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Nyland v. Brock6/27/1996
Defendants, Vernalee Brock and the Regional Transportation District (collectively RTD), bring this interlocutory appeal from the trial court's determination that the action brought by plaintiff, Travis Nyland, was not barred on the basis of governmental immunity. We affirm.
The relevant facts are not in dispute. In March 1993, while crossing the intersection on foot, plaintiff was injured when he was struck by an RTD bus driven by Brock. Thereafter, plaintiff initiated this action seeking compensation for the injuries he suffered. RTD moved to dismiss the complaint on the basis that the action was barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. (1988 Repl. Vol. 10A). The trial court denied RTD's motion, and this appeal followed.
RTD contends that the trial court erred in not dismissing the complaint because plaintiff failed to provide it with sufficient notice of claim under § 24-10-109, C.R.S. (1988 Repl. Vol. 10A). We disagree.
The GIA provides that a public entity and its employees are immune from liability for all claims that lie or could lie in tort except as expressly provided in the GIA. Section 24-10-105, C.R.S. (1988 Repl. Vol. 10A). Under § 24-10-106(1)(a), C.R.S. (1995 Cum. Supp.), immunity is waived in an action seeking compensation for injuries resulting from a public employee's operation, in the course of his employment, of a motor vehicle owned or leased by the public entity.
The question of whether immunity has been waived under the GIA is an issue of subject matter jurisdiction for the trial court's determination pursuant to C.R.C.P. 12(b)(1) and will not be reversed unless it is clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). Under C.R.C.P. 12(b)(1), the plaintiff has the burden to prove jurisdiction. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).
The trial court, as finder of fact under C.R.C.P. 12(b)(1), may receive any competent evidence pertaining to the issue of subject matter jurisdiction. Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra. If, as here, all relevant evidence has been presented to the trial court, we may decide the issue without remanding for an evidentiary hearing. Capra v. Tucker, supra.
Section 24-10-109(1), C.R.S. (1995 Cum. Supp.) requires that a claimant file a notice of claim with the appropriate governmental entity within 180 days after the claimant discovers he or she has been wrongfully injured. East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo. 1992); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo. App. 1995).
The mandatory notice must include, to the extent the claimant is reasonably able to do so, the information listed in § 24-10-109(2), C.R.S. (1988 Repl. Vol 10A). Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo. 1990). In addition, as pertinent here, § 24-10-109(3), C.R.S. (1988 Repl. Vol. 10A) requires that the notice be filed with the public entity's governing body or its legal counsel.
Compliance with the 180-day notice requirement in § 24-10-109(1) is a jurisdictional prerequisite to suit. Armstead v. Memorial Hospital, supra. However, a claimant need only substantially comply with the statutory requirements as to the contents of the notice given. East Lakewood Sanit
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