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Giron v. Hice.

2022 COA 85. No. 20CA1603. Colorado Governmental Immunity Act—Sovereign Immunity Waiver—Operation of Motor Vehicle Owned or Leased by Public Entity—Emergency Vehicle Exception.

July 28, 2022

Officer Hice of the Olathe Police Department was on speed patrol when his radar detected a vehicle driving in the opposite direction going over 70 mph in a 55-mph zone. Officer Hice made a U-turn at the next available emergency turnaround and accelerated to catch up to the vehicle. The patrol car recorded that Officer Hice’s speeds reached 103 mph as he approached an intersection where Walter Giron and his brother Samuel Giron were in Walter’s van (with a trailer attached) waiting to turn left. Officer Hice saw the van and swerved right in an attempt to avoid a collision, but the front of his patrol car struck the passenger side of the van. At the time of impact, Officer Hice was traveling around 75 to 80 mph. Walter and Samuel died from their injuries, and Officer Hice was seriously injured.

Nichele Giron, individually and as personal representative of the estate of Walter Giron; Amanda Giron; and Thomas Short, as personal representative of the estate of Samuel Giron (collectively, the Girons) filed a tort action against Officer Hice and the Town of Olathe (Olathe). Olathe filed a motion to dismiss, later joined by Officer Hice, asserting governmental immunity. Olathe and Officer Hice argued that he had his emergency lights activated at the time of the incident, and that although he was speeding, his driving did not endanger life or property. Following a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), the district court dismissed the complaint, determining that Officer Hice and Olathe were immune from suit because Officer Hice had activated his emergency lights 5 to 10 seconds before the collision. The district court also determined that although Officer Hice exceeded the speed limit, he did not operate his vehicle in a manner that endangered life or property.

On appeal, as an initial matter, Officer Hice and Olathe contended that whether Officer Hice failed to activate his lights in sufficient time to alert Walter and Samuel was not preserved because the Girons only asserted in district court that the officer completely failed to activate his emergency lights before the collision. However, the district court made specific findings that Officer Hice’s emergency lights were activated for a sufficient amount of time before the collision to alert others to his presence, which demonstrates that this contention was adequately raised for the court to have considered and rejected it. Consequently, the Girons preserved this issue.

On the merits, the Girons contended that any sovereign immunity granted to Officer Hice and Olathe was waived under CRS § 24-10-106(1)(a) and that the waiver exception under CRS §  42-4-108(2) and (3) did not apply because Officer Hice had not activated his emergency lights or sirens; or alternatively, even if he did activate his lights, he drove in a manner that endangered life or property. Based on the plain language of CRS §  42-4-108—an exception to the immunity waiver under CRS § 24-10-106(1)(a)—an officer is not entitled to immunity when the officer does not activate the vehicle’s emergency lights or sirens for the entire time the officer exceeds the speed limit and is in pursuit of an actual or suspected law violator. Here, Officer Hice’s emergency lights were only activated for the last 5 to 10 seconds of the pursuit before the collision with Walter’s van, and his siren was never activated. Therefore, the district court erred when it determined that Officer Hice and Olathe were entitled to immunity.

Olathe and Officer Hice contended that because the district court found that Walter had “sufficient time” to react to the presence of Officer Hice’s vehicle once the emergency lights were activated, there is no record basis to maintain that the accident resulted from Officer Hice’s failure to use emergency lights at any time. Sovereign immunity will exist where a plaintiff alleges facts proving a minimal causal connection between the injuries and the specified conduct. Here, Officer Hice operated the vehicle that directly collided with Walter’s van and resulted in the injuries sustained by Walter and Samuel. The Girons did not have to allege, and the court did not have to determine, more of a causal connection between the public entity’s conduct and the injuries. For purposes of jurisdiction under the Colorado Governmental Immunity Act (CGIA), Walter’s and Samuel’s injuries resulted from the operation of an emergency vehicle pursuing a law violator without activating its lights or sirens while exceeding the speed limit. This brings the Girons’ claims within the scope of the CRS § 24-10-106(1)(a) immunity waiver. Therefore, Officer Hice and Olathe are not immune from liability under the CGIA for Walter’s or Samuel’s injuries and may be subject to potential liability in tort.

The judgment of dismissal was reversed and the case was remanded to reinstate the complaint.

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

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