The Colorado Court of Appeals issued its opinion in Estate of Bleck v. Martinez on Thursday, March 27, 2014.
Motion to Dismiss—Qualified Immunity—Interlocutory Appeal.
Steven Bleck sued Officer Martinez and the City of Alamosa Police Department, alleging he was injured as the result of Officer Martinez’s willful and wanton conduct. Officer Martinez moved to dismiss under CRCP 12(b)(1) and (5), claiming qualified immunity under CRS §24-10-118(2). The motion was denied and an appeal was filed. However, the Colorado Governmental Immunity Act (CGIA) does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity. Martinez argued there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and dismissed for lack of subject matter jurisdiction.
If a well-pleaded complaint alleges a public employee’s conduct was willful and wanton, the defendant is entitled to qualified immunity under CRS §24-10-118(2). The terms of this subsection provide for “immun[ity] from liability” rather than a bar to suit. It is a defense that can be defeated at trial if it is proven that the conduct was willful or wanton. A trial court’s determination of a CRCP 12(b) motion challenging whether an employee’s conduct was willful or wanton is not subject to interlocutory appeal.
Summary and full case available here.