Tidwell v. City and County of Denver, No. 01CA0617.

• Docket Nº: No. 01CA0617.
• Citation: 62 P.3d 1020
• Case Date: June 02, 2002
• Court: Court of Appeals of Colorado

62 P.3d 1020

Britt E. TIDWELL, an incapacitated person, by his conservator Xavier O. Tidwell, Plaintiff-Appellant,
v.
CITY AND COUNTY OF DENVER, a municipal and home rule city of the State of Colorado, Defendant-Appellee

No. 01CA0617.

Colorado Court of Appeals, Div. II.

June 2, 2002.

Certiorari Granted January 21, 2003.

62 P.3d 1021

Wesley W. Hoyt, Englewood, Colorado; David I. Levy, Boulder, Colorado, for Plaintiff-Appellant

Senter, Goldfarb & Rice, L.L.C., Thomas S. Rice, Nina Hammon Jahn, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge TAUBMAN.

In this tort action arising from an automobile accident, plaintiff, Britt E. Tidwell, a protected person, by his conservator, Xavier O. Tidwell, appeals the trial court's judgment dismissing his complaint against defendant, City and County of Denver, for lack of subject matter jurisdiction based on defendant's assertion of governmental immunity. We affirm.

I. Facts and Procedural History

Early one morning in May 1996, a Denver police officer, while on duty and driving a marked police car, observed an Oldsmobile traveling eastbound on 23rd Avenue in Denver. The Oldsmobile pulled over near the intersection of Dahlia and 23rd Avenue. The officer pulled up behind the Oldsmobile and when the officer got out of his police car, a passenger exited the Oldsmobile. Ignoring the officer's requests to remain in the car, the passenger began running from the officer. At the same time, the driver of the Oldsmobile sped away from the curb, heading eastbound on 23rd Avenue.

As the officer got back into his car, the Oldsmobile made a left turn off of 23rd Avenue and onto an unknown street. The officer followed the Oldsmobile, without his emergency lights or sirens on. As he came to each street and alley, he slowed his car and looked to the left to determine where the Oldsmobile had turned. At Fairfax Street, about four blocks from where the Oldsmobile had sped away from him, the officer saw taillights to the left. He turned left onto Fairfax and immediately saw the Oldsmobile crash into the side of a limousine at the intersection of 26th Avenue and Fairfax.

The accident killed the driver of the limousine, and Britt E. Tidwell, a passenger in the limousine, was seriously injured. The officer arrested the driver of the Oldsmobile for vehicular homicide.

The conservator filed a complaint seeking damages and alleging that the negligent actions of the officer caused Britt Tidwell's injuries. Specifically, the conservator alleged that the officer was engaged in a high-speed chase without the use of lights, sirens, or other warning devices in violation of the Denver Police Department's pursuit guidelines and procedures. It is undisputed that the officer was speeding as he tried to locate the Oldsmobile and then approached the accident site, although the parties disagree as to his speed.

As relevant here, the City filed a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the basis that it had immunity under the Colorado Governmental Immunity Act (GIA), § 24-10-106(1)(a), C.R.S.2001, because the accident was not caused by the operation of a motor vehicle.

After a three-day evidentiary hearing, as contemplated by Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993), the trial court concluded that if the police officer were in pursuit, the City would be subject to liability under the GIA because such pursuit had occurred without the use of emergency lights or a siren. However, applying the definition of pursuit from the Denver Police Department Operations Manual, Pursuit Guidelines and Procedures, § 204.01(1)(b)(1), the court found that the officer was not in pursuit of the Oldsmobile because he had not given the driver of the Oldsmobile a visual or audible signal directing the driver to stop. Thus, the trial court concluded, because there was no pursuit, Britt Tidwell's injuries did not arise out of the operation of the officer's motor vehicle, the GIA applied, and the City was immune from tort liability. This appeal followed.

II. Governmental Immunity Act

The conservator argues that the trial court erred in dismissing Britt Tidwell's claim for lack of subject matter jurisdiction when the

62 P.3d 1022

evidence showed that the officer was in pursuit and the City had waived its immunity under the GIA on that basis. We affirm the dismissal, but on grounds other than those relied on by the trial court. See Bengtson v. USAA Prop. & Cas. Ins., 3 P.3d 1233, 1236 (Colo.App.2000). Specifically, even though we agree with the conservator that the officer was in pursuit, we conclude that nevertheless the City is entitled to immunity under the emergency vehicle exception to the GIA

A. Standard of Review

Whether immunity has been waived under the GIA is an issue of subject matter...