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Roper v. Carneal

Court of Appeals of Colorado, Seventh Division

February 12, 2015

Tina Roper, Plaintiff-Appellee,
Daniel R. Carneal, individually, and the El Paso County, Colorado Board of County Commissioners, acting as the El Paso County Public Services Department, Defendants-Appellants.

El Paso County District Court No. 13CV31862 Honorable William B. Bain, Judge

Benson & Case, LLP, Joseph P. Stengel, Jr., Kari L. Jones, Denver, Colorado, for Plaintiff-Appellee

Amy R. Folsom, County Attorney, Diana K. May, Senior Assistant County Attorney, Kenneth R. Hodges, Assistant County Attorney, Colorado Springs, Colorado, for Defendants-Appellants


¶1 Defendants, Daniel R. Carneal and the Board of County Commissioners of the County of El Paso, Colorado (County Board), appeal the trial court's order denying their motion to dismiss this tort action filed by plaintiff, Tina Roper. We affirm and remand for further proceedings.

I. Background

¶2 Carneal, an El Paso County employee, was driving a county-owned snowplow when he allegedly failed to stop at a stop sign. Roper drove off the road to avoid Carneal and crashed into a culvert and fence. She suffered personal injuries and damage to her car. Roper then filed this action against Carneal and the County Board alleging claims of negligence per se, negligence, respondeat superior, and property damage/loss of use.

¶3 Defendants moved to dismiss Roper's claims for lack of subject-matter jurisdiction pursuant to C.R.C.P. 12(b)(1), arguing that they were immune from suit under the Colorado Governmental Immunity Act (CGIA). The CGIA generally bars tort-related claims against public entities and employees, but waives immunity for a public employee's operation of a motor vehicle under certain circumstances. § 24-10-106(1)(a), C.R.S. 2014; § 24-10-118(2)(a), C.R.S. 2014. Defendants argued that the undisputed facts showed that the snowplow was "special mobile machinery" rather than a "motor vehicle, " and, therefore, the motor vehicle waiver of immunity did not apply. In the alternative, defendants requested an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), to resolve any factual dispute pertaining to whether the snowplow was a "motor vehicle."

¶4 After briefing, the trial court issued a written order denying defendants' motion to dismiss plaintiff's claims. The trial court found that the following relevant facts were undisputed:

Carneal was driving a dump truck with special modifications. These modifications included the addition of a bed and hydraulic dumping system, mounting of a snowplow blade, mounting of a tailgate sander, and mounting of yellow and blue emergency lights to the top of the truck. The truck is used exclusively on county roads to remove snow and ice.

Based on these facts, the trial court concluded that the snowplow was a "motor vehicle" rather than "special mobile machinery." Accordingly, the trial court held that governmental immunity was waived under the CGIA. Because the court resolved the immunity issue on undisputed facts, the court also denied defendants' alternative request for an evidentiary hearing.

¶5 Defendants appealed, and the case was stayed pending this interlocutory appeal pursuant to section 24-10-108, C.R.S. 2014.

II. Standard of Review

¶6 Whether a public entity is immune from suit under the CGIA is an issue of subject-matter jurisdiction. Tidwell ex rel. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 85 (Colo. 2003). The plaintiff has the burden of establishing that the public entity is not immune under the CGIA and, thus, that the trial court has jurisdiction over the claim. Id.; Henderson v. City & Cnty. of Denver, 2012 COA 152, ¶ 21. "Although the burden falls upon the plaintiff, the burden is a relatively lenient one." Tidwell, 83 P.3d at 86.

¶7 Where, as here, the facts are undisputed and the issue is one of statutory interpretation, the appellate court reviews the trial court's jurisdictional ruling de novo. Id. at 81; Henderson, ¶ 21. III. Applicable Law


¶8 The CGIA provides that, as a general rule, public entities and employees are immune from liability for tort claims. § 24-10-106(1); § 24-10-118(2)(a). However, the CGIA also waives governmental immunity in certain circumstances. As pertinent here, "immunity is waived by a public entity in an action for injuries resulting from . . . [t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment." § 24-10-106(1)(a); see also § 24-10-118(2)(a). The only disputed issue on appeal in this case is whether the snowplow constitutes a "motor vehicle" under this waiver provision or, instead, constitutes "special mobile machinery" not subject to the waiver.

¶9 In construing the CGIA, we must give effect to the legislature's intent. Tidwell, 83 P.3d at 81; Henderson, ¶ 20. To do so, "[w]e look to the language of the statute, giving words their plain and ordinary meaning." Springer v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo. 2000). If legislative intent is clear from the plain language of the statute, then other rules of statutory interpretation need not be applied. Id.

¶10 Divisions of this court have recognized that "[t]he General Assembly's intent in excluding the operation of motor vehicles from governmental immunity was 'to provide for compensation to persons injured by the negligent conduct of government employees.'" Herrera v. City & Cnty. of Denver, 221 P.3d 423, 425-26 (Colo.App. 2009) (quoting Grabler v. Allen, 109 P.3d 1047, 1051 (Colo.App. 2005)).

¶11 "Because the [C]GIA's immunity derogates Colorado's common law, legislative grants of immunity must be strictly construed." Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo. 2000). Accordingly, "we broadly construe the CGIA provisions that waive immunity in the interest of compensating victims of governmental negligence." Springer, 13 P.3d at 798. Any exceptions to these waivers must be strictly construed because the ultimate effect is to grant immunity. Corsentino, 4 P.3d at 1086.

B. Statutory Definitions

¶12 The CGIA incorporates the definition of "motor vehicle" from section 42-1-102, C.R.S. 2014. See ยง 24-10-103(2.7), C.R.S. 2014. As pertinent here, that statute defines "motor vehicle" as "any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly ...

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