2019 COA 170
Colo. Ct. App.2019Background
- Joseph "Trey" Duke III (25) was arrested for heroin possession and parole/protection-order violations and taken to Gunnison County Jail; a drug-recognition examiner (DRE) found polydrug impairment.
- Trey was placed on a 16-hour drug hold, searched, video-monitored initially, and later moved to a cell without a camera; deputies made repeated time-check entries.
- The next morning deputies and an inmate trustee observed Trey hunched on the cell floor; trustee expressed concern, Deputy Phillips allegedly glanced, made a dismissive remark, and left; about 30 minutes later Deputy Rupp found Trey unresponsive.
- Autopsy showed high levels of fentanyl and other drugs; cause of death: polydrug overdose with fentanyl the major component.
- Plaintiffs (Trey’s parents) sued in federal court under 42 U.S.C. § 1983 and state wrongful death statute; the federal court granted summary judgment on the § 1983 claim and declined supplemental jurisdiction over the state claim.
- Plaintiffs refilled the wrongful death claim in state court; defendants moved to dismiss under the Colorado Governmental Immunity Act (CGIA). The district court dismissed all claims against the county and most deputies; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GCSO waived immunity for operation of the jail so parents may bring a wrongful-death claim | Duke: Parents are the claimants (not the inmate), so the inmate exception to the CGIA waiver should not bar their suit | GCSO: CGIA bars suits by convicted, incarcerated persons; wrongful-death claims are derivative of the decedent’s rights, so immunity applies | Held: Dismissal affirmed as to GCSO — wrongful-death recovery is derivative; because Trey was a convicted inmate, the CGIA bars the parents’ suit against the county (dismissal for failure to state a claim) |
| Whether individual deputies lost immunity because their conduct was willful and wanton (conscious disregard) and whether they needed specific knowledge that Trey ingested fentanyl | Duke: Deputies willfully/wantonly failed to obtain medical care, perform adequate searches, and fabricated records; general knowledge of drug use and conscious disregard suffice | Deputies: Plaintiffs must show deputies knew the specific danger (e.g., that Trey swallowed a fentanyl patch) to establish conscious disregard | Held: Court rejects the overly specific standard — knowledge of a health danger and conscious disregard can support willful and wanton conduct; however, only Deputy Phillips had allegations sufficient to require an evidentiary (Trinity) hearing. Dismissals as to other deputies and the sheriff for lack of jurisdiction affirmed |
| Whether defendants are entitled to appellate attorney fees after pretrial dismissal under C.R.C.P. 12 | (Not addressed at length) | Defendants: Mandatory fees under § 13-17-201 when action dismissed pretrial under Rule 12 | Held: Fees are required for defendants who obtained pretrial dismissal; remanded to district court to determine amount |
Key Cases Cited
- Sigman v. Seafood Ltd. P’ship I, 817 P.2d 527 (Colo. 1991) (wrongful-death recovery is barred when decedent himself was precluded from suing)
- Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97 (Colo. 1995) (wrongful-death remedy is derivative of decedent’s right to recover)
- Medina v. State, 35 P.3d 443 (Colo. 2001) (CGIA construction principles: strict for immunity, broad for waivers)
- Peterson v. Arapahoe Cty. Sheriff, 72 P.3d 440 (Colo. 2003) (refusal to take an injured person into custody can support willful and wanton allegations)
- Tidwell v. City & Cty. of Denver, 83 P.3d 75 (Colo. 2003) (burden and procedures for overcoming employee immunity; evidentiary hearing when facts in dispute)
- Estate of Goodwin v. Connell, 376 F. Supp. 3d 1133 (D. Colo. 2019) (allegations of conscious disregard of risk sufficient without showing defendant expected a specific fatal outcome)