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Dempsey v. Denver Police Dep't

Court of Appeals of Colorado, First Division

May 21, 2015

Ilea Dempsey and Ashkan Zand, Plaintiffs-Appellees,
v.
Denver Police Department, and the City and County of Denver, Colorado, Defendants-Appellants

City and County of Denver District Court No. 13CV30227. Honorable Robert L. McGahey, Jr., Judge.

Kidneigh & Kaufman, P.C., Stephen C. Kaufman, Jennifer L. Crichton, Charles G. Crichton, Denver, Colorado, for Plaintiffs-Appellees.

D. Scott Martinez, City Attorney, Barry A. Schwartz, Assistant City Attorney, Denver, Colorado, for Defendants-Appellants.

Taubman and Gabriel, JJ., concur.

OPINION

BOORAS, JUDGE

Page 929

[¶1] In this personal injury action, defendants, the Denver Police Department and the City and County of Denver (collectively Denver), bring this interlocutory appeal, pursuant to section 24-10-108, C.R.S. 2014. Denver seeks review of the trial court's denial of its motion to dismiss the complaint of plaintiffs, Ilea Dempsey and Ashkan Zand, for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to-120, C.R.S. 2014. We vacate and remand for further findings.

I. Factual Background

[¶2] On January 21, 2012, at approximately dusk, plaintiffs were travelling northbound on Santa Fe Drive in Denver near the intersection with Mississippi Avenue shortly before it passes under I-25. At that time, major road construction was taking place on Santa Fe, and numerous signs were posted apprising drivers of the activity.

[¶3] While plaintiffs were travelling northbound on Santa Fe, Officer Heather Jossi of the Denver Police Department received a call about a possible robbery. She activated her lights and siren, headed west on Mississippi, and then turned north on Santa Fe, reaching speeds as high as fifty-six miles per hour as indicated on the Crash Data Retrieval (CDR) device in Officer Jossi's patrol car. Officer Jossi alternatively accelerated and decelerated in an attempt to get around traffic on Santa Fe.

Page 930

[¶4] Plaintiffs saw Officer Jossi approaching their car from behind.[1] They observed Officer Jossi driving much faster than the flow of traffic, rapidly weaving through traffic, cutting vehicles off, and causing vehicles to pull over to both the right and left. When the car behind them pulled over, plaintiffs saw Officer Jossi accelerate and then hit the rear of their car.

II. Procedural Background

[¶5] Plaintiffs brought this action against Denver and Officer Jossi seeking compensation for the injuries they sustained in the accident. Dempsey also sought compensation for damages to her car, which was towed from the accident scene.

[¶6] Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under the CGIA because its immunity from suit was not waived under section 24-10-106(1)(a), C.R.S. 2014, for the operation of a motor vehicle. Denver asserted that Officer Jossi's actions in driving the police vehicle fell within an exception for emergency vehicles operating within the provisions of section 42-4-108(2) and (3), C.R.S. 2014.

[¶7] As pertinent here, section 42-4-108(2)(c) allows the driver of an authorized emergency vehicle, while using audible or visual signals, to exceed the lawful speed limits so long as the driver does not endanger life or property.

[¶8] Denver asserted that Officer Jossi was not exceeding the speed limit at the time of the accident, and did not endanger life or property when she exceeded the maximum allowed speed limits earlier in the incident. In response, plaintiffs argued that Officer Jossi's actions did not fall within the circumstances outlined in section 42-4-108(2) and (3) because her ...


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