Crouse v. City of Colorado Springs
Decision Date | 19 December 1988 |
Docket Number | No. 86SA363,86SA363 |
Citation | 766 P.2d 655 |
Parties | David Alan CROUSE, Appellant and Cross-Appellee, v. CITY OF COLORADO SPRINGS and Mario Rivera, in his individual and official capacity, Appellees and Cross-Appellants. |
Court | Colorado Supreme Court |
Cornish and Dell'Olio, Craig M. Cornish Colorado Springs, for appellant and cross-appellee.
Hall & Evans, Alan Epstein, Gordon L. Vaughan, Denver, Kane & Donley, Thomas K. Kane, Colorado Springs, for appellees and cross-appellants.
Appellant, David Alan Crouse, seeks review of the trial court's summary judgment dismissing state common-law tort claims and federal civil rights violation claims he filed against defendants, City of Colorado Springs (the City) and Colorado Springs Police Officer Mario Rivera, and awarding attorney fees to the defendants. The trial court held that section 13-80-129, 6A C.R.S. (1982 Supp.) (repealed & reenacted 1986), 1 barred Crouse's common-law negligence claims against the defendants and authorized the award of attorney fees. It dismissed Crouse's civil rights claims against the City on the ground that he failed to allege with sufficient specificity essential elements of such claims and dismissed his common-law claims against the City on evidentiary grounds. 2 The trial court dismissed Crouse's civil rights claims against Rivera on the grounds that proof of intentional misconduct was essential to recovery under the federal Civil Rights Act, 42 U.S.C. § 1983 (1979) (hereinafter § 1983), and that the undisputed evidence refuted any allegations of intentional misconduct, and dismissed a common-law assault and battery claim against the defendants on the ground that the evidence did not support a finding that Rivera acted with intent. The trial court also held that the notice filed by Crouse satisfied the requirements of section 24-10-109, 10 C.R.S. (1982) (amended 1986), which ruling is challenged by a cross-appeal filed by the City and Rivera. We affirm in part, reverse in part and remand with directions.
The following general statement of facts is based upon the depositions and affidavits filed with the trial court. 3 Further references to the contents thereof will be made as necessary in the course of examining the issues.
During the day of June 19, 1984, Rivera, a Colorado Springs Police Department officer, investigated a reported theft of gasoline from a local business establishment. He was informed that the perpetrator was a Caucasian male in his mid-twenties, approximately five-feet-eight inches to five-feet-ten inches tall, with long blond hair. He was also informed that the perpetrator wore blue jeans and a light blue or tan top and drove away in a dark brown pickup truck with no license plates.
At approximately 1:47 a.m. on June 20, Rivera observed a dark brown pickup truck being driven by a person matching the description of the perpetrator. When he attempted to make a traffic stop of the vehicle, it sped away. Rivera followed the speeding truck and observed it come to a stop in a residential area of the City. The driver, Crouse, exited and began to run.
Rivera radioed for assistance and pursued the driver. He was joined by Officer Alan Lippold, and the two ultimately found Crouse crouched down in some bushes located against the wall of a residence. Rivera held a flashlight in his left hand and his service revolver in his right hand as Lippold pulled Crouse from his hiding place. Rivera stated in his deposition that his service revolver was not cocked, that he observed Crouse move his right hand, and that as he applied both his hands to Crouse in an effort to push him down to the ground the revolver discharged accidentally. Lippold stated in his deposition that Rivera's revolver discharged accidentally as Rivera was attempting to push Crouse to the ground. Crouse stated in his deposition that when he was located one of the officers yelled, "Here's the asshole"; that as he was pulled from the bushes he was struck on the head by Rivera's flashlight; and that a revolver then discharged. He also stated in his deposition that he felt "it was an accident." Crouse received a neck wound.
Dr. Robert Dillon submitted an affidavit stating his opinion, based on the absence of any powder burns revealed by a photograph of the wound taken the day of the shooting, that the weapon had been discharged from eighteen to twenty-four inches from Crouse's face. Dr. Charles Wilber submitted an affidavit containing his opinion that the weapon was discharged at least twenty-four inches from Crouse's face and that, because no gunshot residue was found on Rivera's uniform, the officer must have been standing away from Crouse at the time the weapon discharged.
In April of 1985, Crouse filed a civil action against Rivera and the City. He had previously sent a notice to the City that he had been injured. An amended complaint containing common-law claims and claims based on § 1983 was filed against the defendants on November 8, 1985. The first claim alleges negligent conduct by Rivera. The second claim alleges negligent hiring practices by the City. The third claim alleges deprivation of rights protected by the fourth and fourteenth amendments to the United States Constitution and article two, sections 7 and 25, of the Colorado Constitution as the result of negligent training of personnel by the City and the use of excessive force and the abuse of official power by Rivera. The fourth claim alleges knowing failure by the City to discipline officers as a matter of policy and custom. The fifth claim alleges that Rivera acted with intent to harm Crouse. The complaint seeks damages and requests an award of attorney fees.
On November 25, 1985, Rivera and the City filed answers to the amended complaint and motions to dismiss or, alternatively, for summary judgment. The motions alleged that all claims except the third claim were barred by provisions of section 13-80-129, 6A C.R.S. (1982 Supp.) (repealed & reenacted 1986); that the second and fourth claims against the City failed to comply with the notice provisions of section 24-10-109, 10 C.R.S. (1982) (amended 1986); that Crouse's § 1983 claims should be dismissed because they alleged only negligent rather than intentional conduct; and that the fifth claim should be dismissed because "the evidence did not support the assertion that the shooting was intentional." With the exception of its conclusion that Crouse's notice of claim satisfied the notice requirements of section 24-10-109, the trial court granted the motion. It also ordered Crouse to pay attorney fees pursuant to section 13-80-129(2) for the costs of defending the state common-law claims.
Crouse asserts that the trial court erred in dismissing his common-law claims against Rivera and the City and in awarding attorney fees to the defendants on the basis of section 13-80-129, 6A C.R.S. (1982 Supp.) (repealed & reenacted 1986). That statute states in pertinent part as follows:
Injury sustained while in commission of a felonious act or in flight from the commission of a felonious act. (1) On or after April 9, 1982, no person, his estate, or his personal representative shall have a right to recover damages for a personal injury sustained during the commission of or during immediate flight from an act which is defined by any law of this state or the United States to be a felony, if the conditions stipulated in this section apply.
(2)(a) The court shall dismiss the action and award attorney fees and costs to the person against whom the action was brought if the injured person has been convicted of the felony or has been adjudicated a delinquent as a result of the commission of the act and if the person who caused the injuries acted:
(I) Under a reasonable belief that physical force was reasonable and appropriate to prevent injury to himself or to others, using a degree of force which he reasonably believed necessary for that purpose; and
(II) Under a reasonable belief that physical force was reasonable and appropriate to prevent the commission of a felony, using a degree of force which he reasonably believed necessary for that purpose.
Crouse first argues that the evidence does not establish that the force used by Rivera was used to prevent the commission of a felony. He argues alternatively that the evidence reveals a factual dispute as to whether the force used was reasonable under the circumstances, that the trial court's construction of the statute would render it unconstitutional under the fourth amendment to the United States Constitution, that the statute violates federal due process and equal protection constitutional standards, and that the trial court violated Crouse's federal procedural due process rights in rendering its decision.
We need not address Crouse's arguments concerning the state of the evidence regarding the degree of force used, the constitutionality of the statute or the propriety of the trial court's procedures. 4 Subsection (2)(a)(II) of section 13-80-129 provides that the statute permits dismissal of an action only when the force is used under a reasonable belief that such force is reasonable and appropriate to prevent the commission of a felony. The degree of force used must be no greater than what the officer "reasonably believed necessary for that purpose " (emphasis added). These circumstances must be proved in addition to the requirements of section (2)(a)(I) relating to prevention of injury.
The depositions of Rivera, Lippold and Crouse contain the following pertinent evidence. Rivera testified that Crouse moved a hand and that the revolver, though not cocked, accidentally discharged when Rivera exerted force to ensure that Crouse remained in a prone position on the ground. Lippold testified that he at no time considered himself to be in any danger. Crouse testified that Rivera struck him with...
To continue reading
Request your trial-
Rubins v. Plummer
... ... County, Defendant-Appellee ... No. 89CA1421 ... Colorado Court of Appeals, ... Dec. 20, 1990 ... Rehearing Denied Jan. 24, 1991 ... Rubins, an inmate at the Territorial Correctional Facility in Canon City, Colorado, filed a complaint against Ann Plummer, clerk of the Fremont ... See Crouse ... See Crouse v. City of Colorado Springs ... ...
-
County of Adams v. Hibbard
... Page 212 ... 918 P.2d 212 ... COUNTY OF ADAMS, State of Colorado; Robert J. Loew and ... Darrel L. Matteson, Petitioners, ... Dean ... New York City Dep't of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d ... [s] 1983." See also Crouse v. City of Colo. Springs, 766 P.2d 655, 660 (Colo.1988) ("The due process ... ...
-
State Bd. of Chiropractic Examiners v. Stjernholm
... Page 959 ... 935 P.2d 959 ... 21 Colorado Journal 506 ... STATE BOARD OF CHIROPRACTIC EXAMINERS; Dr. William ... See City of Lakewood v. Brace, 919 P.2d 231, 238 (Colo.1996). In order to ... See Hibbard, 918 P.2d at 218, 220. In Crouse v. City of Colorado Springs, 766 P.2d 655, 660 (Colo.1988), we noted that ... ...
-
& 08CA1035 Alexander v. Stone
...1985). The court is not entitled to weigh the credibility of witnesses at the summary judgment stage. Crouse v. City of Colorado Springs, 766 P.2d 655, 661 (Colo. 1988); Travers v. Rainey, 888 P.2d 372, 374 (Colo. App. 1994). V. Motions for Summary Judgment The attorney filed four motions f......