Board of County Com'rs of County of La Plata v. Moreland, 86SC181

• Decision Date: 28 November 1988
• Docket Number: No. 86SC181,86SC181
• Citation: 764 P.2d 812
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF La PLATA, a political and governmental subdivision of the State of Colorado, Petitioner, v. Frederick MORELAND, Respondent.
• Court: Colorado Supreme Court

Page 812

764 P.2d 812

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF La PLATA,

a political and governmental subdivision of the

State of Colorado, Petitioner, v. Frederick MORELAND, Respondent.

No. 86SC181.

Supreme Court of Colorado,

En Banc.

Nov. 28, 1988.

Hall & Evans, Richard A. Waltz, Alan Epstein, Denver, for petitioner.

Alan E. Johnson, Durango, for respondent.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for amicus curiae State of Colorado.

Scott H. Robinson, Gerald P. McDermott, Denver, for amicus curiae Colorado Trial Lawyers Assn.

LOHR, Justice.

The respondent, Frederick Moreland, became a paraplegic as a result of a fall from an unenclosed deck of a cabin located near Durango. He brought suit in negligence against the County of La Plata (County) ¹ based upon the failure of the County to require that a guardrail be constructed around the deck, as mandated by the County's building code. A jury trial was held, after which the trial court entered judgment on a verdict in favor of Moreland. The County appealed to the Colorado Court of Appeals, which affirmed the judgment. Moreland v. Bd. of County Comm'rs, 725 P.2d 1 (Colo.App.1985). We granted certiorari to determine whether the County owed a duty to Moreland to assure that the deck was protected by a guardrail. We conclude that even if the building code imposed an obligation on the County to require the guardrail, Moreland has no civil liability remedy for damages resulting from the breach of such obligation because of the absence of a clear expression of legislative intent to create such a remedy. Accordingly, we reverse the judgment of the court of appeals.

I.

Ron McEwan purchased a lot in the Aspen Trails subdivision in La Plata County in 1969 or 1970. In the spring of 1973, he began construction of the cabin that is at the center of the present controversy. By the fall of 1973 McEwan had excavated and put reinforcing rods in place for the foundation piers before ceasing work on the project until the spring of 1974.

Prior to the time McEwan began to build the cabin, the only regulation affecting residential construction in unincorporated La Plata County was resolution 1972-25, adopted by the board of county commissioners (board) on July 31, 1972, which required that a building permit be obtained from the county assessor's office prior to construction of any building. Resolution 1972-25 made no provision for submission of plans or specifications in applying for such a permit, and the resolution also was silent concerning construction criteria, inspections and sanctions. The purpose of the building permit process was to place the improvements on the tax rolls and to gather information that would enable the assessor to value the improvements for assessment.

On December 31, 1973, the board enacted resolution 1973-130, which adopted the Uniform Building Code (U.B.C.) and provided that work with respect to any building could not be commenced or continued after January 1, 1974, in absence of compliance with that code. The adoption of such a code is specifically authorized by section 30-28-201(1), 12A C.R.S. (1986). The 1973 resolution, by its terms, superseded resolution 1972-25. The U.B.C. requires that before a building permit may be issued, a builder must submit a "plot plan" showing the location of the building on the property. The application must also include drawings showing the exterior appearance and the design features of the proposed structure. The building inspector is required to check the plans to ensure consistency with the basic U.B.C. requirements before issuing a building permit.

The U.B.C. also requires that the building inspector conduct a minimum of four inspections to assure code compliance in connection with construction of a single-family residence. These consist of a foundation inspection, a framing inspection, a plumbing, heating and electrical inspection, and a final inspection. In addition, the U.B.C. authorizes the building inspector to impose sanctions to remedy code violations constituting serious safety hazards. Among the pertinent U.B.C. requirements in effect when McEwan built his cabin was that all decks located thirty inches or more above ground be enclosed by a guardrail at least forty-two inches high. ²

Despite the ostensible applicability of the U.B.C. to any construction conducted after January 1, 1974, ³ there was testimony to the effect that the board made a policy decision that the U.B.C. provisions regarding the issuance of building permits and the performance of building inspections would not apply to dwellings that were under construction prior to the adoption of the U.B.C. It can be inferred that this policy was based on inadequate staffing of the building department. Initially, the building inspector had no staff and worked out of his own home for about eighteen months. There was evidence that the workload created by the adoption of the U.B.C. was too great to permit complete and effective administration of the code requirements throughout La Plata County.

Richard Yeager, who served as the County's first building inspector from April 1974 to 1979, testified that he was instructed that he was not to inspect any building that had been started before he was hired. Butch Knowlton, who was hired as a building inspector during May 1976, testified that at the direction of the board he did not inspect buildings that were under construction before the U.B.C. was adopted. Paul Canatsey, the county engineer from January 1976 until the spring of 1979, testified that inspectors did not require permits or fees for any construction started before the adoption of the U.B.C. Canatsey testified that if a house was under construction at the time the resolution adopting the U.B.C. was enacted, it could be finished without a permit. According to Canatsey, however, if the County issued a permit after the enactment of the resolution, the County was obligated to monitor construction under the U.B.C. regardless of whether the construction began before or after the enactment of the resolution. Indeed, subsequent to January 1, 1974, there was no basis to issue a permit other than pursuant to the requirements of the U.B.C.; the prior resolution under which permits had been issued for the limited purpose of recording new construction on the assessor's tax rolls had been rescinded.

From the effective date of the U.B.C. on January 1, 1974, until late in the same year, the assessor, not the building inspector, issued all building permits. Notwithstanding the requirements of the U.B.C., the assessor, Clyde Demel, testified that he did not require the submission of plans before issuing a permit during this period. He did not consider construction matters to be within his responsibility. Until the building inspector took over the role of issuing building permits late in 1974, the assessor would issue the permits under the same procedures that he had followed prior to adoption of the U.B.C. and would then give the permits to the building inspector.

Prior to resuming construction in 1974, McEwan learned that he could not receive temporary electrical service necessary for construction activities ⁴ until he obtained a building permit. McEwan applied for such a permit, and the county assessor issued a building permit to McEwan on April 8, 1974. Consistent with his practice, the assessor did not require McEwan to submit building plans. The permit stated on its face that the owner agreed to comply with all pertinent laws and regulations in the location, construction and erection of the proposed structure.

The deck from which Moreland fell was built in 1974, and the construction of the residence continued into 1975. Although the deck had northern, southern and western exposures, only the western side was protected by a guardrail. The deck was as much as ten feet above the ground, and the U.B.C. specifications required a guardrail on all sides.

During trial, the parties disputed whether the County ever inspected the McEwan property, even though the evidence that inspections had taken place was meager. Building inspector Yeager testified that he did not inspect the property because his employers had instructed him not to inspect buildings under construction at the time the U.B.C. was adopted. He testified that he had inspected between ten and fifteen other buildings in the Aspen Trails subdivision and in the course of the inspections had driven by the McEwan residence and must have glanced at the deck. Yeager also testified that he was once at the McEwan residence while the construction was in progress to inquire about the services of a rock mason who was performing work on the McEwan property. McEwan testified that Yeager came to the house once in 1974 and once in 1975. McEwan related that during the 1974 visit Yeager spoke to a friend of McEwan who was putting up siding, but McEwan did not see Yeager write anything down. In 1975 Yeager was on the property for a few minutes and talked to a rock mason hired by McEwan. McEwan testified that Yeager was on the deck during both visits, and that although the western guardrail was probably in place in 1975, no guardrail existed during the 1974 visit. McEwan testified that he thought it was obvious that Yeager was inspecting the property in 1975. McEwan also testified that someone from the county assessor's office visited the property once.

In October of 1980, McEwan rented the cabin to Don Cole. On March 10, 1982, Moreland met Cole in Durango shortly after 5:00 p.m. They consumed some alcoholic beverages and then proceeded to Cole's cabin to continue their conversation. ⁵ After dark, Moreland walked onto the deck, thinking he would depart by way of the steps leading from the deck to the ground. He walked northerly along the western side of the deck with his hand upon the...