Cline v. Rabson, 91CA0844

• Decision Date: 21 October 1993
• Docket Number: No. 91CA0844,91CA0844
• Citation: 862 P.2d 1035
• Parties: Clifford E. CLINE, Plaintiff-Appellant, v. Robert RABSON, The Police Department of the City of Loveland, a governmental entity, and The City of Loveland, a municipal corporation, Defendants-Appellees. . IV
• Court: Colorado Court of Appeals

Page 1035

862 P.2d 1035

Clifford E. CLINE, Plaintiff-Appellant, v. Robert RABSON, The Police Department of the City of Loveland, a governmental entity, and The City of Loveland, a municipal corporation Defendants-Appellees.

No. 91CA0844.

Colorado Court of Appeals Div. IV.

Oct. 21, 1993.

Scott DeDolph, Fort Collins, for plaintiff-appellant.

Watson, Nathan & Bremer, P.C., J. Andrew Nathan, Joseph J. Fraser, III, Denver, for defendants-appellees.

Bruno, Bruno & Colin, P.C., Marc F. Colin, Denver, for amicus curiae Fraternal Order of Police Colorado State Lodge.

Opinion by Judge CRISWELL.

On petition for certiorari, the Colorado Supreme Court vacated our judgment in Cline v. Rabson, 856 P.2d 1 (Colo.App.1992) and remanded the cause to us for reconsideration in light of its recent decision in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). We have reconsidered the issues presented and affirm the summary judgment entered by the trial court dismissing plaintiff's claim as barred under the Governmental Immunity Act, § 24-10-106 (1988 Repl.Vol. 10A).

I.

In Trinity, our supreme court held that the issue of sovereign immunity is one of subject matter jurisdiction and, therefore, the proper procedure for determining whether a public entity is immune under the statute is governed by C.R.C.P. 12(b)(1) and not C.R.C.P. 56. In Trinity, the court also held that the trial court must act as fact finder and may consider, in proceeding under C.R.C.P. 12(b)(1), any competent evidence pertaining to the immunity issue without applying the requirement of C.R.C.P. 56 that there be no dispute in the material facts.

The Trinity court also declared that appellate review of the trial court's determination of these threshold factual issues is to be conducted under the highly deferential, clearly erroneous, standard.

Here, pursuant to § 24-10-108 (1988 Repl.Vol. 10A), the trial court held an evidentiary hearing on the question whether defendant's operation of his emergency vehicle complied with the emergency vehicle statute, § 42-4-106(4), C.R.S. (1993 Repl.Vol. 17), which requires the driver of an emergency vehicle to "drive with due regard for the safety of others." Finding that defendant had operated the vehicle with due care, the court dismissed plaintiff's complaint because of sovereign immunity.

Although the issue of governmental immunity here was raised by defendant in the form of a motion for summary judgment under C.R.C.P. 56, the trial court did not limit itself to a consideration of the evidentiary materials submitted in support of and in opposition to the request for summary judgment. Instead, it conducted an evidentiary hearing and received testimony from witnesses. Hence, the court's determination that defendant acted with due care was reached only after considering the testimony of the witnesses and their credibility. Under Trinity, the procedure adopted by the trial court for resolving the immunity issue was the proper course mandated by § 24-10-108.

Further, the trial court here not only reviewed documentary evidence, but also heard testimony from the plaintiff, defendant, and a police department accident reconstructionist. The record contains competent evidence that supports the trial court's ruling that the police officer was not operating his vehicle negligently when he struck plaintiff, and even though that evidence may be subject to conflicting inferences, the trial...