Mile High Fence Co. v. Radovich, No. 23496

Docket NºNo. 23496
Citation28 Colo.App. 400, 474 P.2d 796
Case DateJuly 21, 1970
CourtCourt of Appeals of Colorado

Page 796

474 P.2d 796
28 Colo.App. 400
MILE HIGH FENCE COMPANY, a Colorado corporation, Plaintiff in Error,
v.
Walter RADOVICH, Defendant in Error.
No. 23496.
Colorado Court of Appeals, Div. II.
July 21, 1970.
Rehearing Denied Aug. 11, 1970.
Certiorari Granted Oct. 1, 1970.

[28 Colo.App. 401]

Page 797

Sheldon, Bayer, McLean & Glasman, George M. Allen, Denver, for plaintiff in error.

Bruno & Bruno, H. D. Reed, Denver, for defendant in error.

[28 Colo.App. 402] PIERCE, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

The parties appear here in reverse order of their appearance at trial and are referred to in this opinion by their trial court designation.

The matter before this Court for review is the trial court's judgment on the issue of defendant's liability for personal injuries received by plaintiff from stepping into a hole dug by defendant on private property belonging to a third party not here involved.

Page 798

At the time of the accident, plaintiff was a Denver police officer performing his duties.

The record shows that at approximately 11:00 p.m. on February 23, 1966, plaintiff, while conducting surveillance of a known prostitute and her prospective customer, was walking down an alley abutting property on which defendant was constructing a fence. While so doing, he stepped into a hole dug by defendant, located near the edge of the paved portion of the alley, and broke his left leg at the knee. He required hospitalization and treatment commensurate to that injury. He thereafter sued defendant to recover for his injuries, and received judgment.

Uncontroverted testimony showed (1) that the hole into which plaintiff stepped was a post hole, approximately 15 inches in diameter and three feet in depth, dug [28 Colo.App. 403] by defendant in connection with the construction of a fence for the property owners; (2) that the hole was only seven inches removed from the paved portion of the alley; (3) that posts had already been inserted in all other such holes on either side of the subject hole, and that the subject hole was the only one without a post inserted in it; (4) that there were no warning lights, barricades or other protective devices guarding the hole; and (5) that the area was unlit, except for background light coming from the streetlights and business establishments in the surrounding area.

Testimony also indicated that there was sufficient background light for plaintiff to see the existing row of fence posts and other objects in the alley; but that he was unable to see the subject hole and was unaware that he was off of the alley and onto private property. Further, testimony showed that the dirt bordering the hole was level with the alley and was frozen hard; but that some of it was on the paved portion of the alley itself. Finally, although plaintiff had a flashlight in his possession, he did not use it.

Based upon this evidence, the court found defendant liable for creating a hazardous condition which proximately caused plaintiff's injuries, and awarded plaintiff damages.

Defendant assigns as error (1) the trial court's failure to direct a verdict in its favor, on grounds that plaintiff was a licensee on private property at the time of his injury, to whom defendant owed no duty; and (2) the trial court's failur to find plaintiff contributorily negligent as a matter of law.

[28 Colo.App. 404] DIRECTED VERDICT ISSUE

The substance of defendant's first...

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9 practice notes
  • Hopkins v. Fox & Lazo Realtors
    • United States
    • United States State Supreme Court (New Jersey)
    • June 16, 1993
    ...Sitka, 561 P.2d 731 (Ak.1977); Rowland, supra, 443 P.2d 561; Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), aff'g 28 Colo.App. 400, 474 P.2d 796 (1970); Pickard v. Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Keller v. Mols, 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.......
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...granted in this case to review the decision of the Colorado Court of Appeals affirming the trial court, Mile High Fence Co. v. Radovich, 28 Colo.App. 400, 474 P.2d The pertinent facts are: At approximately 11:00 p.m. on February 23, 1966, Radovich, a police officer, was conducting a surveil......
  • Rosenau v. City of Estherville, No. 55092
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1972
    ...the status is not determinative.' Page 136 Other recent decisions adopting the same rule are Mile High Fence Company v. Radovich, 28 Colo.App. 400, 474 P.2d 796 (1970), aff'd, 489 P.2d 308 (Colo.1971); Pickard v. City and County of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969). Still other j......
  • Ouellette v. Blanchard, No. 7325
    • United States
    • Supreme Court of New Hampshire
    • September 30, 1976
    ...he unexpectedly fell through a hold in the floor in the restroom of the defendant's courthouse. In Mile High Fence Company v. Radovich, 28 Colo.App. 400, 474 P.2d 796 (1970), an on-duty police officer, characterized by the defendant as a licensee, was injured as he walked down an alley in t......
  • Request a trial to view additional results
9 cases
  • Hopkins v. Fox & Lazo Realtors
    • United States
    • United States State Supreme Court (New Jersey)
    • June 16, 1993
    ...Sitka, 561 P.2d 731 (Ak.1977); Rowland, supra, 443 P.2d 561; Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), aff'g 28 Colo.App. 400, 474 P.2d 796 (1970); Pickard v. Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Keller v. Mols, 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.......
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...granted in this case to review the decision of the Colorado Court of Appeals affirming the trial court, Mile High Fence Co. v. Radovich, 28 Colo.App. 400, 474 P.2d The pertinent facts are: At approximately 11:00 p.m. on February 23, 1966, Radovich, a police officer, was conducting a surveil......
  • Rosenau v. City of Estherville, No. 55092
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1972
    ...the status is not determinative.' Page 136 Other recent decisions adopting the same rule are Mile High Fence Company v. Radovich, 28 Colo.App. 400, 474 P.2d 796 (1970), aff'd, 489 P.2d 308 (Colo.1971); Pickard v. City and County of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969). Still other j......
  • Ouellette v. Blanchard, No. 7325
    • United States
    • Supreme Court of New Hampshire
    • September 30, 1976
    ...he unexpectedly fell through a hold in the floor in the restroom of the defendant's courthouse. In Mile High Fence Company v. Radovich, 28 Colo.App. 400, 474 P.2d 796 (1970), an on-duty police officer, characterized by the defendant as a licensee, was injured as he walked down an alley in t......
  • Request a trial to view additional results

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