail or Correctional Facility

     The Colorado Governmental Immunity Act provides a right to

sue only for statutorily specified acts of government entities. In this

suit, plaintiff Saul Cisneros seeks damages for an intentional act

committed by Sheriff Bill Elder, namely, false imprisonment for

failure to release Cisneros from the county jail. Because section 24-

10-106(1.5)(b), C.R.S. 2019, of the Act does not provide a right to

sue a jailor for intentional acts, a division of the Court of Appeals

reverses the district court’s order that declined to dismiss the suit.

     The special concurrence would reach the same result but

would not resort to section 24-10-106(1.5)(b)’s legislative history in

doing so.
     The dissent would find that section 24-10-106(1.5)(b) waives

sovereign immunity for injuries resulting from the operation of a jail

even if those injuries were caused by intentional conduct.
COLORADO COURT OF APPEALS                                         2020COA163


Court of Appeals No. 19CA0546
El Paso County District Court No. 18CV32870
Honorable Eric Bentley, Judge


Saul Cisneros,

Plaintiff-Appellee,

v.

Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado,

Defendant-Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division IV
                           Opinion by JUDGE TERRY
                          Johnson, J., specially concurs
                              Richman, J., dissents

                         Announced November 19, 2020


Holland & Hart LLP, Stephen G. Masciocchi, Peter A. Kurtz, Denver, Colorado;
Mark Silverstein, Arielle Herzberg, Denver, Colorado, for Plaintiff-Appellee

Diana K. May, County Attorney, Mary Ritchie, Assistant County Attorney,
Colorado Springs, Colorado, for Defendant-Appellant
¶1    Plaintiff, Saul Cisneros, is no longer being held in jail by

 defendant, Bill Elder, the Sheriff of El Paso County. In this action,

 Cisneros seeks money damages for having been wrongfully held

 there.

¶2    State and local governmental entities in Colorado, including

 jails and the people who run them, are generally immune from

 being sued. Cisneros chose to sue under the Colorado

 Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S.

 2020, which waives sovereign immunity — in other words, allows

 suit against governmental entities and public employees — under

 specified circumstances. If there is not a statute that gives a right

 to sue a governmental entity or employee, a plaintiff’s suit against

 the entity or employee must be dismissed.

¶3    In this case, Cisneros argued that a statute that allows suit to

 be brought against Elder for negligence also allowed Elder to be

 sued for intentional conduct — specifically, the decision to keep

 Cisneros imprisoned even though his daughter had posted bond to

 secure his conditional release. The district court read the pertinent

 provision of the CGIA to permit the suit to go forward against Elder.

                                       1
¶4    We reverse this decision for a simple reason: “negligence”

 means negligence; it does not mean intentional conduct. The

 General Assembly never meant for this statute to apply to

 intentional conduct. Because we are bound by the General

 Assembly’s legislative intent in enacting the pertinent provision, we

 must reverse the district court’s decision.

                           I.    Background

¶5    Under federal law, Immigration and Customs Enforcement

 (ICE) may request that state or local law enforcement continue

 detaining an inmate after the state’s authority to imprison that

 inmate has expired. Such a request is made when ICE believes that

 an inmate may be removable from the United States. This

 continued detainment, often referred to as an “ICE hold,” gives ICE

 officials time to take the inmate into federal custody.

¶6    Elder created a written policy and practice of complying with

 requests for ICE holds. Upon receipt of either an ICE immigration

 detainer or administrative warrant, he would continue to detain

 inmates who had posted bond, completed their sentence, or

 otherwise resolved their criminal case.

                                      2
¶7      Cisneros was arrested and detained at El Paso County’s

 Criminal Justice Center. After his daughter posted the $2,000

 bond set by the court, Cisneros was not released from custody.

 Instead, Elder placed an ICE hold on Cisneros and continued to

 detain him for four additional months.

¶8      Cisneros and another person brought a class action lawsuit in

 state court against Elder seeking declaratory, mandamus, and

 injunctive relief. The complaint in that case alleged that by

 continuing to detain inmates after they had posted bond or

 completed their sentence, Elder exceeded his authority under state

 law.

¶9      After a preliminary injunction was granted in that case,

 Cisneros was released from custody. Cisneros then brought this

 lawsuit against Elder, alleging that his continued detainment

 constituted false imprisonment. Elder moved to dismiss Cisneros’s

 complaint under C.R.C.P. 12(b)(1), asserting that he is immune

 from liability under the CGIA. After concluding that any immunity

 had been waived because Cisneros’s alleged injury occurred during

 Elder’s operation of a jail, the district court denied Elder’s motion.

                                       3
  II.   CGIA’s Waiver of Immunity for the Operation of a Jail Does Not
                          Apply to Intentional Torts


¶ 10    Elder contends that the district court erred by concluding that

  the CGIA’s waiver of governmental immunity for the operation of a

  jail applies to injuries caused by intentional torts. We conclude,

  based on the statute’s language and legislative history, that section

  24-10-106(1.5)(b), C.R.S. 2020, does not waive immunity for

  injuries caused by intentional torts.

                A.   Preservation and Standard of Review

¶ 11    Elder preserved this issue for appeal.

¶ 12    Governmental immunity implicates issues of subject matter

  jurisdiction, which are determined in accordance with C.R.C.P.

  12(b)(1). Swieckowski v. City of Fort Collins, 

934 P.2d 1380

, 1383-

  84 (Colo. 1997). If the relevant facts underlying a trial court’s

  jurisdictional findings are undisputed and the issue presents a

  question of law, then appellate review is de novo. Daniel v. City of

  Colorado Springs, 

2014 CO 34

, ¶ 10. Here, because the relevant

  facts are undisputed and the district court’s holding turns on its

  interpretation of the CGIA, our review is de novo. See Fogg v.

                                          4
  Macaluso, 

892 P.2d 271

, 273 (Colo. 1995) (the construction of a

  statute is a question of law subject to de novo review).

       B.     The CGIA’s Partial Waiver of Governmental Immunity for
            Injuries Resulting from Negligence in the Operation of a Jail

¶ 13    Under the CGIA, “[a] public entity shall be immune from

  liability in all claims for injury which” lie or could lie in tort. § 24-

  10-106(1). Immunity is waived in actions for injuries resulting from

  a public entity’s or employee’s operation of a jail or correctional

  facility. § 24-10-106(1)(b). But that waiver only applies when a

  claimant “who [is] incarcerated but not yet convicted . . . can show

  injury due to negligence.” § 24-10-106(1.5)(b). The issue here —

  whether the phrase “injury due to negligence” includes injuries that

  result from intentional torts — is one of first impression.

             C.   Construction of the Statutory Immunity Waiver

¶ 14    In construing a statute, our primary purpose is to ascertain

  and give effect to the legislature’s intent. McCoy v. People, 

2019 CO 44

, ¶ 37. To do this, we first look to the language of the statute,

  seeking to give its words and phrases their plain and ordinary

  meanings.

Id. In so doing,

we consider “the statute as a whole,

  construing each provision consistently and in harmony with the
                                         5
  overall statutory design.” Whitaker v. People, 

48 P.3d 555

, 558

  (Colo. 2002).

¶ 15   If a statute is clear and unambiguous, we need look no further

  than the plain language to determine the statute’s meaning.

  McCoy, ¶ 37.

¶ 16   But if the statute is ambiguous, we may consider other

  factors, including canons of statutory construction and legislative

  history. Id.; Hotsenpiller v. Morris, 

2017 COA 95

, ¶ 2; § 2-4-203,

  C.R.S. 2020; see also People v. Butler, 

2017 COA 117

, ¶¶ 23-25 (a

  statute is ambiguous if it is susceptible of more than one

  reasonable understanding). And “the reasons for and the

  significant circumstances leading up to the enactment [of a law]

  may be noticed in confirmation of the meaning conveyed by the

  words used.” United States v. Mo. Pac. R.R. Co., 

278 U.S. 269

, 278

  (1929).

            1.    Section 24-10-106(1.5)(b)’s Plain Language

¶ 17   Cisneros contends that section 24-10-106(1.5)(b) can be read

  as encompassing intentional torts because the statute does not say

  that the CGIA’s waiver applies only if the claimant can “show injury

                                       6
  due to negligence,” and that the statute “sets a floor, not a ceiling,”

  for imposing liability. This argument is refuted by the statutory

  language.

¶ 18   Section 24-10-106(1.5)(b) states that, for the operation of a

  jail, sovereign immunity is waived if a pretrial detainee can show

  “injury due to negligence.”

Id. (emphasis added). This

provision

  makes no reference to intentional actions or intentional torts.

  Instead, the sole focus is on negligence.

¶ 19   The inclusion of certain items implies the exclusion of others.

  Cain v. People, 

2014 CO 49

, ¶ 13 (discussing the legislative

  interpretation canon, expressio unius est exclusio alterius), as

  modified (July 2, 2014). Because the plain language of section 24-

  10-106(1.5)(b) references only negligence, the waiver of sovereign

  immunity under that provision must be read as applying only to

  injuries caused by negligence, and not to injuries caused by

  intentional torts. See Cain, ¶ 13 (holding, based on the canon of

  expressio unius, that the General Assembly’s inclusion of “a single,

  specific, narrow exception” meant that the General Assembly

  intended “that there be no other exceptions” to the statute); see also

                                        7
  Dubois v. Abrahamson, 

214 P.3d 586

, 588 (Colo. App. 2009)

  (appellate courts may not read additional terms into, or modify, a

  statute’s explicit language).

¶ 20   Governmental immunity can only be waived by express

  statutory provision. Pack v. Ark. Valley Corr. Facility, 

894 P.2d 34

,

  37 (Colo. App. 1995) (if no express waiver of immunity has been

  granted, a court may not imply such a waiver). Simply put, unless

  the legislature has created liability by statute for a given type of

  governmental conduct, governmental entities are immune from suit.

¶ 21   Because sovereign immunity for the operation of a jail is

  waived only when an inmate’s injury is the result of negligence, we

  must conclude that the waiver of immunity under section 24-10-

  106(1.5)(b) does not apply to injuries caused by intentional torts.

¶ 22   Cisneros’s sole claim is for false imprisonment, and in that

  claim, he asserts only intentional conduct — namely, that Elder

  “knowingly and intentionally restricted [Cisneros’s] freedom of

  movement,” and did so “without legal justification.” Thus, liability

  is not waived for the alleged conduct under the CGIA.



                                        8
                       2.    Culpable Mental States

¶ 23   Citing a criminal statute, Cisneros argues that our reading of

  the CGIA disregards the legal principle that more culpable mental

  states subsume less culpable ones. See § 18-1-503(3), C.R.S. 2020

  (“If a statute provides that criminal negligence suffices to establish

  an element of an offense, that element also is established if a

  person acts recklessly, knowingly, or intentionally.”). Laying aside

  the dubious proposition that a criminal law concept can be applied

  in the civil, governmental immunity context, we are not persuaded

  by this argument.

¶ 24   It is settled Colorado law that negligence and intentional torts

  are two different things. See Redden v. SCI Colo. Funeral Servs.,

  Inc., 

38 P.3d 75

, 80-81 (Colo. 2001) (“Fault is broader than

  negligence, including, for example, intentional torts . . . .”), as

  modified on denial of reh’g (Jan. 14, 2002). And although there are

  different levels of negligence, such as simple negligence and gross

  negligence, those levels of negligence are still distinct from

  intentional actions. See White v. Hansen, 

837 P.2d 1229

, 1233

  (Colo. 1992) (“The common thread that separates [willful and

                                         9
  wanton misconduct, willful and wanton negligence, gross

  negligence, reckless conduct, and reckless negligence] from

  ordinary negligence is that the defendant’s conduct is so aggravated

  as to be all but intentional.”) (emphasis added).

¶ 25   Further, by its very definition, negligence does not include

  intentional acts. Black’s Law Dictionary (11th ed. 2019) (defining

  negligence as “any conduct that falls below the legal standard

  established to protect others against unreasonable risk of harm,

  except for conduct that is intentionally . . . disregardful of others’

  rights”) (emphasis added). Therefore, we are not persuaded by

  Cisneros’s argument that because intentional acts subsume

  negligent ones, section 24-10-106(1.5)(b) must apply to intentional

  torts.

                          3.    Legislative History

¶ 26   It can be argued that because the CGIA is in derogation of the

  common law of negligence, courts should broadly construe the

  statute’s provisions that waive immunity in the interest of

  compensating victims injured by the negligence of government

  agents. See Lopez v. City of Grand Junction, 

2018 COA 97

, ¶ 18

                                         10
  (“Because governmental immunity from suit derogates the common

  law of negligence, courts must strictly construe the CGIA provisions

  that grant immunity . . . [while] broadly constru[ing] the [CGIA]

  provisions that waive immunity . . . .”).

¶ 27   But we can’t adopt a broad reading of section 24-10-

  106(1.5)(b) unless we were to see at least some ambiguity in the

  statutory language, which, as we have said, we do not. Even so, for

  the sake of completeness, we will review the legislative history of

  subsection (1.5)(b), as the district court did. See Mo. Pac. R.R. 

Co., 278 U.S. at 278

(holding that the reasons for and the significant

  circumstances leading up to the enactment of a law “may be noticed

  in confirmation of the meaning conveyed by the words used”). That

  history reinforces our reading of the statute.

¶ 28   As originally drafted, section 24-10-106(1.5)(b) would have

  reinstated sovereign immunity for all injuries resulting from the

  operation of a jail. H.B. 94-1284, 59th Gen. Assemb., 2d Reg. Sess.

  (Colo. 1994) (as reengrossed, Apr. 12, 1994). The bill was then

  amended to waive immunity for pretrial detainees “only if the

  person [could] show injury due to negligence.” H.B. 94-1284, 59th

                                       11
  Gen. Assemb., 2d Reg. Sess. (Colo. 1994) (as revised, May 9, 1994)

  (emphasis added). In the final version of the bill, the word “only”

  (italicized above) was removed and the law, as enacted, then read,

  “The waiver of sovereign immunity [applies] to claimants who are

  incarcerated but not yet convicted . . . if such claimants can show

  injury due to negligence.” H.B. 94-1284, 59th Gen. Assemb., 2d

  Reg. Sess. (Colo. 1994) (as re-revised, May 10, 1994) (emphasis

  added).

¶ 29   Cisneros contends that this statutory development of section

  24-10-106(1.5)(b) demonstrates that the statute applies to

  intentional torts. Again, according to Cisneros, because section 24-

  10-106(1.5)(b) does not state that claimants can only show injury

  due to negligence, claimants must therefore be able to show injury

  from causes other than negligence, including intentional torts. We

  disagree, because we conclude that the remaining legislative

  history, consistent with the statute’s plain language, refutes such

  an interpretation.

¶ 30   House and senate hearings on the need for section 24-10-

  106(1.5)(b) demonstrate that this statute was introduced in

                                      12
  response to concerns about inmates bringing frivolous negligence

  claims against jails and correctional facilities. Hearing on H.B.

  1284 before the S. Judiciary Comm., 59th Gen. Assemb., 2d Reg.

  Sess. (Apr. 18, 1994); Hearing on H.B. 1284 before H. State Affairs

  Comm., 59th Gen. Assemb., 2d Reg. Sess. (Feb. 17, 1994).

¶ 31   Intentional torts were not a reason for the introduction of this

  bill. Hearing on H.B. 1284 before the S. Judiciary Comm., 59th

  Gen. Assemb., 2d Reg. Sess. (Apr. 18, 1994); Hearing on H.B. 1284

  before H. State Affairs Comm., 59th Gen. Assemb., 2d Reg. Sess.

  (Feb. 17, 1994). In fact, all of the examples that legislators pointed

  to in demonstrating the need for this law concerned negligence, not

  intentional acts. Hearing on H.B. 1284 before the S. Judiciary

  Comm., 59th Gen. Assemb., 2d Reg. Sess. (Apr. 18, 1994). And in

  the Senate’s second reading, Senator Dick Mutzebaugh — one of

  the bill’s sponsors — said that the bill was intended to deal with

  nuisance lawsuits involving “negligence and things like that.” 2d

  Reading on H.B. 1284 before the S., 59th Gen. Assemb., 2d Reg.

  Sess. (May 9, 1994).



                                       13
¶ 32   The legislative history also shows that the bill’s sponsors

  believed that the law would not cover intentional acts. People v.

  Zapotocky, 

869 P.2d 1234

, 1239 (Colo. 1994) (noting that the

  statements of a bill’s sponsor “should be accorded substantial

  weight”).

¶ 33   During the House State Affairs Committee’s hearing on the

  bill, one sponsor, Representative Martha Kreutz, remarked that

  “malicious conduct,” such as intentionally withholding food or

  medicine from inmates, would be dealt with via a federal civil rights

  claim under 42 U.S.C. § 1983 (2018) and would not implicate the

  proposed legislation. Hearing on H.B. 1284 before the H. State

  Affairs Comm., 59th Gen. Assemb., 2d Reg. Sess. (Feb. 17, 1994).

¶ 34   And Senator Jim Rizzuto, during the Senate’s third reading,

  asked Senator Mutzebaugh whether the bill’s reference to

  negligence encompassed acts greater than negligence, such as gross

  negligence or intentional torts. 3d Reading on H.B. 1284 before the

  S., 59th Gen. Assemb., 2d Reg. Sess. (May 10, 1994). Senator

  Mutzebaugh responded that he believed that if an inmate was



                                      14
  intentionally injured, that would constitute a section 1983 civil

  rights violation and that he did not “want to get into that area.”

Id. ¶ 35

  We conclude that this legislative history — specifically the

  bill’s sponsors’ repeated statements that intentional acts would not

  be handled under this law — refutes Cisneros’s argument that

  section 24-10-106(1.5)(b) applies to intentional torts. The history

  confirms our reading of section 24-10-106(1.5)(b): the law’s waiver

  of governmental immunity applies only to injuries resulting from

  negligence. See Mo. Pac. R.R. 

Co., 278 U.S. at 278

(legislative

  history can be used to confirm a statute’s plain meaning).

                             D.   Takeaways

¶ 36   It is not the proper role of this court to condone or condemn

  Elder’s actions. Our role is limited to deciding the entirely separate

  question of whether section 24-10-106(1.5)(b) provides a remedy for

  those actions.

¶ 37   Our careful review of section 24-10-106(1.5)(b) itself, as well as

  the legislative history behind the statute, convinces us that it

  cannot be relied on to provide a remedy for intentional conduct; it

  applies only to negligent conduct that results in injury. It may

                                       15
  strike reasonable people the same way as it did the district court,

  that if liability is waived for negligent conduct, it should also be

  waived for intentional conduct. But we are bound to apply the law

  as written, and the pertinent provision of the CGIA simply does not

  permit imposition of governmental liability for intentional conduct.

¶ 38   We therefore reverse the district court’s ruling and remand for

  the district court to dismiss Cisneros’s complaint with prejudice.

                             III.   Other Issues

¶ 39   Our determination that the complaint must be dismissed with

  prejudice obviates the need for us to address the parties’ remaining

  arguments.

                              IV.   Conclusion

¶ 40   The order denying Elder’s motion to dismiss is reversed, and

  this case is remanded to the district court for the court to dismiss

  Cisneros’s complaint with prejudice.

       JUDGE JOHNSON specially concurs.

       JUDGE RICHMAN dissents.




                                        16
       JUDGE JOHNSON, specially concurring.

¶ 41   I agree with the majority that the Colorado Governmental

  Immunity Act (CGIA) only waives immunity for acts that occur in

  the course of operating a jail if the pretrial detainee shows “injury

  due to negligence.” § 24-10-106(1)(b), (1.5)(b), C.R.S. 2020

  (emphasis added). As a result, the district court erred when it

  denied the sheriff’s motion to dismiss, as his conduct was

  intentional. The sheriff intentionally promulgated a policy and

  intentionally implemented a practice where he continued to hold

  detainees following lawful authority (i.e., when bond was posted) at

  the request of the Immigration and Customs Enforcement (ICE),

  under what are known as ICE holds. But because Judge Terry’s

  opinion in my view unnecessarily relies on legislative history to

  bolster its analysis, I specially concur.

¶ 42   “If courts can give effect to the ordinary meaning of words

  used by the [General Assembly], the statute should be construed as

  written, giving full effect to the words chosen, as it is presumed that

  the General Assembly meant what it clearly said.” State v. Nieto,

  

993 P.2d 493

, 500 (Colo. 2000). The majority correctly concludes,

                                        17
  based on the plain language of section 24-10-106(1.5)(b), that

  ‘“[n]egligence’ means negligence; it does not mean intentional

  conduct.” Supra ¶ 4.

¶ 43   The concept of negligence governing CGIA claims is hardly

  groundbreaking; indeed, the purpose of the CGIA is not only to limit

  the state from unlimited legal liability, but also to ‘“allow the

  common law of negligence to operate against governmental entities

  except to the extent it has barred suit against them.’” Medina v.

  State, 

35 P.3d 443

, 453 (Colo. 2001) (quoting Walton v. State, 

968 P.2d 636

, 643 (Colo. 1998)). Therefore, while the General Assembly

  may certainly choose to make negligent conduct committed by

  individuals who operate a jail the “floor” and intentional conduct

  the “ceiling,” the plain language limiting waiver of immunity to

  injuries “due to negligence” in section 24-10-106(1.5)(b) gives no

  room for such an interpretation. See Humane Soc’y of Pikes Peak

  Region v. Indus. Claim App. Off., 

26 P.3d 546

, 548 (Colo. App. 2001)

  (“[I]f our interpretation of the clear language used in the statute

  does not correspond to the General Assembly’s intent, it is for that

  body, not this court, to rewrite it.”).

                                            18
¶ 44   When a statute’s interpretation may be discerned from the

  plain language, as here, there is no need to resort to what are

  referred to as the canons of statutory construction. Those canons

  include looking at the statute’s context, prior law, the consequences

  of a given construction, the goal of the statutory scheme, or as the

  majority did here, the legislative history. Hotsenpiller v. Morris,

  

2017 COA 95

, ¶ 19; see also § 2-4-203(1)(a), (c), (e), (g), C.R.S.

  2020.

¶ 45   Judge Terry’s opinion relies on United States v. Mo. Pac. R.R.

  Co., 

278 U.S. 269

, 278 (1929), to justify analyzing the legislative

  history because “the reasons for and the significant circumstances

  leading up to the enactment [of a law] may be noticed in

  confirmation of the meaning conveyed by the words used.” Supra ¶

  16. Missouri Pacific Railroad, based on my research, has not been

  cited by another Colorado appellate court until now. Using

  legislative history in this manner is contrary to the rule that we

  must give effect to the plain language of a statute, giving words

  their plain and ordinary meanings. See Roup v. Com. Rsch., LLC,

  

2015 CO 38

, ¶ 8.

                                       19
¶ 46   Even assuming use of legislative history for this purpose is

  appropriate, in this circumstance it invites confusion more than it

  confirms the conclusion of Judge Terry’s opinion. After selective

  use of the legislative history by Judge Terry’s opinion, the dissent

  responds in kind. On the one hand, Judge Terry’s opinion points to

  legislative history to posit that the General Assembly was not

  necessarily concerned about the intentional acts of jailers, as such

  wrongful conduct could be vindicated in a civil rights lawsuit.

  Supra Part II.C.3 (majority opinion). On the other hand, the dissent

  points to statements in which legislators use negligence to set a

  “minimal” standard, but say that if a person could show injury

  caused by something greater, like gross negligence, those injuries

  would also be encompassed in the waiver of immunity under

  section 24-10-106(1.5)(b). Infra Part II (Richman, J., dissenting).

¶ 47   Highlighting the differing views in which the legislative history

  is used should not be read to imply that this interpretative aid

  cannot, in appropriate circumstances, be effective in discerning

  legislative intent. But I reject the notion that consideration of



                                       20
  legislative history is needed in this case to reach the majority’s plain

  language conclusion.

¶ 48   For similar reasons, I disagree with the dissent’s use of

  legislative history because section 24-10-106(1.5)(b) is not

  ambiguous or in conflict with another provision.

¶ 49   The dissent’s position is that the “literal” interpretation of

  section 24-10-106(1.5)(b) leads to an absurd result. Specifically, an

  injured party may sue for a jailer’s negligent conduct, but for

  intentional conduct a lawsuit is barred. As a result, the dissent

  resorts to the use of legislative history to discern that the General

  Assembly could not possibly have meant what the words plainly

  state. But the dissent’s interpretation requires adding words to the

  provision, such as injury “due to at least negligence” or injury “due

  to at minimum negligence.” Even broadly interpreting the waiver

  provisions in the CGIA, as we are directed to do, see Burnett v. State

  Dep’t of Nat. Res., 

2015 CO 19

, ¶ 11, the conclusion reached by the

  dissent is not possible without changing the legislation. And we do

  not add language to legislative enactments. Smokebrush Found. v.

  City of Colorado Springs, 

2018 CO 10

, ¶ 18.

                                       21
¶ 50   Likewise, while we strive to avoid absurd results in giving a

  statute effect, waiving immunity contrary to the plain language is a

  policy decision better left to the General Assembly, and it is not for

  the court to impose its prerogative. Bermel v. BlueRadios, Inc.,

  

2019 CO 31

, ¶ 37 (courts cannot substitute their policy judgments

  for those of the General Assembly).1

¶ 51   Because Judge Terry’s opinion looks at the legislative history

  of section 24-10-106(1.5)(b), instead of limiting its analysis to the

  plain language of the statute, I specially concur in the judgment.




  1 Instead of amending the CGIA to ensure intentional conduct was
  covered for individuals operating jails, in 2019 the General
  Assembly introduced HB 19-1124, which Governor Jared Polis
  signed into law. That law now expressly prohibits Colorado law
  enforcement officials from detaining inmates on ICE hold requests
  or administrative warrants. See § 24-76.6-102(2), C.R.S. 2020.
                                       22
       JUDGE RICHMAN, dissenting.

¶ 52   The majority reverses the district court’s order denying

  defendant’s motion to dismiss under the Colorado Governmental

  Immunity Act (CGIA), sections 24-10-101 to -120, C.R.S. 2020, by

  concluding that section 24-10-106(1.5)(b), C.R.S. 2020, of the CGIA

  waives immunity for injuries resulting from the operation of a jail

  only when the claimant alleges a form of negligence, and not an

  intentional tort. Because I disagree with the majority’s construction

  of the statute, I respectfully dissent.

¶ 53   Section 24-10-106 provides, as relevant here:

             (1) 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. Sovereign immunity
             is waived by a public entity in an action for
             injuries resulting from:

             ....

             (b) The operation of any . . . correctional
             facility, as defined in section 17-1-102, C.R.S.,
             or jail by such public entity;

             ....

             (e) A dangerous condition of any . . . jail . . . .
                                         23
             ....

             (1.5)(a) The waiver of sovereign immunity
             created in paragraphs (b) and (e) of subsection
             (1) of this section does not apply to claimants
             who have been convicted of a crime and
             incarcerated in a correctional facility or jail
             pursuant to such conviction, and such
             correctional facility or jail shall be immune
             from liability as set forth in subsection (1) of
             this section.

             (b) The waiver of sovereign immunity created in
             paragraphs (b) and (e) of subsection (1) of this
             section does apply 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.

¶ 54   Defendant does not dispute that plaintiff’s claim for wrongful

  imprisonment is a tort claim. He argues that plaintiff’s injuries did

  not arise from the operation of a jail or from acts of negligence, and

  that plaintiff, at most, has a civil rights claim that is not available

  against him under applicable federal law. The district court

  rejected each of these arguments. The majority does not reach the

  several rulings of the district court. Instead, the majority reverses

  the district court by simply concluding that section 24-10-



                                        24
  106(1.5)(b) waives immunity in an action for injuries resulting from

  the operation of a jail only for claims of negligence.

¶ 55   I disagree with this interpretation of the statute because it is

  not supported by the plain language of the statute read as a whole,

  or by the purpose of the CGIA. In interpreting a statute, courts

  “endeavor to effectuate the purpose of the legislative scheme[,] . . .

  we read that scheme as a whole, giving consistent, harmonious,

  and sensible effect to all of its parts, and we must avoid

  constructions that would . . . lead to illogical or absurd results.”

  McCoy v. People, 

2019 CO 44

, ¶ 38.

                             I. Plain Language

¶ 56   The CGIA is intended to counteract inequitable effects of the

  doctrine of sovereign immunity by defining the circumstances under

  which the government may be liable. See § 24-10-102, C.R.S. 2020

  (the declaration of policy); see also Daniel v. City of Colorado

  Springs, 

2014 CO 34

, ¶ 13 (noting that permitting parties to seek

  redress for injuries caused by a public entity is a basic purpose of

  the CGIA). Because governmental immunity under the CGIA is in

  derogation of common law, Colorado courts narrowly construe the

                                        25
  CGIA’s immunity provisions and broadly construe its waiver

  provisions. Daniel, ¶ 13. Broadly construing the CGIA’s waiver

  provisions permits parties to seek redress for injuries caused by a

  public entity, “one of the basic but often overlooked” purposes of

  the CGIA.

Id. (quoting State v.

Moldovan, 

842 P.2d 220

, 222 (Colo.

  1992)).

¶ 57   This case requires us to construe the CGIA’s waiver of

  immunity for the operation of a jail, a waiver contained in section

  24-10-106.

¶ 58   Section 24-10-106(1)(b) waives sovereign immunity for claims

  which lie in tort for injuries resulting from the operation of a jail by

  a public entity. That waiver does not differentiate between injuries

  caused by intentional torts and unintentional torts. Section 24-10-

  106(1.5)(a) then restores the immunity against claimants who are

  incarcerated in a jail pursuant to a conviction, with no

  differentiation between claimants alleging intentional as opposed to

  unintentional torts. The following section — section 24-10-

  106(1.5)(b) — does not similarly restore immunity against claimants

  who are incarcerated but not yet convicted. Instead, it affirms that

                                        26
  the waiver of immunity in section 24-10-106(1)(b) still applies to

  those claimants.

¶ 59   Although the last clause of that section provides “if such

  claimants can show injury due to negligence,” I do not agree with

  the majority that this clause limits the waiver of governmental

  immunity only to negligence claims, for four reasons.

¶ 60   First, the majority’s interpretation, although literal, is illogical

  in the context of the legislative scheme and the purpose of the CGIA

  waivers of immunity. Permitting parties to seek redress for injuries

  caused by a public entity is a basic purpose of the CGIA. Daniel,

  ¶ 13; see § 24-10-102. The purpose of the relevant section is to

  waive immunity for injuries resulting from the operation of a jail.

  See § 24-10-106(1)(b). To conclude that there is a waiver for the

  negligent operation of a jail, but not for the commission of an

  intentional tort by the jailer, turns the purpose of the statute, and

  the purpose of immunity waivers in general, on its head. We do not

  interpret statutes in a manner that leads to illogical or absurd

  results. See State v. Nieto, 

993 P.2d 493

, 500 (Colo. 2000); see also



                                        27
  § 2-4-201(1)(c), C.R.S. 2020 (“A just and reasonable result is

  intended . . . .”).

¶ 61    Second, the conclusion that “negligence” is intended as a

  minimal standard in section 24-10-106(1)(b) is bolstered by the use

  of that standard in other provisions of the CGIA. I read sections 24-

  10-106(4) and 24-10-106.3(8), C.R.S. 2020 — specifying that there

  is no waiver for strict liability, and that a showing of negligence is

  required to establish a waiver — to mean that negligence is a

  minimum to establish a waiver of immunity. This interpretation is

  also consistent with the overall CGIA scheme of waiving immunity

  when the government engages in more culpable actions. “The law

  of torts recognizes that a defendant who intentionally causes harm

  has greater culpability than one who negligently does so.” Moore v.

  W. Forge Corp., 

192 P.3d 427

, 441 (Colo. App. 2007) (quoting Mayer

  v. Town of Hampton, 

497 A.2d 1206

, 1209 (N.H. 1985)); see also

  People v. Rigsby, 

2020 CO 74

, ¶ 21 (observing a hierarchy of

  culpable mental states for criminal behavior in which “intentionally”

  is the most culpable and “criminal negligence” is the least culpable).



                                        28
¶ 62      In line with this hierarchy of culpability, CGIA sections 24-10-

  106(4) and 24-10-106.3(8) waive immunity for the more culpable

  negligence, but not for the less culpable strict liability; and CGIA

  sections 24-10-105(1), 24-10-106.3(4), and 24-10-118(1), C.R.S.

  2020, waive immunity for public employee conduct that was the

  more culpable willful or wanton, but not for the less culpable

  negligence. The CGIA must be read “as a whole, giving consistent,

  harmonious, and sensible effect to all of its parts.” McCoy, ¶ 38.

¶ 63      Third, Colorado courts have consistently rejected strict

  constructions of CGIA waivers where such constructions would

  improperly vitiate the practical operation of those waivers. Daniel,

  ¶ 21.

¶ 64      And finally, although we must give effect to the statute’s plain

  and ordinary meaning, the intention of the legislature will prevail

  over a literal interpretation of the statute that leads to an absurd

  result. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 

955 P.2d 1023

,

  1031 (Colo. 1998).

¶ 65      I note that defendant, apparently acknowledging the illogical

  application of limiting this provision to claims of negligence,

                                         29
  concedes for purposes of argument that the waiver of immunity

  would apply to “intentional torts that involve personal injury, such

  as assault or battery resulting in physical injury,” but not to claims

  that raise “civil rights concerns.” Yet defendant does not offer a

  principled reason to differentiate between physical injury and

  wrongful imprisonment, which could also result in physical,

  economic, and emotional injury. Moreover, neither the majority nor

  defendant points to any authority holding that any waiver of

  immunity under the CGIA does not apply to intentional torts.

                           II. Legislative History

¶ 66   Assuming a conflict between the initial provisions of the

  statute waiving immunity for all injuries resulting from the

  operation of a jail and the last clause of subsection (1.5)(b) referring

  to negligence, this conflict creates an uncertainty or ambiguity as to

  the legislative intent. Judge Terry’s opinion rejects an ambiguity in

  the language, yet it examines the legislative history of section 24-

  10-106(1.5)(b). Because, as suggested by Judge Terry’s opinion,

  courts may notice the circumstances leading up to the enactment of

  a law to confirm the meaning conveyed by the words used, I agree

                                        30
  that we should look at the legislative history. The parties’ briefs

  both present their respective views of the legislative history.

¶ 67   However, contrary to the conclusions of Judge Terry’s opinion,

  I read the legislative history of section 24-10-106(1.5)(b) to support

  my interpretation that the legislature intended to waive immunity

  not just for negligence claims, but also for more serious torts

  including gross negligence and intentional torts.

¶ 68   Judge Terry’s opinion’s recitation of the chronology of House

  Bill 94-1284’s journey is accurate, to a point. The most significant

  fact is that in May 1994, the language of the proposed amendment

  to the statute read “only if the person [could] show injury due to

  negligence,” but in the final version, the word “only” was deleted.

  See H.B. 94-1284, 59th Gen. Assemb., 2d Reg. Sess. (Colo. 1994)

  (as revised, May 9, 1994); H.B. 94-1284, 59th Gen. Assemb., 2d

  Reg. Sess. (Colo. 1994) (as re-revised, May 10, 1994).

¶ 69   In discussing this revision, Senator Jim Rizzuto asked whether

  the provision would apply to “anything greater than mere

  negligence,” such as “gross negligence or intentional actions,”

  noting that “I’d hate to have some person . . . in some jail or some

                                       31
Department of Corrections saying ‘No, it wasn’t negligence. We

meant to beat him up.’” 3d Reading on H.B. 1284 before the S.,

59th Gen. Assemb., 2d Reg. Sess. (May 10, 1994). Senator Dick

Mutzebaugh, the Senate sponsor, explained that he intended to

address a court decision holding a jail “administratively

responsible” for a person “just because he’s incarcerated.”

Id. He wanted to

impose a “very minimal standard” for the claimant to

“show some negligence” before the government could be liable.

Id. He elaborated that

“gross negligence would have been a higher

standard than I . . . particularly wanted.”

Id. Another senator then

asked the sponsor if his intent as sponsor, and the Senate’s intent,

was to require “a mere minimum of negligence, that’s enough, but

that if somebody claims that it was more than that, then that

doesn’t become a defense for the sovereign immunity to apply.”

Id. The sponsor replied,

“If, for instance, the claimant can show gross

negligence, then he would have right to pursue his action under

this bill.”

Id. The bill then

passed the Senate by a 22-12 majority.

Id. 32 ¶ 70

  Judge Terry’s opinion points to a statement from a sponsor in

  the House who stated, with respect to H.B. 94-1284, that

  “malicious conduct” would be dealt with via a federal civil rights

  claim and would not implicate the proposed legislation. But that

  comment was made in February 1994, well before the above

  colloquy in the Senate and the amendment to the proposed

  subsection.

¶ 71   Plaintiff contends, and I agree, that the May 10 colloquy

  between the Senate sponsor and voting senators shows that the

  General Assembly sought to avoid strict liability for operations of a

  jail or correctional facility, and intended to set a minimum showing

  for liability by requiring that a facility was at least negligent toward

  incarcerated persons not yet convicted. Nothing in this discussion

  suggests that the legislature intended the waiver of immunity to be

  limited to cases of negligence, and not applicable to more serious

  torts such as gross negligence or intentional conduct.

¶ 72   When a person operating a jail acts with wrongful intent, the

  person also acts at least negligently by unreasonably neglecting the

  rights of the injured claimant. “[P]roving a culpable mental state

                                        33
  necessarily establishes any lesser culpable mental state(s).” People

  v. Struckmeyer, 

2020 CO 76

, ¶ 6.

¶ 73   The majority correctly states that negligence and intentional

  torts are two different things, and there are different levels of

  negligence, citing White v. Hansen, 

837 P.2d 1229

(Colo. 1992).

  But, as the majority acknowledges, those statements in White were

  made in the context of determining whether a party’s negligence

  could be so aggravated as to amount to all but intentional conduct.

  They were not made in a context asking whether established

  intentional conduct encompasses negligence.

¶ 74   And while the majority points to a definition of “negligence”

  from Black’s Law Dictionary, it fails to note that immediately after

  the listing, Black’s inserts the following quote from The Enforcement

  of Morals 36 (1968), by Patrick Devlin: “Negligence in law ranges

  from inadvertence that is hardly more than accidental to sinful

  disregard of the safety of others.” And Black’s immediately defines

  additional types of negligence, including gross negligence and willful

  and wanton negligence, as “a conscious, voluntary act or omission

  in reckless disregard of a legal duty and of the consequences to

                                        34
  another.” Thus, negligence in the law is not so simply limited as

  the majority would have us believe from the dictionary definition.

¶ 75   For these reasons, I would affirm the district court’s ruling

  that the CGIA does not provide immunity for defendant against the

  wrongful imprisonment claim pleaded by plaintiff. The district

  court correctly concluded the claim arises from the operation of a

  jail, that plaintiff was incarcerated but not yet convicted of a crime,

  and that the availability of a civil rights claim does not bar plaintiff’s

  state law tort claim.




                                        35

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