Nichele Giron v. Justin Hice

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
July 28, 2022
2022COA85No. 20CA1603, Giron v. Hice — Government — Colorado
Governmental Immunity Act — Immunity and Partial Waiver —
Operation of Motor Vehicle Owned or Leased by Public Entity;
Vehicles and Traffic — Traffic Regulation — Emergency Vehicle
Exception
Under Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.
2003), the supreme court held that Colorado governmental
immunity could be waived when an operator of an emergency
vehicle is in pursuit of an actual violator of the law and does not
have the vehicle’s emergency lights or sirens activated at all during
that pursuit. A division of the court of appeals extends Tidwell and
holds that an officer and the public entity for whom he works do not
qualify for immunity under section 42-4-108(2) and (3), C.R.S.
2021, when he activates his emergency lights or sirens for only part
of the pursuit. Thus, the division remands the case to the district
court to reinstate the plaintiffs’ complaint.
COLORADO COURT OF APPEALS 2022COA85Court 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 JOHNSON
Berger and Brown, JJ., concur
Announced July 28, 2022
Killian Davis Richter Kraniak PC, J. Keith Killian, Damon Davis, Joseph H.
Azbell, Grand Junction, Colorado, for Plaintiffs-Appellants
Tucker Holmes P.C., Bradley D. Tucker, Winslow R. Taylor III, Centennial,
Colorado, for Defendants-Appellees
¶1 This case requires us to analyze the supreme court’s holding
in Tidwell v. City & County of Denver, 83 P.3d 75 (Colo. 2003).
Tidwell held that immunity is waived when the operator of an
emergency vehicle, while in pursuit of an actual or suspected
violator of the law, does not activate the vehicle’s emergency lights
or siren. Id. at 80-81
¶2 The question presented in this case was left unanswered in
Tidwell: Does an officer operating an emergency vehicle have the
protection of sovereign immunity under section 42-4-108(2) and (3),
C.R.S. 2021, when he is in pursuit of an actual or suspected
violator of the law but when he activates his emergency lights or
sirens for only part of the pursuit? The answer to this question is
no.
¶3 Nichele Giron, individually and as personal representative of
the estate of Walter Giron; Amanda Giron; and Thomas Short, as
personal representative of the estate of Samuel Giron (collectively,
the Girons),1 appeal the district court’s judgment dismissing their
1 Because multiple plaintiffs share Giron as a last name, we will
refer to a particular individual by first name for clarity. We mean
no disrespect in doing so.
1
tort action against Officer Justin Hice (Officer Hice) and the Town of
Olathe (Olathe) for lack of subject matter jurisdiction under the
Colorado Governmental Immunity Act (CGIA).
¶4 Officer Hice’s patrol car collided with the van that Walter was
driving and Samuel was riding in as a passenger. Both Walter and
Samuel died from their injuries and Officer Hice was seriously
injured. The Girons’ complaint asserted that any sovereign
immunity granted to Officer Hice and Olathe was waived under
section 24-10-106(1)(a), C.R.S. 2021, and that the exception to the
waiver under section 42-4-108(2) and (3) did not apply because
Officer Hice had not activated his emergency lights or sirens, or
alternatively, even if he did activate his lights, he drove in a manner
that endangered life or property.
¶5 Following a Trinity hearing, see Trinity Broad. of Denver, Inc. v.
City of Westminster, 848 P.2d 916 (Colo. 1993), the district court
dismissed the complaint, determining that Officer Hice and Olathe
were immune from suit because Officer Hice had activated his
emergency lights five to ten seconds before the collision. The
district court also determined that, although Officer Hice exceeded
2
the speed limit, he did not operate his vehicle in a manner that
endangered life or property.
¶6 We reverse the judgment of dismissal and remand for the
district court to reinstate the Girons’ complaint.
I. Background
¶7 Officer Hice of the Olathe Police Department was on speed
patrol along Highway 50. His radar detected a white Toyota driving
in the opposite direction going over seventy miles per hour (mph) in
a fifty-five-mph zone. Officer Hice made a U-turn at the next
available emergency turnaround and accelerated to catch up to the
white Toyota. Data downloaded from Officer Hice’s patrol car
recorded that his speeds reached 103 mph as he approached the
intersection of Highway 50 and 12th Street.
¶8 Walter and his brother Samuel were in Walter’s van — which
had a trailer attached — waiting to turn left at the intersection of
Highway 50 and 12th Street. Walter waited for the white Toyota to
cross the intersection and then began to make a left-hand turn
across the highway. Officer Hice saw the van and swerved right in
an attempt to avoid a collision. But the front of his patrol car
3
struck the passenger side of the van. At the time of impact, Officer
Hice was traveling around seventy-five to eighty mph.
Image of Incident2
¶9 The Girons sued Olathe and Officer Hice. Olathe filed a
motion to dismiss, later joined by Officer Hice, asserting
governmental immunity. Olathe and Officer Hice argued that he
had his emergency lights activated at the time of the incident and
2Figure 29 from Exhibit 15, which was admitted as evidence at the
Trinity hearing, depicts the intersection of Highway 50 and 12th
Street and the orientation of both vehicles at the start of the crash.
Officer Hice’s patrol car is shown in green, and Walter and Samuel’s
van is shown in dark blue, with the attached trailer shown in
brown.
4
that, while he was speeding, his driving did not endanger life or
property.
¶ 10 After a Trinity hearing, the district court found that it was
“undisputed that [Officer Hice] never put his siren on initially, nor
did he put on his emergency lights.” The court also found that
Officer Hice “reached about 103 miles an hour just prior to the
accident.” The court determined, however, that Officer Hice’s
“[emergency] lights were on for between five and 10 seconds prior to
the accident and that that was sufficient time to alert other drivers
in the immediate vicinity to take care.” As a result, the court
dismissed the Girons’ complaint. This appeal followed.
II. Standard of Review and Applicable Law
¶ 11 Generally, governmental entities in Colorado are “immune
from liability in all claims for injury which lie in tort or could lie in
tort.” § 24-10-106(1). Because the CGIA immunity provisions
derogate Colorado’s common law, “we construe the [C]GIA
provisions that withhold immunity broadly [and] we construe the
exceptions to these waivers strictly.” Tidwell, 83 P.3d at 81 (quoting
Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000)). We strictly
construe the exceptions to waiver provisions because “the ultimate
5
effect of the exceptions is to grant immunity.” Corsentino, 4 P.3d at
1086.
¶ 12 An issue of governmental immunity under the CGIA presents a
question of subject matter jurisdiction to be determined under
C.R.C.P. 12(b)(1). Tidwell, 83 P.3d at 85. “Because the CGIA
protects the government from suit, the district court must
necessarily make factual findings to ensure that the court has
jurisdiction to hear the case.” City & Cnty. of Denver v. Dennis,
2018 CO 37, ¶ 10. And “the plaintiff bears the burden of proving
that the court has subject matter jurisdiction to hear the case.”
Tidwell, 83 P.3d at 85.
¶ 13 This burden, however, “is relatively lenient, as the plaintiff is
afforded the reasonable inferences from [the] undisputed evidence.”
Dennis, ¶ 11. And “because Trinity hearings are limited in nature,
and because tort concepts are naturally subjective, the district
court should not fully resolve the issue of whether the government
has committed negligence; rather, the court should only satisfy
itself that it has the ability to hear the case.” Id. Instead, issues
such as negligence or causation “are matters properly resolved by
6
the trier of fact.” Swieckowski v. City of Fort Collins, 934 P.2d 1380,
1384 (Colo. 1997).
¶ 14 Thus, “[i]t is well-established that the application of sovereign
immunity [under the CGIA] presents a mixed question of fact and
law.” Maphis v. City of Boulder, 2022 CO 10, ¶ 14. “[W]e defer to
the district court’s factual findings unless they are clearly
erroneous.” Id. A factual finding is clearly erroneous when it lacks
no support in the record. Whiting-Turner Contracting Co. v.
Guarantee Co. of North America, 2019 COA 44, ¶ 36.
¶ 15 After the questions of fact are resolved, “we review questions of
governmental immunity de novo.” Maphis, ¶ 15 (quoting Dennis,
¶ 12). “As with all matters of statutory construction, in construing
the [C]GIA, including its waivers, we must give effect to the
legislature’s intent.” Tidwell, 83 P.3d at 81. To effectuate that
intent, ‘“[w]e look to the language of the statute, giving words their
plain and ordinary meaning.’” Id. (quoting Springer v. City & Cnty.
of Denver, 13 P.3d 794, 799 (Colo. 2000)). If the plain language of
the statute ‘“demonstrates a clear legislative intent, we look no
further in conducting our analysis.’” Id. (quoting Springer, 13 P.3d
at 799).
7
III. Preservation
¶ 16 Officer Hice and Olathe contend that the issue of whether
Officer Hice failed to activate his lights in sufficient time to alert
Walter and Samuel is not preserved because the Girons only
asserted below that the officer completely failed to activate his
emergency lights before the collision. We disagree.
¶ 17 In the complaint, the Girons alleged that “Walter Giron was
not able to react and yield to the Impala [Officer Hice’s patrol
vehicle] because the Impala was approaching at a speed almost
twice as fast as the speed limit and the Impala’s emergency lights
were not turned on, or were not turned on in time to be seen and
reacted to by a reasonable person.” In response to Officer Hice and
Olathe’s brief,3 the Girons argued that the relevant time period for
the court to consider in determining whether Officer Hice and
Olathe were entitled to immunity was the entire thirty-four seconds
prior to the crash, which was the time in which Officer Hice
exceeded speed limits, as shown on his body camera video. They
3Olathe and Officer Hice denominated their filing as a trial brief,
although it was more accurately a pre-hearing brief, as it was
submitted prior to the Trinity hearing.
8
asked the court to not just limit its inquiry and analysis to the nine
seconds immediately prior to the crash when Officer Hice activated
his emergency lights.
¶ 18 “We do not require that parties use ‘talismanic language’ to
preserve particular arguments for appeal.” People v. Melendez, 102
P.3d 315, 322 (Colo. 2004). Instead, “the [district] court must be
presented with an adequate opportunity to make findings of fact
and conclusions of law on any issue before we will review it.” Id.The district court specifically made findings that Officer Hice’s
emergency lights were activated for a sufficient amount of time prior
to the collision to alert others to his presence, which demonstrates
to us that this contention was adequately raised for the court to
have considered (and rejected) it. Consequently, the Girons
preserved this issue.
IV. Activation of Emergency Lights and Siren in a Pursuit
¶ 19 We conclude that the district court applied the incorrect legal
standard and thus improperly determined that Officer Hice and
Olathe were entitled to immunity. Based on the plain language of
section 42-4-108 — an exception to the waiver of immunity under
section 24-10-106(1)(a) — an officer is not entitled to immunity
9
when he does not activate his emergency lights or sirens for the
entire time he exceeds the speed limit and is in pursuit of an actual
or suspected violator of the law.
A. The Emergency Vehicle Exception
¶ 20 Section 24-10-106(1)(a) provides that sovereign immunity is
waived by a public entity in any action for injuries resulting from
“[t]he 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
42-4-108(2) and (3), C.R.S.” (Emphasis added.)
¶ 21 Corsentino, 4 P.3d at 1087, summed up the interplay of
sections 24-10-106(1)(a) and 42-4-108(2) and (3):
 “[S]ection 24-10-106 grants immunity to public entities and
their employees generally.”
 “The motor vehicle immunity waiver of section 24-10-106(1)(a)
takes away this immunity for the operation of motor vehicles
by public entities and their employees.”
 “The emergency vehicle exception, however, restores immunity
to the public entities and their employees operating emergency
vehicles in response to emergency calls.”
10
 “Subsections (a) to (d) of section 42-4-108(2) specifically grant
immunity for specific traffic violations, such as speeding and
running stop signals.” Finally,
 “[T]here are possible conditions to the violations of subsections
(b) and (c), which, if left unsatisfied, may place the public
entities and their employees back within the motor vehicle
immunity waiver, thereby subjecting them to potential liability
in tort.”
¶ 22 Section 42-4-108(2), provides, in relevant part, that “[t]he
driver of an authorized emergency vehicle . . . when in pursuit of an
actual or suspected violator of the law” may “exercise the privileges
set forth in this section.” (Emphasis added.) As relevant here, such
privileges include “[e]xceed[ing] the lawful speeds set forth in
section 42-4-1101(2)[, C.R.S. 2021,] or exceed[ing] the maximum
lawful speed limits set forth in section 42-4-1101(8) so long as said
driver does not endanger life or property.” § 42-4-108(2)(c). But
section 42-4-108(3) states that the exception to the waiver of
immunity under section 24-10-106(1)(a) applies to the privilege of
speeding under section 42-4-108(2)(c) “only when such vehicle is
making use of audible or visual signals” that meet certain statutory
11
requirements. (Emphasis added.) Section 42-4-108(3) then notes
that an emergency vehicle may not need to use audio and visual
signals, even when in “actual pursuit of a suspected violator” of a
traffic law, “so long as such pursuit is being made to obtain
verification of or evidence of the guilt of the suspected violator.” Id.
¶ 23 Tidwell determined that “[t]he net effect of these statutes is
that a governmental entity is generally immune from tort liability in
connection with the operation of an emergency vehicle,” but “the
vehicle must be operating with emergency lights and siren
activated, unless the vehicle is in pursuit of a suspected violator to
obtain evidence of guilt.” See 83 P.3d at 81. Thus, Tidwell
concluded, “[w]here an officer already has probable cause to stop a
driver and the officer is pursuing the driver for that reason, the
statute contemplates the use of emergency signals.” Id. at 84.
¶ 24 Because the officer’s emergency lights or sirens were not
activated at all in Tidwell, the supreme court concluded that the
officer did not satisfy the conditions in section 42-4-108. Id. at 78-
79. It reached this conclusion by “look[ing] at section 42-4-108 as
a whole” to ascertain the General Assembly’s purpose of the lights
and siren requirement. Id. at 82.
12
¶ 25 Tidwell reasoned that “it is clear that a police vehicle in
pursuit of a driver suspected of violating Title 42 must activate its
lights and siren in order to alert the suspect to stop as well as to
warn other drivers of the ongoing pursuit.” Id. at 83 (emphasis
added). The court continued, “the purpose of the lights and siren
requirement is to ensure that operators of emergency vehicles give
due regard to the safety of other drivers on the road,” and activating
the lights and siren is not “a mere request to stop or pull over.” Id.
It concluded that, “[w]hile undoubtedly one of the purposes of a
police vehicle’s audible and visual signals is to order a pursued
vehicle to stop, another purpose is to make other drivers aware of
the pursuit so they may alter their conduct accordingly.” Id.
¶ 26 Officer Hice’s emergency lights were only activated for the last
five to ten seconds of the pursuit prior to the collision with Walter’s
van (and his siren was never activated). Thus, Tidwell did not need
to address the factual situation before us. We conclude that, if the
officer and the public entity for whom he works seek to have
governmental immunity restored under section 42-4-108(2)(c) and
(3) when the officer is operating an emergency vehicle in pursuit of
an actual or suspected violator of the law and the officer is
13
exceeding speed limits, the officer must activate lights or sirens as
soon as the vehicle exceeds the speed limit. It is not enough for the
officer to activate lights or sirens sometime after exceeding the
speed limit while in pursuit. We extend Tidwell’s holding for three
reasons.
¶ 27 First, the plain language of section 42-4-108(2)(c) and (3)
dictates this result. Section 42-4-108(2) states that the “driver of
an authorized emergency vehicle” may exercise certain “privileges,”
such as exceeding the speed limit under section 42-4-108(2)(c).
(Emphasis added.) That same provision says that the “privilege” to
exceed speed limits may be exercised by an officer in pursuit of an
actual or suspected violator of the law. And under section 42-4-
108(3), the “privilege” of the driver to exceed speed limits “shall
continue to apply” for purposes of restoring governmental immunity
“only when such vehicle is making use of audible or visual signals.”
(Emphasis added.) See Ricchio v. Colo. Sec. Comm’r, 2022 COA 35,
¶ 28 (“Unless the context indicates otherwise, the word ‘shall’
generally indicates that the General Assembly intended the
provision to be mandatory.” (quoting DiMarco v. Dep’t of Revenue,
857 P.2d 1349, 1352 (Colo. App. 1993))). Nothing in the statutory
14
language authorizes restoration of governmental immunity to an
officer exercising the privilege of speeding unless the officer is using
lights or sirens.
¶ 28 Second and relatedly, the General Assembly did not give an
officer discretion under section 42-4-108(3) to decide when to
activate his emergency lights or sirens during the pursuit of an
actual violator of Title 42 or a suspected violator of another law.
Under what is known as the “verification clause” in section 42-4-
108(3), if an officer has not yet ascertained whether a person has
violated a law under Title 42, he may exceed speed limits without
activating lights or sirens “so long as such pursuit is being made to
obtain verification of or evidence of the guilt of the suspected
violator.” See Tidwell, 83 P.3d at 83 (“[W]e construe the verification
exception merely to permit a reasonably safe pursuit of a suspect,
without lights and siren, only where the officer is trying to confirm
his suspicions that the driver has violated Title 42 and where the
officer otherwise has no reasonable suspicion or probable cause to
stop the driver of the vehicle.”).
¶ 29 Thus, the officer has discretion to not activate his lights or
sirens while in pursuit of a suspected violator of Title 42 so long as
15
he is trying to verify whether the suspected violator is an actual
violator of a traffic law. But, once the officer determines that he is
in pursuit of an actual violator of Title 42 or a suspected violator of
another law, he has no discretion to decide when to activate his
lights or sirens. Lights or sirens must be activated once the officer
exceeds lawful speeds or engages in the other privileged conduct
specified in section 42-4-108(2). § 42-4-108(3). We will not read
into the statute conditions not expressly included. See People ex
rel. Rein v. Meagher, 2020 CO 56, ¶ 31 (“[W]hen the General
Assembly includes a provision in one section of a statute, but
excludes the same provision from another section, we presume that
the General Assembly did so purposefully.” (quoting Well
Augmentation Subdistrict v. City of Aurora, 221 P.3d 399, 419 (Colo.
2009))); Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.
2010) (“[W]e will not construe a statute in a manner that assumes
the General Assembly made an omission; rather, the General
Assembly’s failure to include particular language is a statement of
legislative intent.”).
¶ 30 Finally, because section 42-4-108 is an exception to the waiver
of immunity, we must strictly construe it because the effect of its
16
application would be to grant immunity. Corsentino, 4 P.3d at
1086. Tidwell concluded that the General Assembly’s purposes in
enacting an audible or visual signal requirement for an emergency
vehicle were twofold: not only to command the actual or suspected
violator of the law to stop, but also to warn other drivers on the
road to “alter their conduct accordingly.” 83 P.3d at 83; see also
§ 42-4-213(5), C.R.S. 2021 (“The use of either the audible or the
visual signal equipment described in this section shall impose upon
drivers of other vehicles the obligation to yield right-of-way and
stop . . . .”); § 42-4-705(1), C.R.S. 2021 (“Upon the immediate
approach of an authorized emergency vehicle making use of audible
or visual signals,” the driver shall yield, attempt to drive to a
position as close as possible to the right-hand edge of the roadway,
and stop “until the authorized emergency vehicle has passed.”).
¶ 31 Thus, by strictly construing the exception restoring immunity
to public entities and operators of emergency vehicles under the
circumstances set forth in section 42-4-108(2)(c), we are simply
effectuating the General Assembly’s intent that an officer activate
his lights or sirens once he exceeds the speed limit when he is in
pursuit of an actual or suspected violator of the law.
17
B. Application
¶ 32 The parties do not dispute that Officer Hice was in pursuit of
an actual violator of the law under Title 42 — the driver of the white
Toyota exceeding the speed limit. Thus, the parties agree that the
exception in the verification clause does not apply to excuse Officer
Hice’s failure to active his emergency lights or sirens during the
pursuit.
¶ 33 Consistent with Tidwell, Officer Hice began his “pursuit” once
he began following the white Toyota. Then he passed seven other
cars. Officer Hice was exceeding the speed limit of 55 mph, driving
at 75 mph through the northern intersection of Highway 50, 80
mph when he passed the seventh driver, and 103 mph just prior to
the accident.
¶ 34 Based on Officer Hice’s body camera footage, approximately
thirty-six seconds elapsed between when he began his pursuit of
the speeding vehicle and when his patrol car collided with Walter
and Samuel’s van. The district court found that Officer Hice
“illuminated his emergency lights roughly 25 seconds within his
pursuit.” This finding is consistent with the unrebutted testimony
the district court heard from Rosa Perez, a forensic analyst for the
18
Fort Collins Police Services, that Officer Hice told her that he did
not turn on his sirens because it interferes with his radio. Officer
Hice also acknowledged that he did not activate his emergency
lights until he passed the seventh person, who testified not seeing
any lights illuminated. Instead, Officer Hice testified that he has a
“personal policy of turning on his lights when he reache[s] about 80
mph” and that he did not activate his emergency lights immediately
because, in his experience, it can make the behavior of other
motorists “a little chaotic.”
¶ 35 Seven witnesses in vehicles that were passed by Officer Hice
testified that they did not see the emergency lights activated on his
patrol car, including up to the point of the crash. Conversely, the
witness in the vehicle behind Walter’s van — a retired police officer
— testified that he was certain Officer Hice’s emergency lights were
activated on his patrol car as Officer Hice approached the
intersection. The district court discounted the testimony of the
seven drivers and credited the testimony of the retired officer.
¶ 36 This led the district court to determine, applying an incorrect
legal standard, that because Officer Hice’s emergency lights were
activated for at least five to ten seconds prior to the accident, other
19
drivers had “sufficient time” to react, and thus Office Hice and
Olathe were entitled to immunity. But given our above
interpretation of section 42-4-108(2)(c) and (3), even though Officer
Hice activated his emergency lights five to ten seconds before the
collision with Walter and Samuel’s van, he and Olathe do not, as a
matter of law, qualify for the exception. For Officer Hice and Olathe
to be entitled to immunity, Officer Hice would need to have
activated his emergency lights or sirens the moment he exceeded
the speed limit during his pursuit of the white Toyota.
¶ 37 As we noted above, the General Assembly carved out the
immunity waiver exception for emergency vehicles to balance a
responder’s privilege to exceed speed limits with the need to provide
safety for other drivers. Officer Hice’s “personal policy” of deciding
when to activate his lights or sirens when he exercises the privilege
to exceed speed limits in pursuit of an actual violator of the law
does not qualify him for immunity under section 42-4-108(2)(c) and
(3). To hold otherwise would allow operators of emergency vehicles,
in their own discretion, to decide when to activate their sirens or
lights, contrary to the plain language of the statute. See Tidwell, 83
P.3d at 81.
20
¶ 38 Consequently, we conclude that the district court erred when
it determined Officer Hice and Olathe satisfied the conditions in
section 42-4-108(2)(c) and (3) entitling them to immunity under the
exception to the waiver of immunity in section 24-10-106(1)(a).4
V. Causal Relationship
¶ 39 Olathe and Officer Hice contend that, due to the district
court’s finding that Walter had “sufficient time” to react to the
presence of Officer Hice’s vehicle once the emergency lights were
activated, “there is no basis in the record to maintain the accident
resulted from Officer Hice’s failure to use emergency lights at any
time.” We disagree that this is the proper standard to determine a
causal relationship in this circumstance.
¶ 40 As noted above, section 24-10-106(1)(a) waives sovereign
immunity of a public entity “in an action for injuries resulting
from . . . [t]he operation of a motor vehicle.” For purposes of
determining whether sovereign immunity is waived in this case, we
4 Based on our interpretation of the exception to the waiver of
immunity in section 42-4-108(3), C.R.S. 2021, we need not address
the parties’ extensive arguments as to the standard for analyzing
when an emergency operator exceeding the speed limit endangers
life or property.
21
consider whether Walter’s and Samuel’s injuries resulted from the
operation of Officer Hice’s motor vehicle.
¶ 41 Tidwell analyzed the “resulting from” language in section 24-
10-106(1)(a). That case involved injuries sustained by a passenger
in a limousine, who was hit by a driver being pursued by an officer;
thus, the officer was not the one directly involved in the collision
that caused the passenger’s injuries. Tidwell, 83 P.3d at 77. The
court acknowledged that the “resulting from” language suggests
“some relationship between a plaintiff[’]s injuries and the public
entity[’]s conduct before a waiver of immunity is triggered.” Id. at
86. But it also disagreed that “resulting from” and “caused by” were
synonymous based on the fact the CGIA used “caused by” in other
provisions but not in section 24-10-106(1)(a). Id.; see also § 24-10-
106(1)(d)(II) (“[a] dangerous condition caused by the failure to
realign a stop sign”); § 24-10-106(1)(d)(III)) (“[a] dangerous condition
caused by an accumulation of snow and ice”).
¶ 42 Instead, Tidwell determined that “a waiver must be found
where the injuries complained of occurred as a consequence or
effect of any of the public entity’s alleged conduct or omissions.” 83
P.3d at 86. This meant the district court was not required to
22
determine whether Tidwell’s injuries were “caused by” the officer’s
conduct for immunity purposes, as such a finding would be for the
fact finder. Id. Therefore, “a waiver will exist where a plaintiff
alleges facts proving a minimal causal connection between the
injuries and the specified conduct.” Id.
¶ 43 In Corsentino, 4 P.3d at 1085, the supreme court did not
address the “resulting from” language because the deputy sheriff
involved in that case was directly involved in the collision at issue.
The deputy sheriff received a dispatch call in response to a home
burglary alarm. The deputy responded with lights and sirens
activated. While en route, the deputy was speeding and his vehicle
collided with another car, resulting in the death of the other driver.
Id. At issue in Corsentino was whether the officer was entitled to
the restoration of immunity under section 42-4-108(2) because,
although the vehicle’s lights and sirens were activated the entire
time he was speeding, the question was whether the sheriff drove in
a manner that endangered life or property.
¶ 44 Once the supreme court in Corsentino determined that the
deputy sheriff was not entitled to the exception to immunity in
section 42-4-108, it remanded the case to the district court, noting
23
that the deputy sheriff and his employer may be “subject to
potential liability in tort.” Id. at 1093. In other words, the court did
not engage in a causal relationship analysis because the plaintiff’s
“injuries result[ed] from” the operation of an emergency vehicle,
§ 24-10-106(1)(a), and immunity was not restored based on one of
the conditions in section 42-4-108(2) and (3).
¶ 45 Here, Officer Hice operated the vehicle that directly collided
with Walter’s van, and that collision resulted in the injuries
sustained by Walter and Samuel. We conclude, for purposes of
jurisdiction under the CGIA, that Walter’s and Samuel’s injuries
resulted from the operation of an emergency vehicle, and in the
absence of the condition of lights or sirens activated while exceeding
the speed limit when in pursuit of an actual violator of the law, this
brings the Girons’ claims within the scope of the immunity waiver
in section 24-10-106(1)(a). To resolve the immunity question, the
Girons need not allege and the court need not determine more of a
causal connection between the public entity’s conduct and the
injuries.
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¶ 46 Officer Hice and Olathe are not immune under the CGIA from
liability for Walter’s or Samuel’s injuries. As a result, Olathe and
Officer Hice may be subject to potential liability in tort.
VI. Conclusion
¶ 47 We reverse the judgment of dismissal and remand to the
district court to reinstate the Girons’ complaint.
JUDGE BERGER and JUDGE BROWN concur.
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