Flournoy v. Sayles, 75--134

Decision Date23 October 1975
Docket NumberNo. 75--134,75--134
Citation544 P.2d 649,37 Colo.App. 67
PartiesRoy FLOURNOY and Ruth Flournoy, Plaintiffs-Appellants, v. Delores I. SAYLES et al., Defendants, and School District Number One in the City and County of Denver and State of Colorado, Defendant-Appellee. . III
CourtColorado Court of Appeals

Walter L. Gerash, P.C., Walter L. Gerash, Thomas Frank, Denver, for plaintiffs-appellants.

Henry, Cockrell, Quinn & Creighton, Michael H. Jackson, Peter J. Wiebe, Jr., Edward J. Lemons, Denver, for defendant-appellee.

PIERCE, Judge.

This is an appeal from a summary judgment entered in favor of defendant School District Number One (the District). We affirm.

This action was initiated after plaintiffs' son David was killed when struck by an automobile driven by defendant Sayles. The accident occurred when David, a student at Gove Junior High School, was attempting to cross Colorado Boulevard in order to reach the school playground during a regularly scheduled gym class. Plaintiffs' amended complaint alleged as a first claim for relief that their son had been killed as a result of the negligence of defendant Sayles in the operation of a motor vehicle. As a claim for relief against defendant McComas, then the principal of the school, the plaintiffs alleged that McComas had committed numerous acts of negligence while acting as an agent of the defendant District with regard to the supervision of the school, which acts resulted in David's death.

The plaintiffs' third claim for relief was against the District and defendant Oberholtzer, who was at that time the Superintendent of the District. This claim alleged that Oberholtzer and the District were in charge and in control of the operations of the school, the faculty, and defendant McComas, and that the agents, servants and employees of Oberholtzer and the District, acting within the scope of their employment, negligently failed to provide a sufficient staff to supervise Gove students properly in crossing Colorado Boulevard.

The trial court granted summary judgment in favor of the District on the basis of governmental immunity. On appeal, the Colorado Supreme Court abrogated the doctrine of governmental immunity, reinstating the amended complaint insofar as it related to the District. Flournoy v. School District Number One, 174 Colo. 110, 482 P.2d 966. Meanwhile, the amended complaint as it pertained to defendants McComas and Oberholtzer was dismissed upon their motion for judgment on the pleadings.

Prior to the announcement of Flournoy v. School District Number One, supra, a second amended complaint was filed, in which the plaintiffs asserted claims for relief against only defendants Sayles, McComas, and Oberholtzer. The trial court subsequently granted McComas and Oberholtzer judgment on the pleadings. The Supreme Court again reversed, holding that although governmental officials are not liable under the doctrine of respondeat superior for the negligence of public employees, they may nonetheless be liable for their own negligence. Flournoy v. McComas, 175 Colo. 526, 488 P.2d 1104. Further, the court held that the allegations in the second amended complaint were sufficient to state a possible cause of action based on the individual negligence of McComas and Oberholtzer, noting in passing the non-applicability of the doctrine of respondeat superior to public officials. However, the court did not decide whether McComas or Oberholtzer had failed to exercise due care in the performance of their official duties; rather, the decision went no further than to hold that the two officials were not entitled to judgment on the basis of the pleadings alone. The court indicated, however, that the claim for relief asserted against McComas and Oberholtzer might be capable of resolution on a motion for summary judgment.

After remand, the defendants McComas and Oberholtzer moved for summary judgment. The trial court granted the motion, dismissing them from the litigation. The propriety of summary judgment as to those two defendants was not appealed.

The defendant District subsequently moved for summary judgment. The motion was granted by the trial court, and constitutes the subject matter of this appeal. Plaintiffs contend that summary judgment was improperly granted as there remains a material issue of fact pertaining to the issue of causation. They...

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6 cases
  • Carpenter v. Young By and Through Young
    • United States
    • Colorado Supreme Court
    • May 15, 1989
    ...superior action against the employer. See Sanchez v. Rice, 40 Colo.App. 481, 483, 580 P.2d 1261, 1262 (1978); Flournoy v. Sayles, 37 Colo.App. 67, 70, 544 P.2d 649, 652 (1975). Such a bar arises by virtue of collateral estoppel and consequently applies only if the judgment is final. 3 See, ......
  • Cheney v. Hailey, 82CA1225
    • United States
    • Colorado Court of Appeals
    • February 23, 1984
    ...that dismissal operates as an adjudication upon the merits as to the claim only against Johnson. In reliance on Flournoy v. Sayles, 37 Colo.App. 67, 544 P.2d 649 (1975), Hailey and American Red Ball argue that plaintiffs are barred from asserting claims resting in respondeat superior agains......
  • Meyer v. Stern
    • United States
    • U.S. District Court — District of Colorado
    • December 14, 1984
    ...absolved by a judgment on the merits, an action based upon secondary or vicarious liability must also fail. See Flournoy v. Sayles, 37 Colo. App. 67, 544 P.2d 649, 652 (1975). The effect of a release and dismissal with prejudice is not as clear. Both parties agree that Colorado law should b......
  • Young By and Through Young v. Carpenter, 86CA0014
    • United States
    • Colorado Court of Appeals
    • February 18, 1988
    ...dismissal on the merits, and it thereafter precludes an action against the employer based upon vicarious liability. Flournoy v. Sayles, 37 Colo.App. 67, 544 P.2d 649 (1975). In a situation such as the one here, in which a party brings suit asserting multiple claims or when multiple parties ......
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