2015 COA 67
Colo. Ct. App.2015Background
- On January 21, 2012 plaintiffs (Dempsey and Zand) were driving north on Santa Fe Drive in Denver through an active construction zone at dusk when Officer Heather Jossi, responding to a robbery call with lights and siren, approached from behind.
- Plaintiffs observed Jossi driving faster than surrounding traffic, weaving and causing other vehicles to pull over; Jossi struck the rear of plaintiffs’ car. Crash Data Retrieval (CDR) records showed ~56 mph about 20 seconds before impact and ~42 mph just before impact.
- Plaintiffs sued the City and County of Denver and Officer Jossi for personal injuries and property damage. Denver moved to dismiss under the Colorado Governmental Immunity Act (CGIA), arguing immunity was not waived because the emergency-vehicle exception applied.
- The trial court held a two-day Trinity evidentiary hearing, found Jossi’s driving endangered life or property, and denied Denver’s motion. The written order adopted the bench findings but did not clearly find whether Jossi exceeded the lawful speed limit during the relevant period.
- Denver appealed interlocutorily under section 24-10-108. The court refused to add Officer Jossi as an appellant because she had not been included in the trial motion or notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether governmental immunity is waived under CGIA for injuries "resulting from" operation of a public vehicle when the driver is an authorized emergency vehicle | Plaintiff: Jossi’s driving endangered life/property so immunity waived (exception inapplicable) | Denver: Exception applies unless officer both exceeded lawful speed limit and endangered life/property; no waiver if she complied with speed limits at time causing injury | Remand: Trial court must make explicit finding whether Jossi exceeded lawful speed during the relevant period in addition to finding she endangered life/property |
| Proper temporal scope for assessing whether officer exceeded lawful speed | Plaintiff: Any speeding during the response that affected the collision suffices | Denver: Relevant period includes time prior to impact that could have caused the collision, not only moment of impact | Held that the relevant period includes the time prior to impact during which improper speed affected the collision |
| Interpretation of "exceed the lawful speeds" and "special hazard" under speed statutes | Plaintiff: Construction, heavy/dusky conditions made speed dangerous regardless of posted limit | Denver: "Special hazard" should be limited; routine construction/traffic may not qualify | Court: "Special hazard" can include construction/traffic conditions; trial court must determine whether conditions required a lower speed and whether officer exceeded that speed |
| Sufficiency of findings from Trinity hearing to resolve CGIA issue | Plaintiff: Trial court’s finding that driving endangered life/property is sufficient | Denver: Court failed to find whether officer exceeded lawful speeds; appellate record unclear | Court: Finding on endangerment insufficient alone; must expressly find whether officer exceeded posted speed or a lower speed required by special hazard |
Key Cases Cited
- Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (trial court is factfinder for CGIA jurisdictional hearings)
- Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000) (waiver exceptions are strictly construed; analyze totality of circumstances for emergency-vehicle exception)
- Springer v. City & Cnty. of Denver, 13 P.3d 794 (Colo. 2000) (CGIA immunity is a subject-matter jurisdiction issue; plaintiff bears burden)
- Widener v. Dist. Court, 615 P.2d 33 (Colo. 1980) (notice of appeal need only substantially comply; harmless technical defects)
- Tidwell v. City & Cnty. of Denver, 83 P.3d 75 (Colo. 2003) (discussing plaintiff’s burden in CGIA proceedings)