Moldovan v. State, No. 90CA1286

• Docket Nº: No. 90CA1286
• Citation: 829 P.2d 481
• Case Date: October 24, 1991
• Court: Court of Appeals of Colorado

Page 481

829 P.2d 481 David J. MOLDOVAN, Plaintiff-Appellant,
v.
The STATE of Colorado and The Colorado Department of
Highways, Defendants-Appellees. No. 90CA1286. Colorado Court of Appeals,
Div. II. Oct. 24, 1991.
Rehearing Denied Nov. 21, 1991.
Certiorari Granted April 27, 1992.

Page 482

Bragg, Baker & Cederberg, P.C., James A. Cederberg, Denver, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Arnold, Deputy Atty. Gen., Gregg E. Kay, First Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge ROTHENBERG.

Plaintiff, David J. Moldovan, appeals the summary judgment entered in favor of defendants, the State of Colorado and the Colorado Department of Highways. We reverse and remand for further proceedings.

In August 1987, plaintiff was driving a motorcycle on Colorado Highway 96 when a calf ran onto the highway. According to the allegations in the complaint, plaintiff was unable to avoid the calf, hit it, and was severely injured.

Colorado Highway 96 is a federal aid highway. Immediately to its south is pasture land owned by a co-defendant who is not a party to this appeal. A right-of-way fence separates the highway from the private land. According to plaintiff, the calf was owned by the landowner and had escaped through a gap in the fence. Plaintiff claimed that the fence was in disrepair with gaps in its lower strands large enough for cattle to pass under.

Plaintiff sued the State of Colorado and the Colorado Department of Highways. He stated two claims for relief: (1) negligence in failing to maintain the right-of-way fence as required under § 35-46-111, C.R.S. (1984 Repl.Vol.) (the fence law); and (2) negligence per se. Also, plaintiff claimed that the Colorado Governmental Immunity Act was unconstitutional.

Defendants filed a motion for summary judgment arguing that: (1) the Colorado Governmental Immunity Act barred plaintiff's claims; (2) plaintiff's negligence claim was without merit because the fence law does not expressly impose a duty of care upon the state for plaintiff's benefit; and (3) plaintiff's negligence per se claim should be dismissed because the fence law does not include plaintiff within the class of persons it was enacted to protect.

The trial court found that plaintiff had failed to prove the Colorado Governmental Immunity Act unconstitutional. Next, the trial court found that there existed genuine issues of material fact concerning both the fence's condition at the time of the accident and whether that condition constituted a "dangerous condition" which physically interfered with the movement of traffic on the highway. Based on that finding, the court concluded that defendants were not entitled to summary judgment on the grounds of sovereign immunity.

However, the court also found that defendants owed no duty to plaintiff, and summary judgment was proper on that basis. Finally, the court found that: "[A]lthough the fence law does not bar a negligence action ... it cannot provide the basis for a negligence per se claim."

I.

Initially, we reject defendants' contention that summary judgment should have been granted in favor of the state defendants on the ground of sovereign immunity. The primary thrust of their argument is that Schlitters v. State, 787 P.2d 656 (Colo.App.1989) was wrongly decided.

In Schlitters, a division of this court ruled that a dangerous condition within the

Page 483

meaning of § 24-10-103(1), C.R.S. (1988 Repl.Vol. 10A) may exist if there has been a failure by the state...