Colorado’s second-highest court ordered another look at a bicyclist’s negligence lawsuit against Denver Water on Thursday, concluding that a trial judge needed to evaluate the utility’s potential immunity using the state Supreme Court’s new guidance.

Joseph A. “Joey” Scott alleged that he was biking northbound in the 800 block of Ogden Street when he encountered a Denver Water pickup truck parked in the wrong lane facing southbound. As Scott was about to go around, the driver turned off the truck’s emergency flashers and Scott perceived the truck moving forward. He braked quickly and went over his handlebars, breaking his jaw.

Scott sued Denver Water and the driver for negligence. The Colorado Governmental Immunity Act generally shields public entities and employees from lawsuits, but there is an exception for injuries caused by “the operation of a motor vehicle.”

After a hearing to determine whether the defendants were immune, District Court Judge Mark T. Bailey concluded they were not. He decided that a public employee would not necessarily be “operating” a motor vehicle if they parked overnight and went home. But the driver’s act of parking on the street in the wrong lane “was very much in the course of his operation of the vehicle, making the deliveries he was making.”

Bailey also found there was a “minimal causal connection” between the driver’s actions and Scott’s injuries. Alternatively, Bailey added that even if he was wrong that the act of parking the truck constituted the operation of a motor vehicle, the driver “did something” to operate the vehicle by turning off the lights “right around the time that (Scott) crashed.”

Three months after Bailey’s decision, the Supreme Court clarified in a slip-and-fall case that plaintiffs must show a “reasonable probability” that they will succeed at trial when challenging the government’s entitlement to immunity.

To the Court of Appeals, the defendants argued Bailey was mistaken to rule that the parking of the truck constituted the operation of a motor vehicle.

“Under Mr. Scott’s theory, a pedestrian who trips on a sidewalk near a parked police car could claim the ‘operation’ of parking caused the injury,” wrote Denver Water’s attorneys. “A cyclist who swerves to avoid a parked fire truck and collides with another vehicle, under Mr. Scott’s theory, could claim waiver (of immunity) because ‘if the truck isn’t parked there,’ the collision does not occur. An experienced hiker who is injured after tripping upon being distracted by a passing bus could similarly survive a motion to dismiss.”

The defendants also contended that Scott had not shown he was likely to succeed on his negligence claims.

“Directly, the Order allows an injured party to prosecute claims against a governmental entity by asserting their injuries occurred because they reacted, overreacted, or were merely frightened by the perceived operation of a motor vehicle,” they wrote.

Scott disputed whether the Supreme Court’s probability standard applied to his claims, as the justices were dealing with a case involving a non-vehicle-related injury. He also defended Bailey’s finding that his injuries stemmed from the operation of a motor vehicle.

“Denver Water now asks this Court to find, as a matter of law, that its operation of its double-parked-on-the-wrong-side-of-the-road vehicle played no role whatsoever in Mr. Scott breaking his jaw,” wrote attorney Timothy Garvey. “But think of it this way: if Denver Water’s truck isn’t double-parked on the wrong side of the road, what are the chances Mr. Scott even brakes — let alone breaks his jaw — when there’s nothing blocking his lane of traffic and no three-ton truck staring him down? The answer — intuitive, obvious, and legally significant — is ‘none.’”

A three-judge Court of Appeals panel partly agreed with Scott. While it did not conclude that a plaintiff can sue in every circumstance where a public employee illegally parks a vehicle, it found the driver’s act of parking the truck while making deliveries counted as “operating” a motor vehicle.

The driver “was the only party in control of deciding where and how to park the truck — and he chose to park it illegally, facing oncoming traffic,” wrote Judge Lino S. Lipinsky de Orlov in the Aug. 6 opinion. Scott’s injuries were the result of “where and how” the driver parked his truck.

Lipinsky added that the Supreme Court’s probability standard applied to Scott’s case, even though the ruling came after Bailey’s decision. Consequently, Bailey needed to analyze whether Scott would likely succeed in proving a connection between the driver’s negligent operation of the vehicle and his injuries.

“In neither analysis did the district court make findings on three disputed facts — whether, immediately before the accident, the truck’s engine was running, its emergency flashers were turned off, and the truck moved,” Lipinsky wrote. “Scott is entitled to a hearing at which the court considers the evidence through the correct legal lens and determines whether Scott demonstrated a likelihood of success on the merits.”

The panel directed Bailey to reconsider his immunity decision.

The case is Scott v. Denver Water et al.