Flashing lights on top of police patrol car concept

Before it denies governmental immunity in a lawsuit against the city of Denver and one of its officers, a district court must resolve the factual question of whether a box truck obstructed views prior to a traffic accident, the Court of Appeals ruled on Thursday.

In March 2019, Officer Kyle McNabb was stopped at a red light at the intersection of Federal Boulevard and Evans Avenue when he received an emergency call. McNabb was at the front of the intersection and he activated his squad car lights. He said that he made eye contact with opposing drivers, ensured traffic had stopped and pulled forward on Federal.

Robert Bilderback, who was traversing Evans on his motorcycle, crashed into the police car. 

The Colorado Governmental Immunity Act generally prohibits lawsuits against public entities for liability, but has an exception for incidents involving “a motor vehicle that is owned or leased by a public entity [and] is operated by a public employee while in the course of employment.” If the emergency vehicle driver bypasses a red light with lights or sirens, however, as long as he slows down for the “safe operation” of the vehicle, immunity once again kicks in.

Denver District Court Judge Eric M. Johnson denied the city’s assertion of sovereign immunity, writing the “crux of the dispute is how Officer McNabb proceeded against the red light and whether the manner in which he did so took his actions outside of the emergency vehicle exception."

Although there was a dispute about whether a box truck blocked views of the intersection, Johnson concluded that the presence of this blind spot meant McNabb had not operated the vehicle safely and the defendants were not eligible for immunity.

McNabb and the city countered that in justifying the denial, the district judge had created an additional requirement for McNabb to drive slowly through the intersection beyond what the law set out.

The three-member appeals panel agreed with Johnson’s understanding. Retired Judge JoAnn L. Vogt, sitting on the panel at the chief justice’s direction, wrote that “interpreting the statute to allow a police officer to proceed through the intersection at any speed as long as he or she had previously slowed down could, depending on the circumstances, lead to an illogical or absurd result.”

However, the appellate judges believed Johnson was mistaken to not hold a hearing to resolve the question of whether a box truck indeed obscured the intersection. Although the city never disputed the presence of the truck explicitly, they instead referred to McNabb’s statements that he had a clear view.

In the 1993 case of Trinity Broadcasting v. Westminster, a company sued the city of Westminster after cracks in its building's foundation appeared, which it attributed to leaks in nearby municipal water storage tanks. The Colorado Supreme Court ruled that the district court, and not a jury, was responsible for fact-finding. As such, the appellate panel ordered a Trinity hearing in the Denver case to resolve the issue of the box truck.

“We conclude that, given the centrality of this factual issue to the district court’s ruling, whether Officer McNabb’s view of the motorcycle was in fact obstructed needs to be determined regardless of the adequacy of defendants’ efforts to raise a dispute about the issue,” Vogt explained.

The case is Bilderback v. McNabb et al.

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