Tidwell v. City and County of Denver, No. 02SC532.

Docket NºNo. 02SC532.
Citation83 P.3d 75
Case DateNovember 10, 2003
CourtSupreme Court of Colorado

83 P.3d 75

Britt E. TIDWELL, an incapacitated person, by his conservator, Xavier O. TIDWELL, Petitioner,
v.
CITY AND COUNTY OF DENVER, a municipal and home rule city of the State of Colorado, Respondent

No. 02SC532.

Supreme Court of Colorado, En Banc.

November 10, 2003.


83 P.3d 77
Downey, Miller and Hopp, Wesley W. Hoyt, Englewood, Colorado, David I. Levy, Boulder, Colorado, Attorneys for Petitioner

Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Brian K. Matise, Denver, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

In this case, Officer Timothy McAleer, a Denver Police Officer, was in his patrol car chasing a green Oldsmobile in an attempt to stop and apprehend the driver when the Oldsmobile failed to obey a stop sign and collided with a white limousine, killing the driver of the limousine and seriously injuring its passenger, Britt Tidwell, the plaintiff in this case. Tidwell brought a tort action against the City and County of Denver (the "City") to recover for his injuries associated with the accident.

The City argued that it was immune from suit under the Colorado Governmental Immunity Act (GIA), section 24-10-106, 7B C.R.S. (2003). Tidwell countered that the provisions of the GIA were unavailable to the City because the Officer failed to activate his lights and siren during the chase. The trial court concluded that the City was immune from suit.

The court of appeals affirmed the decision of the trial court in Tidwell ex rel. Tidwell v. City and County of Denver, 62 P.3d 1020, 1023 (Colo.App.2003), on other grounds, holding that the Officer was in "pursuit," but since the pursuit was investigatory in nature, he was not required to use emergency signals under section 42-4-108(3), 11 C.R.S. (2003).

In addition to addressing the immunity issues, the trial court also entered summary judgment in this case in favor of the City because it determined that Tidwell introduced no evidence at the evidentiary hearing on immunity issues to show that any failure on the part of the City caused the accident between the Oldsmobile and the limousine.

Resolution of this case requires us first to determine whether the Officer was "pursuing" the driver of the Oldsmobile and, if so, whether the pursuit was investigatory. We now hold: 1) that Officer McAleer was engaged in a "pursuit" of the Oldsmobile; and 2) that the pursuit was not investigatory in nature as that term appears in the statute. Accordingly, Officer McAleer was required to activate his emergency signals in order for the City to claim the protection of governmental immunity under the terms of the GIA.

We also hold that it was inappropriate for the trial court to enter summary judgment for the City on causation. The City's then pending summary motion did not address causation. Rather, the City raised causation in the context of the governmental immunity analysis, arguing that the accident did not result from the Officer's conduct. That inquiry was appropriate. However, Tidwell was not permitted to engage in discovery on that point, and was not permitted to present facts at the hearing supporting his contention that the Officers actions had a causative effect in the accident. Lastly, the trial court

83 P.3d 78
should have afforded the benefit of inferences to the plaintiff and evaluated causation only for the limited purposes of the 12(b)(1) motion. Accordingly, we reverse that judgment as well and return this case to the court of appeals with directions to remand it to the trial court for further proceedings

I. Facts

On Saturday, May 4, 1996, at approximately 6 o'clock on a clear and dry morning, in the City and County of Denver, Officer McAleer was traveling north on Colorado Boulevard when he made a right-hand turn onto 23rd Avenue (23rd) and began heading east. Just after Officer McAleer turned onto 23rd, he noticed an older-model green Oldsmobile stop abruptly a few blocks ahead of him on 23rd, somewhere between Cherry and Dahlia Streets. The erratic driving of the Oldsmobile caught the officer's attention since there was no other traffic in the early morning hours in this residential neighborhood.

As Officer McAleer approached the car, he noticed the old age of the car and the fact that it had temporary tags instead of license plates. He also noticed that the car had stopped in front of a retail business section of the block. This, combined with the Oldsmobile's sudden stop, led Officer McAleer to form a suspicion either that the car was stolen or that the occupants of the car might have been preparing to engage in other criminal activity.

Reasonably suspecting that a crime "either had been or was about to be committed," Officer McAleer pulled up behind the Oldsmobile and activated his yellow "stage one" overhead lights or "wigwags." Officer McAleer activated only the wigwags (instead of the "stage two" red, blue and white rotating lights or "stage three" lights and siren) because, he believed, his sole responsibility was to let other drivers know that he was stopped and that they needed to stay to the left of his car. As he later explained at the evidentiary hearing following the accident, Officer McAleer believed that the multi-colored lights and siren were used only to signify an intent to stop a vehicle ahead of him. Since the vehicle he was investigating was already stopped and should have been aware of his intent to investigate, there was no need for anything except the wigwags, according to Officer McAleer.

By this point, a passenger had already exited the Oldsmobile and was standing on the sidewalk. When Officer McAleer got out of his car, he told the passenger to get back into the Oldsmobile. After arguing with Officer McAleer briefly, the passenger took off running, first through a nearby park and then disappearing from sight. Simultaneously, while Officer McAleer was still outside of his car, the Oldsmobile sped away with its passenger door open. According to Officer McAleer, the behavior of both the driver and the passenger confirmed his reasonable suspicions that a crime had been committed.

Officer McAleer hurried back to his car in hopes of "recontacting" the Oldsmobile. Though Officer McAleer testified he was not certain about the possibility of finding the Oldsmobile since it was speeding down 23rd "as fast as [it] could go," he explained that when he left the scene, his goal was to find the car and apprehend the driver. As Officer McAleer put his car into gear, he saw the Oldsmobile turn left, heading north down an "unknown" street. From his point of departure, Officer McAleer drove "about 40-45 miles per hour" until he arrived at the alley between Eudora and Elm Streets (1.5 blocks east). The speed limit along 23rd at this time was 30 miles per hour. At no point did Officer McAleer turn on his stage two rotating lights or his stage three siren.

When Officer McAleer got to the alley, he slowed down significantly in order to glance down the alley. When he did not see the Oldsmobile, he resumed speed until he got to the next alley between Elm and Fairfax. After failing to locate the car down that alley, he accelerated again toward Fairfax. As he slowed down to look north down Fairfax, Officer McAleer noticed taillights a few blocks ahead that he believed could be the Oldsmobile's.

He then turned left onto Fairfax and rushed toward the car. Just as he was completing the turn, however, Officer McAleer saw a flash of light and then a cloud of smoke. Seconds later, Officer McAleer approached

83 P.3d 79
the intersection of 26th Avenue (26th) and Fairfax, where he discovered that the Oldsmobile had collided with a white limousine that was heading west down 26th. Britt Tidwell was a passenger in that limousine. The limousine ended up on its side on a lawn on the northwest corner of the intersection. The Oldsmobile was facing south, resting further down Fairfax, just north of the intersection

An investigation later revealed that the Oldsmobile was traveling between sixty and seventy miles per hour at the time of the impact. The limousine was traveling at a rate of approximately twenty-six miles per hour. The Oldsmobile failed to obey the stop sign at 26th and Fairfax. The limousine had the right of way, and no stop sign. The driver of the limousine died and Tidwell suffered serious brain injuries in the accident. Vincent Reedy, the driver of the Oldsmobile, was later convicted of vehicular homicide.

II. Legal Proceedings

Tidwell brought a negligence action against both the City and Officer McAleer in 1998.1 Specifically, he charged that Officer McAleer caused his injuries by engaging in a high-speed pursuit of an automobile without using lights or siren to warn nearby drivers. He asserted that Officer McAleer initiated and maintained a reckless and careless high-speed chase without following normal police procedures and thereby violated section 42-4-108(3), which requires police officers engaged in a pursuit to use "audible or visual signals" when they are going to violate normal traffic laws.

On February 22, 2001, the trial court held an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993) (the "Trinity hearing") to determine whether the City was immune from Tidwell's suit under the GIA. During more than two days of testimony, the trial court heard from several police officers, including Officer McAleer, and several experts on motor vehicle accidents. The court also had in evidence the deposition of Mr. Adolfo Fierro, who lives near the intersection of 26th and Fairfax.

The trial court ruled that the City was immune from suit based on its finding that Officer McAleer was not engaged in a "pursuit." Accordingly, and pursuant to Trinity Broadcasting, it dismissed the case for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). The court held that since there was no pursuit, Officer McAleer was not...

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69 practice notes
  • Sellers v. Twp. of Abington
    • United States
    • Commonwealth Court of Pennsylvania
    • June 5, 2013
    ...(citing Brummett v. County of Sacramento, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952 (1978)); Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003); Tetro v. Stratford, 189 Conn. 601, 458 A.2d 5 (1983); Jones v. Crawford, 1 A.3d 299 (Del.2010); Pinellas Park v. Brown, 604 So.2d 122......
  • Schreyer v. Chaplain, No. 121, Sept. Term, 2008.
    • United States
    • Court of Appeals of Maryland
    • October 6, 2010
    ...and siren and pursued the suspect in a high-speed chase, reporting over the police radio that he was in pursuit."); Tidwell v. Denver, 83 P.3d 75, 82 (Co.2003) ("Officer McAleer was engaged in a 'pursuit' as that term is ordinarily understood. Here, the driver of the Oldsmobile fled416 Md. ......
  • Craig v. Masterpiece Cakeshop, Inc., Court of Appeals No. 14CA1351
    • United States
    • Colorado Court of Appeals of Colorado
    • August 13, 2015
    ...de novo. § 24–4–106(7), C.R.S. 2014; Bly v. Story, 241 P.3d 529, 533 (Colo.2010) ; Tidwell ex rel. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo.2003).2 370 P.3d 278B. First Motion to Dismiss—Lack of Jurisdiction Over Phillips ¶ 12 Phillips filed a motion to dismiss pursuant to C.......
  • Schreyer v. Webb-cobb, No. 0101-0017788-2007
    • United States
    • Court of Special Appeals of Maryland
    • October 6, 2010
    ...and siren and pursued the suspect in a high-speed chase, reporting over the police radio that he was in pursuit."); Tidewell v. Denver, 83 P.3d 75, 82 (Co. 2003) ("Officer McAleer was engaged in a 'pursuit' as that term is ordinarily understood. Here, the driver of the Oldsmobile fled thePa......
  • Request a trial to view additional results
69 cases
  • Sellers v. Twp. of Abington
    • United States
    • Commonwealth Court of Pennsylvania
    • June 5, 2013
    ...(citing Brummett v. County of Sacramento, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952 (1978)); Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003); Tetro v. Stratford, 189 Conn. 601, 458 A.2d 5 (1983); Jones v. Crawford, 1 A.3d 299 (Del.2010); Pinellas Park v. Brown, 604 So.2d 122......
  • Schreyer v. Chaplain, No. 121, Sept. Term, 2008.
    • United States
    • Court of Appeals of Maryland
    • October 6, 2010
    ...and siren and pursued the suspect in a high-speed chase, reporting over the police radio that he was in pursuit."); Tidwell v. Denver, 83 P.3d 75, 82 (Co.2003) ("Officer McAleer was engaged in a 'pursuit' as that term is ordinarily understood. Here, the driver of the Oldsmobile fled416 Md. ......
  • Craig v. Masterpiece Cakeshop, Inc., Court of Appeals No. 14CA1351
    • United States
    • Colorado Court of Appeals of Colorado
    • August 13, 2015
    ...de novo. § 24–4–106(7), C.R.S. 2014; Bly v. Story, 241 P.3d 529, 533 (Colo.2010) ; Tidwell ex rel. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo.2003).2 370 P.3d 278B. First Motion to Dismiss—Lack of Jurisdiction Over Phillips ¶ 12 Phillips filed a motion to dismiss pursuant to C.......
  • Schreyer v. Webb-cobb, No. 0101-0017788-2007
    • United States
    • Court of Special Appeals of Maryland
    • October 6, 2010
    ...and siren and pursued the suspect in a high-speed chase, reporting over the police radio that he was in pursuit."); Tidewell v. Denver, 83 P.3d 75, 82 (Co. 2003) ("Officer McAleer was engaged in a 'pursuit' as that term is ordinarily understood. Here, the driver of the Oldsmobile fled thePa......
  • Request a trial to view additional results

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