A federal judge ruled on Tuesday that a Kiowa County deputy and the sheriff’s office may be sued for a fatal vehicle collision because of alleged violations of state law, although the parties dispute whose actions caused the accident.

The Colorado Governmental Immunity Act generally shields government entities and public employees from being sued for their actions, but there is an exception for injuries caused by emergency vehicles. Immunity applies when they exceed the speed limit during a pursuit, but only if the driver is “making use of audible or visual signals.”

Emergency drivers may still lose their immunity if they “endanger life or property” and if their warning equipment does not include certain features, including a light “mounted as high as practicable” on the vehicle.

In an April 6 order, U.S. District Court Judge Charlotte N. Sweeney concluded the plaintiffs who were injured in a 2022 vehicle crash outside of Lamar had alleged Deputy Jacob Marlow was driving a vehicle that did not comply with those conditions. Therefore, governmental immunity did not shield him or his employer from being sued.

“Deputy Marlow’s truck did not have any lights on the top of his truck. Nor did it have lights in the mirrors or embedded in the windshield,” she wrote. “The Court finds that Plaintiffs have sufficiently pled that the truck’s emergency lights, installed just above the truck’s license plate, were not installed ‘as high as practicable.'”

Dale and Anna Murphy of Oklahoma filed suit on behalf of themselves and Dale’s mother, Donna Murphy, who was the only vehicle occupant killed in the May 29, 2022 crash. That night, around 9:10 p.m., the Murphys alleged they were turning left from Powers County Road 7 onto Highway 50, which was a divided multi-lane roadway with a 50 mph speed limit.

Simultaneously, Marlow, who lived in Prowers County but was on-call as a deputy in Kiowa County, was speeding to assist with another vehicle-on-deer collision about one hour away. He was driving close to 95 mph just before the crash in a pickup truck. The only warning lights were allegedly flashing just above the license plate.

Marlow collided with the Murphys’ vehicle at a velocity of almost 76 mph.

The Murphys sued Marlow and the sheriff’s office for negligence, alleging Marlow drove at a “grossly excessive speed” and lacked “appropriate lights and siren.”

Marlow, meanwhile, responded with his own negligence claims against Dale Murphy, who was the driver. He alleged he was driving in compliance with Colorado law and it was Murphy who misjudged the situation and pulled out in front of him.

At the same time, the defendants filed a motion to dismiss the Murphys’ original claims based on Colorado’s governmental immunity law. They argued Marlow’s actions were reasonable and met the conditions for immunity.

“Plaintiffs have failed to demonstrate that Deputy Marlow did not use his lights or siren and have not shown that he was driving in a manner that endangered life or property,” wrote the defendants’ lawyers.

Sweeney noted a recent case analyzed by the state Supreme Court and Court of Appeals was very similar to the Murphys’ lawsuit. In that case out of Montrose County, a police officer in a high-speed pursuit slammed into a vehicle and caused the deaths of its two occupants. The Supreme Court determined there would be no immunity if the officer’s failure to use lights or siren sooner could have contributed to the accident. The Court of Appeals subsequently concluded that was, indeed, a potential cause.

For the Murphys, Sweeney decided Marlow had forfeited his immunity because the warning lights on his truck were not mounted at the highest possible place on his vehicle as the law required. Moreover, the oversight could have made a difference.

“While Plaintiffs acknowledged seeing Deputy Marlow’s lights moments before the collision, the inadequate emergency lighting package on the black truck could have contributed to the accident,” she wrote. “The Court finds that the Plaintiffs sufficiently ‘demonstrated a possibility’ that Deputy Marlow’s actions could have caused their injuries.”

The case is Murphy et al. v. Marlow et al.