Cline v. Rabson

856 P.2d 1, 1992 WL 206952

• Court: Colorado Court of Appeals
• Decided: July 26, 1993
• Docket: 91CA0844
• Status: Published

Opinions

Opinion by

Judge CRISWELL.

Plaintiff, Clifford E. Cline, appeals from the summary judgment dismissing his claims against defendants, the City of Loveland, its police department, and Robert Rabson, one of its police officers. We reverse.

In his complaint, plaintiff joined Rabson only in his official capacity and alleged that plaintiff had suffered serious bodily inju-ríes as a result of the negligent acts of Rabson, who, while attempting to overtake a speeding vehicle in his police cruiser, passed plaintiff’s motorcycle so closely that the cruiser struck plaintiff’s elbow. Plaintiff alleged that Rabson “failed to properly use and control his vehicle, failed to observe proper safety procedures in passing the plaintiff and/or improperly used the left turning lane.”

In response to these allegations, defendants claimed in their motion for summary judgment that they were immune from suit under the Colorado Governmental Immunity Act (the Immunity Act), § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A), because plaintiff’s injury occurred while Rab-son was operating an emergency vehicle pursuant to the provisions of § 42-4-106, C.R.S. (1984 Repl.Vol. 17).

An evidentiary hearing was held upon the question whether Rabson’s operation of his emergency vehicle complied with § 42-4-106(4), C.R.S. (1984 Repl.Vol. 17), which requires the driver of an emergency vehicle to “drive with due regard for the safety of others.” Thereafter, the trial court dismissed plaintiff’s complaint, finding that the evidence did not support his contention that Rabson operated his vehicle in a negligent manner. Hence, it concluded that the City was immune from suit.

I.

Plaintiff first contends that the trial court erred in taking evidence and adopting findings of fact upon the immunity issue. We agree.

Section 24-10-108, C.R.S. (1988 Repl.Vol. 10A) provides that, if a public entity raises the issue of sovereign immunity before or immediately after commencement of discovery, “the court ... shall decide such issue on motion.” The question presented, therefore, is whether this statute contemplates that, if resolution of the issue of the existence of immunity is dependent upon the resolution of a factual dispute, the trial court is empowered to resolve that dispute. We conclude that, in those instances, such as here, in which a disputed factual issue is presented, a court cannot resolve that issue on a pre-trial basis.

There has been no previous opinion that directly addresses a court’s authority under § 24-10-108. Nevertheless, previous decisions of this court have implicitly concluded that motions calling upon the courts to determine the immunity issue, whether filed under C.R.C.P. 12(b) or under C.R.C.P. 56, are to be determined by use of the same procedural standards that would otherwise apply to such motions.

Thus, in Schlitters v. State, 787 P.2d 656 (Colo.App.1989), in which a C.R.C.P. 12(b) motion to dismiss was based upon the assertion that a boulder falling upon a highway could not constitute a “dangerous condition” under § 24-10-106(1)(d), C.R.S. (1988 Repl.Vol. 10A), it was emphasized that, in evaluating such a motion:

[T]he trial court must accept the facts of the complaint as true and determine whether under any theory of law, plaintiff is entitled to relief. If this standard [is] met, the motion to dismiss should be denied.

Similarly, in Sierra v. Denver, 780 P.2d 902 (Colo.App.1986), which also involved a motion under C.R.C.P. 12(b) to dismiss, we held that the trial court could not dismiss a claim, based upon sovereign immunity, because the allegations of plaintiff’s complaint were sufficient to allow her to prove a set of circumstances in which immunity would not apply. See also Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992) (plaintiff’s allegations were sufficient to withstand a C.R.C.P. 12(b) motion to dismiss that relied upon the defense of sovereign immunity).

Likewise, in Moldovan v. State, 829 P.2d 481 (Colo.App.1991), this court concluded that, if genuine issues of material fact respecting a state’s violation of a statutory duty are presented, a trial court may not enter summary judgment grounded on sovereign immunity.

While none of these decisions have directly addressed the extent of a trial court’s authority under § 24-10-108, they all reach what we consider to be the correct result.

It is to be noted that the statute’s direction to decide the sovereign immunity issue “on motion” is applicable only if the issue is raised “prior to or immediately after the commencement of discovery.” And, if raised at this time, discovery is to be suspended, “except any discovery necessary to decide the issue of sovereign immunity.”

These provisions make it evident that the statute’s underlying purpose is to require resolution of the immunity issue at an early stage in the proceedings, if the issue is raised at an appropriate time and it is otherwise possible to do so. It seeks to prevent the expenditure of public funds in defending upon the merits of a claim in those instances in which, because of a defendant’s immunity, such defense need never be made.

Nothing within this underlying purpose, nor within the express language of the statute, however, reflects a legislative intent to require resolution of the immunity issue pursuant to a legal standard different from the standards that are used in resolving any other issue on a pre-trial basis. Its purpose is expedition, not usurpation of a jury’s function. And, in those instances in which the General Assembly has intended a judge to exercise the jury’s factfinding function, that intent has been clearly expressed. See, for example, § 13-21-115(4), C.R.S. (1991 Cum.Supp.) which specifically provides that, in an action against a landowner, “the judge shall determine whether plaintiff is a trespasser, a licensee, or an invitee,” while the jury is to determine “issues of liability and damages.”

Further, if, as here, the determination of the immunity issue would resolve factual issues upon which the claim on the merits depends, so that a decision on the immunity issue would also decide defendant’s substantive liability, having the trial court act in the capacity of a pre-trial factfinder would be particularly inappropriate.

Under the Immunity Act, a public entity is immune from liability for injuries resulting from the operation of an emergency vehicle under § 42-4-106. Section 24-10-106, C.R.S. (1986 Repl.Vol. 10A). Yet, under § 42-4-106, while the driver of an emergency vehicle is exempted from complying with certain specified traffic regulations, the driver, must still “drive with a due regard for the safety of all persons,” and the statute does not protect him “from the consequences of his reckless disregard for the safety of others.” Therefore, in instances in which the latter statute is applicable, the nature of the driver’s actions will dictate not only the extent of the immunity granted by § 24-10-106, but it will also determine the underlying liability claim. Under these circumstances, we can-' not ascribe to the General Assembly an intent to delegate to a judge the ultimate factfinding responsibility of the jury.

Hence, we conclude that, if a party raises the issue of sovereign immunity by filing a timely pre-trial-motion under § 24-10-108, a trial court is bound to decide such motion using the same standard for disposition as would otherwise apply to such a pre-trial motion. If the motion is one for summary judgment, the court may not grant such motion if there exists for resolution a genuine issue of material fact. See Sewell v. Public Service Co., 832 P.2d 994 (Colo.App. 1991) (although existence of duty is a question of law for the court, if foreseeability of injury is subject to reasonable dispute, that issue is for the jury).

Here, the trial court did not limit itself to a consideration of the evidentiary materials submitted in support of, and in opposition to, the request for summary judgment. Instead, it conducted an evidentiary hearing and received testimony from witnesses. In addition, its determination that Rabson acted properly was reached after considering credibility issues in its capacity as a factfin-der; that determination was not made as a judge acting on a matter of law.

Therefore, because the trial court applied the wrong legal standard in passing upon defendant’s pre-trial motion, its judgment must be reversed and the cause remanded to it for its reconsideration.

II.

Because the issue will arise on the trial court’s reconsideration of defendant’s motion, we also address plaintiffs assertion that § 42-4-106 abrogates governmental immunity if the driver of an emergency vehicle violates the simple negligence standard of ordinary care and that it is unnecessary, for this purpose, to establish that such a driver was guilty of reckless conduct. We also agree with this assertion.

Section 24-10-105, C.R.S. (1988 Repl.Vol. 10A) of the Immunity Act generally exempts public entities from liability in tort. However, § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A) generally waives that immunity for injuries resulting from the operation of a vehicle owned by a public entity and operated by a public employee. Under this statute, however, immunity is not waived in those instances in which the injuries result from the operation of an emergency vehicle, if such vehicle is “operating within the provisions” of § 42-4-106(2) and (3), C.R.S. (1984 Repl.Vol. 17).

Section § 42-4-106(2) says:

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, 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;

(b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(c) Exceed the maximum speed limits so long as he does not endanger life or property;

(d) Disregard regulations governing directions of movement or turning in specified directions, (emphasis supplied)

Nevertheless, § 42-4-106(4) contains the proviso that:

The provisions of this section shall not relieve a driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others, (emphasis supplied)

Defendants contend that the plain language of § 42-4-106(2) and (4) render a public entity immune from any liability for an injury caused by a driver of an authorized emergency vehicle unless the driver’s behavior rises to the level of “reckless disregard.” They further argue that the General Assembly’s specific allowance for emergency vehicles to disregard specified traffic regulations necessarily implies, and is further evidence that, the standard of simple negligence is not intended to be applied to the actions of an emergency vehicle driver. We disagree.

Considering the provisions of § 42-4-106 in conjunction with the general provisions of the Immunity Act, we conclude that a public entity is not immune under these two statutes if the public employee fails to exercise “due regard for the safety” of others.

We reach this conclusion for two reasons.

First, § 42-4-106, while it authorizes the driver of an emergency vehicle to disregard certain traffic regulations, does not constitute a carte blanche grant of authority to disregard all such regulations. Thus, in order for the exception to the statutory waiver of immunity to apply, the traffic regulation giving rise to the claim must be one of those specified in § 42-4-106(2). Sierra v. Denver, supra.

Further, this statute also emphasizes that the disregard of these specific regulations is permitted only to the extent that it will not compromise “safe operation” or otherwise “endanger life or property.” Section 42-4-106(2)(b) and (c). Indeed, this statute is specific in requiring the driver of an emergency vehicle “to drive with a due regard for the safety of all persons.” Section 42-4-106(4). And, it is only if an emergency vehicle is being operated “within the provisions” of § 42-4-106 that the driver’s employer is immune from liability for any injuries caused by that operation; if such operation violates § 42-4-106, immunity is waived. Section 24-10-106(l)(a).

Second, § 24-10-110(1)(b)(II), C.R.S. (1986 Repl.Vol. 10A) renders a public entity liable for all judgments rendered against one of its employees, based upon such employee’s “act or omission ... when the public employee is operating an emergency vehicle within the provisions of section 42-4-106(2) and (3),” except in those instances in which the employee is guilty of “willful and wanton” conduct.

While “willful” conduct is conduct that may be qualitatively different from recklessness, recklessness and “wanton” conduct have frequently been determined to be equivalents. See Coffman v. Godsoe, 142 Colo. 575, 351 P.2d 808 (1960); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950).

Hence, if no recovery was possible under § 42-4-106 except for acts of recklessness, the provisions of § 24-10-110(1)(b)(II) would be both unnecessary and inexplicable.

Considering these two statutes together, therefore, requires the conclusion that, while § 42-4-106 allows the driver of an emergency vehicle to disregard specific traffic regulations, so that their violation cannot constitute negligence per se, its provisions do not relieve such a driver of the duty to use ordinary due care under all of the existing circumstances.

Other courts that have considered similar statutes have also concluded that their provisions do not relieve a driver from the duty to exercise ordinary due care. See City of Baltimore v. Fire Insurance Salvage Corp., 219 Md. 75, 148 A.2d 444 (1959); Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959); Montalto v. Fond Du Lac County, 272 Wis. 552, 76 N.W.2d 279 (1956); City of Kalamazoo v. Priest, 331 Mich. 43, 49 N.W.2d 52 (1951). But see Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599 (1938); Grammier-Dismukes Co. v. Payton, 22 S.W.2d 544 (Tex.Civ.App.1929).

In reaching this conclusion, we have considered the recent decision in Zapp v. Kukuris, supra. We recognize that both the language and decision in that case may appear to be inconsistent with the conclusion we reach here. The issue in Zapp, however, was whether § 42-4-106 created a duty upon the driver of an emergency vehicle to members of the public generally such that recovery could be had by a party struck by a vehicle being pursued by the emergency vehicle. In concluding that recovery was permissible under such circumstances, the Zapp court authorized such recovery only if the actions of the driver of the emergency vehicle were determined to be reckless.

However, the opinion in Zapp contains no indication that the issue addressed here was raised by the parties, and that opinion does not directly consider that issue. For these reasons, we do not consider Zapp dispositive and to the extent that the Zapp language may conflict with the conclusion reached here, we decline to follow Zapp.

Therefore, in reconsidering the question of the defendants’ immunity on remand, the trial court should measure Rabson’s conduct against the standard of ordinary care under all of the circumstances and enter summary judgment for defendants only if it determines that there is no genuine dispute upon any material fact and that no reasonable factfinder could determine that Rabson violated the duty of due care.

The judgment is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

JONES and DAVIDSON, JJ., concur.