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Corsentino v. Cordova6/26/2000
Certiorari to the Colorado Court of Appeals
EN BANC AND CASE REMANDED
Petitioner, Pueblo County Sheriff Dan Corsentino, challenges the court of appeals' decision, Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo. App. 1998), upholding the trial court's denial of his motion to dismiss a wrongful death action filed against him based on the actions of his employee, Deputy Sheriff Fred Cortese. In his motion to dismiss, Corsentino argued that the governmental immunity granted by the Colorado Governmental Immunity Act (GIA) to emergency vehicle operators barred the suit filed against him. The first of two issues raised by Corsentino asks us to decide the legal standard under the GIA for determining when an emergency vehicle operator faces an exigency that calls for immediate action. We are also called upon to determine whether an emergency vehicle operator exceeding the legal speed limit must comply with the condition of section 42-4-108(2)(c), 11 C.R.S. (1999), which allows an emergency vehicle operator to speed "so long as said [operator] does not endanger life or property," in order to fall within the provisions of the GIA that grant immunity to emergency vehicle operators.
I.
On the afternoon of July 30, 1995, Cortese received a dispatch to a home burglary alarm. Cortese responded to the dispatch as an emergency call, using the sirens and lights of his sheriff cruiser. In route to the home burglary alarm, Cortese was driving south at a speed of 50 to 60 m.p.h. in a 35 m.p.h. speed zone.
While driving at this speed, Cortese approached an intersection at the same time that Erlinda Cordova was making a left turn in her car, crossing Cortese's path. The two cars collided. Before impact, Cortese still had his lights and sirens engaged, but did not slow down. As a result of the collision, Cordova received severe injuries that resulted in her death.
Under the doctrine of respondeat superior, Cordova's surviving husband and children (the Plaintiffs) filed a wrongful death action against Corsentino in his official capacity. The Plaintiffs alleged that Cortese's negligent actions caused Cordova's death while he was employed as Corsentino's deputy. Corsentino filed a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the basis that Cortese had immunity as the operator of an emergency vehicle under the GIA.
After holding a hearing on the motion, the trial court denied Corsentino's motion to dismiss, ruling that Cortese did not qualify for immunity as the operator of an emergency vehicle under the GIA because he was not responding to an emergency call. The trial court found that home burglary alarms are too unreliable to constitute an emergency call.
As a separate basis for its ruling, the trial court held that Cortese did not qualify for the exception of section 24-10-106(1)(a), 7 C.R.S. (1999), through which the GIA grants immunity to emergency vehicle operators. In reaching its holding, the trial court applied the condition of section 42-4-108(2)(c), which allows an emergency vehicle operator to exceed the lawful speed limits "so long as said [operator] does not endanger life or property," to limit the emergency vehicle exception of section 24-10-106(1)(a). Because the trial court found that "[Cortese's] "operation of his vehicle endangered life and property," it concluded that he did not qualify for the exception of section 24-10-106(1)(a).
Corsentino appealed the trial court's ruling denying his motion to dismiss. On appeal, Corsentino argued that the trial court used an improper standard for determining that Cortese was not responding to an emergency and that
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