Quintana v. City of Westminster

Judge WEBB

dissenting.

With respect, and mindful of the great deference accorded the trial court's factual findings, I dissent. In my view, both the trial court and the majority have failed to address plaintiff's singular theory: that Torres "endangered life or property while exceeding the lawful speed limit" within the meaning of § 42-4-108(2)(c), C.R.S8.2001, when, according to the complaint, "Officer Torres chased [the suspect's vehicle! eastbound on West 72nd Avenue into a congested *1200construction zone at rush hour, during heavy traffic, when [the suspect's vehicle] crossed into the westbound lanes of West TZnd Avenue and smashed head-on into [plaintiffs car}."

The facts relevant to plaintiff's theory can be found in Torres's testimony. Torres began his pursuit in the vicinity of Tist Place and Sheridan Boulevard. He turned on his lights and, seconds later, his siren. He then followed with lights and siren during the entire episode.

The suspect vehicle turned from Sheridan Boulevard east onto West 72nd Avenue. Torres continued the pursuit for approximately sixteen blocks east to the intersection of West 72nd Avenue and Lowell Boulevard. Torres estimated his speed along West 72nd Avenue at fifty to sixty miles per hour, despite the thirty-five miles-per-hour speed limit.

Torres knew that one block beyond Lowell Boulevard, a construction zone narrowed West 72nd Avenue from four lanes to two lanes. He acknowledged that the suspect vehicle "was fleeing from [his] lights and siren patrol car." During the pursuit down West 72nd Avenue, the suspect vehicle "never made any indication [it] was going to make any kind of turn."

At the Lowell Boulevard intersection, Torres slowed and then stopped briefly, but still did not break off his pursuit. At that point he was about 150 feet behind the suspect vehicle, although previously he had been following only three car lengths behind. One block further east, the construction zone began. Three blocks into the construction zone, the suspect vehicle, traveling at an accident reconstruction expert's estimate of sixty-seven miles per hour, crossed into the single oncoming traffic lane and struck plaintiff's car.

The trial court's factual findings address how Torres conducted the "high-speed pursuit," not why he continued the chase into the construction zone, which I see as a key factor in the necessary calculus of risk. The majority correctly concludes that the record supports those findings. However, none of those findings speaks to the question of endangerment arising solely from Torres's (or his supervisor's) decision to chase the suspect vehicle into the narrowed construction zone.

The majority also notes that the trial court's findings support its ultimate legal conclusion that Torres did not "endanger life or property." I agree that all the factual findings about the police chase bear some relevance to the endangerment inquiry, but the findings simply do not address plaintiffs specific theory of endangerment.

Moreover, several of the trial court's factual findings indicate that Torres's continued pursuit could have endangered oncoming traffic because the two-lane construction zone made a head-on collision more likely if the driver of the suspect vehicle lost control at that point. For example, "Torres exceeded the posted speed limits while on 72nd Avenue." Although "Torres reduced his speed prior to entering the construction zone," at the intersection of 72nd Avenue and Lowell Boulevard "the suspect vehicle was [then] approximately 150 feet ahead of the Torres vehicle." With the start of the construction zone now only one block ahead, the distance of 150 feet behind the suspect vehicle shows that Torres was still in hot pursuit.

In the prior appeal, a panel of this court remanded "because the trial court did not make any finding resolving whether the officer's actions endangered life or property" and noted that "the officer's driving must be evaluated in the context of all relevant circumstances." Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo.App.2000)(emphasis supplied). Under Corsentino v. Cordova, 4 P.3d 1082, 1098 (Colo.2000), "courts should limit their inquiry to the relationship between the conduct of the emergency operator prior to the accident and the cireumstances surrounding the conduct." Here, the trial court's findings fail to address what I see as the most significant surrounding cireum-stance: the particular hazard of the suspect vehicle being chased into the narrowed construction zone.

Corsentino also noted with approval the trial court's careful analysis of the accident location, including "line-of-sight problems caused by the overgrowth of trees and bushes on the median at the intersection" *1201where the accident occurred. 4 P.3d at 1093. Here, a similar analysis could have, and in my view should have, been performed of the construction zone. The trial court's omission cannot be exeused by its sole focus on operation of Torres's vehicle, because liability under the GIA extends to collisions involving the vehicle being chased. See Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992).

This early stage of the proceeding presents only the threshold question of whether endangerment creates jurisdiction under the GIA. The emergency vehicle exception to the motor vehicle waiver of immunity should be narrowly construed for the benefit of injured persons. Corsentino v. Cordova, supra. Whether Torres drove his vehicle recklessly or appropriately during the lengthy high-speed chase, the necessity of which the trial court assumes but does not address, presents a different question.

Colorado law on appellate review of trial court factual findings includes no civil case concerning trial court findings that are both supported by the record and consistent with the ultimate legal conclusion, but which nevertheless fail to address a plaintiff's particular theory. Cf. St. James v. People, 948 P.2d 1028, 1082 (Colo.1997)(remanding: "Because no determination was made by the trial court, the appellate function is hindered. The clearly erroneous standard of review cannot be applied. ...").

With reluctance to protract litigation further that arose from an accident on July 17, 1996, I would again remand the case, this time with express direction that the trial court make specific findings on whether the mere fact of continuing to pursue the suspect vehicle for sixteen blocks, until its entry into the construction zone became inevitable, "endangered life or property."