October 25, 2016

Colorado Court of Appeals: Municipality Waived Immunity for Dangerous Condition of On-street Parking Spot

The Colorado Court of Appeals issued its opinion in McKinley v. City of Glenwood Springs on Thursday, September 10, 2015.

Colorado Governmental Immunity ActInjuries—Parking Area—Municipal Street—Immunity—Waiver.

Linda McKinley pulled her car into a parking spot on a municipal street in the City of Glenwood Springs (City). She stepped out of her car and tripped in a four- to five-inch deep depression in the pavement of the parking area. The McKinleys filed a complaint seeking to hold the City liable for Linda McKinley’s injuries and William McKinley’s loss of consortium. The City moved to dismiss the complaint based on the Colorado Governmental Immunity Act (CGIA), which was denied by the trial court.

On appeal, the City argued that the trial court erred in denying its motion to dismiss based on the CGIA. CRS § 24-10-106(1)(d)(I) of the CGIA waives immunity for injuries occurring in parking areas of a municipal street. Because the trial court’s finding that the depression was a dangerous condition that interfered with traffic is supported by evidence in the record, the trial court’s order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Nothing in Prior Tenth Circuit Remand Prevented Entry of Judgment on State Law Claims

The Tenth Circuit Court of Appeals issued its opinion in Cook v. Rockwell International Corp. on Tuesday, June 23, 2015.

In 1989, FBI agents discovered plant workers at the Rocky Flats nuclear plant had been carelessly mishandling radioactive waste for many years. Landowners neighboring the former nuclear plant brought a federal civil suit against Rockwell and Dow Chemical Corp., seeking relief under both the Price-Anderson Act and state nuisance law. After fifteen years of pretrial discovery, a jury returned a verdict for plaintiffs, including $177 million in compensatory damages, $200 million in punitive damages, and $549 million in prejudgment interest. Defendants appealed, arguing the court failed to properly instruct the jury on the terms of the Price-Anderson Act. A panel of the Tenth Circuit agreed in Cook I, vacating the judgment and remanding for further proceedings in light of the Act’s correct construction. Plaintiffs then argued that even without the Price-Anderson Act claim, their state law nuisance verdict survived. Defendants countered that (1) the Price-Anderson Act prevents state law recovery where an Act claim, albeit unsuccessful, is advanced, and (2) the Tenth Circuit’s mandate in Cook I independently barred plaintiffs from relief on their state law nuisance claims. The district court ruled for defendants and plaintiffs appealed.

On appeal, the Tenth Circuit first addressed defendants’ argument that any state law claim was preempted by the unsuccessful Price-Anderson Act claim. The Tenth Circuit characterized this as a structure where unless a nuclear claim was large enough to fall within the Act’s regulation, there could be no recovery for damages. Noting that the defendants forfeited this argument in their first appeal, the Tenth Circuit reaffirmed the first panel’s holding that Dow and Rockwell forfeited any field preemption argument long ago. The Tenth Circuit found it implausible that Congress would have intended remedies to exist only for large-scale “nuclear incidents” while foreclosing remedies for smaller claims. The Tenth Circuit could find nowhere in the Act preempting or precluding remedies for state law claims if federal claims were not proved, and found it rather seemed to imply the opposite.

Turning to defendants’ second argument, that the court mandate in the first appeal required dismissal of plaintiffs’ state law claims, the Tenth Circuit again rejected defendants’ arguments. The Tenth Circuit evaluated Cook I and noted the prior panel expressly found the jury was properly instructed on the elements of a state law nuisance claim. The Tenth Circuit found that at the end of the first trial there was a properly instructed jury, legally sufficient evidence, and a favorable jury verdict as pertains to a state law nuisance claim. The Tenth Circuit similarly rejected defendants’ proposition that the prior Tenth Circuit panel had vacated the entire verdict, including the state law portion. This panel of the Tenth Circuit averred that the state law portion of the trial court’s verdict was untouched in Cook I and therefore was the law of the case, and nothing prevented the trial court from entering a new verdict on the state law claim alone.

The Tenth Circuit remanded the case with instructions for the district court to enter judgment on the nuisance verdict promptly. Judge Moritz concurred in the judgment of remand but disagreed that the court would be able to simply reinstate the nuisance judgment without a new trial.

Tenth Circuit: No Qualified Immunity Where Officer Acted with Recklessly and with Deliberate Indifference

The Tenth Circuit Court of Appeals issued its opinion in Browder v. City of Albuquerque on Tuesday, June 2, 2015.

After finishing a shift, Sergeant Adam Casaus of the Albuquerque Police Department sped through city streets with his lights and sirens on, driving at an average of 66 miles per hour for 8.8 miles. He sped through a red light at one intersection and hit a car, killing Ashley Browder and causing serious injuries to her sister, Lindsay. Lindsay and her parents brought a § 1983 action in federal court, but Sergeant Casaus urged the district court to deny relief based on qualified immunity. The district court declined to dismiss the case and Casaus appealed.

The Tenth Circuit first noted that the parties did not dispute that Casaus’ conduct fell “under color of state law.” The Browders alleged a violation of their Fourteenth Amendment right to due process. The Tenth Circuit clarified that the alleged violation was a substantive due process claim, evaluating whether the claim was carefully described, whether the right is “fundamental,” and whether the government’s infringement was “direct and substantial,” next turning to the question of whether the government had substantial justification for its actions. Finally, the Tenth Circuit noted that when a state court claim can provide the same relief as a federal § 1983 claim, the federal court should abstain in favor of the state remedial process.

Evaluating the case at hand, the Tenth Circuit found no question that the Ashley’s death and Lindsay’s injuries qualified as direct and substantial impairments of their fundamental right to life, and that Sergeant Casaus’ actions were arbitrary in that they were performed capriciously or at his pleasure and without good reason. Although Casaus claimed he was acting on official business—pursuing a car operating in a dangerous manner—the facts in the complaint expressly contend Casaus was not pursuing official business of any kind. The Tenth Circuit also rejected Casaus’ contention that because he activated his lights and sirens he was not acting recklessly as a matter of law. Casaus argued he did not have time to form a reckless indifference to human life, because the accident occurred 2.5 seconds after he entered the intersection. However, the Tenth Circuit noted he had driven 8.8 miles at high speeds prior to the accident, and therefore he had about 8 minutes before the crash to form the requisite mens rea.

Finally, the Tenth Circuit evaluated whether the law was clearly established at the time of Casaus’ accident. Noting that “some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing,” the Tenth Circuit found that although there was not much case law regarding officers causing fatal accidents on their own time, the Supreme Court ruled in 1986 that when a private person suffers a serious injury due to an officer’s intentional misuse of his or her vehicle a viable due process claim can arise, and the Tenth Circuit ruled in 1996 that a Fourteenth Amendment claim can arise from an officer speeding at 60 miles per hour. The Tenth Circuit also ruled in 2006 that a police officer could be liable under the Fourteenth Amendment for driving recklessly and with deliberate indifference. Taking all these cases together, the Tenth Circuit found ample support that the law was clearly established at the time of the accident.

The Tenth Circuit affirmed the district court. Judge Gorsuch wrote a concurrence about the preference for tort claims to be resolved under state law rather than federal law.

Colorado Court of Appeals: Settlement Agreement Not “Payment” and Therefore Does Not Toll Statute of Limitations

The Colorado Court of Appeals issued its opinion in Stoesz v. State Farm Mutual Automobile Insurance Co. on Thursday, June 18, 2015.

Underinsured Motorist Benefits—Statute of Limitations—Meaning of “Payment”—Summary Judgment.

Plaintiff Stoesz, an insured of defendant (State Farm), was injured when an underinsured motorist rear-ended her car. Three days before the statutorily required three-year limitations period expired, Stoesz sent an e-mail to the underinsured motorist’s liability insurer, Progressive Insurance Company (Progressive), confirming a policy limits settlement. Shortly after the limitations period had ended, State Farm approved the settlement at Stoesz’s request. Within two years of receiving the settlement payment from Progressive, Stoesz commenced this action to recover underinsured motorist benefits from State Farm. The trial court entered summary judgment against Stoesz on the basis that this settlement agreement did not constitute payment that would have extended the limitations period for an additional two years. The Court of Appeals affirmed.

On appeal, State Farm argued that, pursuant to CRS § 13-80-107.5(1)(b), payment must be made during the three-year limitations period, which was not met here, and a tolling agreement between Progressive and Stoesz did not affect its rights. The Court agreed. Under the clear wording of the statute, an insured is allowed an additional two years only if the underlying bodily injury liability claim against the underinsured motorist has been preserved by commencing an action against the underinsured motorist or by payment of either the liability claim settlement or judgment. No action was commenced and no payment occurred within the limitations period. The summary judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Apply Retroactively

The Colorado Court of Appeals issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Thursday, June 18, 2015.

Colorado Governmental Immunity Act—Gas Facility Exception—Public Building Exception.

The Smokebrush Foundation (Smokebrush) alleged that various contaminants had migrated from the City of Colorado Spring’s (City) property onto its property, causing damages. The district court denied the City’s motion to dismiss, concluding that the City’s immunity was waived under two statutory provisions of the Colorado Governmental Immunity Act (CGIA): the gas facility exception and the public building exception. The district court also concluded that these waiver provisions applied retroactively to contamination that undisputedly occurred before the CGIA was enacted.

On appeal, the City argued that the trial court erred in finding that the CGIA applied retroactively. Nothing in the CGIA states that it is intended to operate retroactively. Therefore, the CGIA operates prospectively, effective July 1, 1972. Accordingly, to the extent that Smokebrush’s allegations were based on contamination stemming from the City’s coal gas operations in the 1920s and 1930s, the district court erred in concluding that the gas facility or public building exceptions to governmental immunity applied retroactively. The City is therefore immune from tort claims based on such contamination.

The City argued that the district court erred in concluding that the City was subject to suit under the gas facility and public building exceptions to governmental immunity for the injuries claimed by Smokebrush from alleged asbestos migration during the demolition activities on the property beginning in late 2012. The legislature waived governmental immunity for injuries resulting from “[t]he operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.” Because the City’s property was not used in the collection, production, or distribution of natural gas and only housed administrative functions after the 1930s, the gas facility exception did not apply. Governmental immunity is also waived for injuries resulting from a dangerous condition of a public building. Although the City acknowledged that the property was a public building, this exception only applies to “constructing” and “maintaining” a public building. When the asbestos allegedly migrated to Smokebrush’s property, the property was in the process of being completely demolished. The dangerous condition definition applicable to the public building exception does not expressly recognize negligence claims stemming from demolition of a public facility. Therefore, the public building exception did not apply. The order denying the City’s motion to dismiss was reversed and the case was remanded to the district court with instructions to grant the motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Determination that Defendant’s Negligence Did Not Cause Plaintiff’s Injuries Acceptable

The Colorado Court of Appeals issued its opinion in Vititoe v. Rocky Mountain Pavement Maintenance, Inc. on Thursday, June 18, 2015.

Personal Injury—Challenges to Jurors and Jury Verdict and Jury Instructions.

Plaintiff was riding his motorcycle late at night. Shortly after making a U-turn, he collided with a lowboy trailer that was connected to a tractor driven by an employee of defendant. The collision occurred as the tractor was either stopped or beginning to proceed through an intersection controlled by a traffic signal that had turned green.

Plaintiff alleged negligence on the part of the truck driver. Plaintiff’s expert opined that defendant’s employee had worked more than the allowable fourteen-hour day and was likely tired and inattentive at the intersection and stopped for an unreasonable amount of time. Another expert for plaintiff testified that the taillights were positioned too low. The jury returned a special verdict form finding defendant was negligent but its negligence was not a cause of plaintiff’s injuries. Judgment was entered for defendant.

On appeal, plaintiff argued that some of the jurors made prejudicial statements during voir dire concerning motorcyclists’ helmet use, and that the trial court erred by refusing to canvass the jurors on that topic, give a limiting instruction, or declare a mistrial. The Court of Appeals disagreed. In Colorado, evidence of a plaintiff’s failure to wear a helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. If the jury learns a motorcyclist was not wearing a helmet, a limiting instruction may be required. When a prospective juror makes a potentially prejudicial statement during voir dire, the trial court may issue a curative instruction, canvass the jury, or declare a mistrial. Whether a statement is potentially prejudicial depends significantly on the facts and circumstances. Here, no juror expressed an opinion that plaintiff was negligent for not wearing a helmet and, in fact, there was no evidence allowed as to whether or not plaintiff wore a helmet.

Plaintiff argued that the evidence admitted at trial did not support the jury’s verdict. After reviewing the evidence presented, the Court found that there was competent evidence to support the verdict.

Plaintiff argued that the court erroneously instructed the jury by not omitting any reference to the doctrine of assumption of risk because the evidence did not support it. The Court found that testimony from a detective that plaintiff “accelerated toward something he saw” supported the instruction regarding assumption of risk.

Plaintiff argued that the court erred by instructing the jury that the law presumes a driver is negligent if the driver hits another vehicle in the rear. Plaintiff contended that the instruction should not have been given because this was not a rear-end collision, but a barrier crash. The Court found no authority to suggest that hitting the lowboy trailer, even if not moving forward, constituted a barrier crash as opposed to a type of rear-end collision. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Prejudgment Interest Due from Date Entitlement to Benefits Shown, Not Date of Breach

The Tenth Circuit Court of Appeals issued its opinion in Folks v. State Farm Mutual Automobile Insurance Co. on Tuesday, April 28, 2015.

Roberta Folks was injured in 1998 when, as a pedestrian, she was struck by the sideview mirror of a passing car. Ms. Folks received PIP benefits from State Farm, the driver’s insurer, until she exhausted the benefits in 2002. She joined a lawsuit seeking additional benefits in 2004, in which lawsuit she unsuccessfully attempted to certify a class three times. In response to her last failed attempt in 2011, the district court determined she failed to satisfy the requirements of Rule 23(a) and Rule 23(b)(2) and denied class certification. In 2012, a jury decided in Ms. Folks’ favor, and in 2013 the district court amended the judgment to correct errors in the damages calculation. Ms. Folks appealed, challenging the district court’s denial of class certification, calculation of treble damages for willful and wanton conduct, and calculation of prejudgment interest.

First examining Ms. Folks’ argument that the district court erred in finding Ms. Folks had not properly demonstrated relief was appropriate as to the class as a whole, the Tenth Circuit found the issue was not properly preserved for appeal. Although Ms. Folks pointed to several places in the record where she believes she sought class-wide notice, the Tenth Circuit determined that, because class-wide notice is different than notice apprising of a lawsuit, these claims were not preserved. Additionally, Ms. Folks did not show that she sought a certification ruling on class-wide notice, which waived the argument for purposes of appeal.

Turning to the calculation of damages in Ms. Folks’ individual case, the Tenth Circuit found the district court had correctly trebled only the $40,000 damage award for willful and wanton conduct under C.R.S. § 10-4-708(1.8) (now repealed). Ms. Folks argues the court should have trebled the damages and also applied the original damage award, for a total of $160,000, but the Tenth Circuit looked to prior circuit precedent and the Colorado Supreme Court to refute this claim.

Finally, the Tenth Circuit addressed the district court’s calculation of prejudgment interest, reviewing de novo the district court’s conclusion regarding the date of the breach. State Farm was obligated to pay benefits within 30 days after Ms. Folks demonstrated entitlement. The district court determined State Farm was first obligated to pay benefits on May 13, 2009, when she submitted documentation establishing she was entitled to benefits. Ms. Folks relied on the 2002 coverage exhaustion letter to establish the date of the breach, but statutorily prejudgment interest was due only from the date she established entitlement, not from the date of the original breach. The Tenth Circuit found Ms. Folks was not entitled to additional prejudgment interest.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Tort Claims Against Medical Supplier Preempted by Medical Devices Amendments to FDCA

The Tenth Circuit Court of Appeals issued its opinion in Caplinger v. Medtronic, Inc. on Tuesday, April 21, 2015.

Patricia Caplinger had a bone stimulator device implanted in a non-approved fashion after the Medtronic company representative encouraged her surgeon to implant it using the “off-label” approach. She suffered adverse consequences from the implantation and discovered the company knew of the risks of using the device in the way the representative had encouraged her surgeon to try. Ms. Caplinger alleged Medtronic was liable under a number of state tort theories, but the district court held the claims were either insufficiently pleaded or preempted. Ms. Caplinger appealed.

The Tenth Circuit first noted that § 360k(a) of the Medical Devices Amendments (MDA) to the Federal Food, Drug, and Cosmetics Act (FDCA) preempts “any requirement” imposed by states on manufacturers of medical equipment that differs from or adds to those found in the FDCA. Although the expansive preemption language seems to foreclose any state tort suits, Supreme Court precedent allows some tort claims. Addressing Ms. Caplinger’s claims for strict products liability, breach of warranty, negligent misrepresentation, and negligence, the Tenth Circuit found the MDA preempted all her claims. In her complaint, Ms. Caplinger failed to identify any parallel federal statutes to the state regulations. The Tenth Circuit upheld the district court’s judgment as a matter of law in favor of Ms. Caplinger. The Tenth Circuit similarly disregarded Ms. Caplinger’s argument that the off-label use contemplated by her suit insulated her claims for preemption.

The Tenth Circuit affirmed the district court. Judge Lucero wrote a thoughtful and detailed concurrence.

Tenth Circuit: Plaintiff Cannot Bring § 1983 Claim for Damages if it Renders Conviction Invalid

The Tenth Circuit Court of Appeals issued its opinion in Havens v. Johnson on Wednesday, April 15, 2015.

In January 2007, the Denver Metro Auto Theft Team Task Force planned a sting to arrest Darrell Havens, who had arranged to sell a stolen Audi in an alcove behind a Target store. Havens drove the Audi into the icy alcove, where officers surrounded him in other vehicles and on foot. Several vehicles rammed into the Audi from many directions. At one point, Officer Johnson, who was not in a vehicle, was directly in front of the Audi and fired shots at the driver, leaving him a paraplegic. Havens testified at deposition that he did not have control of the Audi after it was hit the first time and did not make any other maneuvers, but other officers testified the Audi was accelerating toward Officer Johnson and about to pin him against another vehicle when he fired the shots. Officer Johnson testified that he thought he was about to be crushed by the Audi, which was accelerating toward him, and fired into the windshield to stop the driver. Havens was left a quadriplegic after the shooting.

After the incident Havens was charged with multiple crimes. He pleaded guilty to attempted first-degree assault of Johnson, among other charges. At the plea hearing, the court insisted on a record that Havens admitted committing the crimes and was pleading guilty to them. His attorney said he had no recollection of the incident because of the serious injuries he suffered that night. The court then asked Havens if he knew what he was pleading guilty to and he said yes. Havens filed a motion for postconviction relief in state court, arguing that his plea was not knowing, intelligent, or voluntary. The state court denied the motion and the court of appeals affirmed. The Colorado Supreme Court denied certiorari. Havens then filed a § 1983 action against Johnson in federal district court, denying any wrongdoing by Havens and asserting the criminal prosecution was bogus. The district court granted summary judgment to Johnson, finding Havens failed to establish a prima facie case of excessive force and Johnson was entitled to qualified immunity. Johnson argued in the alternative that Havens’ guilty plea supported summary judgment on grounds of issue preclusion, judicial estoppel, and Heck, but the district court denied the other grounds.

The Tenth Circuit affirmed summary judgment on a different ground, finding that Heck required judgment for Johnson and that the Heck defense was properly before the Tenth Circuit because it had been raised and fully briefed below and he raised it again on appeal. Heck was a Supreme Court case where the Court ruled a plaintiff could not bring a § 1983 claim for damages if it rendered a criminal conviction invalid. In this case, Havens’ § 1983 claim asserted no wrongdoing on the part of Havens, instead attributing all fault to the officers. Havens’ version of the events could not sustain a conviction for attempted first-degree assault, and his theory of innocence is barred by Heck.

The Tenth Circuit acknowledged that Havens’ plea was a nolo contedere plea, not a typical guilty plea, but found the Heck doctrine survived by the existence of a valid conviction, not the mechanism by which that conviction was obtained. In a lengthy footnote, Judge Hartz related his concerns with the effect the nolo contendere plea would have on Johnson’s issue preclusion and judicial estoppel arguments, but this footnote was not joined by the rest of the panel.

The Tenth Circuit affirmed the district court’s summary judgment.

Tenth Circuit: Nothing in Rivers and Harbors Act Allows Personal Action Against Boat Owner

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jantran, Inc. on Thursday, April 9, 2015.

The Miss Dixie is a cargo ship owned by Jantran, Inc. that operates on the Verdigris River in Oklahoma. While carrying cargo, the Miss Dixie lost power and struck and damaged a lock owned by the Army Corps of Engineers. The United States commenced an in personam action against Jantran under § 408 of the Rivers and Harbors Act to recover the costs of the repair. The district court dismissed the Corps’ suit, finding § 408 does not allow in personam damages against a boat owner but rather only allows in rem actions against the vessel that caused the damage.

The Corps appealed, arguing that without an in personam right of action, the United States cannot be fully compensated for its losses, and as a matter of consistency § 408 must therefore contain an implied right to in personam relief. The Tenth Circuit analyzed maritime law, which provides that any party injured by a maritime vessel obtains an automatic lien on the vessel at the time of the accident. The party can then bring an in rem action and foreclose its lien if successful. This method of compensation developed because usually ships traveled far from home, a ship’s captain may be unable to financially compensate the injured party, and the responsible ship owner may be a foreign party unwilling to honor the judgment.

The Tenth Circuit also evaluated the Supreme Court opinion in Wyandotte Transportation Co. v. United States, finding that although Wyandotte allowed in personam actions against a boat owner for damages, the decision construed § 409. However, Wyandotte created a circuit split about whether § 408 also allows in personam actions. The Tenth Circuit agreed with the Sixth Circuit that § 408 does not allow in personam actions.

The Tenth Circuit affirmed the district court’s order dismissing the action because nothing in the Rivers and Harbors Act indicates a congressional intent to allow a cause of action against a boat owner.

Colorado Court of Appeals: No Requirement of Exhaustion of Tortfeasor’s Liability Policy Prior to Collecting UIM Benefits

The Colorado Court of Appeals issued its opinion in Tubbs v. Farmers Insurance Exchange on Thursday, May 21, 2015.

Uninsured/Underinsured Motorist Coverage—Exhaustion Clause.

Tubbs was involved in a car accident in California with another driver. The accident was the other driver’s fault, and Tubbs suffered damages. The other driver’s auto insurance had a $100,000 liability limit. Tubbs was insured by Farmers Insurance Exchange (Farmers), and his policy included uninsured/underinsured motorist (UIM)coverage with a limit of $500,000. Tubbs accepted a $30,000 settlement from the other driver. He then sought to recover under his Farmers policy’s UIM provision, claiming that his total damages exceeded $100,000. Farmers refused to pay benefits, stating that Tubbs did not meet the conditions of the UIM clause, which required him to exhaust the limits of the liable party’s policy before making a UIM claim. The trial court entered summary judgment in favor of Farmers.

On appeal, Tubbs argued that the exhaustion clause in the UIM policy was void and unenforceable. UIM policies are required to cover the difference between the damages the insured party suffered and the limit of any liable party’s legal liability coverage, regardless of whether the insured party’s recovery from the liable party exhausted that limit. As applied to the facts of this case, CRS § 10-4-609(1)(c) requires that Farmers cover Tubbs for damages he sustained in excess of $100,000 (the other driver’s legal liability limit), in an amount up to $500,000 (the limit of Tubbs’s UIM coverage), regardless of how much, if any, he actually recovered under the other driver’s legal liability coverage. Because the exhaustion clause imposes a condition precedent on coverage mandated by the statute, the clause was void and unenforceable. The summary judgment was reversed and the case was remanded for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Waiver of Governmental Immunity Requires Showing of Excessive Speed and Endangering Life or Property

The Colorado Court of Appeals issued its opinion in Dempsey v. Denver Police Department on Thursday, May 21, 2015.

Personal Injury—Interlocutory Appeal—CRS § 24-10-108—Automobile Accident—Police Officer—Colorado Governmental Immunity Act.

Plaintiffs were struck by a police vehicle driven by Officer Jossi, who was en route to a possible robbery and traveling at a high rate of speed. Plaintiffs brought this action against Officer Jossi, along with the Denver Police Department and the City and County of Denver (collectively, Denver), seeking compensation for the injuries they sustained in the accident.Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under theColorado Governmental Immunity Act (CGIA). The trial court denied the motion, and Denver appealed.

To find a waiver of immunity, the trial court was required to find that Officer Jossi both exceeded the lawful speed limit, taking into consideration any traffic conditions that would qualify as a “special hazard” to require a lower speed, and endangered life and property. The record does not clearly demonstrate that the trial court made a finding as to whether Officer Jossi was exceeding the lawful speed limit at the relevant time. Therefore, the order was vacated and the case was remanded for further findings.

Summary and full case available here, courtesy of The Colorado Lawyer.