City and County of Denver v. Austria, 18061
| Decision Date | 09 December 1957 |
| Docket Number | No. 18061,18061 |
| Citation | 318 P.2d 1101,136 Colo. 454 |
| Parties | CITY AND COUNTY OF DENVER, Plaintiff in Error, v. Leonard AUSTRIA, Defendant in Error. |
| Court | Colorado Supreme Court |
John C. Banks, Ty R. Williams, John D. Saviers, Denver, for plaintiff in error.
Allen P. Mitchem, George A. Holley, Denver, for defendant in error.
In keeping with a time-honored custom, the City and County of Denver in the preholiday or Christmas season of 1953, placed its elaborate Christmas decorations on its municipal building. This building houses the offices used for governmental functions as well as some other activities permitted and allowed therein. These decorations remain on the building a month or more after the holiday season.
February 1, 1954, the city was in the process of removing said decorations and in doing so had placed a wire mesh fence across the front steps of the building and this fence was in place after darkness on the evening of February 1 when defendant in error, hereinafter referred to as plaintiff, attempted to gain entrance to the building at about eight o'clock p. m. to return items of music to a rental library maintained on the 4th floor of the building, and he fell over the fence, sustaining injuries for which he recovered a judgment in the sum of $3,600.
It is stipulated that the rental library remained open until nine o'clock p. m. on the evening in question. Under the circumstances, plaintiff was an invitee. The evidence discloses that there were some warning signs posted, but nothing in the evidence to show that they were posted in a conspicuous place or that they were lighted to the extent that they could have been seen by a prudent person attempting to enter the building. The evidence is undisputed that there were no lights on the stairway. There was sufficient evidence concerning the maintenance of the conditions, and that plaintiff's injuries resulted from a fall over the fence so constructed and maintained, and to show that the injuries were proximately caused by defendant's negligence.
Final determination of this case rests upon the question of whether the city was acting in its governmental capacity or functions, or in its proprietary capacity.
Plaintiff filed his complaint by which he failed to allege negligence on the part of the city in its proprietary capacity, and on motion, this complaint was dismissed; however, the record discloses that simultaneously with the order of dismissal was an...
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Parish v. Pitts
...Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); Rueter v. Village of Versailles, 213 F.2d 233 (CA 7 1954); City and County of Denver v. Austria, 136 Colo. 454, 318 P.2d 1101 (1957). (17) Negligent operation of parks and equipment. City of Kingsport v. Lane, 35 Tenn.App. 183, 243 S.W.2d 289 (1......
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...of Denver, 113 Colo. 543, 160 P.2d 363; Atkinson v. City and County of Denver, 118 Colo. 322, 195 P.2d 977; City and County of Denver v. Austria, 136 Colo. 454, 318 P.2d 1101. This differential between governmental and proprietary powers conferred upon municipal corporation controls the que......
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...a purely governmental function); accord Doerr v. City of Newark, 128 N.J.L. 491, 27 A.2d 198 (N.J.1942); cf. City & County of Denver v. Austria, 136 Colo. 454, 318 P.2d 1101 (1957) (city went beyond governmental functions in erecting Christmas decorations at courthouse and therefore was lia......
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