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Dodge v. Padilla.

2023 COA 67. No. 22CA0857. County Officers—Sheriff—Colorado Governmental Immunity Act—Negligence—Respondeat Superior.

July 13, 2023

Dodge was in an automobile accident with Adams County Sheriff’s Deputy Padilla. When the accident occurred, Deputy Padilla was on duty and driving a patrol car allegedly owned by Adams County (County). Dodge sued Deputy Padilla alleging, among other things, that Deputy Padilla breached his duty to use reasonable care by failing to keep a proper lookout, failing to yield to oncoming traffic, and operating the vehicle in a careless, negligent, and reckless manner. Dodge also named the Adams County Sheriff (sheriff) as an official capacity defendant, asserting that the sheriff’s office was also liable under the doctrine of respondeat superior. The county attorney moved for partial dismissal of the complaint under CRCP 12(b)(1) for lack of subject matter jurisdiction, asserting immunity under the Colorado Governmental Immunity Act (CGIA). The district court denied the motion, reasoning that Dodge sued the sheriff in his official capacity, so his claim is against the Adams County Sheriff’s Office, which is a public entity, and immunity principles applicable to suits against the state or against public entities apply. The district court’s order did not directly address the county attorney’s arguments regarding respondeat superior liability.

On appeal, the county attorney argued that a “sheriff” is a public employee only and that the “sheriff’s office” is not a cognizable “entity” for purposes of determining CGIA immunity, but instead is merely a colloquial term for the group of deputies and staff whom the sheriff employs. The CGIA provides public entities with immunity from liability in claims for injury that lie or could lie in tort. However, that immunity is waived under CRS § 24-10-106(1)(a) by a public entity in an action for injuries resulting from “[t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment.” The court of appeals determined that under the CGIA’s plain language, a sheriff’s office is a “public entity.”

The county attorney also contended that, even if the sheriff’s office is a public entity for which immunity is waived, it cannot be sued under the doctrine of respondeat superior because (1) prior Colorado cases assigning respondeat superior liability to sheriffs’ offices did so under statutory language that is no longer in effect; and (2) the common law did not permit claims against sheriffs for the negligence of their deputies, and the CGIA does not create or recognize a respondeat superior claim against county sheriffs. While prior cases appear to base a sheriff’s liability on a previous version of CRS § 30-10-506, which the General Assembly amended to eliminate as a basis for finding sheriffs liable for their deputies’ acts, the removal of statutory liability does not necessarily mean that respondeat superior is unavailable against a sheriff’s office under the CGIA, which allows the common law of negligence to operate against  governmental entities except to the extent it has barred suit against them. At common law, if an employee of a private person injured a third party while driving a vehicle in the course of their employment, the injured plaintiff could generally hold the employer responsible under the theory of respondeat superior. And the CGIA expressly directs courts to determine the liability of a public entity as if it were a private person where immunity is waived. Thus, the common law doctrine of respondeat superior should apply to a public entity in circumstances where governmental immunity is waived.

The order was affirmed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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