DiPaolo v. Boulder Valley School Dist., RE-2, RE-2

Decision Date12 January 1995
Docket NumberRE-2,D,No. 94CA0295,94CA0295
Citation902 P.2d 439
Parties103 Ed. Law Rep. 834 Mary DiPAOLO, Plaintiff-Appellant, v. BOULDER VALLEY SCHOOL DISTRICT,efendant-Appellee. . C
CourtColorado Court of Appeals

Turner & Meiklejohn, P.C., Scott A. Meiklejohn, Denver, for plaintiff-appellant.

Watson, Nathan & Bremer, P.C., J. Andrew Nathan and Andrew J. Fisher, Denver, for defendant-appellee.

Opinion by Judge KAPELKE.

In this negligence action to recover damages for personal injuries, plaintiff, Mary DiPaolo, appeals from the summary judgment in favor of defendant, Boulder Valley School District, RE-2, based on sovereign immunity. We affirm.

In her complaint, plaintiff alleged that she was injured in 1990 while participating in a training program at defendant's transportation facility. Specifically, plaintiff alleged that she toured the interior of a damaged school bus that had been in an accident and was being displayed in a bus barn as a safety exhibit. According to the complaint, the only exit from the bus was through the emergency door, which was approximately three feet off the ground, and no steps were provided. In descending from the bus, plaintiff fell and injured her head and knee. Plaintiff claimed that her injuries resulted from defendant's negligent failure to provide safe and appropriate devices for exiting the bus.

Defendant filed an answer admitting that the damaged bus was being stored on property owned by the defendant and that plaintiff had viewed the inside of the bus and exited by jumping down through the emergency exit. Defendant denied negligence and asserted, among other defenses, that plaintiff's claim was barred by the Colorado Governmental Immunity Act.

Defendant also filed a motion for summary judgment, asserting that sovereign immunity barred plaintiff's claim because her injury did not result from the operation of a motor vehicle or from a dangerous condition of a public building. Both parties submitted exhibits with their summary judgment briefs.

The trial court determined from undisputed facts that plaintiff's claims were barred. Specifically, the court concluded that the parked, inoperable bus did not become part of defendant's transportation facility when it was placed there and that, therefore, the waiver for a "dangerous condition of a public building" did not apply. The court further determined that the use of the badly damaged school bus as an immobile safety display did not amount to the "operation of a motor vehicle" for purposes of § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A). Accordingly, the trial court determined that it lacked subject matter jurisdiction over plaintiff's claims.

I.

On appeal, plaintiff contends that the trial court erred in concluding that her injury did not result from the "operation of a motor vehicle" within the waiver provision of § 24-10-106(1)(a). In support of her contention, she argues that there was no requirement that the bus be in use "as a motor vehicle" for the waiver to apply. We conclude that the waiver is inapplicable.

The issue of sovereign immunity is one of subject matter jurisdiction, and the proper procedure for determining whether a public entity is immune is under C.R.C.P. 12(b)(1) rather than C.R.C.P. 56. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

Further, appellate review of a trial court's determination of this threshold factual issue is to be conducted under the highly deferential, clearly erroneous standard. See Cline v. Rabson, 862 P.2d 1035 (Colo.App.1993). Also, if a reviewing court is satisfied that all relevant evidence has been presented to the trial court, it may apply C.R.C.P. 12(b)(1) to the record without a remand. See Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).

Because the record here confirms that all the relevant evidence was presented to the trial court, we are in a position to review the immunity issues without a remand.

Subject to an exception not pertinent here, § 24-10-106(1)(a) provides that sovereign immunity is waived by a public entity in an action for injuries resulting from the operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment.

In enacting this subsection, the General Assembly intended to waive the defense of sovereign immunity for injuries arising from automobile accidents caused by the negligent operation of government-owned motor vehicles. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994).

The Governmental Immunity Act does not define the term "motor vehicle." However, the supreme court recently held that, for purposes of the waiver of immunity in § 24-10-106(1)(a), the term includes "any vehicle on wheels having its own motor and not running on rails or tracks, for use on streets or highways." Bertrand v. Board of County Commissioners, supra, 872 P.2d at 229 (emphasis supplied). See also Sierra v. City & County of Denver, 730 P.2d 902 (Colo.App.1986) (since plaintiff's allegations would permit proof that her injuries resulted from the operation of a moving fire truck, it was error to dismiss her complaint for failure to state a claim).

Here, it was undisputed that, at the time of plaintiff's injuries, the badly damaged school bus was incapable of being operated on streets or highways and was being used only as an immobile exhibit in a safety display. These undisputed facts support the trial court's determination that plaintiff's injuries did not result from the operation of a motor vehicle and that, therefore, there was no waiver of sovereign immunity pursuant to § 24-10-106(1)(a).

II.

Alternatively, plaintiff contends that the trial court erred in...

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5 cases
  • Sanchez By and Through DiFerdinando v. School Dist. 9-R
    • United States
    • Colorado Court of Appeals
    • January 26, 1995
    ...court adopted in Jenks was left untouched by Bertrand, supra, and therefore, we must follow it today. See DiPaolo v. Boulder Valley School District RE-2, 902 P.2d 439 (Colo.App.) (similarly interpreting To the extent that Longbottom v. State Board of Community Colleges & Occupational Educat......
  • Reynolds v. State Bd. for Community Colleges and Occupational Educ.
    • United States
    • Colorado Court of Appeals
    • May 2, 1996
    ...in Jenks of the provision waiving immunity for a dangerous condition of a public building. See DiPaolo v. Boulder Valley School District, RE-2, 902 P.2d 439 (Colo.App.1995). Relying on Jenks v. Sullivan, supra, the Reynolds I court held that an injury sustained from the operation of an impr......
  • Scott v. City of Greeley, 95CA1282
    • United States
    • Colorado Court of Appeals
    • November 7, 1996
    ...we apply the clearly erroneous standard in reviewing the trial court's factual determination of the issue. DiPaolo v. Boulder Valley School District, 902 P.2d 439 (Colo.App.1995). Section 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A) provides in part: "A public entity shall be immune from liabi......
  • Harris v. Regional Transp. Dist., No. 99CA0573.
    • United States
    • Colorado Court of Appeals
    • May 25, 2000
    ...owned or leased by such public entity, by a public employee while in the course of employment. See DiPaolo v. Boulder Valley School District, RE-2, 902 P.2d 439 (Colo.App.1995). The term "operation" is specifically defined in the GIA in relation to public facilities, see § 24-10-103(3), C.R......
  • Request a trial to view additional results
2 books & journal articles
  • Recent Developments in Governmental Immunity: Post-trinity Broadcasting
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-6, June 1996
    • Invalid date
    ...1347 (Colo.App. 1993); Lafitte v. State Highway Dept., 885 P.2d 338, 341 (Colo.App. 1994). 16. DiPaolo v. Boulder Valley School Dist., 902 P.2d 439, 441 (Colo.App. 1995); Shandy, supra, note 11 at 322. 17. Shandy, supra, note 11 at 322. 18. Lafitte, supra, note 15 at 341. 19. See Copra, sup......
  • Overview of General Liability, Workers' Compensation, and Employment Law Issues in K-12 Educational Institutions
    • United States
    • Colorado Bar Association Colorado Lawyer No. 44-10, October 2015
    • Invalid date
    ...[30] Robinson v. Ignacio School Dist, 328 P.3d 297 (Colo.App. 2014). [31] DiPaollo v. Boulder Valley School Dist. RE-2, 902 P.2d 439 (Colo.App. 1995). [32] Ex rel. Loveland v. St. Vrain Valley School Dist. RE-1J, 328 P.3d 228 (Colo.App. 2012). [33] Madden v. Mountain West Fabricators, 977 P......

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