Cordova v. PUEBLO WEST METROPOLITAN DIST., No. 97CA1266.

Docket NºNo. 97CA1266.
Citation986 P.2d 976
Case DateDecember 24, 1998
CourtCourt of Appeals of Colorado

986 P.2d 976

Alonso G. CORDOVA; Mark Allen Cordova; Theresa Marie Randall; and Thomas Anthony Cordova, Plaintiffs-Appellees,
v.
PUEBLO WEST METROPOLITAN DISTRICT and Dan Corsentino, Sheriff of the County of Pueblo, Defendants-Appellants

No. 97CA1266.

Colorado Court of Appeals, Division IV.

December 24, 1998.

Rehearing Denied January 21, 1999.

Certiorari Granted September 7, 1999.


986 P.2d 977
Richard R. Macrorie, Pueblo, Colorado, for Plaintiffs-Appellees

Senter Goldfarb & Rice, L.L.C., William L. Senter, Peter H. Doherty, David L. Zwisler, Denver, Colorado, for Defendant-Appellant Pueblo West Metropolitan District

Vaughan & DeMuro, Gordon L. Vaughan, Shelby Felton-Schnack, Colorado Springs, Colorado, for Defendant-Appellant Dan Corsentino

Opinion by Judge KAPELKE.

In this wrongful death action arising from an automobile accident, defendants, Pueblo West Metropolitan District (District) and Dan Corsentino, Sheriff of Pueblo County (Sheriff), appeal from orders of the trial court denying their respective motions to dismiss for lack of subject matter jurisdiction based on assertions of governmental immunity. We affirm in part, reverse in part, and remand with directions.

Erlinda A. Cordova (deceased) died as a result of injuries she sustained on July 30, 1995, when her car collided with a patrol car driven by a deputy sheriff of Pueblo County. Plaintiff Alonso G. Cordova is the surviving husband of deceased, and plaintiffs Mark Allen Cordova, Theresa Marie Randall, and Thomas Anthony Cordova are her surviving children.

In their first claim in the complaint, plaintiffs allege that the District created a dangerous condition of a road or street by having negligently maintained a median strip which contained trees and bushes that obstructed the vision of the deceased and contributed to her injuries and eventual death.

In their second claim, plaintiffs allege that the Sheriff is liable under the doctrine of respondeat superior for the negligent and willful and wanton conduct of the deputy sheriff in having failed to drive with due regard for the safety of the deceased. Specifically,

986 P.2d 978
they allege that, at the time of the accident, the deputy was driving 60 miles per hour in a 35 mile per hour zone while approaching a dangerous intersection affording limited visibility

The District and the Sheriff filed separate motions to dismiss under C.R.C.P. 12(b)(1) based on the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. 1998(GIA). The trial court denied both motions, and this appeal followed.

I.

The District contends that the trial court erred in determining that its governmental immunity was waived pursuant to § 24-10-106(1)(d)(I), C.R.S, 1998. We agree.

Section 24-10-106, C.R.S.1998, provides that sovereign immunity shall be a bar to any action against a public entity for injuries which lie in tort or could lie in tort, except as provided in other specified statutory sections.

Plaintiffs rely on § 24-10-106(1)(d)(I), which provides in pertinent part that sovereign immunity is waived by a public entity in an action for injuries resulting from a "dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic on the paved portion" of such public highway, street, or road.

In the trial court, plaintiffs urged, and the trial court agreed, that by allowing trees and bushes to grow to the point of obscuring vision at the intersection where the accident occurred, the District had created a dangerous condition "which physically interferes with the movement of traffic on the paved portion of the roadway."

Because the immunity created by the GIA is in derogation of the common law, immunity provisions must be strictly construed, while waiver provisions are entitled to deferential construction in favor of victims who have been injured by the negligence of governmental employees. Walton v. State, 968 P.2d 636 (Colo.1998); Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994). The issue of sovereign immunity is one of subject matter jurisdiction, and the plaintiff has the burden...

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6 practice notes
  • Carothers v. Archuleta County Sheriff, No. 04CA0762.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 15, 2006
    ...be responsible under § 30-10-506 for injuries resulting from deputy's negligent driving); Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998)(where sovereign immunity was waived for operation of motor vehicle, sheriff could be liable under doctrine of respondeat super......
  • Lin v. City of Golden, No. 02CA2535.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 25, 2004
    ...is not limited to those conditions that have their physical source in the highway surface itself"); cf. Cordova v. Pueblo W. Metro. Dist., 986 P.2d 976 (Colo.App.1998), aff'd on other grounds, 4 P.3d 1082 We also conclude that the decision by a division of this court in Cordova, supra, does......
  • Corsentino v. Cordova, No. 99SC111.
    • United States
    • Colorado Supreme Court of Colorado
    • June 26, 2000
    ...Petitioner, Pueblo County Sheriff Dan Corsentino, challenges the court of appeals' decision, Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998), upholding the trial court's denial of his motion to dismiss a wrongful death action filed against him based on the actions......
  • Springer v. City and County of Denver, No. 98CA0545.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 13, 1999
    ...Walton v. State, 968 P.2d 636 (Colo.1998)(deferentially construed); Cordova v. Pueblo 990 P.2d 1095 West Metropolitan District, 986 P.2d 976 (Colo.App.1998) (deferentially If all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, the issue ......
  • Request a trial to view additional results
6 cases
  • Carothers v. Archuleta County Sheriff, No. 04CA0762.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 15, 2006
    ...be responsible under § 30-10-506 for injuries resulting from deputy's negligent driving); Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998)(where sovereign immunity was waived for operation of motor vehicle, sheriff could be liable under doctrine of respondeat super......
  • Lin v. City of Golden, No. 02CA2535.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 25, 2004
    ...is not limited to those conditions that have their physical source in the highway surface itself"); cf. Cordova v. Pueblo W. Metro. Dist., 986 P.2d 976 (Colo.App.1998), aff'd on other grounds, 4 P.3d 1082 We also conclude that the decision by a division of this court in Cordova, supra, does......
  • Corsentino v. Cordova, No. 99SC111.
    • United States
    • Colorado Supreme Court of Colorado
    • June 26, 2000
    ...Petitioner, Pueblo County Sheriff Dan Corsentino, challenges the court of appeals' decision, Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998), upholding the trial court's denial of his motion to dismiss a wrongful death action filed against him based on the actions......
  • Springer v. City and County of Denver, No. 98CA0545.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 13, 1999
    ...Walton v. State, 968 P.2d 636 (Colo.1998)(deferentially construed); Cordova v. Pueblo 990 P.2d 1095 West Metropolitan District, 986 P.2d 976 (Colo.App.1998) (deferentially If all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, the issue ......
  • Request a trial to view additional results

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