Dempsey v. Denver Police Dep't
| Decision Date | 21 May 2015 |
| Docket Number | Court of Appeals No. 13CA1614 |
| Citation | 2015 COA 67,353 P.3d 928 |
| Parties | Ilea DEMPSEY and Ashkan Zand, Plaintiffs–Appellees, v. DENVER POLICE DEPARTMENT, and the City and County of Denver, Colorado, Defendants–Appellants. |
| Court | Colorado Court of Appeals |
Kidneigh & Kaufman, P.C., Stephen C. Kaufman, Jennifer L. Crichton, Charles G. Crichton, Denver, Colorado, for Plaintiffs–Appellees
D. Scott Martinez, City Attorney, Barry A. Schwartz, Assistant City Attorney, Denver, Colorado, for Defendants–Appellants
¶ 1 In this personal injury action, defendants, the Denver Police Department and the City and County of Denver (collectively Denver), bring this interlocutory appeal, pursuant to section 24–10108, C.R.S. 2014. Denver seeks review of the trial court's denial of its motion to dismiss the complaint of plaintiffs, Ilea Dempsey and Ashkan Zand, for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA), sections 24–10–101 to –120, C.R.S.2014. We vacate and remand for further findings.
¶ 2 On January 21, 2012, at approximately dusk, plaintiffs were travelling northbound on Santa Fe Drive in Denver near the intersection with Mississippi Avenue shortly before it passes under I–25. At that time, major road construction was taking place on Santa Fe, and numerous signs were posted apprising drivers of the activity.
¶ 3 While plaintiffs were travelling northbound on Santa Fe, Officer Heather Jossi of the Denver Police Department received a call about a possible robbery. She activated her lights and siren, headed west on Mississippi, and then turned north on Santa Fe, reaching speeds as high as fifty-six miles per hour as indicated on the Crash Data Retrieval (CDR) device in Officer Jossi's patrol car. Officer Jossi alternatively accelerated and decelerated in an attempt to get around traffic on Santa Fe.
Plaintiffs saw Officer Jossi approaching their car from behind.1 They observed Officer Jossi driving much faster than the flow of traffic, rapidly weaving through traffic, cutting vehicles off, and causing vehicles to pull over to both the right and left. When the car behind them pulled over, plaintiffs saw Officer Jossi accelerate and then hit the rear of their car.
¶ 5 Plaintiffs brought this action against Denver and Officer Jossi seeking compensation for the injuries they sustained in the accident. Dempsey also sought compensation for damages to her car, which was towed from the accident scene.
¶ 6 Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under the CGIA because its immunity from suit was not waived under section 24–10–106(1)(a), C.R.S.2014, for the operation of a motor vehicle. Denver asserted that Officer Jossi's actions in driving the police vehicle fell within an exception for emergency vehicles operating within the provisions of section 42–4–108(2) and (3), C.R.S.2014.
¶ 7 As pertinent here, section 42–4–108(2)(c) allows the driver of an authorized emergency vehicle, while using audible or visual signals, to exceed the lawful speed limits so long as the driver does not endanger life or property.
¶ 8 Denver asserted that Officer Jossi was not exceeding the speed limit at the time of the accident, and did not endanger life or property when she exceeded the maximum allowed speed limits earlier in the incident. In response, plaintiffs argued that Officer Jossi's actions did not fall within the circumstances outlined in section 42–4–108(2) and (3) because her actions in driving the police car endangered life and property while she was speeding.
¶ 9 The trial court conducted a two-day evidentiary hearing in accordance with the procedures set forth in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). At the conclusion of that hearing, the court ruled from the bench and denied Denver's motion. First, the court noted that there was conflicting information about whether Officer Jossi had exceeded the speed limit both shortly prior to and at the time of impact, depending on where the impact occurred. Then, relying on Corsentino v. Cordova, 4 P.3d 1082, 1093 (Colo.2000), the court examined the totality of the circumstances surrounding the collision and found that Officer Jossi's actions in driving her vehicle endangered life and property.
¶ 10 The trial court subsequently issued a written order adopting the findings it had made from the bench. Denver then brought this interlocutory appeal.
¶ 11 After the parties had filed their briefs, this court issued an order of clarification to Denver noting that a review of the notice of appeal, the file, and the briefs showed that Officer Jossi was not listed on the notice of appeal, but was listed on the briefs and the motion for oral argument filed by Denver. The order sought clarification regarding whether Officer Jossi should have been listed on the notice of appeal.
¶ 12 The City Attorney then sought to amend the notice of appeal to include Officer Jossi as an appellant. Plaintiffs filed a response objecting to that request. After consideration of the parties' responses, resolution of this issue was deferred to the division determining the merits of the appeal.
¶ 13 We reject Denver's request to amend the notice of appeal to include Officer Jossi as an appellant.
¶ 14 C.A.R. 3 provides that an appeal permitted by law shall be taken by filing a notice of appeal within the time allowed by C.A.R. 4. Under section 24–10–108, a trial court's ruling on a motion brought by a public entity that raises the issue of sovereign immunity is final and subject to interlocutory appeal. See Richland Dev. Co. v. E. Cherry Creek Valley Water & Sanitation Dist., 899 P.2d 371, 372–73 (Colo.App.1995).
The timely filing of a notice of appeal is jurisdictional. See Cline v. Farmers Ins. Exch., 792 P.2d 305, 306 (Colo.App.1990), overruling on other grounds recognized by Janssen v. Indus. Claim Appeals Office, 40 P.3d 1 (Colo.App.2001). However, a party need only substantially comply with the contents of the notice of appeal. See Widener v. Dist. Court, 200 Colo. 398, 401, 615 P.2d 33, 34 (1980) (). Thus, the failure to include a party in, or on the caption of, a notice of appeal may be excused under certain circumstances. See Cruz v. Benine, 984 P.2d 1173, 1181 (Colo.1999) (); Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1308 (Colo.App.1998) ().
¶ 16 In its motion to amend, Denver noted that Officer Jossi had not been included as a party in its motion to dismiss. It also questioned whether she had been properly served with process in the underlying action. And, as is apparent, the trial court's order did not resolve any claims or issues as to Officer Jossi.
¶ 17 Therefore, given these circumstances, we conclude that it would be inappropriate to amend the notice of appeal to include Officer Jossi as an appellant.
¶ 18 Whether immunity has been waived under the CGIA is an issue of subject matter jurisdiction. Springer v. City & Cnty. of Denver, 13 P.3d 794, 798 (Colo.2000). The burden of proving jurisdiction is on the plaintiff, and the trial court's findings of fact supporting a determination under the CGIA will not be reversed unless clearly erroneous. Trinity, 848 P.2d at 924–25 (); see also Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 86 (Colo.2003) (). However, if the facts are undisputed, the issue is one of law, and the appellate court reviews the trial court's jurisdictional ruling de novo. Springer, 13 P.3d at 798.
¶ 19 Denver contends that the trial court erred in denying its motion to dismiss because its immunity is not waived absent a finding that plaintiffs' injuries resulted from Officer Jossi exceeding the lawful speed limit. In particular, Denver argues that the trial court failed to make any findings regarding whether Officer Jossi was exceeding the lawful speed limit at the time of the accident, and that even if the court's ruling can be so construed, the record does not support such a finding. We conclude that in order to find a waiver of immunity, the trial court was required to find that Officer Jossi both exceeded the lawful speed limit and endangered life and property. We agree that the record does not clearly demonstrate that the trial court made a finding as to whether Officer Jossi was exceeding the lawful speed limit at the relevant time and, thus, we remand for further findings.
¶ 20 Construction of a statute is a question of law we review de novo. Fogg v. Macaluso, 892 P.2d 271, 273 (Colo.1995). In interpreting a statute, we strive to effectuate the General Assembly's intent. Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 67 (Colo.1990). That intent is determined by looking at the statutory language, giving words and phrases their plain and ordinary meanings. Walton v. State, 968 P.2d 636, 644 (Colo.1998).
¶ 21 Because the immunity created by the CGIA derogates Colorado's common law, the provisions granting immunity must be strictly construed. See Bertrand v. Bd. of Cnty. Comm'rs, 872 P.2d 223, 227 (Colo.1994). Accordingly, the provisions waiving...
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