No. 94CA0795Colorado Court of Appeals.
Decided October 26, 1995 Petition for Writ of Certiorari DENIED May 20, 1996
Appeal from the District Court of the City and County of Denver Honorable Federico C. Alvarez, Judge No. 92CV7564
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Page 620
Sawaya Rose, P.C., Christopher B. Dominick, Michael G. Sawaya, Denver, Colorado, for Plaintiff-Appellant
Michael A. Martinez, Denver, Colorado, for Defendant-Appellee
Division IV
Marquez, J., concurs
Tursi, J.[*] , dissents
[*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1995 Cum. Supp.).
Opinion by JUDGE DAVIDSON
[1] In this negligence action to recover damages for personal injuries, plaintiff, Sheila Johnson, appeals from the judgment which dismissed her complaint against defendant, Regional Transportation District (RTD), on the basis of sovereign immunity. We reverse and remand. [2] The complaint alleged that plaintiff was injured after she had disembarked from an RTD bus and was struck by another vehicle as she was crossing the highway to get to her parked car. It further alleged that plaintiff’s injuries resulted from the RTD driver’s negligent stopping in a traffic lane and across the highway from the regular RTD stopping place. RTD’s answer, among other defenses, asserted that plaintiff’s claim was barred by governmental immunity. [3] Both parties filed disclosure certificates, and the case was set for a jury trial. Prior to trial, the parties entered into a written stipulation which was filed with the court. The stipulation contained the following provisions:[4] Subsequently, RTD filed a motion to dismiss the complaint pursuant to C.R.C.P. 12(b) for failure to state a claim upon which relief could be granted. In support of the motion, RTD argued that it was immune from liability unless plaintiff’s injury resulted from the negligent operation of the bus. [5] On the first day of trial, based upon the briefs and oral argument, the trial court granted the motion. In so ruling, the court determined that RTD was immune from suit pursuant to §24-10-106(1)(a), C.R.S. (1988 Repl. Vol. 10A) because plaintiff’s injuries did not result from the operation of the RTD bus. Accordingly, the court dismissed plaintiff’s claims with prejudice for lack of subject matter jurisdiction.1. On June 10, 1992, at approximately 11:30 p.m., Plaintiff, while walking west to east across the northbound lane of the 4800 block of Chambers Road, was struck by a vehicle being driven by Troy Craig Henderson.
2. The RTD bus . . . was not present at the time and/or location of the accident involving Plaintiff and Troy Craig Henderson on June 10, 1992.
3. Plaintiff incurred medical expenses for treatment of injuries sustained as a result of being struck by this vehicle.
I.
[6] Section 24-10-106(1)(a) of the Governmental Immunity Act (GIA) provides that a public entity’s sovereign immunity is waived in an action for injuries resulting from a public employee’s operation, in the course of his or her employment, of a motor vehicle owned or leased by the entity. Plaintiff contends that
Page 621
the trial court erred in concluding as a matter of law that plaintiff’s injuries did not result from the “operation” of the RTD bus, as that term is used in the GIA. We agree.
A.
[7] We first address, and reject, RTD’s assertion that our review of the trial court’s decision must be conducted under the clearly erroneous standard.
B.
[10] In accordance with this standard of review, then, we address plaintiff’s contention that the trial court erred by dismissing her complaint for lack of subject matter jurisdiction. We agree with plaintiff.
Page 622
stops are to be regarded as fairly incidental to its operation”).
[16] From this, we conclude that negligently stopping to discharge a passenger at an improper place is part of the “operation” of a bus for which immunity has been waived by the GIA. [17] Furthermore, here, whether the place at which plaintiff was let off the bus was unsafe and whether plaintiff’s subsequent action of crossing the highway to get to her car was a contributing or an intervening cause of her injuries remain disputed issues of fact which relate to the issue of RTD’s liability. See Albo v. Shamrock Oil Gas Corp., 160 Colo. 144, 147, 415 P.2d 536, 537 (1966) (“[The] mere fact that other forces have intervened between the defendant’s negligence and the plaintiff’s injury does not absolve the defendant where the injury was the natural and probable consequence of the original wrong and might reasonably have been foreseen.”). Similarly, standing alone, the fact that the bus was out of sight when plaintiff was injured neither absolves RTD from liability nor renders it statutorily immune from suit. [18] We hold, therefore, that the trial court erred in concluding, on this basis, that RTD was entitled to sovereign immunity as a matter of law. See § 24-10-106(1)(a). [19] Because of our disposition of this matter, we need not address plaintiff’s other contention. [20] The judgment is reversed and the cause is remanded to the trial court for further proceedings. [21] JUDGE MARQUEZ concurs. [22] JUDGE TURSI dissents. [23] Judge Tursi dissenting. [24] I respectfully dissent. [25] In the first instance, I am unpersuaded by the majority’s avoidance of the standard of review of C.R.C.P. 12(b)(1) determinations as required by Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). [26] It is plaintiff’s contention that the trial court committed reversible error in determining that her injuries did not result from the operation of the bus. In support of this contention, she argues that, but for the bus driver’s decision that she exit at a non-designated stop, she would not have had to cross the street and, therefore, her injuries would not have subsequently occurred. I disagree. [27] Initially, I note that the sole issue before the supreme court in Bertrand v. Board of County Commissioners, 872 P.2d 223(Colo. 1994) was whether a road grader is a motor vehicle within the purview of § 24-10-106(1)(a). Further, I note that, as pertinent here, Bertrand held: “[O]ne of the purposes of the GIA [is] to allow persons injured by a motor vehicle . . . to seek compensation.” Bertrand v. Board of County Commissioners, supra, 872 P.2d at 229 (emphasis added). [28] Hence, contrary to the majority’s contention, I conclude that, to fit within the exception to the GIA created by §24-10-106(1)(a), there must be a substantially direct connection between the actual operation of the motor vehicle and the injury for which a claim is made. In other words, there must have been a nexus with the operation of the motor vehicle and the injury, rather than a mere nexus with the method in which the operation of the bus service was provided. [29] Finally, I reject plaintiff’s contention that the term “operation” in § 24-10-106(1)(a) must be interpreted as broadly as the phrase “use of a vehicle” in the No-Fault Act. See Shandy v. Lunceford, 886 P.2d 319 (Colo.App. 1994) (the No-Fault Act contains no provisions which would permit the creation of an exception to the GIA’s limitations as to when public employees may be held accountable in tort). [30] Accordingly, I would affirm the judgment.
Page 623