Giron v. Hice, Court of Appeals No. 20CA1603

519 P.3d 1083

2022 COA 85 M

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.

Court of Appeals No. 20CA1603

Colorado Court of Appeals, Division VII.

Announced July 28, 2022

As Modified September 1, 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

Opinion by JUDGE JOHNSON

¶ 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 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 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 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 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 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, 418 P.3d 489. 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 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, 504 P.3d 287. "[W]e defer to the district court's factual findings unless they are clearly erroneous." Id. A factual finding is clearly erroneous when it has no support in the record. Whiting-Turner Contracting Co. v. Guarantee Co. of North America , 2019 COA 44, ¶ 36, 440 P.3d 1282.

¶ 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 ).

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 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...