Mile High Fence Co. v. Radovich

Decision Date20 September 1971
Docket NumberNo. C--31,C--31
PartiesMILE HIGH FENCE COMPANY, Petitioner, v. Walter RADOVICH, Respondent.
CourtColorado Supreme Court

Sheldon, Bayer, McLean & Glasman, George M. Allen, Denver, for petitioner.

Bruno & Bruno, H. D. Reed, Denver, for respondent.

KELLEY, Justice.

Petition for Writ of Certiorari was 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 796.

The pertinent facts are: At approximately 11:00 p.m. on February 23, 1966, Radovich, a police officer, was conducting a surveillance of a known prostitute and her prospective customer. In so doing, Radovich was walking down an alley abutting property on which Mile High Fence Company (the Company) was constructing a fence. While walking down the alley, Radovich stepped into a post hole dug by the Company and broke his left leg at the knee. The post hole was located on private property seven inches from the edge of the paved portion of the alley and was the only post hole of several which had been dug in connection with the construction of the new fence that did not have a post set in it. The Company had not installed warning lights, barricades, or other protective devices, but the area was indirectly lighted by background lights sufficient to enable Radovich to see the posts along the alley but not the post holes.

Radovich recovered a judgment for damages for the injuries he sustained. Trial was to the court without a jury. The trial court held that the Company was negligent in creating a hazardous condition which proximately caused Radovich's injuries. We affirm that judgment.

The Company sought review alleging as error, first, that Radovich entered the property as a licensee, and, therefore, the Company owed no duty to protect him, and second, that the trial court should have found Radovich contributorily negligent, as a matter of law, for failure to use his flashlight.

The Court of Appeals, in disposing of the first assignment of error, stated:

'An entrant's status as '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 of the landowner (or the person charged with responsibility for the condition of the land, as in this case) being no more or no less than that of any other alleged tort-feasor: he must conduct himself as a reasonable man under the circumstances, on land which he controls as well as in other places.'

After concluding that this determination is a question for the finder of fact, the court continued:

'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?''

The Court of Appeals, in concluding that the classifications of Trespasser, licensee, and Invitee are no longer controlling, relied primarily on Kenney v. Grice, 171 Colo. 185, 465 P.2d 401.

As to the alleged error concerning contributory negligence, the Court of Appeals held that the trial court correctly applied the law, stating that this was basically an issue of fact, and that only in the case of extenuating circumstances will an appellate court determine contributory negligence as a matter of law.

The Company filed a petition for rehearing. The Court of Appeals denied the petition, Judge Dufford dissenting.

Judge Dufford stated that while he agreed with the substantive result reached in the opinion, he felt it confused the state of the law, saying:

'For what is now a long period of time, our Supreme Court, in measuring the duty of care owed to other parties by the owner of premises, has made status classifications based upon whether the other party was a trespasser, a licensee, or an invitee. The Colorado Jury Instructions, which were prepared as of September 1, 1968 by our Supreme Court's Committee on Civil Jury Instructions, includes nine instructions which relate to such status classifications. By its decision in Kenney v. Grice, 171 Colo. 185, 465 P.2d 401, our Supreme Court strongly indicated an intent to abolish the status classifications and to overrule its prior decisions which created such classifications. However, Kenney v. Grice, Supra, does not overrule such cases, nor does it abolish such classifications. Colorado law on this question is therefore unclear at this point in time.'

Kenney v. Grice, Supra, involved the duty of a home owner toward a socal guest. In Kenney, the defendants urged that the proper standard of care owed the plaintiff was that owed to a Licensee; whereas, the plaintiff contended that she was entitled to be classified as an Invitee.

Mr. Justice Day, in Kenney, observed:

'In the case of a social guest it has been said: 'Here is an invitee who is not an invitee.' See 2 Harper & James, The Law of Torts, § 27.11 at 1476. Generally social guests have been classified as licensees. 2 Restatement of Torts 2d, § 330 at 175.'

Under prior Colorado law social guests have been held to be licensees. Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749. This was noted in Kenney, after which Mr. Justice Day concluded:

'However, even if plaintiff were classified as a 'licensee' a Prima facie case of negligence on the part of defendants was established. In our view the same would also be true were the defendants' liability to be considered in the light of general principles of negligence.'

Judge Dufford is correct in his inference that this court has 'strongly indicated an intent to abolish the status classifications and to overrule its prior decisions which created such classifications.' However, because of the peculiar circumstances of Kenney, no well defined policy emerged. Accordingly, here, this court granted certiorari in order to determine whether landowners' duties 1 will continue to turn upon the status of the person injured or whether we shall henceforth require the landowner to meet a standard of reasonable care under all the circumstances.

For reasons which appear below, we have concluded that we can no longer permit a landowner's liability to depend solely upon the status of the plaintiff.

I.

Colorado, like most jurisdictions, has generally followed the common law distinctions between Trespassers, licensees, and Invitees in determining the standard of care owed by the occupier of land towards those who come upon the land. 2 However, it is apparent from an examination of our decisions that on occasion we have departed, in the interest of justice, from strict adherence to the common law classifications and the respective duties imposed thereby. 3 In fact, on occasion, this court has disregarded status and has permitted liability to depend upon a determination of whether the occupant acted as a reasonable man in view of the foreseeability of injury to the entrant. 4 Our departures from status classification took place without reconsideration of the common law rule. This indicates that this court has recognized the problem but has been reluctant to meet it head on. Commentators have suggested numerous reasons to abandon the system; however, those which now compel this court to act are (1) that the system creates confusion and judicial waste, and (2) that by preventing the jury from applying changing community standards to a landowner's duties, a harshness which is inappropriate to a modern legal system has been preserved.

There can be no better example of the confusion and judicial waste resulting from the common law classifications than Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; 82 Colo. 497, 261 P. 872; 88 Colo. 422, 298 P. 646; 92 Colo. 464, 21 P.2d 1116. This litigation was four times before this court as the result of the common law status classifications.

II.

Rigid adherence to common law classifications results in the resolution, in many instances, of the owner's liability as a matter of law. Regarding the usurpation of the jury function, one commentator observed:

'The common law classifications often resolve the occupier's liability as a matter of law, whether by summary judgment * * * or by nonsuit or directed verdict. Where such cases do reach the jury, it is often for consideration of the plaintiff's status rather than for the more fundamental question of whether the defendant has acted carelessly. Thus the jury is deprived of the flexibility necessary to allow it to assess the burden of liability on the facts of each case in accord with community standards.' 44 N.Y.U.L.R. 426, 430 (1969).

In Colorado, determination, without benefit of jury, has been the rule rather than the exception.

Thus, trial court determinations that the plaintiff was a trespasser rather than a licensee, 5 or a licensee rather than an invitee, 6 have kept the injured party from having a jury determination on the issue of negligence. Similarly, where a trepassing child has been injured, court conclusions as to the unusualness or the attractiveness of the features of the land have prevented jury consideration of the defendant's activities. 7 Where verdicts have been rendered, they have been overturned either because this court has characterized the plaintiff differently from the trial court 8 or because the classifications covered by the jury instructions would not support the verdict rendered. 9

The harsh effect of this immunity can best be demonstrated by a discussion of the facts involved in the cases. Defendant places primary reliance on Lunt v. Post Printing & Publishing Co., 48 Colo. 316 110 P. 203 (1910), and Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719 (1...

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