Capra v. Tucker, No. 92CA1048

Docket NºNo. 92CA1048
Citation857 P.2d 1346
Case DateJuly 29, 1993
CourtCourt of Appeals of Colorado

Page 1346

857 P.2d 1346
Kathaleen L. CAPRA, Plaintiff-Appellant,
v.
Durron T. TUCKER, Defendant-Appellee.
No. 92CA1048.
Colorado Court of Appeals,
Div. V.
July 29, 1993.

Beem & Mann, P.C., Clifford L. Beem, Denver, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jane R. Christman, First Asst. Atty. Gen., Denver, for defendant-appellee.

Judge TAUBMAN.

In this negligence action to recover damages for personal injuries sustained in an automobile accident, plaintiff, Kathaleen L. Capra, appeals from the summary judgment which dismissed her complaint against defendant, Durron T. Tucker. We affirm.

The complaint alleged that plaintiff was injured in January 1988 when defendant, a state patrol officer, negligently drove a patrol car so as to collide with her automobile. In answer to the complaint, defendant, appearing pro se, filed a copy of a memorandum written to his supervisor at the Colorado Department of Public Safety describing his version of the accident. The Colorado Attorney General subsequently entered an appearance on defendant's behalf.

Defendant then filed a motion for summary judgment pursuant to C.R.C.P. 56. The motion asserted that the action was barred by plaintiff's failure to comply with the notice requirements of the Colorado Governmental Immunity Act.

Page 1347

Attached to the motion were affidavits of both defendant and his supervisor stating that, at the time of the accident, defendant was on duty as a state trooper with the Colorado State Patrol driving a state-owned vehicle. The supervisor's affidavit also stated that defendant was acting within the course and scope of his employment when the accident occurred. Finally, the motion included an affidavit from the Colorado Attorney General's custodian of claim files stating that no notice of plaintiff's claim had been located in those files.

Plaintiff filed a response to the motion in which she admitted that, at the time of the accident, defendant was a state trooper with the Colorado State Patrol and was driving from his home to his place of employment at the Governor's Mansion. The response asserted, however, that defendant was not acting within the course and scope of his employment at the time of the accident. Accordingly, plaintiff asserted that no notice of claim was required pursuant to § 24-10-109, C.R.S. (1988 Repl.Vol. 10A).

Plaintiff attached to her response an affidavit from her counsel stating that defendant's supervisor had previously told him that, although defendant was furnished with a state-owned car to drive to and from work because he was "on call," defendant did not actually start his workday until he arrived at the Governor's Mansion.

In his reply brief, defendant noted his supporting affidavits, which stated that the Colorado State Patrol provided his patrol car and paid all expenses for its operation, and that he was required to use this car in all aspects of his job, which included traveling between his home and the Governor's Mansion.

The trial court initially denied defendant's motion on the basis of unresolved factual issues. Subsequently, defendant filed a renewed motion for summary judgment with two additional supporting exhibits. One exhibit was an affidavit from the Executive Director of the Department of Public Safety. The other exhibit was part of the defendant's deposition testimony.

Plaintiff responded to the renewed motion, repeating her argument that the accident did not occur within the scope of defendant's employment because his workday did not begin until he arrived at the Governor's mansion. She did...

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36 practice notes
  • Dobson v. City and County of Denver, No. CIV.A. 98-WM-806-PAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 26, 1999
    ...matter jurisdiction under Colo. R. Civ. P. 12(b)(1). Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997); Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993). The relevant section of the GIA A public entity shall be immune from liability in all claims for injury which lie in tort or ......
  • Stokes v. Denver Newspaper Agency, Llp, No. 05CA0485.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 7, 2006
    ...has been used in governmental immunity cases. For example, in Shandy v. Lunceford, 886 P.2d 319 (Colo. App.1994), and Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993), the divisions found a person driving either to or from work to be acting within the scope of employment. These cases are like......
  • Archer v. Cook, Civil Action 21-cv-02649-RM-NRN
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 7, 2022
    ...were within the scope of a defendant's employment “depends on an examination of the totality of the circumstances.” Capra v. Tucker, 857 P.2d 1346, 1348 (Colo.App. 1993) (citing precedent from the context of workers' compensation claims). Factors that courts have examined include the extent......
  • Archer v. Cook, Civil Action 21-cv-02649-RM-NRN
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 7, 2022
    ...were within the scope of a defendant's employment “depends on an examination of the totality of the circumstances.” Capra v. Tucker, 857 P.2d 1346, 1348 (Colo.App. 1993) (citing precedent from the context of workers' compensation claims). Factors that courts have examined include the extent......
  • Request a trial to view additional results
36 cases
  • Dobson v. City and County of Denver, CIV.A. 98-WM-806-PAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 26, 1999
    ...matter jurisdiction under Colo. R. Civ. P. 12(b)(1). Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997); Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993). The relevant section of the GIA A public entity shall be immune from liability in all claims for injury which lie in tort or ......
  • Stokes v. Denver Newspaper Agency, Llp, 05CA0485.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 7, 2006
    ...has been used in governmental immunity cases. For example, in Shandy v. Lunceford, 886 P.2d 319 (Colo. App.1994), and Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993), the divisions found a person driving either to or from work to be acting within the scope of employment. These cases are like......
  • Archer v. Cook, Civil Action 21-cv-02649-RM-NRN
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 7, 2022
    ...were within the scope of a defendant's employment “depends on an examination of the totality of the circumstances.” Capra v. Tucker, 857 P.2d 1346, 1348 (Colo.App. 1993) (citing precedent from the context of workers' compensation claims). Factors that courts have examined include the extent......
  • Archer v. Cook, Civil Action 21-cv-02649-RM-NRN
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 7, 2022
    ...were within the scope of a defendant's employment “depends on an examination of the totality of the circumstances.” Capra v. Tucker, 857 P.2d 1346, 1348 (Colo.App. 1993) (citing precedent from the context of workers' compensation claims). Factors that courts have examined include the extent......
  • Request a trial to view additional results

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