Jefferson County School Dist. R-1 v. Justus By and Through Justus

• Decision Date: 08 September 1986
• Docket Number: P,No. 84SC158,R-1,84SC158
• Citation: 725 P.2d 767
• Parties: 34 Ed. Law Rep. 1235 JEFFERSON COUNTY SCHOOL DISTRICTetitioner, v. Larry Gene JUSTUS, By and Through his Conservator and Father, J.D. JUSTUS, Respondent.
• Court: Colorado Supreme Court

Page 767

725 P.2d 767

34 Ed. Law Rep. 1235

JEFFERSON COUNTY SCHOOL DISTRICT R-1, Petitioner, v. Larry Gene JUSTUS, By and Through his Conservator and Father, J.D. JUSTUS, Respondent.

No. 84SC158.

Supreme Court of Colorado,

En Banc.

Sept. 8, 1986.

Rehearing Denied Oct. 14, 1986.

Caplan & Earnest, Gerald A. Caplan, Alexander Halpern, Boulder, for petitioner.

Charles Welton & Associates, Charles Welton, Denver, for respondent.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nancy Connick, Asst. Atty. Gen., Cheryl M. Karstaedt, Denver, amicus curiae.

The Colorado Ass'n of School Boards, Lauren B. Kingsbery, Denver, amicus curiae.

Colorado Trial Lawyers Ass'n, Gerald P. McDermott, Denver, amicus curiae.

ROVIRA, Justice.

We granted certiorari to review the court of appeals decision in Justus v. Jefferson County School District R-1, 683 P.2d 805 (Colo.App.1984), on the issue of whether the court of appeals erred in holding that the petitioner, Jefferson County School District, had assumed the duty of preventing certain students from leaving school grounds on bicycles. We now affirm in part, reverse in part, and remand with directions.

I.

Respondent, Larry Gene Justus, brought an action against petitioner, the Jefferson County School District R-1 (the school district), and others for damages resulting from injuries suffered on October 23, 1980, when he was struck by an automobile while riding his bicycle home from Eiber Elementary School in Lakewood, Colorado. Respondent was a six-year-old first-grade student at the time of the accident. He usually traveled to and from school on a school district bus. On the day in question, however, he either missed his morning bus or did not realize that his bus was late, and rode his bicycle to school without his parents' knowledge. While returning home on his bicycle that afternoon, he was injured at an intersection more than three blocks from the school.

At the beginning of the school year, Eiber Elementary School distributed to parents a "Handbook of Rules and Regulations" which described the rules governing various aspects of school procedure, including bus use and bicycle use. ¹ Parents were required to sign and return a form showing that they had received the handbook. Pertinent provisions of the handbook stated:

Bicycle Safety:

Adequate instruction to bicycle riders concerning signaling, riding on the right side of the street, and other vehicular traffic laws is primarily the responsibility of the parents. The privilege of riding a bicycle to school is given to students in grades 4, 5, and 6 and should be dependent on the child's adherence to safety practices. Bicycles are to be placed in the bicycle rack and locked while they are at school.

....

Bus Procedures:

....

Bus students are to stay back of the curb when the bus is approaching. They must walk when getting on or off the bus. They should report to the bus stop about five minutes before pick-up time. No student should appear at the bus stop to loiter around for twenty or thirty minutes. Know the time your child should be at the bus stop and see to it that he/she arrives at the bus stop near that time.

Students who do not plan to ride the bus on a particular day should bring notification to school from parent or guardian indicating that they will not be riding the bus.

Non-bus students are not allowed to ride the bus home to visit another student.

Only in extreme babysitting emergencies will non-bus students be allowed to ride the bus or for bus students to change buses.

The school principal also assigned teachers to patrol the front of the school at the close of the school day. In its brief before the court of appeals, the school district admitted to the following description by respondent of the teachers' functions:

The purpose of the teachers, variously stated, was to maintain general order, to watch for general discipline, and to be available to answer general questions. They were to watch to be sure that bus students got on buses and that the bicycle students left school in a safe fashion. The teachers did not specifically watch, regulate or attend to the use of bicycles by students. The teachers did not have their list of bus students or bus assignments with them.

Brief of the Appellee at 7 (quoting Appellant's Opening Brief at 4) (citations to record omitted).

Respondent claimed that the school district was negligent in failing to prevent him from riding his bicycle home from school. The trial court granted summary judgment in favor of the school district and ruled that the school district had no duty to protect students from foreseeable harm existing off school premises. The court also concluded that evidence contained in the pleadings and respondent's affidavits was insufficient to support a legitimate inference that the school district had assumed a duty to prevent petitioner from leaving school on a bicycle.

The court of appeals reversed the district court's order granting summary judgment. It pointed out various practices and procedures followed by Eiber Elementary School and held, on the basis of the regulations contained in the handbook and the placement of teachers in front of the school, that the district had assumed the duty to prevent certain students from leaving school grounds on a bicycle:

The school, by its rules and regulations, undertook to restrict those students who would be permitted to travel to and from school by bus or bicycle. It implemented these regulations by placing teachers on guard to enforce the regulations, and it informed the parents that the regulations were in force. The school was also aware of off-premises dangers to students of plaintiff's age. It therefore assumed a duty to prevent a first grade student from leaving the grounds on a bicycle.

Justus, 683 P.2d at 807. Based on this conclusion, the court of appeals reversed the order of summary judgment and remanded the case for trial on three issues: (1) whether the duty it had found was breached; (2) whether such a breach, if found, was the cause of respondent's injuries; and (3) if so, a determination of damages. Id.

The school district contends that the court of appeals erred in concluding that, as a matter of law, it assumed a duty to prevent respondent from leaving the school grounds on a bicycle. It also argues that the trial court's entry of summary judgment was appropriate because the respondent introduced no evidence to show that he or his parents relied on the district to prevent him from leaving school on a bicycle. We address these contentions in the order stated.

II.

Before a defendant may be found liable for negligent conduct, it must be established that the defendant owed a duty to the person injured. Roessler v. O'Brien, 119 Colo. 222, 226-27, 201 P.2d 901, 903 (1949); Turner v. Grier, 43 Colo.App. 395, 397, 608 P.2d 356, 358 (1979). Normally, whether or not a defendant owes a duty to a particular plaintiff and the scope of that duty are questions of law to be determined by the court. See Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980). The determination of whether a duty of care exists in a particular situation involves weighty policy questions whose resolution requires consideration of a number of different factors. See Turner v. Grier, 43 Colo.App. at 397 n.1, 608 P.2d at 358 n. 1; see also Wheeler v. County of Eagle, 666 P.2d 559, 562 (Colo.1983) (Rovira, J., dissenting) (quoting Raymond v. Paradise Unified School District, 218 Cal.App.2d 1, 31 Cal.Rptr. 847, 851-52 (1963)). Courts addressing these policy considerations have concluded that the common law custodial duty of a school towards its students only requires a school district to protect children against the foreseeable negligence of third parties while the children are in its charge. See, e.g., Pratt v. Robinson, 39 N.Y.2d 554, 559-60, 349 N.E.2d 849, 852, 384 N.Y.S.2d 749, 752 (1976) (district not liable to student injured while crossing street several blocks from where she had been discharged by school bus); Wright v. Arcade School District, 230 Cal.App.2d 272, 40 Cal.Rptr. 812 (1964) (no duty to five-year-old injured while crossing street on his way to school); see also Justus, 683 P.2d at 807 ("Under most circumstances, there would be no duty as to the protection of the pupils off the school premises.") (citing Turner v. Grier).

However, in addition to those duties imposed by law solely on the basis of the relationship between parties, a separate and distinct body of law holds that a party may assume duties of care by voluntarily undertaking to render a service. ² See Lester v. Marshall, 143 Colo. 189, 352 P.2d 786 (1960); Wright v. Arcade School District, 40 Cal.Rptr. at 814; Restatement (2d) of Torts § 323 (1965); cf. Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955) ("[I]t is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his 'good Samaritan' task in a careful manner"). In Lester v. Marshall we held:

Where a person represents by word or act that he has done or will do something upon the performance of which he should realize that others will rely, he is liable for expectable harm caused by the reliance of others and his failure of performance, if his representation was negligently or intentionally false, or if without excuse he fails to perform.

143 Colo. at 197-98, 352 P.2d at 791 (quoting Seavey, Reliance on Gratuitous Promises or Other Conduct, 64 Harv.L.Rev. 913, 928 (1951)). The American Law Institute's Second Restatement of Torts sets out this same rule in somewhat different form:

§ 323. Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject...