Collard v. Vista Paving Corp.

• Decision Date: 21 November 2012
• Docket Number: No. 12CA0153.,12CA0153.
• Parties: Gail COLLARD, Plaintiff–Appellant, v. VISTA PAVING CORPORATION, Defendant–Appellee.
• Court: Colorado Court of Appeals

292 P.3d 1232

Gail COLLARD, Plaintiff–Appellant,

v.VISTA PAVING CORPORATION, Defendant–Appellee.

No. 12CA0153.

Colorado Court of Appeals, Div. I.

Nov. 21, 2012.

Killian Davis Richter & Mayle, P.C., J. Keith Killian, Damon J. Davis, Grand Junction, Colorado, for Plaintiff–Appellant.

Murphy Decker Hensen & Cook–Olson, P.C., Daniel P. Murphy, C. Todd Drake, Eric M. Kirby, Littleton, Colorado, for Defendant–Appellee.

Opinion by Judge LOEB.

¶ 1 In this personal injury action involving a road construction project, plaintiff, Gail Collard, appeals the summary judgment entered in favor of defendant, Vista Paving Corporation (Vista). Specifically, she contends the district court erred in ruling that Vista did not owe her a duty of care under either the Premises Liability Act or under common law negligence. Collard also appeals the district court's order awarding costs to Vista. We affirm the summary judgment in part and reverse it in part, vacate the award of costs, and remand for further proceedings.

¶ 2 With respect to Collard's common law negligence claim, we conclude, as a matter of first impression, that when a road contractor such as Vista completes its contracted work and then leaves the site in a dangerous condition as a result of its work, the contractor has a tort duty to third parties for a reasonable period of time either to eliminate the condition or to warn foreseeable users of the dangers that could foreseeably result in injuries, even if its work has been accepted by the owner or other contracting party. However, we also conclude that no such duty exists if the contractor had a good-faith reasonable belief that, after the contractor completed its work, another party, authorized to do so, would promptly take the necessary measures to eliminate the danger or provide adequate warnings to foreseeable users of the road.

I. Background and Procedural History

¶ 3 In 2007, the City of Grand Junction (the City) initiated a large sidewalk improvement construction project. As pertinent here, Vista was hired by the City to construct two road medians on Wellington Avenue according to plans, designs, and specifications developed and provided by the City. The two medians were to be built in the center of the road, approximately eight inches high and eleven feet wide.

¶ 4 Undisputed evidence submitted by the parties in connection with Vista's summary judgment motion showed that Vista commenced its work on the Wellington medians on or around July 9, 2007. While it was constructing the medians, Vista was responsible for traffic control pursuant to its contract with the City. Gabriel Gutierrez, one of Vista's owners, was the certified work site traffic supervisor and developed Vista's traffic control plan, which included signage and placement of safety cones at the work site. On July 19, 2007, Vista completed its construction of the Wellington medians. On that date, Pat McGarry, the City's project inspector for the Wellington medians, conducted his final inspection of Vista's work. After his inspection, he told Vista that its median work had been completed and that Vista was authorized to leave the site. Vista requested permission to remove the traffic control devices “because they were going to be in the way,” and it “had to pick them up one way or another.” McGarry agreed ¹ and Vista did so. At that time, the yellow dividing line in the center of Wellington Avenue continued straight into the medians.

¶ 5 In his deposition, McGarry also testified that after his inspection of the medians, he notified the City's traffic control division, that Vista's construction was complete and that it could “come in at any time and do their striping [and] do the delineations that they were going to put at the end of the island” to ensure the site was safe for motorists. There appears to be no direct evidence in the record, however, that McGarry told Vista of this conversation or that he told Vista when the City would install safety signage at the medians and readjust the striping of the lane on Wellington Avenue. ² In his affidavit submitted in support of Vista's summary judgment motion, McGarry stated, “Upon completion of its work on the Wellington Medians, Vista was no longer responsible for traffic control at the [medians].” Similarly, in his affidavit, Justin Vensel, the City's project manager for the medians, stated, “Vista had no control over or responsibility for the [medians] or the traffic control for this location after July 19, 2007. Additionally, Vista was not responsible for installing pedestrian light poles, flashers, reflectors, or other warnings at the [medians].”

¶ 6 For at least five days after Vista's completion of the median construction, the City did not put any traffic control devices in place at the medians, nor did it repaint the yellow dividing line in the center of Wellington Avenue. Thus, as noted, the line continued straight down the center of the road and into the center of one of the new medians. The City began the next phase of its work on the medians after Vista left, and City work logs reflect that on July 23 it “cleaned up the jobsite at the [medians].”

¶ 7 Around 3:30 a.m. on July 24, 2007, a truck collided with the newly constructed median, flattening two tires and damaging its tire rims. The record contains disputed evidence regarding whether security personnel from a nearby hospital placed green traffic cones in the road near the median after this accident.

¶ 8 At approximately 5:30 a.m. that morning, Collard was driving on Wellington Avenue and collided with the medians, totaling her vehicle and suffering injuries. The accident report stated that Collard had limited visibility due to condensation on the interior of her car windows and that she never saw the medians or any traffic cones allegedly placed near the medians by the hospital security personnel. Collard was cited for careless driving.

¶ 9 After Collard's accident, the City repainted the center line on Wellington to direct traffic around the new medians, installed two white poles with reflective tape at the front of the medians, and installed a flashing walk light for pedestrians. There is no evidence in the record that the City ever asked Vista to return to the medians to perform any additional work.

¶ 10 Collard brought this action, alleging claims against the City and Vista under Colorado's Premises Liability Act, § 13–21–115, C.R.S.2012 (the PLA), and common law negligence. She asserted that Vista breached its duty to her when it created a hazardous condition by building the medians and leaving the construction site in a dangerous condition without safety signage; and that the City breached its duty to properly maintain, supervise, and care for the construction and condition of its streets. The City was dismissed from the suit based on immunity under Colorado's Governmental Immunity Act, §§ 24–10–101 to –120, C.R.S.2012.

¶ 11 After substantial discovery by both parties, Vista filed a motion for summary judgment, arguing (1) that, as a matter of law, it was not a landowner and, thus, could not be liable under the PLA; and (2) that it owed no common law tort duties to Collard and, thus, could not be liable for negligence.

¶ 12 After full briefing, the district court granted Vista's motion for summary judgment, finding no material issues of fact warranting a trial on Collard's claims under the PLA or under common law negligence. With respect to the PLA claim, the court concluded that Vista was not a landowner under the PLA because (1) it had surrendered control of the medians to the City on July 19, 2007, (2) nothing in the contract provided that Vista would maintain control over the medians after completion of its work, and (3) Collard had presented no evidence to the contrary.

¶ 13 With respect to Collard's common law negligence claim, the court ruled that Vista owed Collard no duty after it completed its work on the medians and relinquished control of the site to the City. The court determined that there were no disputed material issues of fact that the City had accepted Vista's work and that the City had reassumed control of the work site on July 19. The court ruled that Vista had no legal duty to maintain safety devices or traffic control signage at the medians after its work was completed and accepted by the City. The court also ruled that there was no material issue of fact as to whether Vista had created a hazardous condition when it constructed the medians, reasoning that, because the City, not Vista, designed the project, there was no possible claim against Vista for negligent design of the medians.

¶ 14 Collard subsequently sought reconsideration of the order granting summary judgment on the negligence claim, which, in effect, was a C.R.C.P. 59 motion for a new trial. The district court denied that motion in a subsequent written order.

¶ 15 This appeal followed.

II. Standard of Review

¶ 16 We review the grant of summary judgment de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo.2008). Summary judgment is appropriate only if the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.2002). In determining whether summary judgment is proper, we give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo.2007).

¶ 17 The moving party has the initial burden to show that there is no genuine issue of material fact. Greenwood Trust Co. v. Conley, 938 P.2d 1141, 1149 (Colo.1997). When a party moves for summary judgment on an issue upon which the party would not bear the burden of persuasion at trial, the moving party's initial burden of production...