Cline v. Rabson, 91CA0844

• Decision Date: 27 August 1992
• Docket Number: No. 91CA0844,91CA0844
• Citation: 856 P.2d 1
• 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 1

856 P.2d 1

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.

Aug. 27, 1992.

As Modified on Denial of Rehearing

Dec. 17, 1992.

Certiorari Granted and Judgment

Vacated July 26, 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.

Plaintiff, Clifford E. Cline, appeals from the summary judgment dismissing his claims against defendants, the City of Loveland, its police department, and Robert Rabson, one of its police officers. We reverse.

In his complaint, plaintiff joined Rabson only in his official capacity and alleged that plaintiff had suffered serious bodily injuries as a result of the negligent acts of Rabson, who, while attempting to overtake a speeding vehicle in his police cruiser, passed plaintiff's motorcycle so closely that the cruiser struck plaintiff's elbow. Plaintiff alleged that Rabson "failed to properly use and control his vehicle, failed to observe proper safety procedures in passing the plaintiff and/or improperly used the left turning lane."

In response to these allegations, defendants claimed in their motion for summary judgment that they were immune from suit under the Colorado Governmental Immunity Act (the Immunity Act), § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A), because plaintiff's injury occurred while Rabson was operating an emergency vehicle pursuant to the provisions of § 42-4-106, C.R.S. (1984 Repl.Vol. 17).

An evidentiary hearing was held upon the question whether Rabson's operation of his emergency vehicle complied with § 42-4-106(4), C.R.S. (1984 Repl.Vol. 17), which requires the driver of an emergency vehicle to "drive with due regard for the safety of others." Thereafter, the trial court dismissed plaintiff's complaint, finding that the evidence did not support his contention that Rabson operated his vehicle in a negligent manner. Hence, it concluded that the City was immune from suit.

I.

Plaintiff first contends that the trial court erred in taking evidence and adopting findings of fact upon the immunity issue. We agree.

Section 24-10-108, C.R.S. (1988 Repl.Vol. 10A) provides that, if a public entity raises the issue of sovereign immunity before or immediately after commencement of discovery, "the court ... shall decide such issue on motion." The question presented, therefore, is whether this statute contemplates that, if resolution of the issue of the existence of immunity is dependent upon the resolution of a factual dispute, the trial court is empowered to resolve that dispute. We conclude that, in those instances, such as here, in which a disputed factual issue is presented, a court cannot resolve that issue on a pre-trial basis.

There has been no previous opinion that directly addresses a court's authority under § 24-10-108. Nevertheless, previous decisions of this court have implicitly concluded that motions calling upon the courts to determine the immunity issue, whether filed under C.R.C.P. 12(b) or under C.R.C.P. 56, are to be determined by use of the same procedural standards that would otherwise apply to such motions.

Thus, in Schlitters v. State, 787 P.2d 656 (Colo.App.1989), in which a C.R.C.P. 12(b) motion to dismiss was based upon the assertion that a boulder falling upon a highway could not constitute a "dangerous condition" under § 24-10-106(1)(d), C.R.S. (1988 Repl.Vol. 10A), it was emphasized that, in evaluating such a motion:

[T]he trial court must accept the facts of the complaint as true and determine whether under any theory of law, plaintiff is entitled to relief. If this standard [is] met, the motion to dismiss should be denied.

Similarly, in Sierra v. Denver, 730 P.2d 902 (Colo.App.1986), which also involved a motion under C.R.C.P. 12(b) to dismiss, we held that the trial court could not dismiss a claim, based upon sovereign immunity, because the allegations of plaintiff's complaint were sufficient to allow her to prove a set of circumstances in which immunity would not apply. See also Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992) (plaintiff's allegations were sufficient to withstand a C.R.C.P. 12(b) motion to dismiss that relied upon the defense of sovereign immunity).

Likewise, in Moldovan v. State, 829 P.2d 481 (Colo.App.1991), this court concluded that, if genuine issues of material fact respecting a state's violation of a statutory duty are presented, a trial court may not enter summary judgment grounded on sovereign immunity.

While none of these decisions have directly addressed the extent of a trial court's authority under § 24-10-108, they all reach what we consider to be the correct result.

It is to be noted that the statute's direction to decide the sovereign immunity issue "on motion" is applicable only if the issue is raised "prior to or immediately after the commencement of discovery." And, if raised at this time, discovery is to be suspended, "except any discovery necessary to decide the issue of sovereign immunity."

These provisions make it evident that the statute's underlying purpose is to require resolution of the immunity issue at an early stage in the proceedings, if the issue is raised at an appropriate time and it is otherwise possible to do so. It seeks to prevent the expenditure of public funds in defending upon the merits of a claim in those instances in which, because of a defendant's immunity, such defense need never be made.

Nothing within this underlying purpose, nor within the express language of the statute, however, reflects a legislative intent to require resolution of the immunity issue pursuant to a legal standard different from the standards that are used in resolving any other issue on a pre-trial basis. Its purpose is expedition, not usurpation of a jury's function. And, in those instances in which the General Assembly has intended a judge to exercise the jury's factfinding function, that intent has been clearly expressed. See, for example, § 13-21-115(4), C.R.S. (1991 Cum.Supp.) which specifically provides that, in an action against a landowner, "the judge shall determine whether plaintiff is a trespasser, a licensee, or an invitee," while the jury is to determine "issues of liability and damages."

Further, if, as here, the determination of the immunity issue would resolve factual issues upon which the claim on the merits depends, so that a decision on the immunity issue would also decide defendant's substantive liability, having the trial court act in the capacity of a pre-trial factfinder would be particularly inappropriate.

Under the Immunity Act, a public entity is immune from liability for injuries resulting from the operation of an emergency vehicle under § 42-4-106. Section 24-10-106, C.R.S. (1986 Repl.Vol. 10A). Yet, under § 42-4-106, while the driver of an emergency vehicle is exempted from complying with certain specified traffic regulations, the driver must still "drive with a due regard for the safety of all persons," and the statute does not protect him "from the consequences of his reckless disregard for the safety of others." Therefore, in instances in which the latter statute is applicable, the nature of the driver's actions will dictate not only the extent of the immunity granted by § 24-10-106, but it will also determine the underlying liability claim. Under these circumstances, we cannot ascribe to the General Assembly an intent to delegate to a judge the ultimate factfinding responsibility of the jury.

Hence, we conclude that, if a party raises the issue of sovereign immunity by filing a timely pre-trial motion under § 24-10-108, a trial court is bound to decide such motion using the same standard for disposition as would otherwise apply to such a pre-trial motion. If the motion is one for summary judgment, the court may not grant such motion if there exists for resolution a genuine issue of material fact. See Sewell v. Public Service Co., 832 P.2d 994 (Colo.App.1991) (although existence of duty is a question of law for the court, if foreseeability of injury is subject to reasonable dispute, that issue is for the jury).

Here, 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. In addition, its determination that Rabson acted properly was reached after considering credibility issues in its capacity as a factfinder; that determination was not made as a judge acting on a matter of law.

Therefore, because the trial court applied the wrong legal standard in passing upon defendant's pre-trial motion, its judgment must be reversed and the cause remanded to it for its reconsideration.

II.

Because the issue will arise on the trial court's reconsideration of defendant's motion we also address plaintiff's assertion that § 42-4-106 abrogates governmental immunity if the driver of an emergency vehicle violates the simple negligence standard of ordinary care and that it is unnecessary, for this purpose, to establish that such a driver was guilty of reckless conduct. We also agree with this assertion.

Section 24-10-105, C.R.S. (1988 Repl.Vol. 10A) of the Immunity Act generally exempts public entities from liability in tort. However, § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A) generally waives that immunity for injuries resulting from the operation of a vehicle owned by a public entity and operated by a public employee. Under this statute, however, immunity is not waived in those instances in which the injuries...