Martinez v. City of Lakewood, 81CA1006

• Decision Date: 19 August 1982
• Docket Number: No. 81CA1006,81CA1006
• Citation: 655 P.2d 1388
• Parties: Delicia MARTINEZ and Reynaldo Martinez, Plaintiffs-Appellants, v. CITY OF LAKEWOOD, a municipal corporation, Defendant-Appellee, and Jerome G. Downing, Personal Representative of the Estate of Olive McCaffery, also known as Olive Georgianna McCaffery, decedent, Defendant. . II
• Court: Colorado Court of Appeals

Page 1388

655 P.2d 1388

Delicia MARTINEZ and Reynaldo Martinez, Plaintiffs-Appellants, v. CITY OF LAKEWOOD, a municipal corporation, Defendant-Appellee and Jerome G. Downing, Personal Representative of the Estate of Olive McCaffery, also known as Olive Georgianna McCaffery, decedent, Defendant.

No. 81CA1006.

Colorado Court of Appeals Div. II.

Aug. 19, 1982.

Rehearing Denied Sept. 16, 1982.

Certiorari Denied Dec. 13, 1982.

Hoffman & McDermott, Gene M. Hoffman, Leland P. Anderson, Denver, for plaintiffs-appellants.

Wood, Ris & Hames, P.C., F. Michael Ludwig, Joel A. Moritz, Denver, for defendant-appellee.

BERMAN, Judge.

In this personal injury action, plaintiffs, Delicia and Reynaldo Martinez, appeal the summary judgment granted by the district court premised on its ruling that there was no duty owed to the plaintiffs by defendant City of Lakewood (City). We reverse and remand.

The accident out of which this action arose occurred as Delicia Martinez attempted to cross a Lakewood street in an area of that street which is unimproved and contains no crosswalks or sidewalks. After leaving work and proceeding down the driveway from her place of business, Delicia stepped into the street either in front of or behind an illegally parked car and was struck by an oncoming car proceeding south. A photograph submitted into evidence showed that an existing "no parking" sign was obscured by overgrowth.

The trial court granted the defendant's motion for summary judgment based upon the fact that "this is a nonfeasance type of tort theory of liability that the plaintiff seeks to impose upon the City of Lakewood" and "if there is any duty owed by the city, I would have to hold that it was a duty to the public at large and, therefore, this particular plaintiff cannot recover based upon such a duty." The court then stated that it would have ruled differently if the City had taken some action and installed some sidewalks or provided ingress or egress or crosswalks.

The plaintiffs allege that the trial court erred when it found that this was a case of nonfeasance. They stress that the undisputed evidence demonstrates that the City of Lakewood took affirmative action to alleviate a known hazardous condition, specifically the poor visibility for persons and traffic at the intersection of the driveway of the business where the injured plaintiff was employed and the street in question. They further assert that once the defendant undertook this affirmative duty, it was under a duty to act reasonably. Plaintiffs also argue that the trial court improperly ruled, on the authority of Turner v. Grier, 43 Colo.App. 395, 608 P.2d 356 (1979) and Quintano v. Industrial Commission, 178 Colo. 131, 495 P.2d 1137 (1972), that if any duty was owed by the City of Lakewood, it was a public duty, and that there was no special duty to the injured plaintiff.

The City, however, claims that when and whether the City of Lakewood installs crosswalks, sidewalks, stop lights, and no parking signs is within its discretion, as is the extent of its action. The City concedes that a reading of the transcript of the trial court's ruling indicates that the trial court, in relying on Turner v. Grier, supra, and Quintano v. Industrial Commission, supra, fused two separate issues, i.e., whether the City had negligently failed to enforce its "no parking" ordinance and whether the City had a duty to plaintiff to provide crosswalks or sidewalks. However, the City argues that the conclusions reached by the trial court were correct and that if any duty was owed, it was owed to the public generally.

The record demonstrates, through the numerous work orders introduced, that the City was aware that there were "visibility problems" in the area in which the accident occurred. As an attempt to alleviate the visibility problem, a "no parking" sign was posted. The record also substantiates the injured plaintiff's position that at the time of the accident, the car around which the injured plaintiff stepped was illegally parked.

The City is correct in contending that the decision as to whether to install sidewalks, to provide crosswalks, and to provide an ingress or egress is at the discretion of the City. Wheeler v. Baker, 636 P.2d 1326 (Colo.App.1981) (cert. granted November 23, 1981). However, once the City attempted to alleviate the problem, an affirmative duty arose, and it had the duty, to use reasonable care to protect foreseeable plaintiffs. DeCaire v. Public Service Co., 173 Colo. 402, 479 P.2d 964 (1971); Leppke v. Segura, 632 P.2d 1057 (Colo.App.1981). See also Smith v. Godin, 61 Ill.App.3d 480, 18 Ill.Dec. 754, 378 N.E.2d 218 (1978); Payton v. U.S., 679 F.2d 475 (5th Cir.1982).

We hold that the injured plaintiff was a foreseeable victim, in that the purpose behind the attempt to increase visibility was to prevent accidents, both to pedestrians and other automobiles. Left unresolved, and inappropriate for summary judgment, were questions of fact, such as whether poor visibility was the proximate cause of the accident and whether the City breached its duty of care to the plaintiffs.

The plaintiffs contend that the trial court erred when it stated that if any duty were owed it was a public duty and not a special duty to this particular plaintiff. We agree.

The trial court misapplied Turner v. Grier, supra, and Quintano v. Industrial Commission, supra, in making its determination. In Turner v. Grier, supra, the court held that the fire district did not owe a duty to the plaintiff because she was not a foreseeable plaintiff. The opinion stated that while there was a duty owed to the public to provide a reasonably safe ingress and egress to and from the school grounds where a special show was taking place, it did not extend to a public road where the accident occurred, 150 yards away from the area...