CGIA interlocutory appeal timing: Colorado Court of Appeals gives plaintiffs strategic choice

On July 31, the Colorado Court of Appeals clarified an important procedural question for plaintiffs challenging governmental immunity rulings under the Colorado Governmental Immunity Act (CGIA). In Smith v. City and County of Denver et al., the court held that plaintiffs may choose between filing an immediate interlocutory appeal or waiting until the case concludes to challenge a district court’s grant of immunity to a public entity.

The Colorado Court of Appeals held: “… when the district court grants a public entity’s motion to dismiss for lack of subject matter jurisdiction under the CGIA, but claims not affected by that ruling remain unresolved, C.R.S. § 24-10-108 permits the plaintiff to challenge the order granting immunity either in an interlocutory appeal or in an appeal filed at the conclusion of the case.”

The lawsuit and CGIA appeal timing dilemma

The case arose from a tragic collision between a Denver Fire Department truck and a vehicle carrying Ronald Smith. Smith brought a lawsuit, asserting claims against the City of Denver, the driver of the firetruck, and Global Traffic Technologies, LLC (GTT), the company that designed and manufactured the Opticom system at the intersection (a traffic control system that provides a temporary right-of-way to emergency vehicles approaching a traffic light.)

The Denver defendants filed a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the basis that they were immune from liability under the CGIA because the defendant driver was operating a city and county emergency vehicle at the time of the accident. The district court dismissed Smith’s claims against the Denver defendants under CGIA immunity protections, and Smith then faced a critical timing decision. Importantly, the district court’s February 2024 immunity ruling only affected Smith’s claims against the Denver defendants; his claims against GTT remained pending and were not dismissed under Rule 12(b)(1).

This procedural posture created the central question: when some claims are dismissed for lack of subject matter jurisdiction under the CGIA but other claims against different defendants remain unresolved, must a plaintiff immediately appeal the immunity ruling, or can they wait until final case resolution? Smith chose to wait, filing his appeal in May 2024 after GTT was dismissed through a joint stipulation earlier that year.

Breaking new ground

This decision represents a matter of first impression, as Colorado courts had never directly addressed whether the CGIA’s interlocutory appeal provisions require immediate appeals from plaintiffs when only some claims are affected by immunity rulings. C.R.S. § 24-10-108 of the CGIA states that immunity decisions “shall be a final judgment and shall be subject to interlocutory appeal,” but the statute doesn’t differentiate between orders granting or denying immunity or specify different requirements when mixed rulings occur.

The Denver defendants argued Smith’s appeal was untimely, relying on the precedent in Buckles v. State (Colo.App.1998), which suggested that CGIA orders must be appealed immediately or risk being barred forever. However, the Court of Appeals disagreed, creating new flexibility for plaintiffs in multi-defendant cases. In doing so, the Court of Appeals relied heavily on the Colorado Supreme Court’s decision in Walton v. State (Colo. 1998), which established that public entities have a “right, not an obligation” to take interlocutory appeals of adverse immunity rulings. The Court of Appeals extended this principle to plaintiffs, reasoning that the CGIA doesn’t impose different requirements based on which party seeks the appeal.

Significantly, the court noted that Walton disapproved of aspects of the Buckles decision that suggested mandatory immediate appeals. The court emphasized that the plain language of § 24-10-108 doesn’t distinguish between grants and denials of immunity, and courts shouldn’t read limiting language into statutes that the legislature didn’t include.

Practical implications for CGIA practitioners

This ruling provides significant strategic advantages for plaintiffs in CGIA cases involving multiple defendants. Previously, under the restrictive interpretation of Buckles, plaintiffs faced pressure to immediately appeal immunity rulings even when other substantial claims remained pending against different defendants. This often forced premature and potentially wasteful appeals while cases were still developing.

Now, plaintiffs can make strategic decisions about appeal timing. They might choose to:

• File an immediate interlocutory appeal to quickly resolve immunity questions
• Wait for final case resolution to appeal all issues together
• Focus resources on developing their case against non-immune defendants first

Looking forward – CGIA clarity for plaintiffs and defendants

This decision provides welcome clarity for CGIA practitioners, both plaintiffs and defendants, involved in multi-defendant cases and demonstrates the Court of Appeals’ willingness to ensure fair treatment of all parties under Colorado’s governmental immunity framework. Plaintiffs can now make more informed strategic decisions about interlocutory appeals without fear of inadvertently waiving their rights through timing missteps when cases involve both immune and non-immune defendants. The Smith ruling also affirms that procedural rules should promote justice and efficiency rather than create unnecessary traps for litigants navigating complex immunity questions in cases with ongoing claims.

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