Kallage v. Alvidrez, 97CA0369

• Decision Date: 30 April 1998
• Docket Number: No. 97CA0369,97CA0369
• Citation: 969 P.2d 743
• Parties: Mary KALLAGE and Joseph Kallage, Plaintiffs-Appellants, v. Casey ALVIDREZ, and County of Fremont, jointly and severally and individually, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 743

969 P.2d 743

Mary KALLAGE and Joseph Kallage, Plaintiffs-Appellants, v. Casey ALVIDREZ, and County of Fremont, jointly and severally and individually, Defendants-Appellees.

No. 97CA0369.

Colorado Court of Appeals Div. V.

April 30, 1998.

Cross, Johnson & Associates, Anthony R. Cross, Galyn Johnson, Colorado Springs, for Plaintiffs-Appellants.

Peterson, Fonda, Farley, Mattoon, Crockenberg & Garcia, P.C., David W. Crockenberg, Pueblo, for Defendants-Appellees.

Opinion by Judge MARQUEZ.

In this negligence action, plaintiffs, Mary and Joseph Kallage, appeal from the trial court's dismissal of their complaint against defendants, Casey Alvidrez and the County of Fremont (County), on the basis that their claims were barred by governmental immunity. We reverse and remand with directions.

In 1994, Mary Kallage was injured when the car she was driving struck two horses that had wandered onto the roadway on which she was traveling.

Kallage and her husband filed suit against Alvidrez and the County, the owners of the horses, and the owners of the property where the horses were kept. In their complaint, plaintiffs alleged, inter alia, that Alvidrez, while operating a snowplow in the course and scope of his employment with the County, had negligently filled a cattle guard with snow and dirt on an adjacent county road. Plaintiffs alleged that this conduct permitted the horses to escape from their enclosure and enter the road on which plaintiff was driving.

Alvidrez and the County filed a motion for judgment on the pleadings pursuant to C.R.C.P. 12(c) on the basis that plaintiffs' claims were barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.1997. Defendants argued that they were immune from liability under the GIA because § 24-10-106(1)(d)(I), C.R.S.1997 does not waive immunity for an accident resulting from a dangerous condition of a county road.

Plaintiffs conceded that defendants' immunity was not waived under § 24-10-106(1)(d)(I). However, they argued that by filling the cattle guard with snow and dirt, Alvidrez had negligently operated the snowplow. Thus, they contended that their claim was pursuant to § 24-10-106(1)(a), C.R.S.1997, which waives immunity for injuries resulting from the negligent operation of a motor vehicle.

In response, defendants asserted that because plaintiffs' injuries were not directly related to the operation of the snowplow, i.e., there was no collision between the snowplow and Mary Kallage's car, § 24-10-106(1)(a) was inapplicable.

The trial court treated defendants' motion as a motion to dismiss under C.R.C.P. 12(b)(1). It noted that plaintiffs did not assert that the snowplow caused the accident but rather that it caused the accumulation of snow and dirt in the cattle guard. Thus, the court reasoned that, because § 24-10-106(1)(d)(I) specifically addressed waiver for a dangerous accumulation of snow, ice, sand and gravel, and § 24-10-106(1)(a) did not apply "in the absence of some further or different involvement of the motor vehicle," defendants' immunity was not waived under § 24-10-106(1)(a). The court stated that defendants' immunity must be waived under § 24-10-106(1)(d)(I) or not at all. However, because the county roads are excluded from the exception to immunity in § 24-10-106(1)(d)(I), the court concluded that plaintiffs' claims were barred by the GIA. Accordingly, it dismissed plaintiffs' complaint.

On appeal, plaintiffs contend that the trial court erred in determining that their claims against defendants were barred by the GIA. In particular, they assert that the trial court erred in determining that there had to be a waiver of immunity under § 24-10-106(1)(d)(I) for the dangerous condition of a county road or not at all. Plaintiffs contend that Alvidrez's negligent filling of the cattle guard with snow and dirt falls within the waiver provisions of § 24-10-106(1)(a). Under the circumstances presented here, we agree.

As pertinent here, § 24-10-106(1), C.R.S.1997, waives immunity 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 employment....

....

(d)(I) A dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic.... Nothing in this subparagraph (I) shall preclude a particular dangerous accumulation of snow, ice, sand, or gravel from being found to constitute a dangerous condition in the surface of a public roadway when the entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice through the proper public official responsible for the roadway and had a reasonable time to act.

Whether sovereign immunity has been waived is an issue of subject matter jurisdiction to be determined by the trial court in accordance with C.R.C.P. 12(b)(1). Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). If, as here, the underlying facts are undisputed, the issue is one of law, and an appellate court is not bound by the trial court's determination. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997).

Here, the parties do not dispute that a snowplow is a motor vehicle for purposes of § 24-10-106(1)(a). See Bertrand v. Board of County Commissioners, 872 P.2d 223, 229 (Colo.1994) ("a 'motor vehicle' includes any 'vehicle on wheels having its own motor and not running on rails or tracks, for use on streets or highways'."); see also Williams v. State Department of Highways, 879 P.2d 490, 491 (Colo.App.1994) ("a dump truck with an attached snow blade is a 'motor vehicle' for purposes of § 24-10-106(1)(a)....").

In Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995), a division of this court interpreted the term "operation" as it is used in § 24-10-106(1)(a). There, the plaintiff was injured when she disembarked from a Regional Transportation District (RTD) bus and was struck by another vehicle as she was crossing the highway to get to her parked car. The plaintiff alleged that the bus driver had negligently stopped in a traffic lane and across the highway from the regular bus stop. The trial court dismissed the complaint, ruling that RTD was immune from suit because the plaintiff's injuries did not arise from the operation of the...