The Colorado Supreme Court on Tuesday agreed to hear two appeals challenging the limits of the government’s overall immunity from civil suits, with one case involving a trip in Jefferson County and the other involving a police officer in the Montrose County which killed two people in a pursuit.
At least three of the seven members of the tribunal must agree to hear a case on appeal.
The judges also filed two other criminal appeals that reached the state’s highest court directly from the lower court level. Although the Supreme Court initially showed interest in the cases, the parties resolved the underlying issues while appeals were pending.
Lights and sirens
Officer Justin Hice of the Olathe Police Department was monitoring traffic along Highway 50 in July 2018 when he saw a white Toyota exceeding the speed limit. Hice gave chase, which lasted 36 seconds. During the chase, he hit 103 mph, nearly double the speed limit.
Hice never activated the siren, but did turn on the lights in the final 5-10 seconds of the chase. At an intersection, a van turned in front of Hice. It struck the van going at least 75 mph, killing occupants Walter and Samuel Giron.
The surviving relatives of the Girons sued Hice and the city of Olathe for wrongful death and negligence. In response, the defendants invoked the Colorado Governmental Immunity Act, which generally protects government entities from civil liability.
Under the CGIA, government employers are not immune for injuries caused by employees operating a motor vehicle. However, immunity for emergency vehicles returns. But in another caveat, immunity only applies to emergency vehicles that exceed the speed limit in a pursuit if they “make use of audible or visual signals.”
District Court Judge D. Cory Jackson initially dismissed the lawsuit after finding that Hice used his hazard lights and did not create an unreasonable risk of injury in his pursuit. Jackson credited testimony by current and former police officers about motorists Hice passed at high speeds.
But in July last year, a three-judge panel of the Court of Appeals reinstated the suit. To qualify for immunity, the jury concluded, officers must activate their lights or sirens once they exceed the speed limit in a chase.
“It is not enough for the officer to activate lights or sirens a few times after exceeding the speed limit,” Judge Sueanna P. Johnson wrote.
The defendants appealed to the Supreme Court, calling the sentence unreasonable and imposing a “deterrent effect” on law enforcement’s timely responses to emergencies. They also argued the decision would waive immunity for officers who exceed the speed limit “even for a second” with no lights on.
The Colorado State Patrol and the state Office of Risk Management, which handles accident and liability claims, also urged the Supreme Court to take up the case because of “absurd” restrictions now placed on officers’ behavior .
“For example, an officer who realizes that he or she has exceeded a posted speed limit or exercised any other emergency vehicle privileges while responding to an emergency with no hazard lights or siren,” the attorney’s office wrote. Colorado general, “would likely be required to break out of a pursuit or abort an emergency response, pull over to the side of the road and stop their emergency vehicle to restore their protection from liability.”
The plaintiffs brushed aside those concerns, arguing that officers simply need to ask themselves whether they’re in a pursuit and whether they’ll exceed the speed limit. If the answer is yes for both, they will have to activate the emergency lights or sirens.
“It is not at all absurd to require officers, as enforcers of the law, to follow the law or be subject to consequences, just like everyone else,” the plaintiffs’ attorneys wrote.
The Supreme Court will review the appellate panel’s decision. The case is Hice et al. v. Giron et al.
The illusion of the garage
In February 2018, Beverly Stickle was touring the Jefferson County Administration Building. She parked upstairs in a two-level garage and walked up the stairs to get back to her vehicle. The county had recently resurfaced the upper level with gray paint, which made it difficult to see a step from the curb of the stairs to the parking lot.
Due to the “illusion” of an uninterrupted surface, Stickle tripped on the step and broke her arm.
Stickle sued Jeffco, but the county claimed it was immune under the CGIA. While the law holds government bodies responsible for the “unsafe condition of any public building,” a poorly designed building does not constitute liability. Instead, the unsafe condition must result from negligence in maintenance or construction.
Similarly, a trial judge refused to dismiss the lawsuit, and a three-judge panel in the Court of Appeals found that Jeffco was not immune. First, the jury decided that the garage falls under the definition of a “public building.” Second, the appellate judges noted that the county had applied the new material to prevent the concrete from decaying.
“The use of the same roofing material to resurface the sidewalk, sidewalk, and parking lot surface was an act of maintaining the parking structure (that is, an act done for the purpose of maintenance),” he wrote. Judge Anthony J. Navarro in July of last year. “In other words, the new roofing material helped preserve the structure from decline or failure, which falls within the CGIA’s definition of maintenance.”
The county appealed to the Supreme Court, arguing that the Court of Appeals’ decision gave governments a reason to avoid upgrading or maintaining their buildings. The state Office of Risk Management, which handles personal injury claims, supported Jeffco’s petition, as did Colorado Counties, Inc., which represents 62 of the 64 counties.
“Allowing people to sue Colorado public agencies for injuries occurring in parking facilities generally, in addition to significantly blurring if not eliminate the distinction between design and maintenance under the CGIA, greatly expands the scope of responsibility for all Colorado public entities in Colorado, including counties,” wrote Andrew D. Ringel for CCI.
The Supreme Court will consider whether the parking lot is a public building and whether resurfacing the taller lot to create the illusion of descent exposed Jeffco to liability. The case is Jefferson County v. Stickle.
The Supreme Court also dispensed with two other questions that arose directly from the courts.
In Arapahoe County, Cori Ross Speed has been awaiting trial for 3 1/2 years, accused of stabbing her caretaker. Speed is developmentally disabled, and evaluators have repeatedly found him incompetent to stand trial.
Under Colorado law, if an evaluator believes that there is no “substantial probability” that an incompetent defendant will be tried within the “reasonably foreseeable future,” the court must hold a hearing to determine whether a defendant is likely to have his or her proficiency restored. If the answer is no, the criminal case is dropped and civil commitment proceedings can begin.
A psychologist evaluated Speed three times in 2022, but declined each time to offer an opinion on whether Speed was competent in the foreseeable future. District Court Judge Ben L. Leutwyler opted not to hold the statutory hearing in favor of additional proficiency services for Speed.
The defense appealed to the Supreme Court, asking it to order Leutwyler to hold the hearing. Last month, judges signaled interest in the matter and ordered the government to respond to Speed’s petition.
However, on February 13, an evaluator released an updated report, concluding that Speed had no substantial likelihood of becoming proficient in the reasonably foreseeable future. All parties agreed that Speed now deserved the hearing required by law. Consequently, the Supreme Court rejected the appeal.
The case is People v. Speed.
The judges remanded a second case to the trial court after the prosecution admitted they made a mistake in challenging the defense expert.
Alan L. Saville is charged with assault in Denver for allegedly kicking a Denver Health nurse. The defense sought to have a forensic toxicologist testify that the sedative midazolam, which hospital staff administered to Saville, would have made him involuntarily intoxicated if he interacted with the alcohol within Saville.
The district attorney’s office moved to exclude the testimony, claiming that “we have no idea what was in Mr. Saville’s system.” District Court Judge Jay S. Grant concurred, calling it “complete speculation” to say what, if any, amount of alcohol Saville had in him, since no one conducted a blood or urine test.
Saville’s attorneys appealed to the Supreme Court, noting that Saville reeked of alcohol, was treated for severe intoxication, and had multiple witnesses — including the victim — who believed he was intoxicated.
After the Supreme Court ordered the government to respond to Saville’s petition, Deputy District Attorney Richard F. Lee admitted that the indictment “misled the district court” and agreed that Grant’s decision should be revoked.
The case is People v. Saville.