Southway v. Crone

24CA0219 Southway v Crone 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0219
Grand County District Court No. 22CV30063
Honorable Mary C. Hoak, Judge

Cynthia Southway and Hayden Southway,

Plaintiffs-Appellees,

v.

John Crone,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Anthony J. DiCola, Hot Sulphur Springs, Colorado, for Plaintiffs-Appellees

Lasater & Martin, P.C., Peter H. Doherty, Greenwood Village, Colorado, for
Defendant-Appellant
¶1 Defendant John Crone (Crone) appeals the district court’s

order denying his motion to dismiss the defamation claim brought

by plaintiffs Cynthia Southway and Hayden Southway (collectively,

the Southways) under the Colorado Governmental Immunity Act

(CGIA), sections 24-10-101 to -120, C.R.S. 2024. We reverse the

order and remand for additional findings.

I. Background

¶2 The parties in this matter were each involved with local

government affairs in the town of Grand Lake, Colorado. Cynthia1

served on the town’s Board of Trustees starting in April 2018 while

her husband, Hayden, had been a member of the Planning and

Zoning Commission. Cynthia was also a part of the hiring

committee that selected Crone as Town Manager in October 2019.

¶3 After Crone was hired, several conflicts arose between him and

the Southways. Cynthia challenged Crone’s use of government-

owned vehicles, a proposed salary increase for his role, his

1 Because Cynthia and Hayden Southway share the same last

name, we use their first names when referring to them individually.
We mean no disrespect in doing so.

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treatment of town employees, and an alleged conflict of interest

related to Crone’s purchase of a property.

¶4 Meanwhile, Crone began conducting an investigation into a

Grand Lake property that the Southways leased from the property

owner for horse grazing and breeding. He expressed concern that

(1) the Southways’ use of their leased property for for-profit

ranching violated the governing zoning ordinances and (2) the same

use formed the basis for the property’s “agricultural” classification

for tax purposes, causing the town to lose significant property tax

revenue. Crone testified that the investigation fell within his

purview as Town Manager because both zoning and property use

had tax implications, and his job was to “build up” the tax base of

the town.

¶5 The parties communicated about the zoning and taxation

issues in January and February 2021 but did not reach any

resolution.

¶6 In September 2021, Cynthia reminded the executive

committee of the Board of Trustees that Crone’s annual job

performance evaluation should have been started the prior month.

On September 14, Cynthia followed up with Grand Lake’s mayor,

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urging him to start Crone’s evaluation ahead of recall elections

scheduled for the following month.

¶7 The next day, Crone sent an email about the Southways’

leased property from his town-issued email account to the Grand

Lake mayor and trustees (September 15 email). The email — the

subject of the Southways’ defamation claim against Crone — read

as follows:

Trustees,

In January of this year, I discovered that
Trustee Southway had been conspiring with
the owners of the 15-acre parcel where the
Southways keep their horses to have the
property assessed as agricultural. In order to
be assessed as agricultural, the property must
be used for a for-profit ranch. Town Code
does not allow such use in any of our
zoning areas. In their various roles as
Trustee and as a Planning Commissioner,
knowledge of the Town Codes can be imputed
to the Southways. In fact, Hayden Southway
was actually on the Planning Commission the
last time that this property’s zoning was
revised. County Assessor Tom Weydert served
on the Town Board at times when this scheme
was in operation and never informed the Town
despite his oath to uphold the Town code. As
a result of the scheme, in 2021 only $22.02 in
taxes were charged against the 15.4 acre
parcel. In contrast, I have paid $1,023.48 on
my .2 acre parcel on the edge of town. Over
the years, the Southways scheme has cost the

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Town, the school district, the rec. district, the
fire department, and other public entities tens
of thousands of dollars in lost revenue (if not
hundreds of thousands).

Trustee Southway was informed of their
illegal actions in January. At that time, I
treated the Southways as I treat any code
violators: I informed them of their illegal
actions and offered them several options to
correct their actions. The Mayor, the then
Mayor Pro Tem, and our Town Attorney were
all included in the discussions. To date, the
Southways have not taken any actions to
correct their violations. In fact, recent actions
taken by the Southways indicate that they
have no intention of cooperating with the Town
to solve this very distressing situation.

As a result of the Southways’ resistance to
take responsibility for their illegal actions, I
feel compelled to officially bring these ethical
violations to the Board’s attention for action. I
am also meeting with the District Attorney for
the 14th Judicial District to ask for a criminal
investigation.

Please feel free to contact me with any
questions.

John F. Crone, J.D.

¶8 The Southways then filed the underlying defamation suit

against Crone, alleging that the September 15 email resulted in

harm to their reputation, credit standing, and profits from their

personal businesses. Crone moved to dismiss, asserting that he

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was entitled to immunity under the CGIA because he was acting

within the scope of his employment and his actions were not “willful

and wanton.”

¶9 The district court entered an order addressing Crone’s

underlying contention that willful and wanton conduct required the

conscious disregard of a risk of physical harm to the plaintiff. The

court concluded it did not, ruling,

[W]illful and wanton conduct generally means
a conscious disregard for the danger or
consequences of one’s actions to the rights and
safety of others. The Court agrees with the
Southways that willful and wanton conduct
does not necessarily equate to a conscious
disregard of the danger of the physical safety
of others.

¶ 10 The court also concluded that the scope of Crone’s

employment and the nature of his conduct presented disputed

issues of fact, so it ordered an evidentiary hearing pursuant to

Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d

916 (Colo. 1993) (Trinity hearing).

¶ 11 After the Trinity hearing, the court concluded that Crone was

acting within the scope of his employment when he sent the

September 15 email, but he wasn’t immune from liability because

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his conduct was willful and wanton. Accordingly, it denied Crone’s

motion to dismiss. Crone appeals.

II. Foundational CGIA Law

¶ 12 The CGIA shields governmental entities and public employees

from tort liability in certain circumstances. See § 24-10-102, C.R.S.

2024. A “public employee” is an officer or employee of a “public

entity,” and a “public entity” includes any “political subdivision” of

the state “organized pursuant to law.” § 24-10-103(4)(a), (5), C.R.S.

2024.2

¶ 13 Section 24-10-118(2)(a), C.R.S. 2024, provides:

A public employee shall be immune from
liability in any claim for injury . . . which lies in
tort or could lie in tort . . . and which arises out
of an act or omission of such employee
occurring during the performance of his duties
and within the scope of his employment unless
the act or omission causing such injury was
willful and wanton.

(Emphasis added.)

¶ 14 Thus, as relevant here, the CGIA provides a public employee

with immunity from tort liability except when (1) the conduct that

caused the injury was willful and wanton or (2) the conduct

2 It’s undisputed that Crone is a public employee.

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occurred outside of the scope of employment. Hernandez v. City &

Cnty. of Denver, 2018 COA 151, ¶ 9.

¶ 15 Whether a public employee is immune from suit under the

CGIA is a question of subject-matter jurisdiction that must be

determined pursuant to C.R.C.P. 12(b)(1). Trinity Broadcasting, 848

P.2d at 923-25. The district court must resolve all issues

pertaining to sovereign immunity — and may be required to hold a

Trinity hearing where appropriate — prior to trial. Martinez v. Est.

of Bleck, 2016 CO 58, ¶ 27 (holding that “Trinity and its progeny

govern claims of public employee sovereign immunity”). In a Trinity

hearing, “the trial court, rather than a jury, is the finder of fact and

resolves any factual dispute on which sovereign immunity

depends.” Hernandez, ¶ 6; see also Tidwell v. City & Cnty. of

Denver, 83 P.3d 75, 85-86 (Colo. 2003) (“When the alleged

jurisdictional facts are in dispute, the trial court should conduct an

evidentiary hearing and enter findings of fact.”).

III. “Willful and Wanton” Standard

¶ 16 Crone contends that the district court erred by determining

that his September 15 email constituted “willful and wanton”

conduct. He argues, as he did below, that (1) willful and wanton

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conduct requires a disregard of a risk of physical injury and (2) even

if it doesn’t, the district court erred by concluding that his conduct

was willful and wanton. We reject Crone’s first argument but,

because we can’t discern whether the court correctly applied the

willful and wanton standard, we reverse and remand for further

findings.

A. Standard of Review

¶ 17 An appellate court will not disturb a trial court’s findings of

jurisdictional fact following a Trinity hearing unless they are clearly

erroneous. Medina v. State, 35 P.3d 443, 452 (Colo. 2001); Maphis

v. City of Boulder, 2022 CO 10, ¶ 14. However, we review de novo

whether the trial court applied the correct legal standard in

determining whether Crone’s conduct was willful and wanton,

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d

892, 897-98 (Colo. 2008), and whether it correctly interpreted the

CGIA, Medina, 35 P.3d at 452-53.

¶ 18 When interpreting a statute, “we look to the entire statutory

scheme in order to give consistent, harmonious, and sensible effect

to all of its parts, and we avoid constructions that would render any

words or phrases superfluous or that would lead to illogical or

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absurd results.” Elder v. Williams, 2020 CO 88, ¶ 18. “We do not

add or subtract words from the statute, and if the language is

unambiguous, we ‘give effect to its plain and ordinary meaning and

look no further.’” City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶

12 (quoting Smokebrush Found. v. City of Colorado Springs, 2018

CO 10, ¶ 18).

B. Martinez v. Estate of Bleck

¶ 19 In Martinez, the plaintiff sued an Alamosa police officer for

excessive force and battery when the officer injured the plaintiff

through accidental discharge of his police weapon. 2016 CO 58,

¶ 1. The officer moved to dismiss the claim, arguing that he was

immune from liability because his conduct was not willful and

wanton. Id. at ¶ 2. The trial court denied the motion to dismiss,

concluding, as relevant here, that the defendant “should have”

known that his conduct was dangerous. Id. at ¶¶ 10-11.

¶ 20 The Colorado Supreme Court reversed. Id. at ¶ 6. After

observing that the CGIA doesn’t define willful and wanton conduct,

the court turned to earlier definitions of such conduct from other

contexts:

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• Willful and wanton conduct “must be not only negligent,

but exhibit [a] conscious disregard for [the] safety of others.”

Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (quoting

Black’s Law Dictionary 1434-35 (5th ed. 1979)) (emphasis

added).

• For purposes of exemplary damages, willful and wanton

conduct is “purposefully committed which the actor must

have realized as dangerous, done heedlessly and recklessly,

without regard to consequences, or of the rights and safety of

others, particularly the plaintiff.” Id. (quoting § 13-21-

102(1)(b), C.R.S. 1987) (emphasis added).

• In the automobile guest statute, willful and wanton conduct

was defined as action that is “wholly disregardful of the

rights, feelings and safety of others . . . at times even

imply[ing] an element of evil.” Id. (alteration in original)

(quoting Pettingell v. Moede, 271 P.2d 1038, 1042 (1954))

(emphasis added).

¶ 21 The Martinez court declined to choose a single definition of

willful and wanton conduct for the CGIA, noting that the common

thread between all other definitions is “a conscious disregard of the

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danger.” Martinez, ¶ 30. Accordingly, the supreme court held that

the trial court erred by wrongly applying the negligence standard

(“should have” known) when determining whether the police officer’s

conduct was willful and wanton. Id. at ¶ 6. It directed the trial

court on remand to instead consider whether the officer’s conduct

exhibited a “conscious disregard for safety of others.” Id.

C. Analysis

1. Risk of Physical Injury Not Required

¶ 22 Relying on Martinez, Crone argues that, for a defendant’s

conduct to be willful and wanton, the defendant must consciously

disregard a “probable risk of physical injury” to the plaintiff. We

reject his argument for two reasons.

¶ 23 First, Crone’s interpretation would effectively make it

impossible for a plaintiff to sue a public employee for actions

resulting in nonphysical injuries so long as the employee’s actions

occurred within the scope of their employment. Such a result is

contrary to the plain language of the CGIA.

¶ 24 Under section 24-10-118(2)(a), public employees who act in a

willful and wanton manner — even if acting within the scope of

their employment — have no immunity “from any claim for injury

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that lies in tort . . . or could lie in tort.” (Emphasis added.) The

CGIA broadly defines “injury” to include “death, injury to a person,

damage to or loss of property, of whatsoever kind, which, if inflicted

by a private person, would lie in tort or could lie in tort.” § 24-10-

103(2). Interpreting this section, the Colorado Supreme Court has

concluded that “the plain terms of section 24-10-103(2) clearly

express an intent to include within the meaning of ‘injury’ any type

of injury that would be actionable in tort if inflicted by a private

person.” Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230 (Colo.

1986) (holding that loss of consortium is an “injury” under the CGIA

that gives rise to a separate right of recovery for a spouse).3

Damage to one’s reputation from defamatory statements has long

been recognized as a personal injury in tort. See Keohane v.

Stewart, 882 P.2d 1293, 1297-98 (Colo. 1994) (discussing the

history of defamation claims).

3 At the time Lee was decided, the CGIA defined “injury” as “death,

injury to a person, [and] damages to or loss of property, of
whatsoever kind, which would be actionable in tort if inflicted by a
private person.” Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230
(Colo. 1986) (alteration in original) (quoting § 24-10-103(2), C.R.S.
1982). The minor differences between the 1982 version of the CGIA
and the current version don’t affect our analysis.

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¶ 25 Thus, sections 24-10-118(2)(a) and 24-10-103(2), read

together, reveal that the legislature plainly intended for plaintiffs

suffering nonphysical injuries to be able to seek redress if those

injuries were caused by a public employee’s willful and wanton

conduct. Because we must construe the CGIA’s grant of immunity

narrowly and its waiver provisions broadly, County of Jefferson v.

Stickle, 2024 CO 7, ¶ 10, we reject Crone’s definition of “willful and

wanton.”

¶ 26 Second, Martinez doesn’t stand for the principle that a

defendant must disregard a risk of physical injury to act in a willful

and wanton manner. In fact, the supreme court specifically

declined to adopt a single definition for willful and wanton conduct

under the CGIA. Martinez, ¶ 30. To the extent Martinez references

risks to a plaintiff’s physical safety, it didn’t do so to limit the

applicability of the “willful and wanton” exception to circumstances

involving a risk of physical harm. Rather, as the district court

correctly observed, the disregard of danger to one’s physical safety

was relevant in Martinez simply because the plaintiff’s claim

involved physical injury from the discharge of a weapon. And the

common defining feature of willful and wanton conduct articulated

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in Martinez — a “conscious disregard of the danger” — is broad

enough to apply to both physical and nonphysical danger or risk.

Id.

¶ 27 Here, the district court concluded that “willful and wanton

conduct generally means a conscious disregard for the danger or

consequences of one’s actions to the rights and safety of others.”

This standard is consistent with the principles articulated in

Martinez, and it is supported by at least one prior decision from a

division of this court applying a similar standard in a defamation

claim against a public employee. See Wilson v. Meyer, 126 P.3d

276, 282 (Colo. App. 2005) (noting that the plaintiff must allege

specific facts to show that the public employee “was aware [that]

[their] conduct would cause the alleged harm” or that their conduct

“was specifically calculated to cause the alleged harm”).

¶ 28 We further conclude that, because defamation claims generally

seek to remedy injury to one’s reputation, the danger or risk that

Crone must consciously disregard is the danger that he might

damage someone’s reputation by spreading untrue statements

about that person. Cf. Duke v. Gunnison Cnty. Sheriff’s Off., 2019

COA 170, ¶ 37 (holding that, in cases involving physical injury or

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death, willful and wanton conduct requires “knowledge and

conscious disregard of a health danger to another”).

2. Trial Court Application of Willful and Wanton Standard

¶ 29 Although we agree that the district court generally articulated

the correct standard for willful and wanton conduct, additional

findings are necessary for us to discern whether the court correctly

applied the standard.

¶ 30 After the Trinity hearing, the district court entered a verbal

order explaining its reasoning for denying Crone’s motion to

dismiss. The court concluded that Crone’s conduct exhibited a

“conscious disregard of the danger and consequences of his actions

as to the rights . . . of the Southway[s]” because (1) the language

Crone used in the September 15 email was “hyperbol[ic],”

“exaggerated,” and “scathing”; (2) the accusations of conspiracy

were “serious”; and (3) the court saw no evidence of any conspiracy.

¶ 31 However, shortly after reaching the conclusion that Crone

exhibited a “conscious disregard” of the danger, the court said that

Crone “did not think of what the reactions or the consequences”

would be when he sent the email, concluding “that’s why it’s

willful[] and wanton conduct because Mr. Crone didn’t think.” If

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Crone “didn’t think” of the consequences of his actions, he couldn’t

have consciously disregarded them. See Martinez, ¶ 32

(distinguishing between whether the defendant “should have

realized” the danger of his conduct and whether he “conscious[ly]

disregard[ed]” it). Due to these conflicting findings, we can’t discern

whether the court correctly applied the willful and wanton standard

in concluding that Crone’s actions rose to that level. We therefore

reverse the district court’s order and remand the case with

instructions to reconsider, based on the existing record, whether

Crone consciously disregarded the danger or risk that he might

cause reputational harm by spreading untrue statements that paint

the subject of the statements in a negative light. Cf. In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 43 (reversing a

district court order and remanding for new findings under the legal

standard set forth in the opinion).

IV. Disposition

¶ 32 The order is reversed, and the case is remanded for further

findings based on the existing record and consistent with this

opinion.

JUDGE FREYRE and JUDGE GROVE concur.

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