ck v. McNabb

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
September 3, 2020

2020COA133

No. 19CA1075, Bilderback v. McNabb — Government —
Colorado Governmental Immunity Act — Immunity and Partial
Waiver; Vehicles and Traffic — Traffic Regulation — Emergency
Vehicle Exception

Plaintiff’s motorcycle collided with a patrol car after the officer

drove through a red light while responding to an emergency call.

Plaintiff sued the officer and the City and County of Denver, and

defendants moved to dismiss the case under C.R.C.P. 12(b)(1),

arguing the claims were barred by the doctrine of sovereign

immunity. The district court denied defendants’ motion, ruling that

the officer’s conduct did not satisfy the emergency vehicle exception

to the Colorado Governmental Immunity Act’s waiver of sovereign

immunity for injuries resulting from a public employee’s operation

of a motor vehicle, see § 24-10-106(1)(a), C.R.S. 2019.
The emergency vehicle exception is subject to certain

conditions, including, among others, the one set forth in section 42-

4-108(2)(b), C.R.S. 2019. That section states that the driver of an

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.” Id.

A division of the court of appeals holds that the mere fact that

the emergency vehicle driver has stopped at a red light before

entering the intersection does not, without more, satisfy the

condition set forth in section 42-4-108(2)(b); rather, to give effect to

the phrase “but only . . . as may be necessary for safe operation,” a

court must determine whether, depending on the specific factual

circumstances, the driver was proceeding safely after entering the

intersection, and while driving through it. The division remands the

case to the district court to resolve factual disputes bearing on this

issue.
COLORADO COURT OF APPEALS 2020COA133

Court of Appeals No. 19CA1075
City and County of Denver District Court No. 19CV30662
Honorable Eric M. Johnson, Judge

Robert Bilderback,

Plaintiff-Appellee,

v.

Kyle McNabb and City and County of Denver, Colorado,

Defendants-Appellants.

ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE VOGT*
Johnson and Taubman*, JJ., concur

Announced September 3, 2020

Metier Law Firm, LLC, Emily N. Benight, Fort Collins, Colorado, for Plaintiff-
Appellee

Kristin M. Bronson, City Attorney, Jennifer Johnson, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Plaintiff, Robert Bilderback, sued defendants, Denver Police

Officer Kyle McNabb and the City and County of Denver, for

damages after the motorcycle he was driving collided with a patrol

car driven by McNabb. Defendants moved for dismissal under

C.R.C.P. 12(b)(1), arguing that plaintiff’s claims were barred by the

doctrine of sovereign immunity, in accordance with the Colorado

Governmental Immunity Act (CGIA), §§ 24-10-106 to -120, C.R.S.

2019. The district court denied the motion in a detailed written

order without holding a hearing. Defendants appeal. We vacate the

order and remand for further proceedings in accordance with Trinity

Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916,

927 (Colo. 1993).

I. Background

¶2 The complaint, the motion to dismiss, and related materials

provided to the district court set forth the following facts. In March

2019, Officer McNabb was on duty, stopped in his squad car at a

red light at the intersection of Federal Boulevard and Evans Avenue

in Denver, when he received an emergency call. According to his

affidavit, McNabb, who was the first in line at the red light on

northbound Federal, observed that the traffic turning left from

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westbound Evans onto southbound Federal had cleared the

intersection. He then activated his emergency lights, checked the

intersection again, observed that all traffic had stopped, made eye

contact with several drivers who had a green light on Evans to

ensure they saw his emergency lights, and then slowly pulled into

the intersection. Part way through the intersection, McNabb

increased his speed to about fifteen miles per hour. At this point,

plaintiff, driving his motorcycle westbound on Evans through the

green light, collided with the patrol car.

¶3 In support of his response to the motion to dismiss, plaintiff

appended his own affidavit and a witness statement of the driver

behind his motorcycle, both stating that their views of northbound

traffic on Federal were obstructed by a large box truck in the left

turn lane of westbound Evans. Defendants made no reference to

the box truck in their reply. In their view, the undisputed facts that

McNabb (1) was responding to an emergency call, (2) was at a

complete stop before entering the intersection, and (3) had activated

his overhead lights before entering the intersection established the

statutory requirements for the emergency vehicle exception to the

waiver of immunity for the operation of a motor vehicle found in

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section 24-10-106(1)(a). Given their view of the law, defendants did

not believe a Trinity hearing was necessary; but they asked that the

court hold such a hearing if it found that there were disputed

factual issues bearing on jurisdiction.

¶4 The district court did not agree with defendants’ argument

that the relevant statutory requirements were met because McNabb

stopped prior to proceeding into the intersection; rather, the court

stated, “[t]he crux of the dispute is how Officer McNabb proceeded

against the red light and whether the manner in which he did so

took his actions outside of the emergency vehicle exception to the

waiver [of] sovereign immunity provided by the CGIA.” After noting

that no evidentiary hearing was required where the court accepted

all the facts pleaded by the plaintiff as true, the court also accepted

as true that there was a large box truck blocking a portion of

westbound Evans from McNabb’s view. Thus, the court concluded,

proceeding through the intersection without being cognizant of and

accounting for the blind spot created by the truck did not constitute

“safe operation” and accordingly did not bring the case within the

emergency vehicle exception to the CGIA waiver of sovereign

immunity.

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¶5 On appeal, defendants argue that the district court

misconstrued the controlling statute by ignoring the fact that

McNabb had stopped before entering the intersection and, instead,

reading into the statute a requirement that an officer also drive

slowly after entering an intersection and while passing through it.

In the alternative, defendants contend, the district court erred in

forgoing a Trinity hearing to resolve a “disputed and undeveloped

fact” — namely, whether McNabb’s view of plaintiff was obstructed

by a truck. We disagree with the first argument but agree with the

second.

II. Applicable Law and Standard of Review

¶6 Questions of sovereign immunity — including whether it has

been waived — implicate a district court’s subject matter

jurisdiction under C.R.C.P. 12(b)(1). St. Vrain Valley Sch. Dist.

RE-1J v. A.R.L. ex rel. Loveland, 2014 CO 33, ¶ 9.

¶7 Under the CGIA, sovereign immunity generally bars any action

against a public entity for injuries that lie in tort or could lie in tort.

Smokebrush Found. v. City of Colorado Springs, 2018 CO 10, ¶ 20;

see also § 24-10-108, C.R.S. 2019. However, the CGIA also

“withdraws and restores this immunity through a series of

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immunity waivers, exceptions to those waivers, and, in some cases,

conditions relating to the exceptions.” Corsentino v. Cordova, 4

P.3d 1082, 1086 (Colo. 2000). Because the CGIA’s grant of

sovereign immunity is in derogation of Colorado common law, we

narrowly construe any provision granting sovereign immunity.

Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 13. As a corollary

to that principle, we broadly construe any CGIA provision waiving

sovereign immunity. Id.

¶8 Because “the [C]GIA requires the trial court to definitively

resolve all issues of immunity before trial, regardless of whether the

issues have been classified as jurisdictional,” district courts are to

“employ the procedures used in [Trinity] and its progeny to . . .

determine the facts necessary to resolve all disputed issues of

immunity, including those deemed non-jurisdictional.” Finnie v.

Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1258 (Colo. 2003). The

Finnie court went on to “clarify that the Trinity procedure . . .

includes discovery, ruling without hearings, and affording parties

the opportunity to request Trinity hearings.” Id. at 1260.

¶9 When there is no evidentiary dispute, the court may rule on

the C.R.C.P. 12(b)(1) motion and decide the sovereign immunity

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question without a hearing, based on the pleadings alone. Id.;

Tidwell ex rel. Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86

(Colo. 2003). Even in such circumstances, however, “courts have

discretion to conduct Trinity hearings to develop facts relating to

immunity issues when such facts are not directly disputed.” Finnie,

79 P.3d at 1260.

¶ 10 We employ a mixed standard of review to orders on motions to

dismiss for lack of subject matter jurisdiction. Grant Bros. Ranch,

LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 15. We review

the district court’s factual findings for clear error but review de novo

the court’s legal conclusions, including its statutory interpretation.

Id. We review the court’s decision whether to conduct a Trinity

hearing for abuse of discretion. See Finnie, 79 P.3d at 1260.

III. Discussion

A. District Court’s Construction of the CGIA

¶ 11 Under section 24-10-106(1)(a) of the CGIA, a public entity’s

immunity is waived in an action for injuries resulting from the

“operation of a motor vehicle, owned or leased by such public entity,

by a public employee while in the course of employment, except

emergency vehicles operating within the provisions of section 42-4-

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108(2) and (3), C.R.S.” In this case, there was no dispute that the

squad car was being operated by a public employee, Officer

McNabb, while in the course of his employment. Thus, the issue in

dispute was whether the vehicle was operating within the provisions

of section 42-4-108(2) and (3), so as to come within the exception to

the otherwise applicable waiver of immunity.

¶ 12 Section 42-4-108(2)(b) states that the driver of an authorized

emergency vehicle, when responding to an emergency call (as

McNabb was undisputedly doing here), “may . . . (b) [p]roceed past a

red or stop signal or stop sign, but only after slowing down as may

be necessary for safe operation.” Section 42-4-108(3), in turn,

provides that section 42-4-108(2)(b) applies, for purposes of the

section 24-10-106(1)(a) immunity waiver, “only when such vehicle is

making use of audible or visual signals . . . .”

¶ 13 Defendants argue that section 42-4-108(2)(b) addresses the

driver’s conduct prior to entering the intersection, and that the

district court erred by “reading into it a requirement that an officer

drive slowly after passing a red light and after the officer already

has the right-of-way in the intersection.” The district court rejected

defendants’ contention that McNabb met the requirements of

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section 42-4-108(2)(b), as the court put it, “by virtue of the

happenstance that he happened to be stopped at a red light prior to

activating his lights.” Such an interpretation, the court reasoned,

would render superfluous the phrase “as may be necessary for safe

operation.” We agree with the district court.

¶ 14 It is a basic principle of statutory interpretation that we avoid

any construction of a statute that “would render any words or

phrases superfluous.” Ryan Ranch Cmty. Ass’n, Inc. v. Kelley, 2016

CO 65, ¶ 43 (quoting Doubleday v. People, 2016 CO 3, ¶ 20).

Likewise, we will not adopt an interpretation leading to an illogical

or absurd result. Frazier v. People, 90 P.3d 807, 811 (Colo. 2004).

¶ 15 In the case of section 42-4-108(2)(b), the phrase “as may be

necessary for safe operation” calls for the court to take into account

how the officer proceeded through the intersection. If the statute

did indeed apply only to the emergency vehicle driver’s conduct

before entering the intersection, it could convey that meaning by

allowing the driver to proceed past a red light “but only after

slowing down,” with no further qualifiers. Instead, the statute

requires the driver to slow down “as may be necessary for safe

operation.”

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¶ 16 Ignoring that qualifier reads it out of the statute, rendering the

phrase superfluous. Additionally, interpreting the statute to allow a

police officer to proceed through the intersection at any speed as

long as he or she had previously slowed down could, depending on

the circumstances, lead to an illogical or absurd result. As the

district court observed, “‘safe operation’ at an empty intersection

will necessarily be different than what constitutes ‘safe operation’ at

a traffic-filled intersection.” For example, safe operation could

require police officers to refrain from increasing their speed while in

the intersection, or to activate their siren as well as their lights, if

the officers are unable to determine whether all cross-traffic has

stopped.

¶ 17 While we thus agree with the district court’s analysis of the

requirements of section 42-4-108(2)(b), we agree with defendants

that the court erred by citing section 42-4-108(4), which requires

drivers of emergency vehicles to drive “with due regard for the safety

of all persons,” as further justification for finding that immunity

had been waived in this case. In Fogg v. Macaluso, 892 P.2d 271,

277 (Colo. 1995), the supreme court held that the duty of care

referenced in that section does not apply to the sovereign immunity

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analysis under section 42-4-108(2) and (3). See also Quintana v.

City of Westminster, 8 P.3d 527, 530 (Colo. App. 2000) (same).

Although plaintiff refers to Macaluso as “arguably an outdated

case,” it remains binding on us and on the district court.

Nevertheless, the court’s reliance on section 42-4-108(4) for “further

justification” for its holding does not call into question the validity

of its conclusion regarding the section 42-4-108(2)(b) exception to

the immunity waiver, and it thus does not require reversal.

B. The District Court’s Decision Not to Conduct a Trinity Hearing

¶ 18 While we agree with the district court’s construction of the

emergency vehicle exception in the CGIA, we conclude that the

court abused its discretion by not ordering a hearing or other

procedure under Trinity to resolve the central disputed factual issue

in the case: namely, whether McNabb had a clear view of the Evans

Street cross-traffic when he proceeded through the intersection, or

whether his view was impeded by the box truck. See Medina v.

State, 35 P.3d 443, 460-61 (Colo. 2001) (remanding for hearing

because evidence already admitted did not resolve key factual

dispute as to whether plaintiffs’ injuries were caused by lack of

maintenance or were solely attributable to design).

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¶ 19 As noted, plaintiff and another witness had stated that a large

box truck in the left lane of westbound Evans blocked plaintiff’s

view of traffic traveling northbound on Federal. Accepting these

statements as true, the district court relied on that circumstance in

ruling that McNabb had not proceeded through the intersection in a

manner that met the statutory “safe operation” requirement. (“In

this case, ‘safe operation’ required Officer McNabb to be cognizant

of, and account for, the fact that there was a large box truck sitting

in the left turn lane on Evans, blocking from his view . . . a portion

of the westbound lanes.”)

¶ 20 We recognize that, as plaintiff points out, defendants never

provided the district court with statements or other evidence

disputing the presence of the box truck. Defendants respond on

appeal that, in their pleadings, they repeatedly cited Officer

McNabb’s statements that he had a clear view of the intersection.

We conclude that, given the centrality of this factual issue to the

district court’s ruling, whether Officer McNabb’s view of the

motorcycle was in fact obstructed needs to be determined

regardless of the adequacy of defendants’ efforts to raise a dispute

about the issue. See Finnie, 79 P.3d at 1260 (courts have discretion

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to hold Trinity hearings to develop facts relating to immunity issues,

even when such facts are not directly disputed or are not

jurisdictional).

¶ 21 In sum, the district court is directed on remand to resolve any

factual disputes bearing on the question of sovereign immunity by

ordering an evidentiary hearing or such other procedures as may be

necessary to determine the issue. See Trinity, 848 P.2d at 927; see

also Finnie, 79 P.3d at 1260. Based on the results of such fact

finding, the district court shall again enter an order on defendants’

motion to dismiss.

IV. Conclusion

¶ 22 The order is vacated, and the case is remanded for further

proceedings in accordance with this opinion.

JUDGE JOHNSON and JUDGE TAUBMAN concur.

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