Smith v. City and County of Denver, By and Through It's Bd. of Water Com'rs
| Decision Date | 20 October 1986 |
| Citation | 726 P.2d 1125 |
| Docket Number | 84SC477 |
| Parties | Kevin Charles SMITH, Petitioner, v. CITY AND COUNTY OF DENVER, acting By and Through ITS BOARD OF WATER COMMISSIONERS, Respondent. |
| Court | Colorado Supreme Court |
Bragg & Dubofsky, P.C., Douglas E. Bragg, Denver, for petitioner.
Zarlengo, Mott, Zarlengo & Winbourn, John C. Mott, Karen R. Wells, Denver, for respondent.
Colorado Trial Lawyers Ass'n, Gerald P. McDermott, Denver, amicus curiae.
We granted certiorari to review the court of appeals' opinion in Smith v. City and County of Denver, 695 P.2d 770 (Colo.App.1984). We affirm.
On September 3, 1979, the petitioner, Kevin Charles Smith, dived off a rock cliff and struck the bottom of a portion of the South Platte River, in an area known as "The Chutes." The petitioner was rendered quadriplegic as a result of the dive. The petitioner instituted this negligence action against the respondent City and County of Denver, acting by and through its Board of Water Commissioners (the Board), which is the owner of the land where The Chutes is located.
During the jury trial, the respondent moved for a directed verdict at the end of the petitioner's case and at the close of all of the evidence. The trial court reserved ruling on the issues of duty and breach of duty until after the jury returned its verdict. The jury determined that the Board was 51% negligent, the petitioner was 49% negligent, and awarded total damages in the amount of $25,000. The respondent moved for a judgment notwithstanding the verdict, which the court granted, along with the motion for directed verdict, thereby dismissing the petitioner's claim.
On appeal, the court of appeals affirmed, holding the respondent had no duty of care to maintain the property in a reasonably safe condition because the alleged hazard existed as a result of a natural condition. The court of appeals further held the respondent had no duty to warn of the hazards of diving into the river because the petitioner had a greater knowledge of the risks than the respondent.
The evidence established that the petitioner had gone to The Chutes about twelve times before the date of his injury, and swam and dived on those occasions. Prior to the date in question, the petitioner had heard a story of someone being killed while diving at The Chutes. He knew the water level varied depending on the amount of runoff. On the day of the accident, the petitioner first waded across the river downstream to get to the rocks from which he dived. The water came up to just above his waist as he waded across. After waiting in line to dive, the petitioner determined he would dive into the darkest area of the river pool which he estimated to be between six and ten feet in depth. He could not see the bottom from that point, and had not measured the depth of the pool, but others were diving into this area. On his first dive, the petitioner touched his outstretched hands on the bottom of the pool in the river. Because there were several people waiting to dive from the spot from which he first dived, the petitioner then went to a location a short distance downstream, which was about two feet lower in elevation than the site of the first dive. On the second dive, the petitioner angled his dive back to the pool, but struck his neck and shoulders on the bottom of the river and was rendered quadriplegic.
At the time of the accident, no signs or fences barred the public from entering The Chutes, although some portions of a county road running nearby were posted with "no parking" signs. The location has been a popular recreation area used for tubing and swimming. The Board had previously posted "no swimming or bathing permitted" signs in the area over a period of several years; however, those signs would be torn down a few days after being posted. Three other people had received similar injuries while diving at The Chutes prior to the petitioner's accident. Because of heavy recreational use, the Board arranged for trash removal from the area, and entered into a license agreement with Douglas County to allow the county to use a portion of the Board's land for public parking. The Board charged no fee to those entering its land for recreational purposes.
In the court of appeals, the petitioner argued the Board was negligent in failing to maintain the property in a reasonably safe condition in light of the foreseeability of injury to him. The petitioner argued that the determination of whether the Board met the standard of care imposed by the case of Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), is a question of fact for the jury except in cases where the facts are undisputed and reasonable minds could draw but one inference from them. The court of appeals disagreed with the petitioner's contentions, holding it was the activity in which the petitioner chose to engage which created and gave rise to the risk and subsequent injury. The court considered the petitioner's status as a trespasser as a factor in determining that the Board did not owe a duty of care to the petitioner. The court concluded as a matter of law that the Board breached no duty to the petitioner, either by act of commission or omission, and held the trial court was correct in entering a judgment dismissing the petitioner's claim notwithstanding the verdict.
The question of whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court. Metropolitan Gas Repair Service, Inc. v. Kulick, 621 P.2d 313, 317 (Colo.1980); Prosser, The Law of Torts § 37 (4th ed. 1971). Whether the law should impose a duty requires consideration of many factors including, for example, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor. See Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo.1984) (foreseeability); Turner v. Grier, 43 Colo.App. 395, 608 P.2d 356 (1979).
When considering premises liability in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), we held that the status or classification of one who is upon the property of another, i.e., trespasser, licensee, or invitee, is not determinative of the occupant's responsibility or the degree of care which he owes to that person. Id. at 548, 489 P.2d at 314. We held the occupant, in the management of his property, should act as a reasonable person in view of the probability or foreseeability of injuries to others. Id. Thus, a person's status as a trespasser, licensee or invitee may have some...
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