*1 CLINE, Plaintiff-Appellant, Clifford E. RABSON, Department
Robert The Police City Loveland, governmental Loveland,
entity, City The a mu
nicipal corporation, Defendants-Appel
lees.
No. 91CA0844. Appeals, Court
Colorado
Div. IV. 27,
Aug. 1992. of Rehearing
As Modified on Denial
Dec. 1992. Judgment
Certiorari Granted and July
Vacated 1993.* DeDolph, Collins, plaintiff-
Scott Fort appellant.
Watson, Bremer, P.C., Nathan & J. An- Nathan, Fraser, III, Joseph drew J. Den- ver, defendants-appellees.
Bruno, Colin, P.C., & Marc F. Bruno Co- lin, Denver, for amicus curiae Fraternal Lodge. Order of Police Colorado State Opinion by Judge CRISWELL. Plaintiff, Cline, appeals E. Clifford judgment dismissing summary his defendants, City claims Loveland, police department, and its Robert Rabson, police one of officers. We re- verse. plaintiff complaint, joined his Rabson capacity alleged in his official bodily inju- had suffered serious
* light Trinity Broadcasting Writ of GRANTED Petition for Certiorari Inc. v. Westminster, (Colo.1993). appeals City the court of is vacated. The is remanded for EN case reconsideration BANC. *2 2 negligent pre-trial of cannot resolve that issue on a ba- acts
ríes as a result who, Rabson, attempting to while overtake sis. cruiser, police in his speeding vehicle a previous opinion There no that has been closely motorcycle so that passed plaintiff’s directly authority addresses a court’s under plaintiff’s elbow. Plain- the cruiser struck Nevertheless, deci- previous 24-10-108. § “failed to alleged properly that tiff Rabson implicitly have sions this court concluded vehicle, his failed to ob- use and control upon calling that motions the courts to in proper safety procedures passing serve issue, immunity determine the whether improperly used the and/or 12(b) filed under or under C.R.C.P. turning left lane.” by use of C.R.C.P. are to be determined allegations, defen response to these procedural standards that would same summary claimed in their motion dants apply otherwise to such motions. immune from suit they were Thus, State, v. P.2d 656 Schlitters 787 Immuni under the Colorado Governmental 12(b) (Colo.App.1989),in which a C.R.C.P. Act), (the Immunity Act 24-10- ty upon motion to dismiss was based the as 10A), 106(1)(a), (1988 Repl.Vol. be C.R.S. falling upon high sertion that a boulder plaintiff’s injury occurred while Rab- cause way a “dangerous could not constitute con emergency operating an vehicle son was 24-10-106(1)(d), dition” under C.R.S. 42-4-106, pursuant (1988 10A), Repl.Vol. emphasized it was (1984 Repl.Vol. C.R.S. that, evaluating such a motion: hearing upon evidentiary An held accept must facts of trial court [T]he operation question whether Rabson’s complaint as true and determine emergency complied 42- his vehicle with § law, any theory plain- whether under 17), 4-106(4), (1984 Repl.Vol. C.R.S. which tiff is entitled to relief. If standard this requires of an vehicle driver met, the motion to dismiss should [is] regard safety for the to “drive with due denied. Thereafter, the trial others.” court dis- Similarly, in P.2d Sierra plaintiff’s complaint, finding that
missed (Colo.App.1986), which involved a also support his the evidence did not contention 12(b) dismiss, motion under C.R.C.P. we operated negli- that Rabson his vehicle in a held court dismiss a that the trial could not Hence, gent manner. it concluded that the claim, sovereign immunity, upon based be City was immune from suit. allegations plaintiff’s cause the com plaint prove her to were sufficient allow I. immunity a set of circumstances which trial Plaintiff first contends apply. Zapp would not also v. Kukur in taking adopting erred evidence and court is, (Colo.App.1992)(plaintiff’s findings upon of fact issue. allegations sufficient were to withstand agree. We 12(b) relied C.R.C.P. motion to dismiss that 24-10-108, upon sovereign immunity). the defense of 10A) that, if provides Likewise, State, 829 P.2d Moldovan sovereign entity raises the immuni this (Colo.App.1991), court concluded immediately after ty or commence before that, genuine issues of material fact re- discovery, “the court shall ment of ... specting statutory a state’s violation of a ques such issue on motion.” The decide a trial presented, are court therefore, is presented, tion whether grounded summary judgment enter on sov- that, contemplates resolution of statute ereign immunity. the issue of the existence di- upon While these decisions have dependent the resolution of a factual none of empowered rectly of a trial addressed extent dispute, the trial court 24-10-108, they authority in court’s dispute. We conclude resolve instances, the correct all reach what we consider to be which presented, result. disputed factual issue is
It is to be noted that the statute’s di- der while the driver of an rection to decide the immunity emergency vehicle exempted from com- applicable issue “on motion” is if the plying with certain specified regula- traffic driver, “prior tions, issue is immediately raised to or must still “drive with a *3 after the commencement discovery.” regard due for safety of all persons,” And, time, discovery raised at this is to and the statute does not him protect “from suspended, “except any discovery consequences neces- of his disregard reckless sary sovereign to decide the issue of immu- for safety Therefore, others.” nity.” instances in which the latter statute ap- is plicable, the nature of the driver’s actions These make it evident that the will dictate not the extent of the im- underlying purpose statute’s require is to munity granted by 24-10-106, but it will resolution of immunity issue at an ear- also determine the underlying liability ly stage in proceedings, if the issue is claim. circumstances, Under these we can-' appropriate raised at an time and it is oth- not ascribe to the General Assembly an possible erwise pre- to do so. It seeks to delegate intent to judge to a the ultimate expenditure vent the public funds in factfinding responsibility jury. of the defending upon the merits of a claim in which, instances because of a de- Hence, we conclude if party a immunity, fendant’s such defense need nev- raises the issue of immunity by er be made. filing pre-trial-motion a timely 24- 10-108, a trial court is bound to decide such Nothing within this underlying purpose, using motion the same disposi standard for nor within express language of the tion as would apply otherwise to such a statute, however, legislative a reflects in- pre-trial motion. If the motion is one for require tent to resolution of the summary judgment, pursuant legal issue to a standard different grant such motion if there exists for reso from the standards that are used in resolv- genuine lution a issue of material fact. ing any other pre-trial issue on a basis. Its Co., See Sewell v. Public Service 832 P.2d purpose expedition, usurpation of a 1991) (Colo.App. (although existence of jury’s And, function. in those instances in question court, of law for the which the General has intended a foreseeability injury to reason judge to exercise the jury’s factfinding dispute, able that jury). is for the function, that intent has clearly been ex- See, pressed. example, 13-21-115(4), for Here, the trial court did not limit itself to (1991 Cum.Supp.) C.R.S. specifically which evidentiary consideration of the materials provides that, in an action a land- of, support submitted in opposition and in owner, judge “the shall determine whether to, request summary judgment. In- licensee, trespasser, is a or an stead, it an evidentiary hearing conducted invitee,” jury while the is to determine testimony received from witnesses. liability damages.” “issues of addition, its determination that Rabson act- properly ed considering was reached after Further, if, the determination of credibility issues in capacity its as a factfin- the immunity issue would resolve factual der; that determination was not made as a issues upon which the claim on the merits judge acting on a matter of law. depends, so that a decision on the issue would also decide defendant’s sub- Therefore, applied because the trial court liability, having stantive the trial court act wrong legal passing upon standard in in the capacity pre-trial of a factfinder motion, pre-trial defendant’s particularly would be inappropriate. must be reversed and the cause remanded to it for its reconsideration. Act, Immunity
Under the entity is immune from liability injuries result- II. ing operation from the of an emergency vehicle under 42-4-106. Section 24-10- Because the issue will arise on the trial 10A). Yet, C.R.S. un- court’s reconsideration of defendant’s mo- others, (em- tion, plaintiffs disregard safety address assertion we also abrogates governmental supplied) 42-4-106 phasis that § emergency driver of an immunity if the plain Defendants contend simple negligence stan- vehicle violates 42-4-106(2) (4) language of render ordinary is unnec- dard of care and that it any liability immune from purpose, essary, to establish for this injury an caused of an a driver autho guilty con- of reckless such a driver rized vehicle unless the driver’s agree duct. We also with this assertion. behavior rises to the level of “reckless dis (1988 Repl.Vol. regard.” They argue further the Gen 10A) ex Immunity generally Act Assembly’s specific eral allowance for *4 in empts public liability from tort. entities disregard emergency specified vehicles to However, 24-10-106(1)(a), C.R.S. § regulations necessarily implies, traffic and 10A) immu generally waives that evidence is further the standard of opera resulting the nity injuries for negligence simple is not intended to be by entity public tion owned of a vehicle to the an applied emergency actions of operated by public employee. Under and disagree. vehicle driver. We however, statute, this is not Considering provisions the of 42-4-106 § inju the waived in those instances in which conjunction general provisions in with the operation the emer ries result from of an Act, Immunity of the we conclude that a vehicle, “operating gency such vehicle is entity public is not immune under these 42-4-106(2) provisions” within the § public employee if the two statutes fails to (3), (1984 Repl.Vol. regard safety” exercise “due for the 42-4-106(2) says: Section § others. emergency The driver of an authorized this We reach conclusion two rea- vehicle, responding emergen- to an when sons. call, cy pursuit in of an or or when actual law, suspected or when violator First, it while autho § returning to responding upon but not driver emergency rizes the of an vehicle to alarm, may privi- from a fire exercise the disregard regulations, certain traffic does section, leges in set forth this but grant not constitute a carte blanche to the conditions stated in article. authority disregard regulations. all emergency The of an authorized driver Thus, exception order for the to the may: vehicle apply, waiver statutory the stand, (a) pro- irrespective the Park or regulation giving to the traffic rise claim title; visions of this one of 42-4- specified must be § (b) past stop signal a red or or Proceed 106(2). Denver, supra. Sierra stop sign, only after down slowing but Further, emphasizes this statute also may necessary operation; be for safe disregard specific regula- that the of these (c) speed Exceed the maximum limits so extent permitted only tions is to the that it long does or endanger as he life compromise operation” will “safe or property; “endanger or property.” otherwise life (d) regulations Disregard governing di- 42-4-106(2)(b) (c). Indeed, this Section speci- turning of movement or rections specific requiring statute is driver of directions, (emphasis supplied) fied with a due emergency an vehicle “to drive Nevertheless, 42-4-106(4) regard safety persons.” contains all Sec- proviso 42-4-106(4). And, that: tion it is an emer- being operated is “within the gency vehicle of this
The
section shall not
provisions”
42-4-106 that
driver’s
of an
emer-
relieve a driver
authorized
liability
any
is
employer
immune from
gency
from the
with
vehicle
drive
injuries
by
operation;
if such
caused
regard
safety
persons,
due
all
42-4-106, immunity
provisions protect
operation
driv-
violates
nor shall such
24-10-106(l)(a).
consequences
er
from the
of his reckless waived.
however,
Second,
24-10-110(1)(b)(II), C.R.S.
was whether
42-4-106 created
10A)
(1986 Repl.Vol.
duty upon
renders a
emergency
the driver of an
judgments
all
rendered
liable for
public generally
vehicle to members of the
upon
employees,
based
such em
one of
recovery
by
such that
could
party
be had
“act or omission ... when
ployee’s
by
being pursued by
struck
a vehicle
employee
operating
emergency
an
emergency
In concluding
vehicle.
that re-
provisions of section 42-
within the
vehicle
covery
permissible
under such circum-
4-106(2)
(3),” except in those instances
Zapp
stances,
court authorized such
guilty
employee
in which the
of “willful
recovery only if the actions of the driver of
conduct.
and wanton”
vehicle were determined to
be reckless.
conduct that
While “willful” conduct is
qualitatively different
from reck-
be
However,
Zapp
opinion
contains
lessness,
and “wanton” con-
recklessness
no indication that the issue addressed here
frequently
duct have
been determined
parties,
opinion
was raised
and that
Godsoe,
See Coffman
equivalents.
directly
does not
For
consider that issue.
(1960); Fanstiel v.
Colo.
reasons,
Zapp
these
we do not consider
Wright, 122 Colo.
P.2d
Zapp
dispositive
and to the extent that the
*5
Hence,
recovery
possible
language may
was
no
conflict with the conclusion
recklessness,
here,
Zapp.
except
42-4-106
for acts of
reached
we decline to follow
§
24-10-110(1)(b)(II)
of
Therefore,
reconsidering
question
in
unnecessary
inexplica
would be both
remand,
of the defendants’
on
ble.
the trial court should measure Rabson’s
Considering
together,
statutes
these two
against
ordinary
conduct
the standard of
that,
therefore,
requires
the conclusion
all
care under
of the circumstances and
an
42-4-106 allows the driver of
while §
summary judgment
enter
for defendants
specific
disregard
vehicle to
genu-
if it determines that there is no
regulations,
their violation
traffic
so
dispute upon any
ine
material fact and that
se,
negligence per
pro-
constitute
cannot
no reasonable factfinder could determine
visions do not relieve such a driver
duty
due
that Rabson violated the
of
care.
duty
ordinary
use
due care under all of
to
reversed,
The
and the cause
existing
circumstances.
proceedings
is remanded for further
consis-
considered similar
Other courts
have
expressed
opin-
in this
tent with the views
pro
have also concluded that their
statutes
ion.
a driver from the
visions do not relieve
See
ordinary
exercise
care.
to
due
DAVIDSON, JJ.,
concur.
JONES
City Baltimore v. Fire Insurance Sal
of
75,
Corp.,
444
vage
Md.
148 A.2d
219
REHEARING
ON PETITION FOR
Brown,
437,
Johnson v.
(1959);
75 Nev.
DAVIDSON,
part
Judge
dissenting
Montalto v. Fond Du
(1959);
P.2d 754
345
rehearing.
petition
from the denial of
552,
County, 272 Wis.
Lac
tion which must be determined before the questions consider and decide of fact under action advance. depends upon such a motion the nature of
Subject
jurisdiction
challenge.
matter
concerns the
that
If the motion attacks the
authority
sufficiency
allegation
of the court to deal with the
jurisdiction
class
of the
of
judgment,
complaint,
cases in
contained in
of
which it renders
In
the
then all of the
Application
Rights
allegations
presumed
re
Mona
factual
Water
are
to be true
of
Farms, Inc.,
(Colo.1991),
P.2d 9
ghan
granted
807
and the
only
motion can be
of
allege
and relates to the nature
the claim and
has
to
failed
an element
sought.
necessary
the relief
“The test of whether a
subject
jurisdiction.
matter
(if
subject
jurisdiction
8(a)(1)
has
court
matter
over a See C.R.C.P.
the court is of limit-
depends
particular controversy
upon
jurisdiction,
the
ed
pleading must set forth
competency
to
upon
of the court
determine con
statement of
grounds
the
which the
troversies of the
class
general
jurisdiction depends.)
that are
court’s
Further-
more,
presented any
allegation
its consideration.” Stone’s
defect in
upon
of fact
Deacon,
Supply,
Farm
Inc. v.
805 P.2d which the
jurisdiction depends
court’s
can
1109,
(Colo.1991).
People
1113
by
See
in In
be cured or supplied
amendment.
Clinton,
(Colo.
Co.,
terest
P.2d 1381
762
Francisco v.
Investment
29
Cascade
of
1988).
516,
A
jurisdiction
Colo.App.
court’s
over the
(Colo.App.
sub
The General made of complaint, in the if the immunity question subject jur- matter motion to dismiss attacks court’s actu- 1986, authority proceed isdiction it amended the when Gov- al of the court to to and claim, Immunity provide ernmental Act to hear the that merits of the then the court sovereign immunity any power obligation a bar to action has the and the to resolve injury any disputes regarding tort. Section 24-10-108. factual See exis- Hearings jurisdiction. on H.B. before tence subject 1196 the House matter Guth- Committee, 124, Barda, State Affairs 55th General As- rie v. 533 188 Colo. P.2d 487 sembly, 4, 1986). (1975). (February 2nd Session See ex rel. Danielson v. State
7
(Colo.1981);
for failure to state a claim
Vickroy,
bound
with
States,
pra. majority’s
Further, concern I share completely that it is recognize
and also preliminary the trial court’s
clear whether denying the findings made while
factual dismiss, binding on the
motion to would fact-finding during role
jury in their Ranch merits. See Governor’s
trial on Center, Mercy, Ltd. v.
Professional (doctrine law of (Colo.App.1990) P.2d law, rather “applies to decisions case questions” of factual
than the resolution
793 P.2d at
Nonetheless, I conclude that this is what Accord-
the General intended.
ingly, procedure in the I no flaw used find and therefore dissent to the trial court And, majority holding contrary. to the analysis agree I in Part II
because with opinion, support and there is record trial court’s determination that Rab- I negligent,
son would affirm the dismissing of the trial
complaint. Smith, and Michael
Charles SMITH
Defendants-Appellants, *8 Zufelt, and Katherine
Ronald ZUFELT parents Kory next friends of Zu
felt, Zufelt, Troy Plaintiffs-Appel
lees.
No. 91CA1061. Appeals, Court
Colorado
Div. II.
Sept. 1992. Rehearing Denial of
As Modified on 27, 1992.
Nov. July Granted 1993.
Certiorari