Quintana v. City of Westminster, 01CA0999.

• Decision Date: 25 April 2002
• Docket Number: No. 01CA0999.,01CA0999.
• Citation: 56 P.3d 1193
• Parties: Randolph L. QUINTANA, Plaintiff-Appellant, v. CITY OF WESTMINSTER and Timothy Torres, Defendants-Appellees.
• Court: Colorado Court of Appeals

56 P.3d 1193

Randolph L. QUINTANA, Plaintiff-Appellant, v. CITY OF WESTMINSTER and Timothy Torres, Defendants-Appellees.

No. 01CA0999.

Colorado Court of Appeals, Div. II.

April 25, 2002.

Certiorari Denied October 21, 2002.

Fasing Law Firm, P.C., Gregory J. Fasing, Denver, Colorado, for Plaintiff-Appellant.

Martin R. McCullough, City Attorney, Jeffrey M. Betz, Deputy City Attorney, Westminster, Colorado; Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Eric M. Ziporin, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge JONES.

Plaintiff, Randolph L. Quintana, appeals the dismissal of his complaint alleging negligence by defendants, the City of Westminster and police officer Timothy Torres, on grounds of lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-106, and § 42-4-108, C.R.S.2001. We affirm.

Plaintiff sued the City and Torres after plaintiff was seriously injured in a collision with a suspect's speeding vehicle, which Torres was pursuing in his police cruiser. Defendants moved to dismiss for lack of subject matter jurisdiction under the GIA. After a hearing, the trial court granted defendants' motion to dismiss.

In Quintana v. City of Westminster, 8 P.3d 527 (Colo.App.2000)(Quintana I), a panel of this court vacated the trial court's judgment and remanded the case, directing the trial court to determine, pursuant to § 42-4-108(2)(c), C.R.S.2001, whether Torres's conduct endangered life or property while exceeding the lawful speed limit.

Upon remand, and on additional briefs but without a further hearing, the trial court found that "although Torres did not follow certain [of the City's pursuit] procedures ... [and] exceeded the posted legal speed limits, that act of speeding did not endanger life or property." This second appeal followed.

I.

Plaintiff first contends that the trial court erred by failing to apply the proper legal standard to determine whether Torres, as he pursued the suspect, endangered life or property while exceeding the speed limit. We perceive no error.

Pursuant to the GIA, a public entity and its employees are immune from tort liability unless, under the circumstances, the claim is within certain statutorily specified exceptions. Bertrand v. Board of County Comm'rs, 872 P.2d 223 (Colo.1994). Issues of governmental immunity are determined under C.R.C.P. 12(b)(1) concerning motions to dismiss for lack of subject matter jurisdiction. Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995).

Decisions of a trial court regarding factual disputes are accorded great deference and, therefore, a reviewing court applies the clear error standard of review. Walton v. State, 968 P.2d 636 (Colo.1998). The plaintiff bears the burden of proving subject matter jurisdiction, and the trial court's findings of fact supporting a determination under the GIA will not be reversed unless clearly erroneous. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). A finding is clearly erroneous, and, therefore, lacking support of competent evidence, when, "although there [may be] evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948); see St. James v. People, 948 P.2d 1028 (Colo.1997)

.

However, while the exceptions to the GIA waivers of immunity are to be construed narrowly, the waiver provisions themselves are to be construed deferentially in favor of injured persons. See Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000)

; State v. Nieto, 993 P.2d 493 (Colo.2000); Walton v. State, supra.

A.

Plaintiff first argues that the trial court erred on remand by not applying the proper standard for construing the GIA because it did not refer to Walton v. State, supra,

in its order. We disagree.

In Walton, the supreme court determined that the GIA's waiver provisions are to be construed deferentially in favor of injured persons. As plaintiff points out, Walton was decided after the trial court's original findings were entered here. However, following the Walton decision, the supreme court in Corsentino v. Cordova, supra,

established the legal standard by which courts must consider governmental immunity cases involving emergency vehicles. In doing so, the supreme court reiterated its holding in Walton concerning interpretation in favor of injured persons.

Here, upon remand, the trial court applied the standard set forth in Corsentino v. Cordova, supra.

We conclude that the trial court was aware of its obligation narrowly to construe immunity and to construe the waiver provisions of the GIA broadly. Therefore, we perceive no error.

B.

Plaintiff specifically contends that the trial court erred by not applying the standards of Corsentino v. Cordova, supra,

for determining endangerment. We disagree.

In Corsentino, the supreme court first established an objective standard from the perspective of a reasonable emergency vehicle operator for determining whether an emergency vehicle operator was responding to an emergency call under § 42-4-108(2), C.R.S.2001. "Under this standard, courts must decide whether the emergency vehicle operator reasonably believed that she was responding to an emergency based on information she knew or should have known." Corsentino v. Cordova, supra, 4 P.3d at 1088. Noting the competing interests of the injured party and the public concerning such inquiry, the supreme court then stated, "[T]he standard for determining whether an emergency exists should not be so deferential as to prevent legitimate recovery. Conversely, it should give enough deference to emergency vehicle operators' decisions so that there is no chilling effect on their responses to emergencies." Corsentino v. Cordova, supra, 4 P.3d at 1088.

Additionally, the supreme court in Corsentino determined that, in resolving these issues, courts should consider whether the emergency department has a policy concerning response to emergencies and that "[i]t is reasonable to assume that an emergency vehicle operator is or should be aware of her department's policy." Corsentino v. Cordova, supra, 4 P.3d at 1089. Response by an emergency vehicle operator that is in line with the department's policy raises "a strong likelihood that her response is reasonable under the circumstances," but "if the emergency vehicle operator proceeds against the established policy ..., there is a strong likelihood that her response is not reasonable." Corsentino v. Cordova, supra, 4 P.3d at 1089.

The courts must then determine whether immunity is waived under the circumstances. In this regard, the supreme court stated that "the pertinent question is whether the emergency vehicle operator's speed created an unreasonable risk of injury or damage to life or property." Corsentino v. Cordova, supra, 4 P.3d at 1093. In contemplating this question, the courts "must not consider the accident or actual damage" resulting from the speeding, nor should they consider "whether the emergency vehicle operator was responding to an actual emergency"; instead, "courts should limit their inquiry to the relationship between the conduct of the emergency operator prior to the accident and the circumstances surrounding the conduct," including "the legal speed limit in the area, the speed at which the operator was driving, the conditions of the road, and the type of area in which she was driving." Corsentino v. Cordova, supra, 4 P.3d at 1093. Thus, "the officer's driving must be evaluated in the context of all relevant circumstances." Quintana I, supra, 8 P.3d at 530.

Here, the trial court considered each factor set out in Corsentino, listing those considerations and stating that the list was not exclusive. The trial court properly determined that, from an objective standpoint, Torres had a reasonable belief that he was, and ought to be, responding to an emergency. The trial court also properly considered Torres's failure to follow certain pursuit policies of his department. Although he failed to apprise the department of his speed, the record reflects that he was in constant contact with his dispatcher and other officers in the area of the pursuit; he advised that he was in pursuit of an automobile; he described the vehicle, its location, and the direction in which it was traveling; and he described the appearance and the clothes of one of the vehicle's occupants, who fled from the accident scene, and gave the direction of the suspect's flight. All of these actions were taken in accordance with the department's pursuit policies, as the trial court found.

Thus, we agree with the trial court's implied finding that Torres's failure to follow certain procedures did not, under the circumstances, render his response unreasonable. See Corsentino v. Cordova, supra.

Upon an examination of the entirety of the record, we conclude that the trial court appropriately applied the rubric of Corsentino and that its finding that Torres did not endanger life or property is well supported by the record.

C.

Plaintiff next contends that the trial court erred in not adhering to the Quintana I remand instructions and, specifically, in not following Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992). We disagree.

The law of the case established by an appellate court must be followed on remand in subsequent proceedings before a trial court. The doctrine of law of the case applies "not only to the conclusive effect of appellate rulings on remand, but also to the binding force of trial court rulings during later trial court proceedings." Kuhn v. Dep't of Revenue, 897 P.2d 792, 795 n. 5 (Colo.1995)(quoting People v. Roybal, 672 P.2d 1003, 1005 n. 5 (Colo.1983)).

In Quintana I, the division of this court determined that the Zapp v. Kukuris standard regarding whether the driver operated with reckless disregard of others was not...