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Bilderback v. McNabb.

2020 COA 133. No. 19CA1075. Sovereign Immunity—Colorado Governmental Immunity Act—Emergency Vehicle Exception—Trinity Hearing.

September 3, 2020

Officer McNabb was stopped at a red light at an intersection when he received an emergency call. As the officer drove through the red light and proceeded through the intersection, Bilderback’s motorcycle collided with the patrol car. Bilderback sued Officer McNabb and the City and County of Denver (collectively, defendants) for damages. Defendants moved to dismiss under CRCP 12(b)(1), arguing that Bilderback’s claims were barred by sovereign immunity under the Colorado Governmental Immunity Act (CGIA). The district court denied the motion without a hearing.

On appeal, defendants argued that the district court misconstrued CRS § 42-4-108(2)(b). They contended that the statute addresses the driver’s conduct before entering the intersection, and the court erred by reading into the statute a requirement that an officer drive slowly after entering an intersection and while passing through it after the officer already has the right-of-way. Under CGIA § 24-10-106(1)(a), a public entity’s immunity is waived in an action for injuries resulting from the operation of a motor vehicle owned or leased by the public entity, by a public employee while in the course of employment, except emergency vehicles operating under CRS § 42-4-108(2) and (3). Among other conditions, the CGIA’s emergency vehicle exception states that an emergency vehicle driver may proceed past a stop signal, but only after slowing down as necessary for safe operation. This requires a court to determine whether, depending on the specific factual circumstances, the driver was proceeding safely after entering the intersection and while driving through it. Here, the district court properly construed the emergency vehicle exception.

Defendants contended, alternatively, that the district court erred in not holding an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), to resolve the disputed fact of whether Officer McNabb’s view of Bilderback was obstructed by a truck. When there is no evidentiary dispute, the court may rule on a CRCP 12(b)(1) motion and decide the sovereign immunity question without a hearing, based on the pleadings alone. District courts must employ the Trinity procedures to determine facts necessary to resolve all disputed issues of immunity. These procedures include discovery, ruling without hearings, and giving parties the opportunity to request Trinity hearings. Here, the district court erred by not determining, through an evidentiary hearing or other necessary procedures, whether Officer McNabb’s view of the motorcycle was obstructed, which is a central factual issue.

The order was vacated and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

Related Topics

Sovereign Immunity Colorado Governmental Immunity Act Emergency Vehicle Exception Trinity Hearing

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