Smith v. City and County of Denver.
2025 COA 70. No. 24CA0855. Colorado Governmental Immunity Act—Sovereign Immunity Bar—Interlocutory Appeal—Appeal Filed at Conclusion of Case—Emergency Vehicles—Vehicle Operator’s Conduct.
July 31, 2025
The Denver Fire Department was responding to a report of a fire at an apartment building when the fire truck collided with a vehicle in which Smith was a passenger. Smith suffered severe injuries as a result of the accident. As relevant here, Smith and Armstrong, in his representative capacity on behalf of Smith, sued the City and County of Denver (the city) and the fire truck driver Jenkinson (jointly, the Denver defendants) under the Colorado Governmental Immunity Act (CGIA). The Denver defendants moved to dismiss for lack of subject matter jurisdiction on grounds that they were immune from liability under the CGIA because Jenkinson was operating an emergency vehicle when the accident occurred. The district court determined that Smith hadn’t met his burden of proving that Jenkinson failed to slow down as was necessary for the safe operation of the fire truck, and it dismissed the CGIA claim. The district court later granted a joint stipulation for the dismissal of the claims against the remaining defendant. Smith then filed a notice of appeal challenging the court’s decision to dismiss his complaint against the Denver defendants.
On appeal, the Denver defendants argued that the court of appeals lacked jurisdiction to consider the merits of Smith’s challenges to the district court’s order dismissing his claims on CGIA grounds because he did not timely appeal that order. They maintained that the CGIA order was a final judgment from which Smith’s C.A.R. 4(a)(1) deadline started to run, reading CRS § 24-10-108 as requiring an immediate appeal for an order granting such immunity. The court of appeals held that when a district court grants a public entity’s motion to dismiss for lack of subject matter jurisdiction under the CGIA, but there are unresolved claims not affected by that ruling, § 24-10-108 allows a plaintiff to challenge the order granting immunity either in an interlocutory appeal or in an appeal filed when the case concludes. Here, Smith filed his notice of appeal 91 days after the district court’s CGIA order, but the appeal is nonetheless timely because he filed it within 49 days of the court’s order dismissing his remaining claims against the last remaining defendant. Accordingly, the court had jurisdiction to review the merits of Smith’s appeal.
On the merits, Smith contended that the district court’s decision to dismiss his claims against the Denver defendants must be reversed because the court applied the incorrect legal standard and thus consequently failed to consider certain facts in assessing whether the CGIA barred those claims. Specifically, Smith asserted that in evaluating whether Jenkinson qualified for the CRS § 42-4-108(2)(b) immunity waiver exception, the district court was required to but failed to consider whether Jenkinson acted with due regard for the safety of other drivers within the meaning of § 42-4-108(4) and satisfied an objective “reasonable emergency vehicle operator” standard. However, the § 42-4-108(4) duty of care doesn’t apply to the sovereign immunity analysis under § 42-4-108(2) and (3). Further, the court concluded that a court should consider a vehicle operator’s conduct under the totality of the circumstances surrounding the accident in deciding whether an emergency vehicle operator’s conduct qualifies for the § 42-4-108(2)(b) exception. Here, the district court examined the totality of the circumstances surrounding the accident and determined that Jenkinson operated the fire truck in compliance with § 42-4-108(2)(b) and (3), so the Denver defendants were entitled to sovereign immunity under the emergency vehicle exception to the immunity waiver.
The Denver defendants requested an award of appellate attorney fees and costs. The court denied the motion for fees for failure to comply with C.A.R. 39.1 but granted the motion for costs.
The judgment was affirmed.