ck v. McNabb ( 2020 )

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
September 3, 2020
2020COA133
No. 19CA1075, Bilderback v. McNabb — Government —
Colorado Governmental Immunity Act — Immunity and Partial
Waiver; Vehicles and Traffic — Traffic Regulation — Emergency
Vehicle Exception
Plaintiff’s motorcycle collided with a patrol car after the officer
drove through a red light while responding to an emergency call.
Plaintiff sued the officer and the City and County of Denver, and
defendants moved to dismiss the case under C.R.C.P. 12(b)(1),
arguing the claims were barred by the doctrine of sovereign
immunity. The district court denied defendants’ motion, ruling that
the officer’s conduct did not satisfy the emergency vehicle exception
to the Colorado Governmental Immunity Act’s waiver of sovereign
immunity for injuries resulting from a public employee’s operation
of a motor vehicle, see § 24-10-106(1)(a), C.R.S. 2019.
The emergency vehicle exception is subject to certain
conditions, including, among others, the one set forth in section 42-
4-108(2)(b), C.R.S. 2019. That section states that the driver of an
emergency vehicle may “[p]roceed past a red or stop signal or stop
sign, but only after slowing down as may be necessary for safe
operation.” Id.
A division of the court of appeals holds that the mere fact that
the emergency vehicle driver has stopped at a red light before
entering the intersection does not, without more, satisfy the
condition set forth in section 42-4-108(2)(b); rather, to give effect to
the phrase “but only . . . as may be necessary for safe operation,” a
court must determine whether, depending on the specific factual
circumstances, the driver was proceeding safely after entering the
intersection, and while driving through it. The division remands the
case to the district court to resolve factual disputes bearing on this
issue.
COLORADO COURT OF APPEALS 2020COA133
Court of Appeals No. 19CA1075
City and County of Denver District Court No. 19CV30662
Honorable Eric M. Johnson, Judge
Robert Bilderback,
Plaintiff-Appellee,
v.
Kyle McNabb and City and County of Denver, Colorado,
Defendants-Appellants.
ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE VOGT*
Johnson and Taubman*, JJ., concur
Announced September 3, 2020
Metier Law Firm, LLC, Emily N. Benight, Fort Collins, Colorado, for Plaintiff-
Appellee
Kristin M. Bronson, City Attorney, Jennifer Johnson, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellants
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Plaintiff, Robert Bilderback, sued defendants, Denver Police
Officer Kyle McNabb and the City and County of Denver, for
damages after the motorcycle he was driving collided with a patrol
car driven by McNabb. Defendants moved for dismissal under
C.R.C.P. 12(b)(1), arguing that plaintiff’s claims were barred by the
doctrine of sovereign immunity, in accordance with the Colorado
Governmental Immunity Act (CGIA), §§ 24-10-106 to -120, C.R.S.
2019. The district court denied the motion in a detailed written
order without holding a hearing. Defendants appeal. We vacate the
order and remand for further proceedings in accordance with Trinity
Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916,
927 (Colo. 1993).
I. Background
¶2 The complaint, the motion to dismiss, and related materials
provided to the district court set forth the following facts. In March
2019, Officer McNabb was on duty, stopped in his squad car at a
red light at the intersection of Federal Boulevard and Evans Avenue
in Denver, when he received an emergency call. According to his
affidavit, McNabb, who was the first in line at the red light on
northbound Federal, observed that the traffic turning left from
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westbound Evans onto southbound Federal had cleared the
intersection. He then activated his emergency lights, checked the
intersection again, observed that all traffic had stopped, made eye
contact with several drivers who had a green light on Evans to
ensure they saw his emergency lights, and then slowly pulled into
the intersection. Part way through the intersection, McNabb
increased his speed to about fifteen miles per hour. At this point,
plaintiff, driving his motorcycle westbound on Evans through the
green light, collided with the patrol car.
¶3 In support of his response to the motion to dismiss, plaintiff
appended his own affidavit and a witness statement of the driver
behind his motorcycle, both stating that their views of northbound
traffic on Federal were obstructed by a large box truck in the left
turn lane of westbound Evans. Defendants made no reference to
the box truck in their reply. In their view, the undisputed facts that
McNabb (1) was responding to an emergency call, (2) was at a
complete stop before entering the intersection, and (3) had activated
his overhead lights before entering the intersection established the
statutory requirements for the emergency vehicle exception to the
waiver of immunity for the operation of a motor vehicle found in
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section 24-10-106(1)(a). Given their view of the law, defendants did
not believe a Trinity hearing was necessary; but they asked that the
court hold such a hearing if it found that there were disputed
factual issues bearing on jurisdiction.
¶4 The district court did not agree with defendants’ argument
that the relevant statutory requirements were met because McNabb
stopped prior to proceeding into the intersection; rather, the court
stated, “[t]he crux of the dispute is how Officer McNabb proceeded
against the red light and whether the manner in which he did so
took his actions outside of the emergency vehicle exception to the
waiver [of] sovereign immunity provided by the CGIA.” After noting
that no evidentiary hearing was required where the court accepted
all the facts pleaded by the plaintiff as true, the court also accepted
as true that there was a large box truck blocking a portion of
westbound Evans from McNabb’s view. Thus, the court concluded,
proceeding through the intersection without being cognizant of and
accounting for the blind spot created by the truck did not constitute
“safe operation” and accordingly did not bring the case within the
emergency vehicle exception to the CGIA waiver of sovereign
immunity.
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¶5 On appeal, defendants argue that the district court
misconstrued the controlling statute by ignoring the fact that
McNabb had stopped before entering the intersection and, instead,
reading into the statute a requirement that an officer also drive
slowly after entering an intersection and while passing through it.
In the alternative, defendants contend, the district court erred in
forgoing a Trinity hearing to resolve a “disputed and undeveloped
fact” — namely, whether McNabb’s view of plaintiff was obstructed
by a truck. We disagree with the first argument but agree with the
second.
II. Applicable Law and Standard of Review
¶6 Questions of sovereign immunity — including whether it has
been waived — implicate a district court’s subject matter
jurisdiction under C.R.C.P. 12(b)(1). St. Vrain Valley Sch. Dist.
RE-1J v. A.R.L. ex rel. Loveland, 2014 CO 33, ¶ 9.
¶7 Under the CGIA, sovereign immunity generally bars any action
against a public entity for injuries that lie in tort or could lie in tort.
Smokebrush Found. v. City of Colorado Springs, 2018 CO 10, ¶ 20;
see also § 24-10-108, C.R.S. 2019. However, the CGIA also
“withdraws and restores this immunity through a series of
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immunity waivers, exceptions to those waivers, and, in some cases,
conditions relating to the exceptions.” Corsentino v. Cordova, 4
P.3d 1082, 1086 (Colo. 2000). Because the CGIA’s grant of
sovereign immunity is in derogation of Colorado common law, we
narrowly construe any provision granting sovereign immunity.
Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 13. As a corollary
to that principle, we broadly construe any CGIA provision waiving
sovereign immunity. Id.¶8 Because “the [C]GIA requires the trial court to definitively
resolve all issues of immunity before trial, regardless of whether the
issues have been classified as jurisdictional,” district courts are to
“employ the procedures used in [Trinity] and its progeny to . . .
determine the facts necessary to resolve all disputed issues of
immunity, including those deemed non-jurisdictional.” Finnie v.
Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1258 (Colo. 2003). The
Finnie court went on to “clarify that the Trinity procedure . . .
includes discovery, ruling without hearings, and affording parties
the opportunity to request Trinity hearings.” Id. at 1260.
¶9 When there is no evidentiary dispute, the court may rule on
the C.R.C.P. 12(b)(1) motion and decide the sovereign immunity
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question without a hearing, based on the pleadings alone. Id.;
Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86
(Colo. 2003). Even in such circumstances, however, “courts have
discretion to conduct Trinity hearings to develop facts relating to
immunity issues when such facts are not directly disputed.” Finnie,
79 P.3d at 1260.
¶ 10 We employ a mixed standard of review to orders on motions to
dismiss for lack of subject matter jurisdiction. Grant Bros. Ranch,
LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 15. We review
the district court’s factual findings for clear error but review de novo
the court’s legal conclusions, including its statutory interpretation.
Id. We review the court’s decision whether to conduct a Trinity
hearing for abuse of discretion. See Finnie, 79 P.3d at 1260.
III. Discussion
A. District Court’s Construction of the CGIA
¶ 11 Under section 24-10-106(1)(a) of the CGIA, a public entity’s
immunity is waived in an action for injuries resulting from the
“operation of a motor vehicle, owned or leased by such public entity,
by a public employee while in the course of employment, except
emergency vehicles operating within the provisions of section 42-4-
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108(2) and (3), C.R.S.” In this case, there was no dispute that the
squad car was being operated by a public employee, Officer
McNabb, while in the course of his employment. Thus, the issue in
dispute was whether the vehicle was operating within the provisions
of section 42-4-108(2) and (3), so as to come within the exception to
the otherwise applicable waiver of immunity.
¶ 12 Section 42-4-108(2)(b) states that the driver of an authorized
emergency vehicle, when responding to an emergency call (as
McNabb was undisputedly doing here), “may . . . (b) [p]roceed past a
red or stop signal or stop sign, but only after slowing down as may
be necessary for safe operation.” Section 42-4-108(3), in turn,
provides that section 42-4-108(2)(b) applies, for purposes of the
section 24-10-106(1)(a) immunity waiver, “only when such vehicle is
making use of audible or visual signals . . . .”
¶ 13 Defendants argue that section 42-4-108(2)(b) addresses the
driver’s conduct prior to entering the intersection, and that the
district court erred by “reading into it a requirement that an officer
drive slowly after passing a red light and after the officer already
has the right-of-way in the intersection.” The district court rejected
defendants’ contention that McNabb met the requirements of
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section 42-4-108(2)(b), as the court put it, “by virtue of the
happenstance that he happened to be stopped at a red light prior to
activating his lights.” Such an interpretation, the court reasoned,
would render superfluous the phrase “as may be necessary for safe
operation.” We agree with the district court.
¶ 14 It is a basic principle of statutory interpretation that we avoid
any construction of a statute that “would render any words or
phrases superfluous.” Ryan Ranch Cmty. Ass’n, Inc. v. Kelley, 2016
CO 65, ¶ 43 (quoting Doubleday v. People, 2016 CO 3, ¶ 20).
Likewise, we will not adopt an interpretation leading to an illogical
or absurd result. Frazier v. People, 90 P.3d 807, 811 (Colo. 2004).
¶ 15 In the case of section 42-4-108(2)(b), the phrase “as may be
necessary for safe operation” calls for the court to take into account
how the officer proceeded through the intersection. If the statute
did indeed apply only to the emergency vehicle driver’s conduct
before entering the intersection, it could convey that meaning by
allowing the driver to proceed past a red light “but only after
slowing down,” with no further qualifiers. Instead, the statute
requires the driver to slow down “as may be necessary for safe
operation.”
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¶ 16 Ignoring that qualifier reads it out of the statute, rendering the
phrase superfluous. Additionally, interpreting the statute to allow a
police officer to proceed through the intersection at any speed as
long as he or she had previously slowed down could, depending on
the circumstances, lead to an illogical or absurd result. As the
district court observed, “‘safe operation’ at an empty intersection
will necessarily be different than what constitutes ‘safe operation’ at
a traffic-filled intersection.” For example, safe operation could
require police officers to refrain from increasing their speed while in
the intersection, or to activate their siren as well as their lights, if
the officers are unable to determine whether all cross-traffic has
stopped.
¶ 17 While we thus agree with the district court’s analysis of the
requirements of section 42-4-108(2)(b), we agree with defendants
that the court erred by citing section 42-4-108(4), which requires
drivers of emergency vehicles to drive “with due regard for the safety
of all persons,” as further justification for finding that immunity
had been waived in this case. In Fogg v. Macaluso, 892 P.2d 271,
277 (Colo. 1995), the supreme court held that the duty of care
referenced in that section does not apply to the sovereign immunity
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analysis under section 42-4-108(2) and (3). See also Quintana v.
City of Westminster, 8 P.3d 527, 530 (Colo. App. 2000) (same).
Although plaintiff refers to Macaluso as “arguably an outdated
case,” it remains binding on us and on the district court.
Nevertheless, the court’s reliance on section 42-4-108(4) for “further
justification” for its holding does not call into question the validity
of its conclusion regarding the section 42-4-108(2)(b) exception to
the immunity waiver, and it thus does not require reversal.
B. The District Court’s Decision Not to Conduct a Trinity Hearing
¶ 18 While we agree with the district court’s construction of the
emergency vehicle exception in the CGIA, we conclude that the
court abused its discretion by not ordering a hearing or other
procedure under Trinity to resolve the central disputed factual issue
in the case: namely, whether McNabb had a clear view of the Evans
Street cross-traffic when he proceeded through the intersection, or
whether his view was impeded by the box truck. See Medina v.
State, 35 P.3d 443, 460-61 (Colo. 2001) (remanding for hearing
because evidence already admitted did not resolve key factual
dispute as to whether plaintiffs’ injuries were caused by lack of
maintenance or were solely attributable to design).
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¶ 19 As noted, plaintiff and another witness had stated that a large
box truck in the left lane of westbound Evans blocked plaintiff’s
view of traffic traveling northbound on Federal. Accepting these
statements as true, the district court relied on that circumstance in
ruling that McNabb had not proceeded through the intersection in a
manner that met the statutory “safe operation” requirement. (“In
this case, ‘safe operation’ required Officer McNabb to be cognizant
of, and account for, the fact that there was a large box truck sitting
in the left turn lane on Evans, blocking from his view . . . a portion
of the westbound lanes.”)
¶ 20 We recognize that, as plaintiff points out, defendants never
provided the district court with statements or other evidence
disputing the presence of the box truck. Defendants respond on
appeal that, in their pleadings, they repeatedly cited Officer
McNabb’s statements that he had a clear view of the intersection.
We conclude that, given the centrality of this factual issue to the
district court’s ruling, whether Officer McNabb’s view of the
motorcycle was in fact obstructed needs to be determined
regardless of the adequacy of defendants’ efforts to raise a dispute
about the issue. See Finnie, 79 P.3d at 1260 (courts have discretion
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to hold Trinity hearings to develop facts relating to immunity issues,
even when such facts are not directly disputed or are not
jurisdictional).
¶ 21 In sum, the district court is directed on remand to resolve any
factual disputes bearing on the question of sovereign immunity by
ordering an evidentiary hearing or such other procedures as may be
necessary to determine the issue. See Trinity, 848 P.2d at 927; see
also Finnie, 79 P.3d at 1260. Based on the results of such fact
finding, the district court shall again enter an order on defendants’
motion to dismiss.
IV. Conclusion
¶ 22 The order is vacated, and the case is remanded for further
proceedings in accordance with this opinion.
JUDGE JOHNSON and JUDGE TAUBMAN concur.
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