Smith v. City and County of Denver

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 31, 2025

2025COA70

No. 24CA0855, Smith v. City and County of Denver —
Government — Colorado Governmental Immunity Act —
Sovereign Immunity a Bar — Interlocutory Appeal — Appeal
Filed at Conclusion of Case

In this proceeding under the Colorado Governmental

Immunity Act (CGIA), a division of the court of appeals considers as

a matter of first impression whether section 24-10-108, C.R.S.

2024, requires a plaintiff to immediately appeal a district court’s

order dismissing some of the plaintiff’s claims for lack of subject

matter jurisdiction when some of the plaintiff’s other claims remain

unresolved. The division holds that, in those circumstances,

section 24-10-108 permits a plaintiff to challenge the court’s order

granting immunity to a public entity either in an immediate

interlocutory appeal or in an appeal filed at the conclusion of the

case. Because the plaintiffs here filed a timely appeal following the
final disposition of the case, the division concludes that it has

jurisdiction to review the merits of the plaintiffs’ challenges to the

district court’s order dismissing their claims against a public entity

on CGIA grounds. And because the division further concludes that

the court didn’t err by determining that the public entity is immune

from liability under the CGIA, the division affirms the court’s

judgment of dismissal.
COLORADO COURT OF APPEALS 2025COA70

Court of Appeals No. 24CA0855
City and County of Denver District Court No. 23CV30349
Honorable Jon J. Olafson, Judge

Ronald G. Smith and Jasper Armstrong, in his representative capacity and on
behalf of Ronald G. Smith,

Plaintiffs-Appellants,

v.

City and County of Denver, a Colorado municipal corporation, and James
Jenkinson,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE KUHN
J. Jones and Moultrie, JJ., concur

Announced July 31, 2025

The Paul Wilkinson Law Firm LLC, Nelson Boyle, Denver, Colorado, for
Plaintiffs-Appellants

Katie McLoughlin, Acting City Attorney, David Murphy, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellees
¶1 The Colorado Governmental Immunity Act (CGIA) provides

that “[t]he court’s decision on [a motion asserting sovereign

immunity] shall be a final judgment and shall be subject to

interlocutory appeal.” § 24-10-108, C.R.S. 2024. In this appeal of

a district court’s order granting immunity to a public entity and

dismissing, for lack of subject matter jurisdiction, the plaintiffs’

claims affected by that ruling, we consider whether section

24-10-108 requires the plaintiff to immediately appeal such an

order when some of the plaintiff’s other claims remain unresolved.

¶2 We hold that when the district court grants a public entity’s

motion to dismiss for lack of subject matter jurisdiction under the

CGIA, but claims not affected by that ruling remain unresolved,

section 24-10-108 permits the plaintiff to challenge the order

granting immunity either in an interlocutory appeal or in an appeal

filed at the conclusion of the case. Consequently, we conclude that

we have jurisdiction over the appeal that plaintiffs, Ronald G. Smith

and Jasper Armstrong, in his representative capacity on behalf of

Smith, filed from the district court’s order dismissing their action

against defendants, the City and County of Denver (the City) and

James Jenkinson (jointly, the Denver Defendants), on CGIA

1
grounds. And because we further conclude that the court didn’t err

by determining that the Denver Defendants are immune from

liability under the CGIA, we affirm.

I. Background

¶3 We glean the following factual background from the record and

the order that the district court issued after conducting an

evidentiary hearing.

¶4 In January 2021, a Denver Fire Department firehouse received

a report of a fire at an apartment building. Jenkinson, a Denver

Fire Department engineer, started the truck. He then activated the

truck’s Opticom transmitter1 and its lights and sirens. After

confirming that his fellow firefighters were ready to respond to the

emergency, Jenkinson drove toward the reported fire.

¶5 En route, Jenkinson drove north on Lincoln Street before

turning left onto Speer Boulevard. As he approached a red light at

1 The Opticom system is a traffic control system that provides a

temporary right-of-way to emergency vehicles approaching a traffic
light. A vehicle equipped with an Opticom transmitter sends a
strobe signal to a receiver that is mounted on or near the traffic
light. The receiver then generates a green light request to the traffic
controller for the approaching emergency vehicle. See Igwe v.
Skaggs, 258 F. Supp. 3d 596, 602-03 (W.D. Pa. 2017).

2
the intersection of Speer and Broadway, Jenkinson engaged the fire

truck’s exhaust brake by releasing the accelerator, hovered his foot

over the brake pedal to reduce his reaction time, and slowed down

to approximately twenty-two miles per hour. Then, believing that

he had cleared all six lanes of the cross traffic on Broadway that

had a green light, Jenkinson “accelerate[d] as fast as [he could] to

get through [the] intersection.” Simultaneously, a 2012 Honda

Civic in which Smith was a passenger entered the intersection from

Broadway at a speed of about forty miles per hour and hit the fire

truck’s front side.

¶6 The car “became lodged on the front of [the fire truck]” from

the force of the collision. It was pushed roughly sixty-five feet

beyond the point of impact. Two occupants in the car died. Smith

suffered severe injuries but ultimately survived the accident.

¶7 Smith filed a lawsuit in connection with the accident. After

amending his complaint several times, Smith asserted claims

against the City, Jenkinson, and Global Traffic Technologies, LLC

(GTT), the company that designed and manufactured the Opticom

3
system at the intersection.2 Specifically, Smith asserted claims for

negligence against the City and GTT, negligence per se and

negligent operation of an emergency vehicle against Jenkinson,

vicarious liability against the City for Jenkinson’s conduct, and

product liability against GTT.

¶8 The Denver Defendants filed a C.R.C.P. 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction on the basis that they

were immune from liability under the CGIA because Jenkinson was

operating an emergency vehicle at the time of the accident. See

§ 24-10-106(1)(a), C.R.S. 2024. In his response to the motion,

Smith contended that the Denver Defendants had waived sovereign

immunity because Jenkinson violated section 42-4-108(2) and (3),

C.R.S. 2024. More specifically, Smith argued that Jenkinson

proceeded through the red light without slowing down as was

necessary for the safe operation of the fire truck. See

§ 42-4-108(2)(b). Smith cited various vehicle guidelines from

outside entities in support of his argument that Jenkinson was

2 Smith alleged that although the intersection of Speer and

Broadway was equipped with an Opticom receiver, the system
malfunctioned, and the traffic light didn’t change from red to green
as Jenkinson approached the intersection.

4
required, and failed, to (1) come to a complete stop before entering

the intersection; (2) “[e]stablish eye contact or other assurances

with each auto in the converging lanes of traffic” before passing

through the red light; and (3) drive past each lane of cross traffic

“as though each lane [were] its own intersection” while maintaining

a speed that would have allowed Jenkinson to stop immediately.

¶9 In February 2024, the district court conducted an evidentiary

hearing on that motion. See Trinity Broad. of Denver, Inc. v. City of

Westminster, 848 P.2d 916 (Colo. 1993). In a written order issued

on February 13, the court determined that Smith hadn’t carried his

burden of proving that Jenkinson failed to slow down as was

necessary for the safe operation of the fire truck. Accordingly, the

court concluded that the Denver Defendants have immunity under

the CGIA and dismissed the claims against them for lack of subject

matter jurisdiction.

¶ 10 On March 28, the district court granted a joint stipulation for

the dismissal of the claims against GTT, the remaining defendant.

Smith then filed a notice of appeal on May 14, challenging the

court’s decision to dismiss his complaint against the Denver

Defendants.

5
II. Appellate Jurisdiction

¶ 11 The Denver Defendants contend that we lack jurisdiction to

consider the merits of Smith’s challenges to the district court’s

order dismissing his claims on CGIA grounds because he failed to

timely appeal that order. We disagree.

A. Applicable Law

¶ 12 “Before reaching the merits of an appeal, we must first

determine whether we have jurisdiction.” Stone Grp. Holdings LLC

v. Ellison, 2024 COA 10, ¶ 15. Indeed, because we have an

independent duty to ensure that limits on our jurisdiction are

observed, we may raise jurisdictional defects nostra sponte. See

Colo. Cmty. Bank v. Hoffman, 2013 COA 146, ¶ 20; Brookhart v.

Reaman, 2023 COA 93, ¶ 18 (“We must determine independently

our jurisdiction over an appeal, nostra sponte if necessary.”

(quoting Allison v. Engel, 2017 COA 43, ¶ 22)).

¶ 13 “Appellate jurisdiction boils down to three basic concepts:

subject matter jurisdiction, timeliness, and finality.” Chavez v.

Chavez, 2020 COA 70, ¶ 18. The appeal before us implicates the

latter two concepts.

6
¶ 14 The timely filing of a notice of appeal in accordance with the

Colorado Appellate Rules is a mandatory prerequisite for us to

review an appeal. See L.H.M. Corp., TCD v. Martinez, 2021 CO 78,

¶ 29; see also Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938,

943 (Colo. App. 2007). With exceptions not relevant here, C.A.R.

4(a)(1) provides that a notice of appeal in a civil case must be filed

“within [forty-nine] days after entry of the judgment, decree, or

order being appealed.” Because we generally only have jurisdiction

over appeals from final judgments, see § 13-4-102(1), C.R.S. 2024,

the deadline for filing a notice of appeal begins to run when a final

judgment is entered in the case, Goodwin, 172 P.3d at 943.

¶ 15 A judgment is final if it ends the particular action and leaves

nothing further for the court to do to completely determine the

rights of the parties involved in the proceeding. Wilson v. Kennedy,

2020 COA 122, ¶ 7. But while, ordinarily, “‘an entire case must be

decided before any ruling in that case can be appealed[,]’ . . . there

are limited circumstances in which a party to a civil case may take

an interlocutory appeal before an entire case is final.” Id. at ¶ 8

(quoting People in Interest of R.S. v. G.S., 2018 CO 31, ¶ 37). For

example, C.R.C.P. 54(b) permits a court in an action involving

7
multiple claims or parties to “direct the entry of a final judgment as

to one or more but fewer than all of the claims or parties” if the

court expressly determines that there is no just reason for delay in

entering a final judgment.

¶ 16 As relevant to this case, the CGIA provides that the court’s

“decision on [a motion asserting sovereign immunity] shall be a final

judgment and shall be subject to interlocutory appeal.”

§§ 24-10-108, -118(2.5), C.R.S. 2024. The purpose of these

statutory provisions “is to provide immediate appellate review of the

governmental immunity issue before a trial on the merits.”

Richland Dev. Co. v. E. Cherry Creek Valley Water & Sanitation Dist.,

899 P.2d 371, 372-73 (Colo. App. 1995). Because a district court’s

immunity ruling is “appealable immediately, without more,” a party

need not obtain a C.R.C.P. 54(b) certification to appeal that ruling.

Id. at 373.

B. Standard of Review

¶ 17 We consider de novo whether we have jurisdiction over Smith’s

appeal. See McDonald v. Zions First Nat’l Bank, N.A., 2015 COA 29,

¶ 33. Likewise, we interpret statutes, including the CGIA, de novo.

Hice v. Giron, 2024 CO 9, ¶ 10.

8
¶ 18 Our goal in interpreting the CGIA is to give effect to the

legislature’s intent. Maphis v. City of Boulder, 2022 CO 10, ¶ 15.

To do so, we begin by considering the plain language of the statute,

reading the words and phrases in context and construing them

according to their plain and ordinary meanings. Stickle v. County of

Jefferson, 2022 COA 79, ¶ 16, aff’d, 2024 CO 7. “We look to the

entire statutory scheme to give consistent, harmonious, and

sensible effect to all of its parts, and we avoid constructions that

would render any words or phrases superfluous or that would lead

to illogical or absurd results.” Roane v. Elizabeth Sch. Dist., 2024

COA 59, ¶ 24.

C. Smith’s Appeal is Timely

¶ 19 The Denver Defendants contend that Smith’s appeal is

untimely because, under section 24-10-108, he was required to file

his notice of appeal within forty-nine days of the district court’s

February 13 order dismissing his claims against them on sovereign

immunity grounds. Relying on Buckles v. State, 952 P.2d 855

(Colo. App. 1998), the Denver Defendants argue that the CGIA order

was a final judgment from which Smith’s C.A.R. 4(a)(1) deadline

started to run.

9
¶ 20 In Buckles, individual plaintiffs sued several public entities,

alleging that they improperly constructed and used a road that ran

through the plaintiffs’ property. Id. at 855. The plaintiffs asserted

claims for common law trespass, inverse condemnation, and

violation of civil rights under 42 U.S.C. § 1983. Buckles, 952 P.2d

at 855. The district court dismissed the trespass claim for lack of

subject matter jurisdiction under the CGIA, a ruling that the

plaintiffs didn’t immediately appeal. Id. at 856. Instead, the

plaintiffs appealed the immunity ruling only after the court

dismissed their remaining claims roughly two and a half months

later. Id. A division of this court dismissed the appeal as untimely

under those circumstances. Id. The division observed that under

the plain terms of section 24-10-108, a court’s determination that a

public entity was entitled to immunity constituted a final judgment

“even if the order [did] not dispose of an entire claim or [was]

otherwise interlocutory.” Id. “Therefore, unlike provisions which

may allow for, but do not require, an appeal from an interlocutory

order, [section] 24-10-108 requires that the appeal of the dismissal

of a claim as barred by the [C]GIA must be sought immediately,

within the time requirements of C.A.R. 4(a), or it is barred.” Id.

10
¶ 21 Less than a year after Buckles was announced, the Colorado

Supreme Court considered a similar issue in Walton v. State, 968

P.2d 636 (Colo. 1998). In that case, Walton filed a negligence action

against the State of Colorado and one of its public employees for

injuries that she had allegedly suffered while cleaning an art

storage room at the state university where she was a student. Id. at

638-39. The State responded with a motion to dismiss on the

pleadings, invoking sovereign immunity under the CGIA. Id. at 639.

After the trial court denied that motion, the State didn’t seek

immediate appellate review. Id. Instead, more than two years later,

it “sought reconsideration of the trial court’s order and requested an

evidentiary hearing on the jurisdictional issue of governmental

immunity.” Id. The trial court conducted an evidentiary hearing

and then denied the motion. The State filed an appeal within the

C.A.R. 4(a)(1) deadline from the second order. Id. at 639-41.

Walton challenged the timeliness of the appeal, arguing that the

State couldn’t seek appellate review of the immunity claim when it

had failed to file a timely “interlocutory appeal from the trial court’s

initial order denying its CGIA motion to dismiss on the pleadings.”

Id. at 639.

11
¶ 22 The supreme court rejected this argument. It reasoned that

because the State didn’t have an obligation to immediately appeal

the initial denial order, its timely “interlocutory appeal after the trial

court held an evidentiary hearing” on the second motion to dismiss

was sufficient to confer appellate jurisdiction. Id. The Walton court

observed that the “General Assembly did not consider the phrases

‘final judgment’ and ‘interlocutory’ [in sections 24-10-108 and

-118(2.5)] to be mutually exclusive terms.” Id. at 640-41. By using

the phrase “final judgment” in those statutory provisions, “the

legislature intended to authorize [public entities to] tak[e] . . . CGIA

interlocutory appeals and avoid the uncertainty of having to obtain

trial court certification under C.R.C.P. 54(b), a discretionary

matter.” Id. at 641.

¶ 23 But “[t]he General Assembly did not intend to mandate

immediate appeal of a CGIA jurisdictional ruling against the public

entity as the only means to preserve its governmental immunity

claim.” Id. Rather, because a public entity “has a right, not an

obligation, to take an interlocutory appeal” under the statute, it

may elect to forgo an immediate appeal of an adverse immunity

ruling “in favor of pursuing trial or settlement on the claims, while

12
preserving the CGIA issue in the event of an appeal following final

disposition of the case in the trial court.” Id. In support of this

construction of the statute, the supreme court deemed significant

that “the legislature provided that the trial court’s CGIA ruling [was]

‘subject to interlocutory appeal’ . . . , not that the right to file an

interlocutory appeal must be exercised to preserve the CGIA issue

in the case.” Id. (quoting §§ 24-10-108, -118(2.5)).

¶ 24 As the Denver Defendants point out, Walton involved a public

entity’s appeal of an order denying CGIA immunity. Here, like the

plaintiffs in Buckles, Smith challenges the district court’s order

granting such immunity even though he failed to bring that appeal

within forty-nine days from the date of the order. Based on all of

this, the Denver Defendants argue that the factual similarities

between Smith’s circumstances and those present in Buckles are

dispositive of our analysis.

¶ 25 But after noting that the CGIA doesn’t require an interlocutory

appeal to preserve a later challenge to a ruling, the Walton court

went on to say, “We disapprove of any suggestion to the contrary

contained in [Buckles].” Id. This context arguably suggests that the

supreme court disapproved of Buckles to the extent it held that a

13
district court’s ruling on the issue of CGIA immunity was a final

judgment that had to be challenged within the appeal deadline or

be barred from later consideration. Nonetheless, Walton is factually

distinguishable from the matter before us because Walton involved

a public entity’s appeal. So we must determine whether the rule

enunciated in Walton applies equally to a nongovernmental plaintiff

when, as here, the plaintiff appeals from an order dismissing his

complaint against a public entity on the grounds that the suit is

barred under the CGIA. Put differently, does section 24-10-108

permit a plaintiff like Smith to forgo an interlocutory appeal and

instead challenge a CGIA order in a final appeal after the district

court has resolved all of the remaining claims in the case? We

answer this question of first impression in the affirmative.

¶ 26 For starters, section 24-10-108 doesn’t differentiate between

orders granting or denying a motion to dismiss under the CGIA.

Indeed, the plain language of the statute provides that “[t]he court’s

decision on such motion shall be a final judgment and shall be

subject to interlocutory appeal.” § 24-10-108 (emphasis added).

Similarly, Walton provides that an immediate appeal is authorized,

but not required, in connection with an order denying sovereign

14
immunity. Yet the Denver Defendants read the statute as requiring

an immediate appeal for an order granting such immunity. This

interpretation would add a distinction to the statute that the

legislature didn’t include. See Kyle W. Larson Enters., Inc. v.

Allstate Ins. Co., 2012 COA 160M, ¶ 25 (observing that if the

legislature intended to include a particular statutory requirement, it

would have clearly expressed its intent to do so). It would also

require us to read limiting words into the statute, which we cannot

do. See In re Parental Responsibilities Concerning K.M.S., 2025 CO

35, ¶¶ 12, 19; Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 19.

And because we’re not at liberty to add to, or subtract from, the

words that the legislature has chosen, Nieto v. Clark’s Mkt., Inc.,

2021 CO 48, ¶ 12, we must avoid adopting the construction of

section 24-10-108 that would violate this principle of statutory

interpretation.

¶ 27 Likewise, in interpreting the statute, we must also presume

that the legislature intended a just and reasonable result. Marcellot

v. Exempla, Inc., 2012 COA 200, ¶ 23. Given section 24-10-108’s

language, it would be unfair to construe the statute as imposing an

immediate appeal obligation upon plaintiffs while public entities

15
merely have an option to appeal under the same circumstances.

True, private parties and public entities occupy asymmetrical

positions in matters involving the CGIA, given that only public

entities may raise and waive immunity. Walton, 968 P.2d at 641

n.6. And given that the question of sovereign immunity implicates

the district court’s subject matter jurisdiction to hear a claim, see

City & Cnty. of Denver v. Dennis, 2018 CO 37, ¶ 9, a public entity

may raise that issue at any time in the proceeding, Walton, 968

P.2d at 640, including for the first time on appeal, Gestner v.

Gestner, 2024 COA 55, ¶ 20 n.4. Still, as we note above, we see no

basis in the text of section 24-10-108 to treat private parties

differently from public entities in appeals of jurisdictional rulings in

CGIA cases. Accordingly, we conclude that the effect of a CGIA

immunity ruling for purposes of appeal is the same, regardless of

whether the court grants or denies the motion to dismiss.

¶ 28 This interpretation is also consistent with the CGIA’s

purposes. One of the basic purposes of the statute is “to shield

public entities and employees from being forced to trial or exposed

to the other burdens of extended litigation, when the viability of the

proceedings is dependent on the resolution of an essentially legal

16
question.” Bresciani v. Haragan, 968 P.2d 153, 157 (Colo. App.

1998). When a public entity is dismissed from a suit by virtue of

the court’s grant of immunity, the entity is not required to

participate in further proceedings unless that ruling is reversed on

appeal. Thus, while it’s true that a subsequent appeal could bring

the public entity back into the case, the timing of the appeal itself

doesn’t impact how long the public entity is subject to the

underlying litigation.

¶ 29 Given all of this, we hold that when a district court grants a

public entity’s motion to dismiss for lack of subject matter

jurisdiction under the CGIA, section 24-10-108 permits a plaintiff

to challenge that ruling either in an immediate interlocutory appeal

or in an appeal following the final disposition of the case.

¶ 30 Here, Smith filed his notice of appeal ninety-one days after the

district court’s February 13 CGIA order. But his appeal is

nonetheless timely because he filed it within forty-nine days of the

court’s March 28 order dismissing his remaining claims against

GTT, the last remaining defendant. Consequently, we conclude that

we have jurisdiction to review the merits of Smith’s appeal.

17
III. Smith’s Challenges to the District Court’s CGIA Order

¶ 31 Smith contends that the district court’s decision to dismiss his

claims against the Denver Defendants must be reversed because

(1) the court applied the incorrect legal standard and (2) it

consequently failed to consider certain facts in assessing whether

the CGIA barred those claims.3 We discern no error.

A. Applicable Law

¶ 32 Generally, the CGIA bars any action against a public entity for

injuries that lie in tort or could lie in tort. § 24-10-106(1).

3 At oral argument, Smith’s counsel asserted for the first time that

the district court had applied the wrong legal standard in
determining that Smith hadn’t met his burden of proving that the
Denver Defendants had waived sovereign immunity under the
CGIA. Relying on a supreme court case that was announced after
briefing in this case had closed, he posited that the district court
had failed to apply the “likelihood standard” in making that
determination. See Jefferson County v. Dozier, 2025 CO 36, ¶¶ 2,
24 (“We hold that when disputed jurisdictional facts are inextricably
intertwined with the merits, a plaintiff must demonstrate a
likelihood of the existence of the facts necessary to establish a
waiver of CGIA immunity.”). But we generally don’t review issues
raised for the first time at oral argument, see Rucker v. Fed. Nat’l
Mortg. Ass’n, 2016 COA 114, ¶ 35, and because Smith failed to
argue in the district court that the likelihood standard (or indeed
any other standard) applied to this case, his argument is
unpreserved, see Melat, Pressman & Higbie, L.L.P. v. Hannon L.
Firm, L.L.C., 2012 CO 61, ¶ 18. Therefore, we decline to consider it
further.

18
“However, the CGIA also ‘withdraws and restores this immunity

through a series of immunity waivers, exceptions to those waivers,

and, in some cases, conditions relating to the exceptions.’”

Bilderback v. McNabb, 2020 COA 133, ¶ 7 (quoting Corsentino v.

Cordova, 4 P.3d 1082, 1086 (Colo. 2000)). Accordingly, sovereign

immunity is waived if, in the course of employment, a public

employee injures another person while operating a motor vehicle

owned or leased by the public entity. § 24-10-106(1)(a).

¶ 33 But the statute also creates an exception to the immunity

waiver for authorized emergency vehicles — such as fire

trucks — that are being operated in compliance with section

42-4-108(2) and (3). § 24-10-106(1)(a); see also § 42-1-102(6),

C.R.S. 2024 (defining “authorized emergency vehicle” as including a

publicly owned fire truck “operated by or for a governmental agency

to protect and preserve life and property”). As relevant to this

appeal, section 42-4-108(2)(b) provides that, when responding to an

emergency call or a fire alarm, the driver of “an authorized

emergency vehicle” may “[p]roceed past a red or stop signal or stop

sign, but only after slowing down as may be necessary for safe

operation” of the vehicle. To qualify under this exception, the driver

19
must also employ visual or audible signals as required by section

42-4-213, C.R.S. 2024. § 42-4-108(3). Thus, if an emergency

vehicle driver complies with section 42-4-108(2) and (3) while

responding to an emergency, CGIA immunity is restored and is a

bar to any tort action for injuries arising out of the driver’s conduct.

See Corsentino, 4 P.3d at 1086-87.

B. Standard of Review

¶ 34 As noted above, a C.R.C.P. 12(b)(1) motion to dismiss on the

grounds of sovereign immunity under the CGIA implicates the

district court’s subject matter jurisdiction. Dennis, ¶ 9. The

plaintiff has the burden of proving that the court has jurisdiction.

City of Longmont v. Henry-Hobbs, 50 P.3d 906, 908 (Colo. 2002).

But “this burden is relatively lenient, as the plaintiff is afforded the

reasonable inferences from [his] undisputed evidence.” Dennis,

¶ 11.

¶ 35 The application of sovereign immunity under the CGIA

presents a mixed question of fact and law. Maphis, ¶ 14. We defer

to the district court’s factual findings and its resolution of factual

disputes upon which jurisdiction may turn unless they are clearly

erroneous, finding no support in the record. Id. But we review de

20
novo the court’s determination of questions of law, including

whether the court properly interpreted a statute or applied the

correct legal standard.4 Corsentino, 4 P.3d at 1087-88.

¶ 36 Because the CGIA operates in derogation of the common law,

we strictly construe the statute’s immunity provisions and broadly

construe its waiver provisions to promote “the interest of

compensating victims of governmental negligence.” Heidel v. Rio

Blanco Cnty. Sheriff’s Off., 2023 COA 41, ¶ 14 (quoting Springer v.

City & Cnty. of Denver, 13 P.3d 794, 798 (Colo. 2000)). “This means

4 The parties dispute which standard of review applies to the district

court’s determination that Jenkinson passed through the red light
“after slowing down as may be necessary for safe operation” of the
fire truck, within the meaning of section 42-4-108(2)(b), C.R.S.
2024. Smith contends that de novo review applies, and the Denver
Defendants contend that clear error review is appropriate. While
it’s true that ultimate immunity determinations are usually
reviewed for clear error, the court’s application of a legal standard
to the historical facts of a case is a question of law. Corsentino v.
Cordova, 4 P.3d 1082, 1087-88 (Colo. 2000) (citing People v.
Romero, 953 P.2d 550, 555 (Colo. 1998)); see also Friends of the
Black Forest Reg’l Park, Inc. v. Bd. of Cnty. Comm’rs, 80 P.3d 871,
882 (Colo. App. 2003) (noting that we review de novo a district
court’s application of facts to a statute); Maphis v. City of Boulder,
2022 CO 10, ¶ 16 (reviewing de novo whether the condition of a
public road met the criteria for a “dangerous condition” under the
immunity waiver provision in section 24-10-106(1)(d)(I), C.R.S.
2024). We thus review this determination de novo, but we would
affirm under either standard.

21
that we also strictly construe exceptions to those waivers, which are

effectively grants of immunity.” Hice, ¶ 9.

C. The Applicable Legal Standard
Under Section 42-4-108(2)(b)

¶ 37 Smith contends that in evaluating whether Jenkinson

qualified for the immunity waiver exception in section

42-4-108(2)(b), the district court was required, but failed, to

consider whether Jenkinson (1) acted with due regard for the safety

of other drivers within the meaning of section 42-4-108(4) and

(2) satisfied an objective “reasonable emergency vehicle operator”

standard.

¶ 38 Smith’s first argument fails. Section 42-4-108(4) provides that

“[t]he provisions of th[at] section shall not relieve the driver of an

authorized emergency vehicle from the duty to drive with due regard

for the safety of all persons, nor shall such provisions protect the

driver from the consequences of such driver’s reckless disregard for

the safety of others.” But the supreme court held in Fogg v.

Macaluso, 892 P.2d 271, 277 (Colo. 1995), that the duty of care

referenced in that section doesn’t apply to the sovereign immunity

analysis under section 42-4-108(2) and (3). Fogg remains good law

22
and is dispositive of this argument. To the extent Smith asks us to

depart from this precedent, we decline the invitation. It is our

supreme court’s prerogative alone to overrule its prior decisions.

See Nation SLP, LLC v. Bruner, 2022 COA 76, ¶ 29 (noting that we

are bound by the decisions of the supreme court).

¶ 39 Smith’s second argument fares no better. He contends that

section 42-4-108(2)(b) envisions an objective “reasonable emergency

vehicle operator” standard, and, under that standard, the relevant

inquiry is whether Jenkinson proceeded through the red light only

after taking certain specific precautions recommended by various

outside emergency response organizations. On appeal, Smith

reiterates the argument he made in the district court — a

reasonable emergency vehicle operator would have come to a

complete stop before entering the intersection, established eye

contact with other drivers in the intersection, and proceeded past

each lane of cross traffic as if it were a separate intersection. We’re

not persuaded by this argument.

¶ 40 For starters, the plain language of section 42-4-108(2)(b)

undercuts Smith’s argument. The statute permits an operator of an

emergency vehicle to pass through, as relevant here, a red light

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“after slowing down as may be necessary for safe operation” of the

vehicle. § 42-4-108(2)(b). In doing so, section 42-4-108(2)(b)

prescribes the manner in which an emergency responder must act

to be entitled to sovereign immunity under the CGIA. But it doesn’t

provide that the operator must take the specific steps that Smith

asserts are required in his briefing. Had the General Assembly

intended to impose those requirements, it would have employed

language to do so. See Hobbs v. City of Salida, 2024 COA 25, ¶ 33

(“We presume the General Assembly acts intentionally when

selecting the words used in a statute.”) (cert. granted Sept. 30,

2024). We see no such indication in the statute.

¶ 41 Likewise, Corsentino doesn’t command the outcome Smith

urges. In that case, the supreme court held that the applicable

“standard for determining whether an emergency vehicle operator

was responding to an emergency call under section 42-4-108(2) is

an objective standard from the perspective of a reasonable

emergency vehicle operator.” Corsentino, 4 P.3d at 1088 (emphasis

added). Thus, Corsentino does describe the objective test that

courts must apply to decide the threshold issue of whether an

operator was responding to an emergency.

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¶ 42 But the court didn’t extend that same test to the exceptions

contained in section 42-4-108(2)(a) to (d). Instead, the supreme

court instructed that in assessing the applicability of section

42-4-108(2)(c)’s exception allowing an emergency vehicle driver to

speed so long as the driver does not endanger life or property,

“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.” Id. at 1093. The

Corsentino court noted that “[i]mportant factors relating to the

circumstances include, but are not limited to, 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 [the operator]

was driving.” Id.

¶ 43 Similarly, a division of this court has recognized that the

application of subsection (2)(b)’s red light exception entails

examining the circumstances of the case. See Bilderback, ¶¶ 11-16.

“[T]he phrase ‘as may be necessary for safe operation’ calls for the

court to take into account how the [driver] proceeded through the

intersection,” not just how the driver entered the intersection. Id. at

¶ 15. The division further observed that what constitutes safe

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operation within the meaning of section 42-4-108(2)(b) varies from

case to case and includes consideration of the circumstances

surrounding the intersection at issue. Id. at ¶ 16.

¶ 44 In light of these authorities, then, we conclude that a court

should consider the conduct of the operator and the totality of the

circumstances surrounding the accident in deciding whether an

emergency vehicle operator’s conduct qualifies for the exception

contained in section 42-4-108(2)(b).

D. The District Court Didn’t Err by Determining that the CGIA
Barred Smith’s Claims Against the Denver Defendants

¶ 45 Here, the district court examined the totality of the

circumstances surrounding the accident and determined that the

Denver Defendants were entitled to sovereign immunity under the

relevant emergency vehicle exception to the immunity waiver. The

court properly noted that “the existence of the [a]ccident [was] not

enough on its own to demonstrate that the Denver Defendants

acted contrary to [section 42-4-108(2)(b)].” Rather, the court

observed that under Corsentino, its analysis must focus on the

connection between the emergency operator’s conduct and the

circumstances surrounding that conduct. And the court further

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noted that it should consider the factors that the Corsentino court

identified.

¶ 46 Applying this framework, the district court concluded that

Jenkinson complied with section 42-4-108(2)(b) and (3) at the time

of the accident because “he did slow down before [he] proceeded

through the red light as necessary for safe operation[]” of the fire

truck. In support of this conclusion, the court found that

Jenkinson (1) used the fire truck’s lights and sirens while

responding to the emergency call; (2) slowed down before reaching

the intersection; (3) cleared each lane of traffic on Broadway before

proceeding through the intersection; (4) accelerated only after he

determined that it was safe for him to pass through the

intersection; and (5) operated the fire truck well under the speed

limit, even after he accelerated through the intersection. The record

supports these findings.

¶ 47 First, it’s undisputed that, as Jenkinson entered the

intersection, he slowed down and utilized the fire truck’s lights and

sirens. During the Trinity hearing, Jenkinson testified that another

firefighter used the air horn as they approached the intersection.

Jenkinson engaged the fire truck’s exhaust brake when he took his

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foot off the accelerator and placed it over the brake pedal to reduce

his reaction time. He also testified that the fire truck further

decelerated because the area of Speer leading up to the intersection

was sloped uphill. Similarly, Detective Christopher Cesarec

testified that the data he gathered in conducting his accident

reconstruction was consistent with the fire truck slowing down.

¶ 48 Next, Jenkinson testified that he had accounted for each lane

of cross traffic before accelerating through the intersection. The

record shows that none of the vehicles on southbound Broadway

were moving, even though the traffic light had just turned green for

them. Indeed, Jenkinson observed that one vehicle had

“jumped . . . , meaning they actually started to proceed,” but then

stopped after “they saw the firetruck and heard the firetruck.”

While the lane through which the car containing Smith entered the

intersection was open, Jenkinson said that he looked “all the way

[up]” Broadway and didn’t see any oncoming traffic. And according

to Jenkinson, he stopped covering the brake pedal and began

accelerating through the intersection only after he had cleared all

lanes of the southbound traffic. The court found Jenkinson’s

testimony credible.

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¶ 49 Finally, Detective Cesarec testified that the fire truck was

traveling roughly twenty-seven miles per hour at the time of the

collision. Given that the parties stipulated the posted speed limit

on Speer was thirty-five miles per hour, the record demonstrates

that Jenkinson drove under the speed limit even after he started

accelerating through the intersection.

¶ 50 In his briefing, Smith directs us to evidence presented at the

Trinity hearing that he argues supports his position that Jenkinson

failed to slow down as was necessary for the safe operation of the

fire truck. For example, Smith repeatedly points out that

Jenkinson told the police after the accident that he thought he had

a green light. Relying on that statement, Smith goes on to argue

that “a reasonable engineer would have known the light was red

while approaching the intersection.” But during the hearing,

Jenkinson explained his earlier statement regarding the color of the

light and clarified that he no longer believed that the light was green

when he entered the intersection. At any rate, it was the district

court’s role as the fact finder to resolve this and any other

conflicting evidence, determine the credibility of the witnesses, and

decide what weight to give each piece of evidence. See Owners Ins.

29
Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 50. That is

not our role as an appellate court. Id.

¶ 51 In sum, we conclude that the district court didn’t err by

determining that Smith’s claims against the Denver Defendants

must be dismissed for lack of subject matter jurisdiction under the

CGIA because, at the time of the accident, Jenkinson operated the

fire truck in compliance with section 42-4-108(2)(b) and (3) and,

therefore, he was covered by immunity under section

24-10-106(1)(a).

IV. Appellate Attorney Fees and Costs

¶ 52 Lastly, the Denver Defendants request an award of appellate

“attorney[] fees and costs incurred in responding to the appeal

pursuant to C.A.R. 28(b).” C.A.R. 28(b) sets forth the requirements

of an appellee’s answer brief, and the provision does provide that

“[t]he answer brief must also contain any request for attorney fees.”

But a request for attorney fees on appeal “must include a specific

request, under a separate heading, and must explain the legal and

factual basis for an award of attorney fees.” C.A.R. 39.1; see also

Cikraji v. Snowberger, 2015 COA 66, ¶ 22 (stating that a party’s

request for appellate attorney fees must identify a legal basis under

30
which those fees are recoverable). The Denver Defendants’ brief

does not satisfy these requirements. Accordingly, we deny the

Denver Defendants’ request for appellate attorney fees.

¶ 53 But the Denver Defendants are entitled to their appellate costs

under C.A.R. 39(a)(2), which provides, “[I]f a judgment is affirmed,

costs are taxed against the appellant.” The Denver Defendants may

pursue those costs in the district court by following the procedure

set forth in C.A.R. 39(c)(2).

V. Disposition

¶ 54 The judgment is affirmed.

JUDGE J. JONES and JUDGE MOULTRIE concur.

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