FOGG v. MACALUSO

JUSTICE MULLARKEY delivered the Opinion of the Court.

The petitioner, John Fogg (Fogg), brought an action in negligence against the respondents, sheriff's deputy Mario Macaluso (Macaluso) and the County of Pueblo (the County), for the injuries he sustained when his vehicle struck Macaluso's parked patrol car in the passing lane of Interstate 25. The trial court entered summary judgment in favor of Macaluso and the County on grounds of sovereign immunity under the Colorado Governmental Immunity Act (GIA), sections 24-10-101 to 120, 10A C.R.S. (1988). The court of appeals held that the proper procedure for determining the sovereign immunity of a public entity was as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and affirmed dismissal. Fogg v. Macaluso, 870 P.2d 525 (Colo.App. 1993). We granted certiorari to determine whether the court of appeals erred in affirming dismissal of Fogg's action on grounds that Macaluso was responding to an "emergency" within the exception to the waiver of immunity under section 24-10-106(1)(a). We reverse the judgment of the court of appeals and return the case for remand to the district court for further proceedings to apply the definition of emergency set out in this opinion.

I.

The undisputed facts that we can identify from the parties' briefs and the record on appeal are as follows. While on duty Macaluso responded to a report that a car was stranded in the median on Interstate 25. When he located the car, he discovered that it had gone off the road into the median as a result of a flat tire. He parked his patrol car, with the flashing emergency lights activated, in the left lane of the interstate while he helped the driver to change the tire and leave the median. At the time Macaluso's patrol car was parked in the left lane, Fogg was driving south on Interstate 25 between Colorado Springs and Pueblo. He had pulled into the left lane to pass on a long downhill curve when he saw Macaluso's patrol car. He attempted to swerve around it, but struck Macaluso's car in the rear.

Fogg brought this action against Macaluso and the County alleging that his injuries were caused by Macaluso's negligence while acting as a sheriff's deputy for the County. Macaluso and the County filed a motion to dismiss or, alternatively, for summary judgment on grounds that sovereign immunity under the GIA bars actions against a governmental entity and its employees for injuries resulting from the operation of an emergency vehicle responding to an emergency.

Based on the facts alleged in the pleadings and affidavits submitted by the parties, the trial court determined that there was no issue of material fact, and that Macaluso was responding to an emergency call within section 42-4-106(2), 17 C.R.S. (1993). Therefore, the court concluded that the defendants were immune from suit under the GIA and entered summary judgment.

The court of appeals applied our recent decision in Trinity Broadcasting v. City of Westminster, 848 P.2d 916 (Colo. 1993), and treated defendant's motion as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). Following the standard of review applied in Trinity, the court of appeals found that the record contained competent evidence to support the trial court's determination that Macaluso was responding to an emergency call when he parked his vehicle. The court also affirmed the trial court's holding that section 42-4-106(4), which requires the operators of emergency vehicles "to drive with due regard for the safety of all persons," was not incorporated into the GIA.

On petition to this court, Fogg contends that, when ruling on a motion to dismiss, both the trial court and the appellate court must construe the factual allegations most favorably to the plaintiff by assuming the facts pled are true. He asserts (1) that the facts alleged indicated that Macaluso was not responding to an emergency; (2) that the courts below erred in failing to consider the requirement that emergency vehicles be driven "with due regard for the safety of all persons" in order to qualify for sovereign immunity under the GIA; and (3) that the facts alleged indicated that Macaluso had not operated his vehicle with due regard for the safety of others.

II. A.

The first question for us to resolve on appeal is what type of situation constitutes an "emergency" under the statute. Construction of a statute is a question of law, not a factual determination. Colorado Div. of Employment Training v. Parkview Episcopal Hosp., 725 P.2d 787, 790 (Colo. 1986). In resolving a question of law, the lower court's judgment is subject to independent review by the appellate court. Evans v. Romer, 854 P.2d 1270, 1274 (Colo. 1993).

The GIA establishes sovereign immunity for all public entities and public employees to all actions in tort, or which could lie in tort, except as specifically provided under the GIA. § 24-10-105. In parts relevant to this case, the GIA states:

24-10-106. Immunity and partial waiver.

(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:

(a) The operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of his employment, except emergency vehicles operating within the provisions of section 42-4-106 (2) and (3), C.R.S.;

§ 24-10-106 (emphasis added). The referenced subsections of section 42-4-106 provide:

(2) The driver of an authorized emergency vehicle, when responding to an emergency call, . . . may exercise the privileges set forth in this section, but subject to the conditions stated in this article. The driver of an authorized emergency vehicle may:

(a) Park or stand, irrespective of the provisions of this title;

. . . .

(3) . . . the exemption granted in paragraph (a) sections

(2) of this section shall apply only when such vehicle is making use of visual signals meeting the requirements of section 42-4-212 unless using such visual signals would cause an obstruction to the normal flow of traffic; . . . . Nothing in this section shall be construed to require an emergency vehicle to make use of audible signals when such vehicle is not moving, whether or not the vehicle is occupied.

§ 42-4-106(2),(3) (emphasis added). See also §§ 42-1-102(5) and 42-2-105(5) (defining "authorized emergency vehicle").

Because neither Title 42 nor Title 24 defines "emergency" or "emergency call," we must determine the legislature's intent without explicit guidance. In construing statutes, we give effect to the intent of the legislature by looking first at the language of the statute. Moody v. Corsentino, 843 P.2d 1355, 1370 (Colo. 1993). To effectuate legislative intent, we must give statutory terminology its commonly accepted meaning. Boulder County Bd. of Equalization v. M.D.C. Construction Co., 830 P.2d 975, 980 (Colo. 1992). A strained or forced construction of a statutory term is to be avoided, Triad Painting Co. v. Blair, 812 P.2d 638, 644 (Colo. 1991), and we must look to the context of a statutory term. State v. Hartsough, 790 P.2d 836, 838 (Colo. 1990) (context of word in statute may provide guidance as to word's meaning); People ex. rel. Dunbar v. Trinidad State Junior College, 184 Colo. 305, 309, 520 P.2d 736, 738 (1974) (legislative intent may be derived by consideration of the language in the context of the statute); Sheely v. People, 54 Colo. 136, 138, 129 P. 201, 202 (1912) ("the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it").

Moreover, terms should be construed in harmony with one another so as to give full effect to the legislative intent in enacting the statute. McCarty v. People, 874 P.2d 394, 398 (Colo. 1994); People v. Andrews, 871 P.2d 1199, 1201 (Colo. 1994). Therefore, consideration of an undefined term in context may provide guidance as to legislative intent and the term's proper meaning.

In People v. McKnight, 617 P.2d 1178 (Colo. 1980), we interpreted a statute which, like the statutes at issue in this case, failed to explicitly define "emergency." In that case we endorsed the common usage of the term as found in Webster's Seventh New Collegiate Dictionary: "1: an unforeseen combination of circumstances or the resulting state that calls for immediate action 2: a pressing need: EXIGENCY." Id. n. 9. We find the McKnight definition to be appropriate for interpreting sections 24-10-106(1)(a) and 42-4-106(2) and applying them to the facts of this case.

We note that courts in numerous other jurisdictions have adopted the same or a similar dictionary definition of "emergency" that we do here for application in a wide variety of contexts. See, e.g., International Bhd. of Teamsters v. Local Union No. 810, 19 F.3d 786, 793 (2d Cir. 1994) (adopting the dictionary definition of "emergency" as "an unforeseen combination of circumstances or the resulting state that calls for immediate action" for purposes of interpreting union constitution); Estate of Sowell v. Commissioner of Internal Revenue, 708 F.2d 1564, 1567 (10th Cir. 1983) (adopting the dictionary definition of "emergency" and stating that an emergency "calls for immediate action, or it is pressing" under terms of testimentary trust); Los Angeles County v. Payne, 66 P.2d 658, 662 (Cal. 1937) (noting that it had adopted the dictionary definition of "emergency" as "`[a]n unforeseen occurrence or combination of circumstances which calls for an immediate action or remedy; pressing necessity; exigency'" in determining validity of emergency resolution); Opyt's Amoco, Inc. v. Village of South Holland, 595 N.E.2d 1060, 1066 (Ill. 1992) (adopting same definition in interpreting municipal ordinance); Buck v. Greyhound Lines, Inc., 783 P.2d 437, 440-41 (Nev. 1989) (quoting the dictionary definition of "emergency" and stating that "necessity for immediate action" is a "critical ingredient of an emergency situation" in the context of the Good Samaritan statute) (emphasis added); Scatuorchio v. Jersey City Incinerator Auth., 100 A.2d 869, 877-78 (N.J. 1953) (applying the general definition of "emergency" as "a `sudden or unexpected occurrence or condition calling for immediate action'" in determining validity of municipal declaration of emergency); Roberts v. Kettelle, 356 A.2d 207, 216 (R.I. 1976) (stating with approval that in the absence of a statutory definition of "emergency," the trial court read the dictionary definition of "`an unforeseen combination of circumstances which calls for immediate action'" to the jury in order for the jury to determine whether the defendant police officer was responding to an emergency call for purposes of establishing a statutory defense to a negligence action); City of Rock Springs v. Police Protection Ass'n, 610 P.2d 975, 981 (Wyo. 1980) (adopting the dictionary definition of "emergency" as "`an unforeseen combination of circumstances or the resulting state that calls for immediate action' and `a pressing need'" in determining validity of emergency personnel appointment); see generally 14 Words and Phrases 435-57, 458 (1952 1994 Supp.) (listing of cases defining "emergency" and "emergency call").

Consideration of section 42-4-106(2) in its entirety lends further support to this interpretation of emergency as an exigency or an unforeseen combination of circumstances that call for immediate action. Section 42-4-106(2) provides:

The driver of an authorized emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section . . . .

In addition to mandating tort immunity for drivers on an emergency call, the statute establishes immunity for two specifically enumerated situations. These arise when public employees are pursuing criminals or are responding to fire alarms. Both involve temporally urgent events and require rapid responses. In such circumstances, a driver may be less able to exercise proper care. In order to facilitate the public benefit gained from quick response to these situations, the legislature has created tort immunity for emergency vehicle drivers. The situations enumerated in section 42-4-106(2) illustrate the legislature's intent to create tort immunity for public employees reacting to events that require immediate response. Thus, consideration of the context of section 42-4-106(2) provides further support for our definition of emergency as an incident requiring an immediate response or as an exigency.

Courts in other jurisdictions have recognized that the purpose behind retaining sovereign immunity for public employees who are responding to an emergency call derives from the fact that they are acting under exigent, or dangerous, circumstances that preclude exercise of normal care. See, e.g., Martin v. Weaver, 666 F.2d 1013, 1018 n. 1 (6th Cir. 1981), cert. denied, 456 U.S. 962 (1982); Lingo v. Hoekstra, 200 N.E.2d 325, 328 (Ohio 1964); see generally, W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 33, at 196-197 (5th ed. 1984) (discussing the "emergency rule" of negligence and stating that because a person acting in an emergency situation has no time for adequate thought, the standard of care must be that of a reasonable person under the emergency circumstances).

This interpretation is further bolstered by the fact that the legislature specifically excluded emergency vehicle drivers returning from a fire alarm from the tort immunity privilege. § 42-4-106(2). In this situation, a driver has ample time to take ordinary care when driving the emergency vehicle. Thus, there is less reason and need for tort immunity. This particular exclusion shows that the legislature intended to provide protection only for those public employees who are acting under exigent circumstances that call for immediate action.

Although we adopt the same definition applied by the court of appeals in this case, Fogg, 870 P.2d at 527, it would be unfair to the parties to set out a definition of a statutory term essential to the case and not provide them with an opportunity to present relevant evidence and argue how the newly delineated definition applies to that evidence. Further, the trial court did not have the benefit of the Trinity decision and did not conduct an evidentiary hearing before deciding the case. From the record before us, it is unclear whether the trial court had all the facts before it when it reached its decision. Accordingly, this issue must be remanded to the trial court for further proceedings as appropriate and for application of the definition of "emergency," as set out in this opinion, to the facts of the case.

B.

The parties next dispute whether a motion to dismiss on grounds of immunity under the GIA must be treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), or as a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). Fogg takes the position that the assertion of immunity under the GIA is a substantive claim. Thus, a trial court should address a motion to dismiss on grounds of immunity under C.R.C.P. 12(b)(5) and treat all facts alleged by the non-moving party as true. Macaluso and the County assert that under our decision in Trinity, immunity pursuant to the GIA is a jurisdictional issue. Accordingly, a trial court is authorized to make appropriate factual findings under C.R.C.P. 12(b)(1). We agree that C.R.C.P. 12(b)(1) is the applicable rule in this situation.

Macaluso and the county correctly point out that the application of Trinity to the emergency vehicle exception of the GIA was at issue when we granted certiorari and vacated the court of appeals' judgment in Cline v. Rabson, 856 P.2d 1 (Colo.App. 1992) (Cline I). We remanded for reconsideration in light of our Trinity decision. Id. Cline I involved a suit for personal injuries suffered when a motorcyclist was struck by a Loveland police patrol car pursuing a speeding vehicle. In a pre-trial motion, the Loveland defendants asserted a claim of immunity under the emergency vehicle exception to the GIA. The trial court ruled in favor of the Loveland defendants after conducting an evidentiary hearing. Id. at 2. On appeal, the plaintiff claimed that the trial court erred in taking evidence and making findings of fact on the immunity issue. The court of appeals agreed and reversed the trial court. It reasoned that the usual rules regarding summary judgment applied to a pre-trial claim of immunity brought under section 24-10-108, 10A C.R.S. (1988), and disputed issues of material fact should have been reserved for trial. Cline I, 856 P.2d at 3.

After our order granting certiorari, vacating Cline I, and remanding for reconsideration in light of Trinity, the court of appeals issued a new opinion reaching the opposite result. Cline v. Rabson, 862 P.2d 1035 (Colo.App. 1993) (Cline II). It applied C.R.C.P. 12(b)(1) and held that the trial court properly acted as a factfinder on the immunity question after holding an evidentiary hearing and considering the testimony of witnesses. Accordingly, it affirmed the trial court's finding that the Loveland defendants were immune from suit under the emergency vehicle exception to the GIA. Id. at 1036.

While there is some difference in language in the GIA between the notice section, 24-10-109, which was at issue in Trinity, and the sovereign immunity section, 24-10-108, which is at issue in this case and was at issue in the Cline cases, these differences do not compel a different result. Section 109 states that notice is a "jurisdictional prerequisite" to suit and failure to comply "shall forever bar any such action." Section 108 is entitled "Sovereign immunity a bar" and states that sovereign immunity "shall be a bar" to any action that lies in tort or could lie in tort. Section 108 also expressly directs the trial court to hear and decide a claim of sovereign immunity "on motion" if it is raised before trial. Section 108 allows expedited discovery of facts relevant to sovereign immunity and provides that the court's decision is a "final judgment" subject to immediate appeal.

These differences do not compel a different result with respect to the procedural question decided in Trinity because both are sections which define requirements for subject matter jurisdiction — section 109 by its express terms and section 108 because "the terms of [the sovereign's] consent to be sued in any court define that court's jurisdiction to entertain that suit." United States v. Dalm, 494 U.S. 596, 608 (1990) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)); see also United States v. Sherwood, 312 U.S. 584, 586 (1940) (and the cases cited therein); § 24-10-102 ("The general assembly also recognizes the desirability of including within one article all the circumstances under which the state, any of its political subdivisions, or the public employees of such public entities may be liable in actions which lie in tort or could lie in tort . . . ." (emphasis added)). Thus, in its opinion in Cline II, the court of appeals correctly interpreted Trinity. Whether a claim falls within an exception to the GIA's waiver of sovereign immunity is a question of subject matter jurisdiction and, if raised before trial, it appropriately is addressed under C.R.C.P. 12(b)(1). Cf. Mundy v. United States, 483 F.2d 950, 952 (9th Cir. 1993) (district court lacks subject matter jurisdiction if claim is within specified exception to Federal Tort Claims Act's general waiver of sovereign immunity; application of exception properly determined under Fed.R.Civ.P. 12(b)(1)).

On remand, the trial court is directed to apply C.R.C.P. 12(b)(1).

III.

In his petition, Fogg finally maintains that even if Macaluso was responding to an "emergency," he nonetheless was required to "drive with due regard for the safety of others" under section 42-4-106(4) in order to qualify for sovereign immunity under section 24-10-106. This contention is without merit. Where the language of a statute is unambiguous, we must give effect to that unambiguous language and there is no need to resort to interpretive rules of statutory construction. McKinney v. Kautsky, 801 P.2d 508, 509 (Colo. 1990). In this instance, the terms of section 24-10-106 are very clear. Sovereign immunity bars an action under the GIA for "emergency vehicles operating within the provisions of section 42-4-106(2) and (3), C.R.S." § 24-10-106(1)(a). Subsections 42-4-106(2) and (3) do not impose a duty on emergency vehicle operators, who are responding to emergency calls, to drive with due regard for the safety of others. We will not read such a requirement into the GIA without statutory authorization.

Cline II, 862 P.2d at 1036, is overruled in part to the extent that it may be interpreted as requiring a showing of due care by the operator of an emergency vehicle who is responding to an emergency call.

IV.

For the foregoing reasons, we reverse the court of appeals' decision, but affirm the court of appeals' holding that section 24-10-106(1)(a) of the GIA does not require emergency vehicle operators to comply with section 42-4-106(4) in order to qualify for sovereign immunity. We return the case with directions to remand it to the trial court for further proceedings under C.R.C.P. 12(b)(1) and application of the definition of "emergency" set out in this opinion.