Smith v. City and County of Denver, By and Through Bd. of Water Com'rs

• Decision Date: 01 November 1984
• Docket Number: No. 82CA1281,82CA1281
• Citation: 695 P.2d 770
• Parties: Kevin Charles SMITH, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 770

695 P.2d 770

Kevin Charles SMITH, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, acting By and Through its BOARD

OF WATER COMMISSIONERS, Defendant-Appellee.

No. 82CA1281.

Colorado Court of Appeals,

Div. II.

Nov. 1, 1984.

Rehearing Denied Nov. 29, 1984.

Certiorari Granted Feb. 25, 1985.

Bragg & Dubofsky, Douglas E. Bragg, Denver, for plaintiff-appellant.

Zarlengo, Mott & Zarlengo, John C. Mott, Karen R. Wells, Denver, for defendant-appellee.

SMITH, Judge.

Plaintiff, Kevin Smith, commenced this action against defendants, the City and County of Denver and its Board of Water Commissioners (the Board), alleging that he sustained injuries as a result of the Board's negligence.

Trial was to a jury which returned a verdict for Smith. The trial court thereafter granted the Board's motion for judgment notwithstanding the verdict pursuant to C.R.C.P. 50(b). The trial court also denied Smith's motion for new trial made pursuant to C.R.C.P. 59(a)(5) on the issue of damages alone. Asserting that the trial court erred in both rulings, Smith appeals. We affirm.

The facts are undisputed. On September 3, 1979, Smith drove to a mountain location on the South Platte River known as "the Chutes." The Chutes are located on land owned by Denver acting through its Board of Water Commissioners.

Shortly after his arrival at the chutes, Smith began diving from a rock formation on the west side of the river into a pool formed by the river flowing past the rocks. Smith admitted that on his first dive he was at least fifteen feet from the water's surface and that he touched the bottom of the pool. Smith climbed the rock formation again to a higher location and dived into the pool. This time he forcefully struck bottom, sustaining injuries that resulted in him becoming a quadriplegic.

Smith argues that the Board was negligent in failing to maintain the property in a reasonably safe condition in view of the foreseeability of injury to him. On appeal he relies on Thorpe v. Durango School District, 41 Colo.App. 473, 591 P.2d 1329 (1978), aff'd, 200 Colo. 268, 614 P.2d 880 (1980) and Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971).

Smith also argues that the determination of whether the Board met the standard of care imposed by Mile High is a question for the jury except in cases where the facts are undisputed and reasonable minds could draw but one inference from them. On this issue Smith relies on Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969), and Randall v. Nasbarg, 28 Colo.App. 147, 470 P.2d 893 (1970).

Smith correctly states the rule of Thorpe, Hilzer, and Randall; however, he misconstrues the extent of the duty of care defined in Mile High. In Mile High a police officer was injured at night by stepping into an unmarked, open posthole which had been dug along a dark alley by the defendant fence company. Other postholes dug along the alley had been filled with fence posts. The fence company in Mile High was held to have recognized the hazard it had created on the property in question, as well as the fact that the hazard was not open and obvious at night in an unlit alley. Further, the court found that the company had affirmatively and negligently failed to indicate or visibly mark the existence of the hazard and had knowledge that persons might be legitimately walking in the alley at night and fall in a posthole. These conclusions justified application of the rule holding the company culpable.

Here, the alleged hazard, the Chutes, existed as a result of a natural condition, i.e., a river and a rock formation along its banks. Neither the river nor the rocks are inherently dangerous in and of themselves nor has the Board done anything to make them so. The Board did not create this condition nor did the Board allow the Chutes to come into existence, negligently or otherwise. Indeed, it was the activity itself in which Smith chose to engage which created and gave rise to the risk and subsequent injury.

While Smith's status as a trespasser is not dispositive of the...