Schlitters v. State, 89CA0226
| Decision Date | 07 December 1989 |
| Docket Number | No. 89CA0226,89CA0226 |
| Citation | 787 P.2d 656 |
| Parties | Robert D. SCHLITTERS and Tamera Schlitters, Plaintiffs-Appellants, v. STATE of Colorado and the Colorado State Department of Highways, Defendants-Appellees. . V |
| Court | Colorado Court of Appeals |
Bailey & Finegan, Laura D. DeLeo and James L. Finegan, Lakewood, for plaintiffs-appellants.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and David R. Little, Asst. Atty. Gen., Denver, for defendants-appellees.
Opinion by Judge JONES.
In this negligence action, plaintiffs, Robert D. and Tamera Schlitters, appeal from a judgment of dismissal entered in favor of defendants, the State of Colorado and the Colorado State Department of Highways. We reverse.
In October 1986, Robert D. Schlitters was driving his car southbound on Highway 285. A boulder fell from an adjacent rock slope located within the state's right of way, onto the highway ahead of him. It rolled downhill in Schlitter's lane of travel and struck his car with sufficient force to overturn the vehicle.
Plaintiffs filed a complaint seeking damages for the injuries they suffered as the result of defendants' alleged negligent failure to design, construct, maintain, or improve a portion of Highway 285.
Defendants filed a motion to dismiss on the basis that they are immune from liability because their duty of care was limited to physical defects in the paved highway surface and that, although they had made efforts to study or control falling rocks, it did not extend to boulders falling onto the highway. Defendants also filed a motion for attorney fees and costs pursuant to §§ 13-16-113(2) and 13-17-201, C.R.S. (1987 Repl.Vol. 6A).
The trial court granted the motion to dismiss, concluding that the waiver of sovereign immunity in § 24-10-106(1)(d), C.R.S. (1988 Repl.Vol. 10A) did not apply to the circumstances described in the complaint. It also awarded defendants' attorney fees and costs.
The issue here is whether the trial court erred in concluding that, under § 24-10-106(1)(d), which applies to injuries occurring on or after July 1, 1986, defendants are immune from liability under the circumstances alleged in the complaint. We conclude that the trial court did err.
Section 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A), provides, in relevant part, that:
"Sovereign immunity is waived by a public entity in an action for injuries resulting from:
....
"(d) A dangerous condition of a public highway ... on that portion of such highway ... which was designed and intended for public travel or parking thereon." (emphasis supplied)
"Dangerous condition" is defined in § 24-10-103(1), C.R.S. (1988 Repl.Vol. 10A) as follows:
"The apparent purpose of the general assembly in not extending sovereign immunity to actions for injuries resulting from dangerous conditions of roads or streets was to make governments liable for failure to maintain those facilities in a condition safe for public use." Stephen v. City & County of Denver, 659 P.2d 666 (Colo.1983). And as the Stephens court noted, if the meaning of "dangerous condition" is limited solely to the physical condition of the road, this purpose would not be fulfilled.
We reject defendants' contention that the Stephen...
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Medina v. State, No. 00SC747.
... ... (R. at vol. II, p. 292.) Relying on Schlitters v. State, 787 P.2d 656 (Colo.App.1989), the trial court also denied the state's motion to dismiss. It found that "[t]he dangerous condition in ... ...
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... ... See also Purrelli v. State Farm Fire & Casualty Co., 698 So.2d 618 (Fla.Ct.App.1997) ... On the other hand, ... Schlitters v. State, 787 P.2d 656 (Colo.App.1989) ... Accordingly, here, the facts as ... ...
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... ... Moldovan, 842 P.2d 220, 225 (Colo.1992) ; Belfiore v. Colorado State Dep't of Highways, 847 P.2d 244, 246 (Colo.App.1993) ; Schlitters v. State, 787 P.2d 656, 658 (Colo.App.1989). These cases are distinguishable from the present case because the injuries in the highway cases arose ... ...
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Burnett v. State Dep't of Natural Res.
... ... of Highways, 847 P.2d 244, 246 (Colo.App.1993) (holding that the government waived immunity for failing to secure boulders above road); Schlitters v. State, 787 P.2d 656, 658 (Colo.App.1989) (same). These cases do take location into account. However, they are inapposite because they involve ... ...
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