Johnson v. Regional Transp. Dist., 94CA0795

• Docket Nº: No. 94CA0795
• Citation: 916 P.2d 619
• Case Date: October 26, 1995
• Court: Court of Appeals of Colorado

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916 P.2d 619 Sheila JOHNSON, Plaintiff-Appellant,
v.
REGIONAL TRANSPORTATION DISTRICT, Defendant-Appellee. No. 94CA0795. Colorado Court of Appeals,
Div. IV. Oct. 26, 1995.
Rehearing Denied Nov. 24, 1995.
Certiorari Denied May 20, 1996.

Page 620

Sawaya & Rose, P.C., Christopher B. Dominick, Michael G. Sawaya, Denver, for Plaintiff-Appellant.

Michael A. Martinez, Denver, for Defendant-Appellee.

Opinion by Judge DAVIDSON.

In this negligence action to recover damages for personal injuries, plaintiff, Sheila Johnson, appeals from the judgment which dismissed her complaint against defendant, Regional Transportation District (RTD), on the basis of sovereign immunity. We reverse and remand.

The complaint alleged that plaintiff was injured after she had disembarked from an RTD bus and was struck by another vehicle as she was crossing the highway to get to her parked car. It further alleged that plaintiff's injuries resulted from the RTD driver's negligent stopping in a traffic lane and across the highway from the regular RTD stopping place. RTD's answer, among other defenses, asserted that plaintiff's claim was barred by governmental immunity.

Both parties filed disclosure certificates, and the case was set for a jury trial. Prior to trial, the parties entered into a written stipulation which was filed with the court. The stipulation contained the following provisions:

1. On June 10, 1992, at approximately 11:30 p.m., Plaintiff, while walking west to east across the northbound lane of the 4800 block of Chambers Road, was struck by a vehicle being driven by Troy Craig Henderson.

2. The RTD bus ... was not present at the time and/or location of the accident involving Plaintiff and Troy Craig Henderson on June 10, 1992.

3. Plaintiff incurred medical expenses for treatment of injuries sustained as a result of being struck by this vehicle.

Subsequently, RTD filed a motion to dismiss the complaint pursuant to C.R.C.P. 12(b) for failure to state a claim upon which relief could be granted. In support of the motion, RTD argued that it was immune from liability unless plaintiff's injury resulted from the negligent operation of the bus.

On the first day of trial, based upon the briefs and oral argument, the trial court granted the motion. In so ruling, the court determined that RTD was immune from suit pursuant to § 24-10-106(1)(a), C.R.S. (1988 Repl.Vol. 10A) because plaintiff's injuries did not result from the operation of the RTD bus. Accordingly, the court dismissed plaintiff's claims with prejudice for lack of subject matter jurisdiction.

I.

Section 24-10-106(1)(a) of the Governmental Immunity Act (GIA) provides that a public entity's sovereign immunity is waived in an action for injuries resulting from a public employee's operation, in the course of his or her employment, of a motor vehicle owned or leased by the entity. Plaintiff contends that

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the trial court erred in concluding as a matter of law that plaintiff's injuries did not result from the "operation" of the RTD bus, as that term is used in the GIA. We agree.

A.

We first address, and reject, RTD's assertion that our review of the trial court's decision must be conducted under the clearly erroneous standard.

The issue of sovereign immunity is to be decided as a question of subject matter jurisdiction under C.R.C.P. 12(b)(1), and any factual dispute upon which the existence of jurisdiction may turn is for the trial court to resolve. Appellate review of such a factual determination is on a clearly erroneous basis. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

However, the trial court need only act as fact finder if it must resolve conflicting evidence in making its determination. If, as here, the underlying facts are undisputed, the issue is one of law, and we are not bound by the trial court's determinations. See Kittinger v. City of Colorado Springs, 872 P.2d 1265 (Colo.App.1993) (in determination of jurisdiction under C.R.C.P. 12(b)(1), the trial court's interpretation of the term "public" as used in the GIA was error as a...