Chapter 10 - § 10.5 WRONGFUL DEATH CLAIMS AGAINST GOVERNMENTAL ENTITIES APPLICATION OF THE COLORADO GOVERNMENTAL IMMUNITY ACT

• Jurisdiction: Colorado

§ 10.5 WRONGFUL DEATH CLAIMS AGAINST GOVERNMENTAL ENTITIES APPLICATION OF THE COLORADO GOVERNMENTAL IMMUNITY ACT

Colorado courts have often applied the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10-106, in the context of wrongful death actions. In City of Colorado Springs v. Powell, 48 P.3d 561 (Colo. 2002), the supreme court briefly examined the history of governmental immunity in Colorado. The court noted that, traditionally, governmental immunity in Colorado was based in common law. However, in 1971, the supreme court entirely overruled governmental immunity because the exceptions and waivers to governmental immunity had become too complicated and were arbitrary. The court invited the legislature to establish the parameters of governmental immunity, and the result was the CGIA. Id. at 563.

In Powell, the court outlined the general rules of governmental immunity as follows:

The CGIA allows injured persons to sue governmental entities in certain specific circumstances. The provisions allowing suit are to be construed broadly, in favor of the injured party. Whether a governmental entity can be sued is a question of subject-matter jurisdiction. The injured plaintiff has the burden of establishing that immunity has been waived.

Id. (citations omitted).

§ 10.5.1 Governmental Immunity for Emergency Vehicle Operators

Motor vehicle accidents generate a large number of claims against governmental entities. Questions of governmental immunity often arise when injury or death occurs after a high-speed chase. Immunity does not exist if the operator of an emergency vehicle endangers life or property. In Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000), the supreme court affirmed the decision of the court of appeals in Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo. App. 1998). The court of appeals had upheld the trial court's denial of a motion to dismiss a wrongful death action filed against Pueblo County Sheriff Dan Corsentino and Deputy Sheriff Fred Cortese for the alleged negligent conduct of Cortese. Corsentino argued that the CGIA barred the wrongful death action. The supreme court and the court of appeals agreed with the trial court's ruling that because Cortese endangered life and property, he and the Pueblo County Sheriff were potentially liable in tort and were not immune under the CGIA.

The case arose out of an automobile accident that occurred on July 30, 1995. Cortese was driving his sheriff cruiser and responded to a home burglary alarm. He had on his lights and siren, and was driving at a speed of 50 to 60 m.p.h. in a 35 m.p.h. zone. As Cortese approached an intersection, Erlinda Cordova was making a left turn across Cortese's path. Cortese did not slow down before reaching the intersection and collided with Cordova's vehicle, causing injuries that resulted in her death.

Cordova's husband and children then filed a wrongful death action against Corsentino and Cortese. Corsentino filed a motion to dismiss the case for lack of subject matter jurisdiction on the ground that Cortese was immune from suit under the CGIA because he was operating an emergency vehicle. The trial court ruled that Cortese was not immune under the operation of an emergency vehicle exception because he was not responding to an emergency call. Alternatively, the trial court held that Cortese was not immune because his operation of his vehicle endangered life and property.

Corsentino appealed the denial of the motion to dismiss. He argued that the trial court did not apply the proper standard for determining whether Cortese was responding to an emergency. He also asserted that the trial court incorrectly concluded that Cortese's operation of his vehicle endangered life and property. The court of appeals did not decide the issue of whether Cortese was responding to an emergency call, but held that the trial court properly denied the motion to dismiss because Cortese had endangered life and property when he drove at a speed greater than the speed limit.

The supreme court first addressed the proper standard to apply in determining what constitutes an emergency call under the CGIA. Under C.R.S. § 24-10-106(1), public entities are immune from liability for all tort claims, except as otherwise provided in the statute. Under C.R.S. § 24-10-106(1)(a), the CGIA waives a public entity's immunity from tort actions for injuries arising from the operation of a motor vehicle owned or leased by a public entity while a public employee is acting in the course of employment. However, C.R.S. § 24-10-106(1)(a) also creates an exception to this waiver of immunity for emergency vehicles operating under the provisions of C.R.S. § 42-4-108(2) and (3). Under this statute, the operator of an emergency vehicle is authorized to exceed the lawful speed limit "'so long as said driver does not endanger life or property."' Corsentino, 4 P.3d at 1087 (emphasis in original).

In addressing the first issue when is an emergency vehicle operator responding to an emergency call the supreme court held that the appropriate standard "is an objective standard from the perspective of a reasonable emergency vehicle operator." Id. at 1088. This standard requires courts to "decide whether the emergency vehicle operator reasonably believed that she was responding to an emergency based on information she knew or should have known." Id. "[B]esides the information that a reasonable emergency vehicle operator should possess, this perspective also includes the actual information available to the emergency vehicle operator at the time she received the dispatch." Id. The court pointed out that under this standard, "whether the incident turns out to be an actual emergency has no bearing on a court's determination of whether the emergency vehicle operator was responding to an emergency." Id. at 1089. The trial court applied an incorrect standard in determining that Cortese was not responding to an emergency call because it used a standard that was based on a "broader perspective than that of a reasonable emergency vehicle operator." Id. at 1089-90. The court recognized that normally it would reverse the trial court's decision and remand the case with further instructions. However, here, the trial court had an independent basis for its decision that supported its ruling that the CGIA did not bar the plaintiffs' suit. Because the supreme court agreed with the trial court's alternative ruling, it did not remand the case to the lower court for further proceedings.

The supreme court next considered whether the trial court properly applied the "endanger life or property" condition of the traffic code as an independent ground for holding that the CGIA did not bar the Cordovas' suit. The supreme court agreed with the court of appeals that the trial court properly applied this condition.

Under C.R.S. § 42-4-108(2)(c), emergency vehicle operators are privileged to exceed the lawful speed limit only as long as they do not "'endanger life or property.'" Id. at 1090. Corsentino argued that the "endanger life or property" condition only applies to the traffic code and has no bearing on the emergency vehicle exception to the CGIA. The supreme court rejected this argument. Relying upon both the plain language and the legislative history of the applicable statutes, the supreme court held that "if an operator speeds and endangers life or property in violation of section 42-4-108(2)(c), then the public entity does not have immunity, but is liable for any claims against the operator of the emergency vehicle." Id. at 1092.

Next, the court explained how a trial court should determine whether an emergency vehicle operator has endangered life or property while speeding. The court noted that "the pertinent question is whether the emergency vehicle operator's speed created an unreasonable risk of injury or damage to life or property." Id. at 1093. The court held that in determining this issue, trial courts should not "consider the accident or actual damage." Id. Rather, "courts should limit their inquiry to the relationship between the conduct of the emergency operator prior to the accident and the circumstances surrounding the conduct." Id. Factors to be considered in deciding this issue include, but are not limited to, the "speed limit in the area, the speed at which the operator was driving, the conditions of the road, and the type of area in which she was driving." Id. The court recognized that the trial court had applied this standard in concluding that Cortese had endangered life and property while speeding. The trial court concluded that the officer was endangering life and property because the accident occurred in a residential area and because there were line of sight problems due to the overgrowth of trees and bushes on the median at the intersection. The trial court properly concluded that under these conditions, Cortese had "endangered life and property by driving approximately 60 m.p.h. in a 35 m.p.h. speed zone." Id.

In sum, although the trial court erred in concluding that Cortese was not responding to an emergency call because that court failed to make that determination from the perspective of a reasonable emergency vehicle operator, the trial court properly decided that Cortese did not fall under the emergency vehicle exception due to the fact that his excessive speed endangered life and property. Therefore, the trial court and court of appeals correctly concluded that Cortese and the Pueblo County Sheriff were not immune from suit under the CGIA.

§ 10.5.2 Governmental Immunity for Dangerous Condition of County Road

In Wark v. Board of County Commissioners, 47 P.3d 711 (Colo. App. 2002), the court of appeals affirmed the trial court's dismissal of the plaintiffs' wrongful death claim against a county arising out of the alleged dangerous condition of a county road. The court of appeals held that the trial court properly dismissed the action for lack of subject matter...