Giron v. Hice

2025 COA 17, 568 P.3d 20

• Court: Colorado Court of Appeals
• Decided: February 20, 2025
• Docket: 20CA1603
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 20, 2025

2025COA17

No. 20CA1603, Giron v. Hice — Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver — Emergency Vehicles

In Hice v. Giron, 2024 CO 9, the Colorado Supreme Court held

that “an emergency driver waives CGIA immunity when a plaintiff’s

injuries could have resulted from the driver’s failure to use alerts

while speeding in pursuit of a suspected or actual lawbreaker.” Id.

at ¶ 3 (emphasis added). Applying this test for the first time in a

published decision, a division of the court of appeals holds that the

officer’s failure to use his lights or siren until the final five to ten

seconds of his pursuit could have contributed to the accident.

Accordingly, the division reverses the district court’s judgment

granting governmental immunity to the officer and the town and

directs the district court to reinstate plaintiffs’ claims. The concurring opinion addresses a second question that the

supreme court directed the division to consider: to “analyze whether

Officer Hice waived governmental immunity by failing to satisfy the

condition that emergency drivers refrain from endangering life or

property while speeding.” Id. at ¶ 25. The concurring opinion urges

the supreme court to revisit its decision in Corsentino v. Cordova, 4

P.3d 1082, 1093 (Colo. 2000), and permit courts to consider the

nature of the emergency (i.e. the “mission”) of the emergency driver

in deciding to exceed the speed limit. If consideration of the officer’s

“mission” in this case were permissible, the concurring opinion

would also deny immunity because the officer unreasonably

endangered life or property. COLORADO COURT OF APPEALS 2025COA17

Court of Appeals No. 20CA1603 Montrose County District Court No. 19CV30074 Honorable D. Cory Jackson, Judge

Nichele Giron, individually and as Personal Representative of the Estate of Walter Giron; Amanda Giron; and Thomas Short, as the Personal Representative of the Estate of Samuel Giron,

Plaintiffs-Appellants,

v.

Justin Hice and Town of Olathe,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE BERGER* Brown and Johnson, JJ., concur

Prior Opinion Announced July 28, 2022, Modified on September 1, 2022, Reversed in 22SC671

Announced February 20, 2025

Killian, Davis, Richter & Fredenburg, PC, J. Keith Killian, Damon Davis, Grand Junction, Colorado, for Plaintiffs-Appellants

Tucker Holmes P.C., Bradley D. Tucker, Centennial, Colorado; Cambell, Wagner & Frazier, LLC, Winslow R. Taylor III, Greenwood Village, Colorado, for Defendants-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Nichele Giron, Amanda Giron, and Thomas Short brought this

civil action based on a fatal motor vehicle collision with a Town of

Olathe police officer, Justin Hice. The district court granted

governmental immunity to the Town and Officer Hice under the

Colorado Governmental Immunity Act (CGIA) and dismissed the

case.

¶2 In Giron v. Hice, 2022 COA 85M (Giron I), after construing the

relevant governmental immunity statutes, we reversed that

judgment. Recognizing the undisputed fact that the officer

activated his emergency lights only a short distance before the

collision, we held that “an officer is not entitled to immunity when

he does not activate his emergency lights or siren for the entire time

he exceeds the speed limit and is in pursuit of an actual or

suspected violator of the law.” Id. at ¶ 19.

¶3 The Colorado Supreme Court rejected our interpretation of the

immunity statutes and reversed our judgment. Hice v. Giron, 2024

CO 9 (Giron II). The supreme court held that “an emergency driver

waives CGIA immunity when a plaintiff’s injuries could have

resulted from the driver’s failure to use alerts while speeding in

1 pursuit of a suspected or actual lawbreaker.” Id. at ¶ 3 (emphasis

added). The supreme court remanded the case to us “to determine

if Officer Hice’s failure to use his lights or siren until the final five to

ten seconds of his pursuit could have contributed to the accident.”

Id. at ¶ 25 (emphasis added). We were also directed to “analyze

whether Officer Hice waived governmental immunity by failing to

satisfy the condition that emergency drivers refrain from

endangering life or property while speeding.” Id. The court

“defer[red] to [us] as to whether further remand to the district court

is necessary.” Id.1

¶4 On reconsideration, we reach two conclusions. First, remand

to the district court is unnecessary because we can apply the test

articulated by the supreme court to the facts as found by the

district court to make a determination. Second, Officer Hice’s

failure to use his lights or siren until the final five to ten seconds of

his pursuant “could have contributed to the accident.” Id. (emphasis

added). Accordingly, we again reverse the district court’s judgment,

1 After the case was returned to us, we asked the parties to file

supplemental briefs addressing whether a remand to the district court was necessary. The parties filed those briefs, and we have considered them.

2 hold that neither the Town nor Officer Hice is entitled to

governmental immunity, and direct the district court on remand to

reinstate the plaintiffs’ claims.2

I. Facts and Procedural History3

¶5 During the summer of 2018, Officer Hice clocked a speeding

vehicle while on radar patrol along Highway 50 in Olathe, Colorado.

It was daylight, and the road was flat and dry. Officer Hice made a

U-turn and accelerated to pursue the suspected speeder. He didn’t

turn on his emergency lights or siren as he sped up. About half a

mile down the road, Walter and Samuel Giron4 waited at a traffic

light to make a left turn across oncoming traffic. Id. at ¶ 4.

2 All three judges of this division join this opinion. The author of this opinion, believing that we are required by the supreme court’s mandate to separately consider whether the officer failed to satisfy the statutory condition that emergency drivers refrain from endangering life or property while speeding, has filed a separate concurring opinion. The other members of the division believe that the answer to the first question in the supreme court’s mandate is dispositive and we need not address the second question. 3 But for the last paragraph in Part I, this statement of the facts and

procedural history is taken verbatim from Hice v. Giron, 2024 CO 9, ¶¶ 4-6. 4 Because the Girons have the same last name, we refer to them by

their first names. We intend no disrespect by doing so.

3 ¶6 After the suspected speeder shot through that intersection,

Walter made the left turn. That’s when Officer Hice — traveling

upwards of 103 miles per hour — suddenly saw the impending

accident unfolding before him. He tried to avoid T-boning the

Girons by hitting the brakes and swerving to the right. His evasive

maneuver failed: Officer Hice struck the passenger side of the

brothers’ van at seventy-five to eighty miles per hour. Both Walter

and Samuel died. Officer Hice was severely injured. Roughly

thirty-six seconds passed between the time Officer Hice initiated his

pursuit and the accident. Officer Hice engaged his emergency lights

for the final five to ten seconds. He never activated his siren. Id. at

¶ 5.

¶7 The plaintiffs sued, but the district court dismissed the action

because it determined that the defendants were immune from suit

under the CGIA. The district court reasoned that “Officer Hice had

his emergency lights illuminated in sufficient time to provide

warning to [Walter]” and therefore the plaintiffs failed to meet their

burden of showing that the defendants waived immunity. The

district court also explained that it “d[id] not find that [O]fficer Hice

created an unreasonable risk of injury during his pursuit” because

4 of the “favorable” driving conditions that day and because Officer

Hice “had to drive fast to catch a speeder,” “had specific training in

driving fast,” and “just prior to the collision was decelerating and

trying to avoid a crash.” Id. at ¶ 6.

¶8 This division of the court of appeals reversed the district

court’s judgment of dismissal. The supreme court reversed our

judgment and remanded the case to us for further consideration.

II. Analysis

A. A Remand to the District Court Is Neither Necessary Nor Appropriate to Resolve this Case

¶9 The supreme court deferred to us as to whether further

remand to the district court is necessary. Because of the breadth of

the supreme court’s test, and the extensive litigation of the relevant

facts in the district court, we conclude that a remand is neither

necessary nor appropriate.

¶ 10 We have before us and are bound by the district court’s

findings of historical fact because they are supported by the record.

See Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87,

¶ 13 (we defer to the district court’s findings of historical fact unless

they are clearly erroneous, meaning they have no support in the

5 record). Those critical facts are as follows. Officer Hice activated

his emergency lights (but not his siren) only five to ten seconds

before the collision. Officer Hice was travelling at over 100 miles

per hour shortly before the collision. The accident occurred during

daylight hours, with clear roads and visibility. At all relevant

points, the road was straight and no structural or geographic

obstacles impaired visibility of the officer’s vehicle beyond the

distance travelled in the last five to ten seconds before the collision.

¶ 11 As noted above, the supreme court held that the immunity

statutes require a court “to determine if Officer Hice’s failure to use

his lights or siren until the final five to ten seconds of his pursuit

could have contributed to the accident.” Giron II, ¶ 25 (emphasis

added). Because we review de novo the district court’s application

of law to the facts, see A.R. v. D.R., 2020 CO 10, ¶ 37 (application of

the “proper legal standard . . . to the particular facts of the case” is

a question of law we review de novo), we are in as good a position as

the district court to apply the test. Accordingly, we apply the test

mandated by the supreme court to the facts found by the district

court and proceed to decide the critical question.

6 B. Officer Hice’s Failure to Use His Lights or Siren Until the Final Five to Ten Seconds of His Pursuit Could Have Contributed to the Accident

¶ 12 Plaintiffs have the burden of proving that a governmental

defendant waived CGIA immunity. Tidwell v. City & Cnty. of

Denver, 83 P.3d 75, 85 (Colo. 2003). But that burden “is a

relatively lenient one,” id. at 86, and plaintiffs are “afforded the

reasonable inferences from [their] undisputed evidence,” City &

Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 11.

¶ 13 Because statutory immunity operates in derogation of common

law, we must “strictly construe the statute’s immunity provisions”

and “broadly construe” the CGIA’s waiver provisions. Springer v.

City & Cnty. of Denver, 13 P.3d 794, 798 (Colo. 2000). We must

also strictly construe exceptions to those waivers, which are

effectively grants of immunity. Corsentino v. Cordova, 4 P.3d 1082,

1086 (Colo. 2000).

¶ 14 An emergency driver waives his immunity “in an action for

injuries resulting from . . . [t]he operation of a motor vehicle . . .

except emergency vehicles operating within the provision of section

42-4-108(2) and (3),” C.R.S. 2024. § 24-10-106(1)(a), C.R.S. 2024

(emphasis added); Giron II, ¶ 15. “[T]he phrase ‘resulting from’

7 clearly requires some relationship between a plaintiff[’]s injuries and

the public entity[’]s conduct before a waiver of immunity is

triggered.” Giron II, ¶ 15 (quoting Tidwell, 83 P.3d at 86). But

“‘resulting from’ does not require courts to ‘reach so far as to

determine whether . . . injuries were “caused by” [an officer] for

purposes of the tort analysis that the finder of fact in the case

would ultimately undertake.’” Id. (emphasis added by Giron II)

(quoting Tidwell, 83 P.3d at 86). Instead, the question is whether

the plaintiffs have “demonstrated a possibility” that Officer Hice’s

failure to use his lights or siren resulted in their injuries — not

whether Officer Hice’s omission did in fact cause the accident. Id.

at ¶ 16 (emphasis added).

¶ 15 Applying this test, we conclude that there is only one answer:

Officer Hice’s failure to use his lights or siren until the final five to

ten seconds of his pursuit “could have contributed” to the accident.

Id. at ¶ 25.

¶ 16 The facts of this case stand in stark contrast to the supreme

court’s example of circumstances under which there would be no

possibility that an officer’s failure to use his emergency lights or

siren could have contributed to an accident. It explained that “it

8 would make little sense to interpret the statutes as waiving

immunity if an officer fails to use his alerts for, say, the first five

seconds of a five-minute, high-speed pursuit when an accident

occurs in the fifth minute.” Id. at ¶ 23.

¶ 17 We can provide another more factually analogous hypothetical,

one in which it could not logically or reasonably be determined that

the officer’s failure to use his emergency lights for a period longer

than five to ten seconds before the collision could have contributed

to the accident.5 If immediately before the site of the accident, the

road had curved or been within a tunnel, it might have been

physically impossible for Walter to see Officer Hice’s emergency

lights before that last five to ten seconds, such that Officer Hice’s

failure to use lights during that period could not have contributed

to the accident. But those are not the facts of this case. Here, the

road was straight, and nothing impaired the visibility of the officer’s

emergency lights beyond the distance travelled in the five to ten

seconds that the lights were illuminated.

5 The immunity statute permits an emergency operator to use

emergency lights or a siren (or both). See § 42-4-108(3), C.R.S. 2024. It is undisputed that Officer Hice never activated his siren, so we address only the use of emergency lights.

9 ¶ 18 A number of witnesses testified before the district court. The

court found that one of these witnesses, Tony Kop, was especially

persuasive. Mr. Kop testified that he was stopped in the turn lane

immediately behind the Girons’ vehicle and that he observed the

Girons “speaking to one another” moments before Walter initiated

the fatal left-hand turn. While it is impossible to know if, in fact,

this conversation contributed to the accident, it certainly is possible

that it did so. This testimony is important because it highlights

what we all know: drivers do not always pay total attention to the

task at hand.6

¶ 19 But there are a multitude of other reasons why a driver’s

attention might be momentarily lost. A momentary loss of attention

can have devastating effects, especially when another vehicle is

speeding down the other side of the roadway at over 100 miles per

hour. At that speed, things happen very fast.

6 We emphasize that our task is not to determine whether Walter

acted with reasonable care or was negligent in not perceiving the officer’s emergency lights and making the left turn in front of the speeding police vehicle. That question may well be relevant at a trial of the plaintiffs’ claims, but it has no bearing on whether the officer’s failure to illuminate his lights earlier in the chase could have contributed to the accident.

10 ¶ 20 On this factual record, we cannot exclude the possibility that

the Girons might have perceived lights or sirens coming from a car

travelling at great speed down the opposite side of the roadway they

had to cross to make a left turn more than five to ten seconds

before the crash. Thus, we conclude that it is possible that Officer

Hice’s failure to use his emergency lights or siren until the final five

to ten seconds of his pursuit could have contributed to the accident

and that Officer Hice and the Town waived governmental immunity

under section 24-10-106(1)(a).

III. Disposition

¶ 21 The district court’s judgment of dismissal is reversed. The

defendants are not entitled to immunity under the CGIA. The case

is remanded to the district court to reinstate the plaintiffs’

complaint and to conduct further proceedings consistent with this

opinion.

JUDGE BROWN and JUDGE JOHNSON concur.

JUDGE BERGER specially concurs.

11 JUDGE BERGER, specially concurring.

¶ 22 In its remand order, the supreme court directed this court to

address two issues. First, we were instructed “to determine if

Officer Hice’s failure to use his lights or siren until the final five to

ten seconds of his pursuit could have contributed to the accident.”

Hice v. Giron, 2024 CO 9, ¶ 25. The court also directed us to

address whether “Officer Hice waived governmental immunity by

failing to satisfy the condition that emergency drivers refrain from

endangering life or property while speeding.” Id.

¶ 23 In our prior opinion, Giron v. Hice, 2022 COA 85M, rev’d, 2024

CO 9, we did not address the second question because we thought

that our disposition of the first question made it unnecessary to

address the second question. For similar reasons, two members of

this division believe that our disposition of the first issue is again

dispositive and eliminates the need to address the second question.

Ordinarily I would agree, but I disagree with that conclusion here

because, as I read the supreme court’s opinion, we are required to

address the second question. The district court ruled that Officer

Hice did not endanger life or property while speeding, and we

presume that the supreme court knew of this finding or conclusion.

12 Nevertheless, the supreme court directed us to address the

question.

¶ 24 Thus, in addition to authoring the division’s unanimous

opinion, I write separately to explain why part of the analysis to

determine whether the “operator’s speed created an unreasonable

risk of injury or damage to life or property,” Corsentino v. Cordova, 4

P.3d 1082, 1093 (Colo. 2000), should include consideration of the

emergency driver’s reason for exceeding the speed limit

¶ 25 To the extent the district court made a factual finding that

Officer Hice did not endanger life or property while speeding, it

makes no difference if I (or another appellate judge) disagree with

that finding. We must defer to factual findings if they have any

support in the record. See Jordan v. Panorama Orthopedics & Spine

Ctr., PC, 2013 COA 87, ¶ 13.

¶ 26 But a finding that is based on a misapplication of the

applicable law is not entitled to deference. A.B. Hirschfeld Press,

Inc. v. Weston Grp., Inc., 824 P.2d 44, 46 (Colo. App. 1991) (An

appellate “court is bound by the trial court’s findings unless they

are based upon a misapplication of the law or there is no support in

the record.”), aff’d, 845 P.2d 1162 (Colo. 1993).

13 ¶ 27 It does not appear that the district court considered Officer

Hice’s “mission” in making its finding. That was consistent with the

supreme court’s opinion in Corsentino, 4 P.3d at 1093. Because

Corsentino does not appear to allow the court to consider the

officer’s mission, and I am bound by the court’s factual finding, I

would have to affirm the district court’s conclusion that Officer Hice

did not endanger life or property during the chase. But if the

district court were permitted or required to consider Officer Hice’s

mission, the analysis would change significantly and the district

court as the finder of fact, and an appellate court reviewing such a

finding or conclusion might well reach a different decision.

¶ 28 In Corsentino, the supreme court held that the district court

must make two independent inquiries to determine whether an

emergency driver has endangered life or property and thus has

forfeited governmental immunity. The first question is whether the

driver was responding to an emergency call.7 Id. at 1088. The

7 It is not clear whether the district court determined that there

was, in fact, an emergency that required Officer Hice to exceed the speed limit. Reviewing the district court’s order as a whole, I think the court at least implicitly found that there was an emergency, and I assume that as well, thus satisfying the first prong of Corsentino.

14 supreme court set forth an objective standard to determine whether

the driver was responding to an emergency call: “whether the

emergency vehicle operator reasonably believed that []he was

responding to an emergency based on information []he knew or

should have known.” Id. at 1088. This appears to be a binary

choice: the driver was either properly responding to an emergency

call, in which case the court proceeds to the second independent

part of the inquiry, or was not responding to an emergency call,

which ends the inquiry and there is no immunity. Id. at 1090. If

the court determines that the driver was indeed responding to an

emergency call, then the court proceeds to determine if the driver

endangered life or property; if the driver did so, immunity is

forfeited. Id. at 1092-93.

¶ 29 In applying the second portion of the inquiry for immunity, a

court must determine if the emergency driver’s “speed created an

unreasonable risk of injury or damage to life or property.” Id. at

1093. While section 42-4-108(2)(c) does not contain a

reasonableness requirement, Corsentino added one. This makes

eminent sense because absent a reasonableness requirement,

driving upward of 100 miles per hour necessarily endangers life and

15 property. Reaction times of those in the proximity of the speeding

vehicle, including the officer, are greatly reduced by such speeds,

the margins of error correspondingly decrease, and the extent of

personal injuries and property damage increases substantially and,

depending on the speed, exponentially. This is true regardless of

weather and road conditions. There is a reason why virtually every

American jurisdiction, including Colorado, imposes speed limits on

its highways and roads and why Colorado punishes speeding

violations.8 Nor does special training to drive at high speeds always

8 The posted speed limits during portions of Officer Hice’s chase

were 45 and 55 miles per hour. Officer Hice’s maximum speed of 103 miles per hour exceeded the 45-mile-per-hour limit by 58 miles per hour. At a posted speed of 55 miles per hour, Officer Hice’s speed exceeded the limit by 48 miles per hour. The penalties for speeding in Colorado are established in section 42-4-1101(12), C.R.S. 2024:

(a) A violation of driving one to twenty-four miles per hour in excess of the reasonable and prudent speed or in excess of the maximum lawful speed limit of seventy-five miles per hour is a class A traffic infraction.

(b) A violation of driving twenty-five or more miles per hour in excess of the reasonable and prudent speed or in excess of the maximum lawful speed limit of seventy-five miles per hour is a class 2 misdemeanor traffic offense;

16 mitigate the danger of such high speeds. It is not a defense to a

charge of speeding that the driver is an unusually competent driver

or that the driver has been trained to drive at speeds that vastly

exceed the speed limit. Nor is it a defense to a speeding charge that

the roads were in good condition and weather conditions were

favorable. As generally recognized, speed kills.9

¶ 30 Even though Corsentino established a reasonableness

requirement, it appears to prohibit consideration of the emergency

driver’s “mission” — or at the very least the supreme court views it

as irrelevant — when analyzing the reasonableness of the risk

created by the emergency driver’s speeding. The supreme court

does not explicitly say it is prohibited, but such a reading is

certainly implied in that court’s determination that the district

except that such violation within a maintenance, repair, or construction zone, designated pursuant to section 42-4-614, is a class 1 misdemeanor traffic offense. 9 There is a wealth of published studies that document the

relationship between speeding vehicles and death and severe injuries. See, e.g., Nat’l Highway Traffic Safety Admin., Speeding, https://perma.cc/CY52-EFAP; Inst. for Road Safety Rsch., SWOV Fact Sheet: The Relation Between Speed and Crashes (Apr. 2012), https://perma.cc/T73H-997Z.

17 court “applied the proper legal standard in finding that Cortese

endangered life and property” by not basing “its finding of

endangerment on the [officer’s] mission.” Corsentino, 4 P.3d at

1093 (“[W]hether the emergency vehicle operator was responding to

an actual emergency has no bearing on a court’s determination of

whether she endangered life or property.”).

¶ 31 Maybe this is because whether there was an emergency was

determined as part of the first inquiry. See id. But as noted above,

that inquiry leads to a binary determination: either the driver was

responding to an emergency or the driver was not. Such a binary

determination does not adequately measure the reasonableness of

the emergency driver’s choice to substantially exceed the legal

speed limit.

¶ 32 There are many situations when an emergency driver would

act reasonably by substantially exceeding the speed limit, even at

the speeds driven by Officer Hice. Pursuit of a serial killer, a

bomber, or a person suspected of kidnapping a child are obvious,

but by no means the only, examples. But chasing a speeder at ten

miles per hour above the speed limit is not the same as chasing

that speeder at forty or fifty miles above the speed limit.

18 ¶ 33 For good reason, the ultimate result of the chase cannot

inform whether the driver endangered life or property. A contrary

rule, as the supreme court explained in Corsentino, would lead to “a

de facto abrogation of the immunity granted to emergency vehicle

operators because the only time emergency vehicle operators need

to invoke immunity is when they cause damage or are involved in

an accident.” Id. “By its nature, endangerment looks at the

surrounding circumstances, both prior to and at the time the

accident occurs, in conjunction with the conduct in question. The

ultimate result does not figure into the concept of endangerment.”

Id.

¶ 34 But I don’t understand why the “mission” that purportedly

justifies the speeding in the first place is not a relevant factor in

determining whether the speeding created an unreasonable risk of

injury or damage to life or property. How can a court meaningfully

determine whether the speeding unreasonably endangered life or

property without considering why the officer was speeding in the

first place? Indeed, I suggest that the purpose of the mission may

be one of the most important questions in determining whether the

emergency driver unreasonably endangered life or property.

19 ¶ 35 Even if the officer initially and properly responds to an

emergency (the first part of the Corsentino inquiry), at some point

the officer still may unreasonably create a risk of injury or endanger

life or property by vastly exceeding the speed limit. It depends on

the circumstances.

¶ 36 Officer Hice was attempting to stop a motorist who was

speeding on Highway 50. Officer Hice clocked the motorist at

approximately seventy-six miles per hour in either a forty-five- or

fifty-five-mile-per-hour zone. To be sure, the motorist violated the

law by exceeding the posted speed limit, but Officer Hice had no

reason to suspect that driver had committed any other, more

serious, offenses.

¶ 37 The question is, or in my opinion should be, whether Officer

Hice acted reasonably in driving at more than 100 miles per hour to

make a traffic stop under all of the circumstances presented.

¶ 38 I respectfully urge the supreme court in this or another

appropriate case to revisit its opinion in Corsentino and to hold that

a court must consider the purpose for which the emergency driver

exceeded the speed limit in determining whether the driver

endangered life or property as prohibited by section 42-4-108(2)(c).