2020 COA 133
Colo. Ct. App.2020Background
- Plaintiff Robert Bilderback’s motorcycle collided with a Denver patrol car driven by Officer Kyle McNabb while McNabb was responding to an emergency call.
- McNabb, first in line at a red light on northbound Federal, activated his emergency lights, checked the intersection, slowly pulled into the intersection, then accelerated to ~15 mph; plaintiff entered on a green light and was struck.
- Plaintiff and a following motorist averred a large box truck in the left-turn lane blocked views of northbound Federal; McNabb’s affidavit said he had a clear view.
- Defendants (McNabb and the City) moved to dismiss under C.R.C.P. 12(b)(1), arguing CGIA sovereign immunity applied because the emergency-vehicle exception was satisfied.
- The district court denied the motion, concluding the officer’s manner of proceeding did not meet the statutory requirement to proceed only "as may be necessary for safe operation." Defendants appealed.
- The Court of Appeals agreed the statutory phrase requires assessing how the officer proceeded through the intersection but held the district court abused its discretion by not conducting a Trinity evidentiary proceeding to resolve the disputed factual issue (the truck obstruction); it vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the emergency-vehicle exception to the CGIA waiver (§ 24-10-106(1)(a) read with § 42-4-108(2)(b)) applies here | Bilderback: McNabb did not operate "as may be necessary for safe operation" because he failed to account for a blind spot created by the box truck | Defendants: McNabb met the statute — he stopped before entering, activated lights, and therefore satisfied the exception | Court: Stopping before entry is not alone dispositive; the "as may be necessary for safe operation" qualifier requires examining how the driver proceeded through the intersection |
| Scope of the phrase "but only after slowing down as may be necessary for safe operation" | Must be read to require safe operation through the intersection (not only before entry) | Phrase governs only pre-entry slowing; once the officer had slowed and entered, further speed is not constrained by the statute | Court: The qualifier must be given effect; it can require evaluation of conduct while traversing the intersection to avoid rendering words superfluous or producing absurd results |
| Whether the district court should have held a Trinity evidentiary hearing on disputed facts (e.g., truck obstruction) | Plaintiff: Court may accept plaintiff’s pleaded facts and deny dismissal without a hearing | Defendants: The factual dispute (whether McNabb’s view was obstructed) required a Trinity hearing to resolve jurisdictional/ immunity facts | Court: District court abused discretion by not ordering a Trinity hearing or other factfinding; remand for evidentiary procedures to resolve the dispute |
Key Cases Cited
- Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (establishes procedures for resolving CGIA immunity facts, including hearings and discovery)
- Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253 (Colo. 2003) (clarifies Trinity procedures and discretion to hold hearings even when facts are not directly disputed)
- Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995) (duty of care in § 42-4-108(4) does not apply to CGIA immunity analysis)
- Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75 (Colo. 2003) (12(b)(1) motions on sovereign immunity may be decided on pleadings when no evidentiary dispute exists)
- Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000) (describes CGIA’s structure of waivers and exceptions)
- Medina v. State, 35 P.3d 443 (Colo. 2001) (remand for hearing where existing evidence did not resolve a key factual dispute relevant to immunity)
- Quintana v. City of Westminster, 8 P.3d 527 (Colo. App. 2000) (similar holding regarding limits of § 42-4-108(4) in immunity analysis)
- Frazier v. People, 90 P.3d 807 (Colo. 2004) (statutory interpretation should avoid superfluous or absurd results)