Fogg v. Macaluso, 93SC606

• Decision Date: 06 March 1995
• Docket Number: No. 93SC606,93SC606
• Citation: 892 P.2d 271
• Parties: John K. FOGG, II, Petitioner, v. Mario R. MACALUSO and the County of Pueblo, Respondents.
• Court: Colorado Supreme Court

Page 271

892 P.2d 271

John K. FOGG, II, Petitioner, v. Mario R. MACALUSO and the County of Pueblo, Respondents.

No. 93SC606.

Supreme Court of Colorado En Banc.

March 6, 1995.

Peter J. Obernesser and Patrick J. Canty, Colorado Springs, for petitioner.

Vaughan & Reeves, P.C., Gordon L. Vaughan, Colorado Springs, for respondents.

Beth A. Whittier, Colorado Springs, for amicus curiae Colorado Counties, Inc.

Griffiths & Tanoue, P.C., Tami A. Tanoue, Denver, for amici curiae Colorado Intergovernmental Risk Sharing Agency and Colorado Counties Cas. and Property Pool.

Justice MULLARKEY delivered the Opinion of the Court.

The petitioner, John Fogg (Fogg), brought an action in negligence against the respondents, sheriff's deputy Mario Macaluso (Macaluso) and the County of Pueblo (the County), for the injuries he sustained when his vehicle struck Macaluso's parked patrol car in the passing lane of Interstate 25. The trial court entered summary judgment in favor of Macaluso and the County on grounds of sovereign immunity under the Colorado Governmental Immunity Act (GIA), sections 24-10-101 to 120, 10A C.R.S. (1988). The court of appeals held that the proper procedure for determining the sovereign immunity of a public entity was as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and affirmed dismissal. Fogg v. Macaluso, 870 P.2d 525 (Colo.App.1993). We granted certiorari to determine whether the court of appeals erred in affirming dismissal of Fogg's action on grounds that Macaluso was responding to an "emergency" within the exception to the waiver of immunity under section 24-10-106(1)(a). We reverse the judgment of the court of appeals and return the case for remand to the district court for further proceedings to apply the definition of emergency set out in this opinion.

I.

The undisputed facts that we can identify from the parties' briefs and the record on appeal are as follows. While on duty Macaluso responded to a report that a car was stranded in the median on Interstate 25. When he located the car, he discovered that it had gone off the road into the median as a result of a flat tire. He parked his patrol car, with the flashing emergency lights activated, in the left lane of the interstate while he helped the driver to change the tire and leave the median. At the time Macaluso's patrol car was parked in the left lane, Fogg was driving south on Interstate 25 between Colorado Springs and Pueblo. He had pulled into the left lane to pass on a long downhill curve when he saw Macaluso's patrol car. He attempted to swerve around it, but struck Macaluso's car in the rear.

Fogg brought this action against Macaluso and the County alleging that his injuries were caused by Macaluso's negligence while acting as a sheriff's deputy for the County. Macaluso and the County filed a motion to dismiss or, alternatively, for summary judgment on grounds that sovereign immunity under the GIA bars actions against a governmental entity and its employees for injuries resulting from the operation of an emergency vehicle responding to an emergency.

Based on the facts alleged in the pleadings and affidavits submitted by the parties, the trial court determined that there was no issue of material fact, and that Macaluso was responding to an emergency call within section 42-4-106(2), 17 C.R.S. (1993). Therefore, the court concluded that the defendants were immune from suit under the GIA and entered summary judgment.

The court of appeals applied our recent decision in Trinity Broadcasting v. City of Westminster, 848 P.2d 916 (Colo.1993), and treated defendant's motion as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). Following the standard of review applied in Trinity, the court of appeals found that the record contained competent evidence to support the trial court's determination that Macaluso was responding to an emergency call when he parked his vehicle. The court also affirmed the trial court's holding that section 42-4-106(4), which requires the operators of emergency vehicles "to drive with due regard for the safety of all persons," was not incorporated into the GIA.

On petition to this court, Fogg contends that, when ruling on a motion to dismiss, both the trial court and the appellate court must construe the factual allegations most favorably to the plaintiff by assuming the facts pled are true. He asserts (1) that the facts alleged indicated that Macaluso was not responding to an emergency; (2) that the courts below erred in failing to consider the requirement that emergency vehicles be driven "with due regard for the safety of all persons" in order to qualify for sovereign immunity under the GIA; and (3) that the facts alleged indicated that Macaluso had not operated his vehicle with due regard for the safety of others.

II.

A.

The first question for us to resolve on appeal is what type of situation constitutes an "emergency" under the statute. Construction of a statute is a question of law, not a factual determination. Colorado Div. of Employment & Training v. Parkview Episcopal Hosp., 725 P.2d 787, 790 (Colo.1986). In resolving a question of law, the lower court's judgment is subject to independent review by the appellate court. Evans v. Romer, 854 P.2d 1270, 1274 (Colo.1993).

The GIA establishes sovereign immunity for all public entities and public employees to all actions in tort, or which could lie in tort, except as specifically provided under the GIA. § 24-10-105. In parts relevant to this case, the GIA states:

24-10-106. Immunity and partial waiver.

(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:

(a) The operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of his employment, except emergency vehicles operating within the provisions of section 42-4-106(2) and (3), C.R.S.;

§ 24-10-106 (emphasis added). The referenced subsections of section 42-4-106 provide:

(2) The driver of an authorized emergency vehicle, when responding to an emergency call, ... may exercise the privileges set forth in this section, but subject to the conditions stated in this article. The driver of an authorized emergency vehicle may:

(a) Park or stand, irrespective of the provisions of this title;

....

(3) ... the exemption granted in paragraph (a) sections (2) of this section shall apply only when such vehicle is making use of visual signals meeting the requirements of section 42-4-212 unless using such visual signals would cause an obstruction to the normal flow of traffic; .... Nothing in this section shall be construed to require an emergency vehicle to make use of audible signals when such vehicle is not moving, whether or not the vehicle is occupied.

§ 42-4-106(2), (3) (emphasis added). See also §§ 42-1-102(5) and 42-4-106(5) (defining "authorized emergency vehicle").

Because neither Title 42 nor Title 24 defines "emergency" or "emergency call," we must determine the legislature's intent without explicit guidance. In construing statutes, we give effect to the intent of the legislature by looking first at the language of the statute. Moody v. Corsentino, 843 P.2d 1355, 1370 (Colo.1993). To effectuate legislative intent, we must give statutory terminology its commonly accepted meaning. Boulder County Bd. of Equalization v. M.D.C. Construction Co., 830 P.2d 975, 980 (Colo.1992). A strained or forced construction of a statutory term is to be avoided, Triad Painting Co. v. Blair, 812 P.2d 638, 644 (Colo.1991), and we must look to the context of a statutory term. State v. Hartsough, 790 P.2d 836, 838 (Colo.1990) (context of word in statute may provide guidance as to word's meaning); People ex rel. Dunbar v. Trinidad State Junior College, 184 Colo. 305, 309, 520 P.2d 736, 738 (1974) (legislative intent may be derived by consideration of the language in the context of the statute); Sheely v. People, 54 Colo. 136, 138, 129 P. 201, 202 (1912) ("the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it").

Moreover, terms should be construed in harmony with one another so as to give full effect to the legislative intent in enacting the statute. McCarty v. People, 874 P.2d 394, 398 (Colo.1994); People v. Andrews, 871 P.2d 1199, 1201 (Colo.1994). Therefore, consideration of an undefined term in context may provide guidance as to legislative intent and the term's proper meaning.

In People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980), we interpreted a statute which, like the statutes at issue in this case, failed to explicitly define "emergency." In that case we endorsed the common usage of the term as found in Webster's Seventh New Collegiate Dictionary: "1: an unforeseen combination of circumstances or the resulting state that calls for immediate action 2: a pressing need: EXIGENCY." Id. n. 9. We find the McKnight definition to be appropriate for interpreting sections 24-10-106(1)(a) and 42-4-106(2) and applying them to the facts of this case. ¹

Consideration of section 42-4-106(2) in its entirety lends further support to this interpretation of emergency as an exigency or an unforeseen combination of circumstances that call for immediate action. Section 42-4-106(2) provides:

The driver of an authorized emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section....

In addition to mandating tort immunity for drivers on an emergency call, the statute establishes immunity for two...