L.J. v. Carricato

Citations

• 2018 COA 3
• 413 P.3d 1280

Syllabus

D.J.M., age 2, died after suffering a beating by his mother's boyfriend. D.J.M.'s father brought an action against the City of Colorado Springs (City) and Officer Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department, for failing to report child abuse that father complained about to them multiple times. The complaint alleged violation of the Child Protection Act of 1987 (CPA) negligence (wrongful death) by the City and Officer Carricato negligence per se by the City and Officer Carricato violation of 42 USC § 1983 by the City and Officer Carricato vicarious liability against the City and an entitlement to exemplary damages under CRS § 24-10-118(1)(c) against Officer Carricato. The district court determined that while the negligence claims for wrongful death and negligence per se were barred by the Colorado Governmental Immunity Act (CGIA), the claim for violation of the CPA was not barred because it was not a claim based in tort. The district court allowed the claim for vicarious liability to stand insofar as it related to the violation of the CPA and found, without conducting a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, that the complaint alleged a sufficient factual basis to support a claim of willful and wanton behavior. On appeal, the City and Officer Carricato argued that the district court erred because the CGIA bars the claim for violation of the CPA and father's complaint does not allege specific facts sufficient to support a finding that Officer Carricato's conduct was willful and wanton. The City is undisputedly a \public entity.\ The exceptions to sovereign immunity are not applicable here because (1) the enumerated statutory exceptions are not at issue (2) the CPA does not fit within any of the statutory exceptions and (3) father is not requesting equitable, remedial, or non-compensatory remedies. Here, the essence of father's claim is that the City breached a duty of