Trinity Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss

JurisdictionColorado,United States
CitationVol. 33 No. 12 Pg. 91
Publication year2004
33 Colo.Law. 91
Colorado Lawyer

2004, December, Pg. 91. Trinity Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss


Vol. 33, No. 12, Pg. 91

The Colorado Lawyer
December 2004
Vol. 33, No. 12 [Page 91]

Specialty Law Columns
Government and Administrative Law News
"Trinity" Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
by Debra Asimus Overn

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

Column Editors

Carolynne C. White, of Brownstein Hyatt & Farber, P.C (303) 223-1197,; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725, bbailey@; Tiffanie Bleau, Denver, an attorney with Light, Harrington & Dawes, P.C. - (303) 298-1601,

About The Author:

This month's article was written by Debra Asimus Overn, Denver, Assistant City Attorney with the Denver City Attorney's Office - (303) 342-2561,

Procedure and proof for motions to dismiss based on the Colorado Governmental Immunity Act differ significantly from other motions to dismiss. This article analyzes common areas of confusion about the Act and discusses the seminal Trinity case. It addresses issues litigators on either side of a case against a public entity should consider.

The Colorado Governmental Immunity Act ("CGIA")1 provides state public entities with immunity from causes of action that "lie in tort or could lie in tort."2 The CGIA is a unique statutory creation; therefore, procedure and proof for motions to dismiss based on the CGIA differ significantly from more "routine" motions to dismiss with which most litigators are familiar.

Many aspects of the CGIA are difficult to apply - from basic issues, such as what claims "could lie in tort," to more academic concepts, such as the differences between motions under Colorado Rules of Civil Procedure ("C.R.C.P.") 12(b)(1) versus 12(b)(5). Even experienced judges and litigators can be confused by these differences.

Much misunderstanding has been caused by CRS § 24-10-108, which states, "If a public entity raises the issue of sovereign immunity," the court shall "decide such issue on motion." In Trinity Broadcasting of Denver, Inc. v. City of Westminster,3 the Colorado Supreme Court interpreted CGIA § 108 as requiring courts to resolve the jurisdictional facts raised by a claim of immunity prior to trial through an evidentiary hearing, if necessary. In 2003, the Colorado Supreme Court expanded the role of what have come to be called "Trinity" hearings to include determination of all facts related to a CGIA defense, "regardless of whether the immunity issue is jurisdictional."4 As a result, Trinity hearings are likely to become more common.

This article provides an overview of CGIA and Trinity hearings and analyzes common sources of confusion about Trinity hearings. Also discussed are issues litigators should consider in the early stages of any case involving a claim against a public entity.5

Origins of the CGIA

Before 1971, Colorado courts assumed state public entities were immune from tort claims through the doctrine of "sovereign immunity," unless constitutional or statutory provisions waived that immunity.6 However, in 1971, the Colorado Supreme Court abrogated that common law immunity through a trio of cases and asked the legislature to determine whether and to what extent public entities should be immune from suit.7 The legislature responded by enacting the CGIA, which partially reestablished tort immunity8 for public entities9 for all actions that "lie in tort or could lie in tort."10

The CGIA provides six exceptions and waivers to that immunity.11 However, it then limits the amount of recovery available on permitted claims and imposes detailed procedural requirements, including specific notice procedures, which must be followed before claims may be brought.

Facts About C.R.C.P. 12(b)(1) Motions and the CGIA

Trinity hearings are conducted under C.R.C.P. 12(b)(1), not C.R.C.P. 12(b)(5), which is the more familiar rule. The CGIA adds its own twists. With C.R.C.P. 12(b)(1) motions based on the CGIA:

1. The burden of proof is on the non-moving party.
2. The plaintiff is not entitled to favorable inferences, unless he or she presents evidence on a point.
3. Allowing evidence beyond the statements in the pleadings does not convert the motion to one for summary judgment.
4. Non-jurisdictional facts must be determined, as well as jurisdictional facts.
5. The judge is the sole finder of fact, even for non-jurisdictional facts.
Remember: One motion can include requests for dismissal under both C.R.C.P. 12(b)(1) and 12(b)(5).

Definition of Trinity Hearing

In Trinity, the Colorado Supreme Court interpreted CGIA § 108 as requiring courts to resolve jurisdictional facts raised by an immunity defense through an evidentiary hearing held prior to trial.12 Although Trinity focused on the notice provisions of the CGIA, later cases expanded Trinity to other jurisdictional aspects of that Act. A number of cases also declared that certain parts of the CGIA were not jurisdictional and, therefore, no different than other affirmative defenses. This meant that if several CGIA defenses were raised in one motion, some would require a Trinity hearing and application of the Trinity procedural and substantive requirements, whereas others would not. This created an area ripe for confusion.

In December 2003, in Finnie v. Jefferson County School District R-1,13 the Colorado Supreme Court expanded the scope of Trinity hearings. Specifically, Finnie clarified that the CGIA

requires the trial court to definitively resolve all issues of immunity before trial, regardless of whether the issues have been classified as jurisdictional. Trial courts must employ the procedures used in [Trinity] and its progeny to resolve issues of immunity, even when such issues are not jurisdictional.14 (Emphasis added.)

Thus, a Trinity hearing is used to resolve a public entity's motion to dismiss a claim under the CGIA. Evidence beyond the statements in the pleadings may be presented. The trial court decides, prior to trial and perhaps even prior to an answer being filed, the factual disputes raised by the public entity's motion, using a C.R.C.P. 12(b)(1) analysis.

C.R.C.P. 12(b)(1) Versus 12(b)(5) Motions

The procedural and substantive difference between motions under C.R.C.P. 12(b)(1) and 12(b)(5) is a fertile source of confusion. Most litigators and judges routinely handle motions under C.R.C.P. 12(b)(5). However, under Trinity, a CGIA defense is determined under C.R.C.P. 12(b)(1), which is invoked far less frequently.

There are significant differences between motions made under C.R.C.P. 12(b)(1) and 12(b)(5) for both plaintiff attorneys and defense counsel. The most significant differences are discussed below.

Burden of Proof

The plaintiff, not the public entity making the motion, bears the burden of proving jurisdiction.15 This point is often forgotten, even by attorneys representing public entities.

No Summary Judgment

The hearing remains under C.R.C.P. 12, and is not converted to a summary judgment under C.R.C.P. 54, even though additional evidence is allowed. This is another commonly forgotten procedural point, and courts sometimes still improperly refer to summary judgment in CGIA opinions.

Non-Jurisdictional Facts

In Finnie, the Colorado Supreme Court acknowledged that C.R.C.P. 12(b)(1) motions typically are...

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