John K. FOGG, II, Petitioner, v. Mario R. MACALUSO and the County of Pueblo, Respondents.
No. 93SC606.
Supreme Court of Colorado, En Banc.
March 6, 1995.
891 P.2d 271
Vaughan & Reeves, P.C., Gordon L. Vaughan, Colorado Springs, for respondents.
Beth A. Whittier, Colorado Springs, for amicus curiae Colorado Counties, Inc.
Griffiths & Tanoue, P.C., Tami A. Tanoue, Denver, for amici curiae Colorado Intergovernmental Risk Sharing Agency and Colorado Counties Cas. and Property Pool.
Justice MULLARKEY delivered the Opinion of the Court.
I.
The undisputed facts that we can identify from the parties’ briefs and the record on appeal are as follows. While on duty Macaluso responded to a report that a car was stranded in the median on Interstate 25. When he located the car, he discovered that it had gone off the road into the median as a result of a flat tire. He parked his patrol car, with the flashing emergency lights activated, in the left lane of the interstate while he helped the driver to change the tire and leave the median. At the time Macaluso‘s patrol car was parked in the left lane, Fogg was driving south on Interstate 25 between Colorado Springs and Pueblo. He had pulled into the left lane to pass on a long downhill curve when he saw Macaluso‘s patrol car. He attempted to swerve around it, but struck Macaluso‘s car in the rear.
Fogg brought this action against Macaluso and the County alleging that his injuries were caused by Macaluso‘s negligence while acting as a sheriff‘s deputy for the County. Macaluso and the County filed a motion to dismiss or, alternatively, for summary judgment on grounds that sovereign immunity under the GIA bars actions against a governmental entity and its employees for injuries resulting from the operation of an emergency vehicle responding to an emergency.
Based on the facts alleged in the pleadings and affidavits submitted by the parties, the trial court determined that there was no issue of material fact, and that Macaluso was responding to an emergency call within section
The court of appeals applied our recent decision in Trinity Broadcasting v. City of Westminster, 848 P.2d 916 (Colo.1993), and treated defendant‘s motion as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). Following the standard of review applied in Trinity, the court of appeals found that the record contained competent evidence to support the trial court‘s determination that Macaluso was responding to an emergency call when he parked his vehicle. The court also affirmed the trial court‘s holding that section
On petition to this court, Fogg contends that, when ruling on a motion to dismiss, both the trial court and the appellate court must construe the factual allegations most favorably to the plaintiff by assuming the facts pled are true. He asserts (1) that the facts alleged indicated that Macaluso was not responding to an emergency; (2) that the courts below erred in failing to consider the requirement that emergency vehicles be driven “with due regard for the safety of all persons” in order to qualify for sovereign immunity under the GIA; and (3) that the facts alleged indicated that Macaluso had not operated his vehicle with due regard for the safety of others.
II.
A.
The first question for us to resolve on appeal is what type of situation constitutes an “emergency” under the statute. Construction of a statute is a question of law, not a factual determination. Colorado Div. of Employment & Training v. Parkview Episcopal Hosp., 725 P.2d 787, 790 (Colo. 1986). In resolving a question of law, the lower court‘s judgment is subject to independent review by the appellate court. Evans v. Romer, 854 P.2d 1270, 1274 (Colo.1993).
The GIA establishes sovereign immunity for all public entities and public employees to all actions in tort, or which could lie in tort, except as specifically provided under the GIA.
24-10-106. Immunity and partial waiver.
(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant
except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from: (a) The operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of his employment, except emergency vehicles operating within the provisions of section
42-4-106(2) and(3) , C.R.S.;
(2) The driver of an authorized emergency vehicle, when responding to an emergency call, ... may exercise the privileges set forth in this section, but subject to the conditions stated in this article. The driver of an authorized emergency vehicle may:
(a) Park or stand, irrespective of the provisions of this title;
(3) ... the exemption granted in paragraph (a) sections (2) of this section shall apply only when such vehicle is making use of visual signals meeting the requirements of section
42-4-212 unless using such visual signals would cause an obstruction to the normal flow of traffic; ... Nothing in this section shall be construed to require an emergency vehicle to make use of audible signals when such vehicle is not moving, whether or not the vehicle is occupied.
Because neither Title 42 nor Title 24 defines “emergency” or “emergency call,” we must determine the legislature‘s intent without explicit guidance. In construing statutes, we give effect to the intent of the legislature by looking first at the language of the statute. Moody v. Corsentino, 843 P.2d 1355, 1370 (Colo.1993). To effectuate legislative intent, we must give statutory terminology its commonly accepted meaning. Boulder County Bd. of Equalization v. M.D.C. Construction Co., 830 P.2d 975, 980 (Colo.1992). A strained or forced construction of a statutory term is to be avoided, Triad Painting Co. v. Blair, 812 P.2d 638, 644 (Colo.1991), and we must look to the context of a statutory term. State v. Hartsough, 790 P.2d 836, 838 (Colo.1990) (context of word in statute may provide guidance as to word‘s meaning); People ex rel. Dunbar v. Trinidad State Junior College, 184 Colo. 305, 309, 520 P.2d 736, 738 (1974) (legislative intent may be derived by consideration of the language in the context of the statute); Sheely v. People, 54 Colo. 136, 138, 129 P. 201, 202 (1912) (“the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it”).
Moreover, terms should be construed in harmony with one another so as to give full effect to the legislative intent in enacting the statute. McCarty v. People, 874 P.2d 394, 398 (Colo.1994); People v. Andrews, 871 P.2d 1199, 1201 (Colo.1994). Therefore, consideration of an undefined term in context may provide guidance as to legislative intent and the term‘s proper meaning.
In People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980), we interpreted a statute which, like the statutes at issue in this case, failed to explicitly define “emergency.” In that case we endorsed the common usage of the term as found in Webster‘s Seventh New Collegiate Dictionary: “1: an unforeseen combination of circumstances or the resulting state that calls for immediate action 2: a pressing need: EXIGENCY.” Id. n. 9. We find the McKnight definition to be appropriate for interpreting sections
The driver of an authorized emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section....
In addition to mandating tort immunity for drivers on an emergency call, the statute establishes immunity for two specifically enumerated situations. These arise when public employees are pursuing criminals or are responding to fire alarms. Both involve temporally urgent events and require rapid responses. In such circumstances, a driver may be less able to exercise proper care.2 In order to facilitate the public benefit gained from quick response to these situations, the legislature has created tort immunity for emergency vehicle drivers. The situations enumerated in section
This interpretation is further bolstered by the fact that the legislature specifically excluded emergency vehicle drivers returning from a fire alarm from the tort immunity privilege.
Although we adopt the same definition applied by the court of appeals in this case, Fogg, 870 P.2d at 527, it would be unfair to the parties to set out a definition of a statutory term essential to the case and not provide them with an opportunity to present
B.
The parties next dispute whether a motion to dismiss on grounds of immunity under the GIA must be treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), or as a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). Fogg takes the position that the assertion of immunity under the GIA is a substantive claim. Thus, a trial court should address a motion to dismiss on grounds of immunity under C.R.C.P. 12(b)(5) and treat all facts alleged by the non-moving party as true. Macaluso and the County assert that under our decision in Trinity, immunity pursuant to the GIA is a jurisdictional issue. Accordingly, a trial court is authorized to make appropriate factual findings under C.R.C.P. 12(b)(1). We agree that C.R.C.P. 12(b)(1) is the applicable rule in this situation.
Macaluso and the county correctly point out that the application of Trinity to the emergency vehicle exception of the GIA was at issue when we granted certiorari and vacated the court of appeals’ judgment in Cline v. Rabson, 856 P.2d 1 (Colo.App.1992) (Cline I). We remanded for reconsideration in light of our Trinity decision. Id. Cline I involved a suit for personal injuries suffered when a motorcyclist was struck by a Loveland police patrol car pursuing a speeding vehicle. In a pre-trial motion, the Loveland defendants asserted a claim of immunity under the emergency vehicle exception to the GIA. The trial court ruled in favor of the Loveland defendants after conducting an evidentiary hearing. Id. at 2. On appeal, the plaintiff claimed that the trial court erred in taking evidence and making findings of fact on the immunity issue. The court of appeals agreed and reversed the trial court. It reasoned that the usual rules regarding summary judgment applied to a pre-trial claim of immunity brought under section
After our order granting certiorari, vacating Cline I, and remanding for reconsideration in light of Trinity, the court of appeals issued a new opinion reaching the opposite result. Cline v. Rabson, 862 P.2d 1035 (Colo.App.1993) (Cline II). It applied C.R.C.P. 12(b)(1) and held that the trial court properly acted as a factfinder on the immunity question after holding an evidentiary hearing and considering the testimony of witnesses. Accordingly, it affirmed the trial court‘s finding that the Loveland defendants were immune from suit under the emergency vehicle exception to the GIA. Id. at 1036.
While there is some difference in language in the GIA between the notice section,
These differences do not compel a different result with respect to the procedural question decided in Trinity because both are sections which define requirements for subject matter jurisdiction—section
On remand, the trial court is directed to apply C.R.C.P. 12(b)(1).
III.
In his petition, Fogg finally maintains that even if Macaluso was responding to an “emergency,” he nonetheless was required to “drive with due regard for the safety of others” under section
IV.
For the foregoing reasons, we reverse the court of appeals’ decision, but affirm the court of appeals’ holding that section
SCOTT, J., specially concurs in the result.
Justice SCOTT specially concurring in the result:
I agree with the majority‘s definition of “emergency as an exigency or an unforeseen combination of circumstances that call for immediate action.” Maj. op. at 275. I also agree that it would be unfair not to give the parties the opportunity to “present relevant evidence and argue how the newly delineated definition applies to [the] evidence.” Maj. op. at 276. Moreover, I agree that because “the trial court ... did not conduct an evidentiary hearing before deciding the case,” maj. op. at 276, we must remand this matter to the trial court. I write separately, however, because I do not join in part II B of the majority‘s opinion.
In part II B, the majority concludes that pretrial motions under section
I
In 1971 we abrogated the doctrine of sovereign and governmental immunity as unjust and inequitable.
The General Assembly created immunity for public entities through section
Our decisions have “fundamentally altered the common law of Colorado regarding the doctrine of sovereign immunity.” Bertrand, 872 P.2d at 226. In Colorado, unlike other jurisdictions, the GIA creates immunity from suit. In other jurisdictions and under federal law, the sovereign “consent[s] to be sued.”4 Thus, it is accurate in those jurisdictions to conclude that “the terms of [the sovereign‘s] consent to be sued in any court define that court‘s jurisdiction to entertain that suit.” Maj. op. at 276 (citing United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) and cases referred to therein). However, our GIA does not grant the “consent to be sued,” rather it creates “a bar” to suit. Importantly here, I believe the bar to suit is not created by section
Such structural differences, I conclude, are not insignificant. Moreover, it is these very differences that caution against an automatic transfer of legal doctrines or practices applicable to other jurisdictions. For example, I do not believe United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) is appropriate authority for the proposition cited by the majority under our GIA. In Dalm, the Supreme Court upheld a Tax Court ruling dismissing the claims of a tax-
Our holding today does not leave taxpayers in Dalm‘s position powerless to invoke the doctrine of equitable recoupment. Both the Secretary, at the administrative level, ... and a court which has jurisdiction over a timely suit for refund may consider an equitable recoupment claim for an earlier tax paid under an inconsistent theory on the same transaction.
Id. at 610, 110 S.Ct. at 1369. Hence, even under federal immunity law, the Court in Dalm did not determine that because the tax court was without jurisdiction the substantive merits of Dalm‘s case was lacking. I do not question the accuracy of the language cited, but I do not agree that it is applicable here.
Our district courts, courts of general jurisdiction, have jurisdiction to hear claims brought as common law claims against the state, except those expressly barred by the GIA. In contrast, the limited jurisdiction of federal trial courts exists only as a consequence of federal statute or constitution. See E.J.R. v. District Court, 892 P.2d 222 (Colo.1995) (noting the distinction between our state district courts, courts of general jurisdiction, and lower federal courts which are all of limited jurisdiction). This distinction, coupled with our unique common law regarding sovereign immunity, makes me less ready than the majority to adopt federal precedent as the appropriate guide to resolution of our unique sovereign immunity law.
II
Section
Except as provided in sections
24-10-104 to24-10-106 , sovereign immunity shall be a bar to any action against a public entity for injury which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant. If a public entity raises the issue of sovereign immunity prior to or immediately after the commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issue of sovereign immunity, and shall decide such issue on motion.
By its language, that section acknowledges in its first sentence that the legislative bar to suit is found in section
Assuming, as does the majority, that under our rules of statutory construction we look “first at the language of the statute,” maj. op. at 274, and “must give statutory terminology its commonly accepted meaning,” id., I come
III
In Trinity Broadcasting of Denver v. City of Westminster, 848 P.2d 916 (Colo.1993), we held that Rule 12(b)(1) applies to motions to dismiss for failure to meet the jurisdictional notice requirement of the GIA. Relying on Trinity, the court of appeals held that “the proper procedure for determining a public entity‘s sovereign immunity is C.R.C.P. 12(b)(1), not C.R.C.P. 56.” Fogg v. Macaluso, 870 P.2d 525, 527 (Colo.App.1993). The majority affirms the court of appeals’ holding that “[w]hether a claim falls within an exception to the GIA‘s waiver of sovereign immunity is a question of subject matter jurisdiction and, if raised before trial, it appropriately is addressed under C.R.C.P. 12(b)(1).” Maj. op. at 277. Unlike the majority, however, I would not limit consideration of pretrial motions to Rule 12(b)(1).
In Trinity, a private corporation, Trinity Broadcasting of Denver, complained that the City of Westminster had allowed water to leak from its water tanks or water mains and that as a result Trinity experienced some damage to its building‘s foundation. At issue was whether Trinity had met the notice requirement set forth in section
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment ... shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
(Emphasis added.) We stated in Trinity that “the legislature characterized the notice requirement in section
Ultimately in Trinity, we held that because notice is a jurisdictional prerequisite, the trial court should treat notice matters as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).7 From that holding, the court of appeals in this case concluded that all motions to dismiss under the GIA should be treated as Rule 12(b)(1) motions; and the majority affirms. I disagree. A Rule 12(b)(1) motion is appropriate to determine whether a court lacks “jurisdiction over the subject matter.” I do not believe Trinity should be read to stand for the proposition that Rule 12(b)(1) must be applied to substantive elements of a governmental immunity claim.8
IV
Because the determination as to whether a bar to Fogg‘s claim may exist under the GIA is so “intertwined with the merits” of his claim, I agree that the trial court‘s reliance upon C.R.C.P. 12(b)(1) to dismiss was in error. Accordingly, because I too would reverse and remand, I concur only in the result.