Malott v. Palisade

24CA1544 Malott v Palisade 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1544
Mesa County District Court No. 22CV30392
Honorable Valerie J. Robison, Judge

Jeffrey Malott,

Plaintiff-Appellant,

v.

Town of Palisade Fire Department,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE MEIRINK
Freyre and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Killian, Davis, Richter & Fredenburg, PC, Damon Davis, Joseph L. Fredenburg,
Grand Junction, Colorado, for Plaintiff-Appellant

Tucker Holmes, P.C., Bradley D. Tucker, Michael T. Sullivan, Centennial,
Colorado, for Defendant-Appellee
¶1 After plaintiff, Jeffrey Malott, sued defendant, the Town of

Palisade Fire Department (Fire Department), for negligence, the Fire

Department moved to dismiss the claim. The district court

concluded that the claim was barred by the emergency vehicle

exception of the Colorado Governmental Immunity Act (CGIA) and

therefore granted the Fire Department’s motion. Malott now

appeals that decision. We affirm.

I. Factual Background

¶2 Early on October 28, 2019, Mallot was driving eastbound on I-

70. The weather was poor, and the road conditions were icy. Corey

Massey, a firefighter employed by the Fire Department, was driving

ambulance number 41 (Ambulance 41) on the same stretch of I-70

to respond to an emergency rollover crash.

¶3 The Fire Department acquired Ambulance 41 in 2018.

Ambulance 41 was unique because it had an automatic chain

system that could deploy chains on the ambulance’s tires to help

with traction during adverse weather conditions. Massey was

aware that Ambulance 41 had the automatic chain system and

knew that the system functioned by using a switch on the control

panel, but he did not receive specific training on the system.

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¶4 While responding to the accident, Massey drove Ambulance 41

with its emergency lights and siren activated. He drove at a speed

of five to ten miles per hour on the right shoulder of I-70 to pass

traffic. As the ambulance approached Exit 45, the road conditions

became worse, and Massey used the switch to deploy the automatic

chain system. Despite activating the switch, Massey did not hear

anything or notice a difference in the ambulance’s handling. As

Massey approached a sloped turn on I-70, he felt the ambulance

lose traction. Massey tried to stop, but the front of the ambulance

slid into the rear passenger side of Malott’s car. Malott suffered a

concussion, and his car was damaged.

II. Procedural Background

¶5 Malott filed his initial complaint in October 2022, alleging that

the Fire Department was negligent in the manner it maintained

Ambulance 41.1

¶6 The Fire Department moved to dismiss the complaint under

C.R.C.P. 12(b)(1), arguing that the emergency vehicle exception to

1 Malott filed an amended complaint in January 2023. Both parties
agree, however, that the amended complaint did not substantially
modify Malott’s claims for relief or their underlying factual basis.

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the CGIA, section 42-4-108(2) and (3), C.R.S. 2024, barred Malott’s

claims because Massey operated Ambulance 41 with its lights on

and sirens engaged, as required by the statute, at the time of the

accident. In response, Malott argued that the CGIA did not bar his

claims because it was disputed that Massey operated Ambulance 41

with due regard for Malott’s safety2 and that the Fire Department

waived immunity because it failed to adequately maintain the

ambulance’s automatic chain system.

¶7 The court held a Trinity hearing3 to resolve the factual

disputes. Malott called Massey, former Fire Chief Rich Rupp, and

Kyle Heer — an expert in engineering and mechanical design — as

witnesses.

¶8 Massey testified that while he and other crew members were

responsible for weekly inspections of the Fire Department’s vehicles,

2 Mallot abandoned this argument, but the district court still made

findings on the claim based on the evidence presented.
3 A Trinity hearing is an evidentiary hearing in accordance with

Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916, 927 (Colo. 1993). Its purpose is to allow courts to determine
the facts necessary to definitively resolve all disputed issues relating
to a public entity’s potential immunity under the CGIA before trial.
City of Aspen v. Burlingame Ranch II Condo. Owners Ass’n, 2024 CO
46, ¶ 15 n.2.

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Massey did not know whether the automatic chain system was

inspected, how often it was inspected, or if the system was working

properly on the day of the accident.

¶9 Rupp testified that only Ambulance 41 had an automatic

chain system but that there was no training or maintenance in

place for the system because the Fire Department had never had an

ambulance with such a system before. He did note, though, that

every time he inspected the underside of Ambulance 41, he would

examine the automatic chain system for defects and to make sure

that the chains still rotated. Rupp further testified that he had

never tested the automatic chain system in a real-world scenario

and that he had never needed to use manual or automatic chains to

respond to an emergency during his twenty-five-year tenure with

the Fire Department. Rupp also testified that after the accident,

Ambulance 41 was brought to a vehicle bay where Rupp activated

the automatic chain system and heard the chains hit the ground.

¶ 10 Heer reviewed evidence pertaining to the accident and

analyzed the weather conditions on the morning of the accident, but

he did not inspect the scene of the accident, Ambulance 41, or the

automatic chain system. Heer testified that although he had never

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worked on or used an automatic chain system, he had seen them in

use on other vehicles while those vehicles were driving. Heer

opined that the Fire Department failed to adequately maintain

Ambulance 41’s automatic chain system and that but for the failure

to maintain the system, the chains would have deployed, and the

ambulance would not have slid into Malott’s car.

¶ 11 Following the Trinity hearing, the district court concluded that

Malott’s negligence claim fell under the emergency vehicle exception

to the CGIA. The court granted the Fire Department’s motion to

dismiss, and Malott appeals.

¶ 12 Malott argues that the emergency vehicle exception to section

42-4-108(2) and (3) does not apply because the applicable

“operation” — the ambulance’s maintenance — occurred before the

emergency. Malott also argues that City of Grand Junction v.

Sisneros, 957 P.2d 1026 (Colo. 1998), is inapplicable and that

Sisneros is no longer good law and should be reconsidered. We

disagree with Malott’s first contention and decline to review his

second.

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III. Applicable Law

A. The CGIA

¶ 13 Whether CGIA immunity bars a plaintiff’s lawsuit is a

threshold question of subject matter jurisdiction governed by

C.R.C.P. 12(b)(1). Maphis v. City of Boulder, 2022 CO 10, ¶ 13.

Plaintiffs carry the burden of proving that a governmental defendant

waived CGIA immunity. Tidwell v. City & Cnty. of Denver, 83 P.3d

75, 85 (Colo. 2003). This is a relatively lenient burden, and

plaintiffs are “afforded the reasonable inferences from [their]

undisputed evidence.” City & Cnty. of Denver v. Dennis, 2018 CO

37, ¶ 11. The trial court’s findings of fact supporting a

determination under the CGIA will not be reversed unless clearly

erroneous. Trinity Broad. of Denver, Inc. v. City of Westminster, 848

P.2d 916, 924-25 (Colo.1993) (the trial court is the fact finder

regarding jurisdictional determinations under the CGIA, and

appellate review is highly deferential).

¶ 14 The CGIA provides that a “public entity shall be immune from

liability in all claims for injury which lie in tort or could lie in tort.”

§ 24-10-106(1), C.R.S. 2024 (version effective until Jan. 1, 2025).

Section 24-10-106(1)(a) waives that immunity for a “public entity in

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an action for injuries resulting from . . . [t]he operation of a motor

vehicle . . . except emergency vehicles operating within the

provisions of section 42-4-108(2) and (3).” See Hice v. Giron, 2024

CO 9, ¶ 11. Section 42-4-108(2) grants emergency vehicles certain

privileges “subject to the conditions stated in this article,” and

section 42-4-108(3) explains that these privileges apply “only when

such vehicle is making use of audible or visual signals.”

Simply put, “the CGIA grants government entities broad immunity,

waives that immunity for the operation of motor vehicles by public

entities and their employees, and excludes emergency drivers who

comply with the cross-referenced traffic code provisions from that

waiver.” Hice, ¶ 12.

B. Standard of Review

¶ 15 We interpret statutes, including the CGIA, de novo. Id. at

¶ 10. Starting with the statute’s language, we give the words their

“plain and ordinary meanings.” McBride v. People, 2022 CO 30,

¶ 23. “If the statutory language is unambiguous, then we look no

further.” Id. But if it’s ambiguous, which occurs “when it is

reasonably susceptible of multiple interpretations,” “we may

consider other aids to statutory construction,” id., such as the

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purpose of the statute, any legislative history, and the

consequences of a particular construction, § 2-4-203(1), C.R.S.

2024. Because statutory immunity operates in derogation of

common law, we “‘strictly construe the statute’s immunity

provisions’ and ‘broadly construe’ the CGIA’s waiver provisions.”

Hice, ¶ 9 (quoting Springer v. City & Cnty. of Denver, 13 P.3d 794,

798 (Colo. 2000)). Likewise, we also strictly construe exceptions to

those waivers because they are grants of immunity. See id.

IV. Discussion

A. The CGIA

¶ 16 Malott contends that the CGIA’s waiver of immunity for

operation of a motor vehicle is broad and encompasses vehicle

maintenance. Specifically, he asserts that the emergency vehicle

exception doesn’t even apply here because the Fire Department’s

failure to maintain the automatic chain system occurred before any

emergency and, therefore, the Fire Department waived its

immunity. We disagree.

¶ 17 Malott relies on Harris v. Regional Transportation District, 15

P.3d 782 (Colo. App. 2000), to argue that maintenance is part of the

operation of a motor vehicle and the Fire Department’s failure to

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maintain Ambulance 41’s automatic chain system waived its

immunity. In Harris, the plaintiff was injured while exiting a

Regional Transportation District (RTD) bus when she slipped on ice

and slush that had accumulated on the bus’s interior steps. Id. at

783. A division of this court concluded that the waiver provision of

section 24-10-106(1)(a) applied to injuries resulting from the

operation of the motor vehicle by a public employee acting as the

operator and that “operation” referred to the actions of the operator

related to the physical control of the bus’s functions. See id. Based

on that definition, the Harris division held that the alleged negligent

failure of the bus driver to ensure that passengers, like the plaintiff,

boarded and disembarked safely was included in the statute’s

waiver of immunity. Under the division’s interpretation of the

CGIA, “if injuries otherwise result from the operation of a bus, even

if the underlying cause may have been faulty maintenance, the

waiver of immunity is applicable.” Id. at 785; see also Teran v. Reg’l

Transp. Dist., 2020 COA 151, ¶ 19 (holding that even though an

RTD bus driver did not act negligently when operating the bus,

because the plaintiff’s injuries resulted from RTD’s failure to

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maintain a handrail that came loose when the bus braked, CGIA

immunity was waived).

¶ 18 Here, the district court was unconvinced that the automatic

chain system on Ambulance 41 was negligently maintained or that

it actually failed to deploy at the time of the accident. Even if the

automatic chain system did not deploy properly, and the failure was

caused by the lack of appropriate maintenance, the district court

concluded that the Fire Department was immune under the CGIA.

¶ 19 In arriving at this conclusion, the district court declined to

extend Harris’s logic. We agree with the district court that Harris is

distinguishable. While an RTD bus and an ambulance are both

vehicles operated by public employees and thus subject to the

CGIA, a bus is used to transport passengers, not to respond to

emergencies. Harris did not address the emergency vehicle

exception because the facts did not warrant such an analysis.

Therefore, Malott’s reliance on Harris is misplaced.

¶ 20 The legislature created the emergency vehicle exception to

immunize public employees from tort liability in situations requiring

an immediate response. Sisneros, 957 P.2d at 1029 n.4. Here,

Massey was responding properly and lawfully to precisely the type

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of emergency situation the legislature envisioned when it created

the emergency vehicle exception. The district court found that

Massey activated Ambulance 41’s lights and sirens, acted with due

regard for Malott’s safety, and did not endanger life or property, and

that there was no evidence indicating that he was careless when

responding to the rollover accident. Massey’s response fits squarely

within the CGIA’s requirement that the operator of an emergency

vehicle respond to an emergency with the vehicle’s lights and sirens

on. See id.

¶ 21 We, therefore, conclude that because Massey operated

Ambulance 41 properly and lawfully while responding to the

emergency rollover accident, the emergency vehicle exception

applies, and the Fire Department is immune under the CGIA. The

district court properly dismissed Malott’s case under C.R.C.P.

12(b)(1).

B. Sisneros’s Validity

¶ 22 Next, Malott argues that this court should decline to follow the

supreme court’s precedent in Sisneros because it applies an

outdated method of interpreting the CGIA. Malott asserts that this

court should instead find that the emergency vehicle exception only

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restores immunity when an injury results from the conduct

specified in section 42-4-108(2)(a)-(d).

¶ 23 We are not at liberty to disregard the supreme court’s ruling in

Sisneros absent some clear indication that the supreme court has

overruled it. Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo.

App. 2009) (citing Bernal v. Lumbermens Mut. Cas. Co., 97 P.3d

197, 203 (Colo. App. 2003)). Accordingly, because we lack the

authority to decide the validity of Sisneros, we decline to address

this issue.

V. Disposition

¶ 24 We affirm the district court’s judgment.

JUDGE FREYRE and JUDGE GOMEZ concur.

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