Mile High Fence Co. v. Radovich, 23496

• Decision Date: 21 July 1970
• Docket Number: No. 23496,23496
• Citation: 28 Colo.App. 400,474 P.2d 796
• Parties: MILE HIGH FENCE COMPANY, a Colorado corporation, Plaintiff in Error, v. Walter RADOVICH, Defendant in Error. . II
• Court: Colorado Court of Appeals

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.

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

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

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.

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 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.

DIRECTED VERDICT ISSUE

The substance of defendant's first assignment of error is that the trial court erred in not finding that plaintiff, as a police officer coming onto private property for purposes other than the benefit of the owner/occupier of that property, was a licensee by operation of law, to whom the owner/occupier had no duty of care and to whom defendant, as an independent contractor performing work for the owner and therefore standing in the owner's shoes, also had no duty of care.

We have long been restricted by a straightjacket of highly technical and arbitrary classifications as to the duties of landowners in respect to injured entrants, which have often led to confusion in the law and inequity in the results of decided cases. Recovery of an entrant has largely been a matter of chance, dependent upon into which pigeonhole the law out him--e.g., 'trespasser,' 'licensee' or 'invitee'--each of which had radically different consequences in law.

However, a recent trend toward abolishing these rigid concepts has been pronounced (e.g., Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496, and Taylor v. New Jersey Highway Authority,22 N.J. 454, 126 A.2d 313). In Colorado, the distinctions have apparently been, if not completely abolished, at least relegated to their proper Even though the above categories are a factor which the finder of fact should still consider, the principal question should not be, 'In what category shall we place the injured person?', but rather, 'Did the owner (or party responsible for the particular condition of the premises) act as a reasonable person in view of the probability of injury to persons entering upon the property?'. Kenney, supra, and Rowland, supra.

place. Kenney v. Grice, Colo., 465 P.2d 401. An entrant's status as a 'trespasser,' 'licensee' or 'invitee' is no longer controlling, but only one element among many to be considered in determining the landowner's liability under ordinary standards of negligence, with the duty required [28 Colo.App. 405] of the landowner (or the person charged with responsibility for the condition of the land, as in this cast) being no more or no less than that of any other alleged tortfeasor: he must conduct himself as a reasonable man under the circumstances, on land which he controls as well as in other places....