v. Elder

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

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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

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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

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§ 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).

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¶ 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,

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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

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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

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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.

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¶ 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

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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

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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.

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