Swieckowski by Swieckowski v. City of Fort Collins, 94CA0393

• Decision Date: 24 November 1995
• Docket Number: No. 94CA0393,94CA0393
• Citation: 923 P.2d 208
• Parties: Timothy W. SWIECKOWSKI, a Minor by S. Michael SWIECKOWSKI and Catherine S. Swieckowski, His Parents and Next Friends, S. Michael Swieckowski, Individually, and Catherine S. Swieckowski, Individually, Plaintiffs-Appellants and Cross-Appellees, v. CITY OF FORT COLLINS, a Colorado Municipal Corporation, Defendant-Appellee and Cross-Appellant, and K. Bill Tiley, Defendant-Appellee. . V
• Court: Colorado Court of Appeals

Page 208

923 P.2d 208

Timothy W. SWIECKOWSKI, a Minor by S. Michael SWIECKOWSKI

and Catherine S. Swieckowski, His Parents and Next Friends,

S. Michael Swieckowski, Individually, and Catherine S.

Swieckowski, Individually, Plaintiffs-Appellants and Cross-Appellees, v. CITY OF FORT COLLINS, a Colorado Municipal Corporation, Defendant-Appellee and Cross-Appellant, and K. Bill Tiley, Defendant-Appellee.

No. 94CA0393.

Colorado Court of Appeals,

Div. V.

Nov. 24, 1995.

Rehearing Denied Jan. 18, 1996.

Certiorari Granted Sept. 9, 1996.

Cross-Petition for Certiorari Denied (Tiley)

Sept. 9, 1996.

Kiel & Trueax, P.C., Joseph Kiel, Englewood, Pribila & Sokolow, P.C., Anthony L. Sokolow, Denver, for Plaintiffs-Appellants and Cross-Appellees.

Sommermeyer, Wick, Dow & Campbell, LLC, Kent N. Campbell, Steven G. Greenlee, Fort Collins, for Defendant-Appellee and Cross-Appellant.

Montgomery, Green, Jarvis, Kolodny & Markusson, P.C., Dennis H. Markusson, Peter S. Dusbabek, Fort Collins, for Defendant-Appellee.

David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League.

Opinion by Judge CASEBOLT.

In this personal injury action involving a bicycle accident, plaintiffs, Timothy W. Swieckowski, by and through his parents and next friends, S. Michael and Catherine A. Swieckowski, and his parents individually, appeal the summary judgment entered in favor of defendant, K. Bill Tiley. Defendant, City of Fort Collins (City) cross-appeals the trial court's refusal to dismiss plaintiffs' claims against it. We reverse and remand for further proceedings.

The undisputed facts reveal that, in October 1990, fifteen year-old Timothy Swieckowski was riding his bicycle on a City street at night, without a light. Contrary to applicable traffic regulations, he was proceeding along the unmarked edge of the southbound lane of the roadway next to the curb and gutter.

At the point of the accident, a newer, wider portion of the roadway on which he was riding abruptly narrowed to an older portion. Swieckowski's bicycle continued straight where the roadway narrowed and his bicycle left the paved portion of the road, dropping him into a ditch and causing severe injuries.

The installed curb and gutter led straight to the ditch. There were no signs, guards, barriers, signals, or markings warning of the narrowing of the road or the ending of the curb and gutter, although there was a barricade at the end of the sidewalk. The sidewalk was approximately ten feet away from the curb and gutter.

The newer portion of the road, together with curbing, gutters, sidewalks, and bicycle paths had been constructed by Tiley, an adjacent landowner, pursuant to a land development agreement between himself and the City. In February 1989, Tiley had conveyed a right-of-way over a portion of his land to the City for purposes of widening and improving a section of the road. After the right-of-way was conveyed to the City, Tiley had hired an engineer to design the road and a contractor to build it. Both the design and construction were required to meet certain City specifications. The City had accepted the roadway and all improvements in November 1989.

In their action against the City and Tiley, plaintiffs asserted, as pertinent here, that Tiley and his agents had carelessly and negligently designed and constructed the modifications and improvements to the roadway and that he was further liable under a premises liability theory. As to the City, plaintiffs contended that the unmarked narrowing of the road was a dangerous condition of the roadway, caused by the City's negligent act or omission in constructing or maintaining the roadway.

Tiley filed a motion for summary judgment and the City moved to dismiss. The trial court granted Tiley's motion, determining that Tiley did not owe plaintiffs a duty of care as a matter of law. The court denied the City's motion made pursuant to the Governmental Immunity Act (GIA), § 24-10-101, C.R.S. (1988 Repl.Vol. 10A). The trial court certified those judgments as final, see C.R.C.P. 54(b), C.A.R. 1(a)(1), § 24-10-108, C.R.S. (1988 Repl.Vol. 10A), and this appeal followed.

I.

Plaintiffs assert that the trial court erred in granting summary judgment in favor of Tiley. Specifically, they argue: (1) that Tiley may be held liable as a vendor of real property because he created a dangerous condition on the land and subsequently transferred it in that condition to the City; and (2) that the trial court erred in dismissing Tiley from the action without considering their claim for relief based on negligent construction, which was independent from any allegation that Tiley was liable as a landowner. Because we agree that, under the circumstances as alleged, Tiley had a duty of care to the injured plaintiff that was possibly breached here, we agree in part with their first contention and, thus, conclude that summary judgment was inappropriate. In view of our ruling, we do not reach the second issue.

In an action premised upon negligence, whether a legal duty is owed by a particular defendant to a particular plaintiff as well as the scope of any such duty are questions of law which a court must determine. Perreira v. State, 768 P.2d 1198 (Colo.1989). A court's conclusion as to the existence of a duty is "an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987).

Several factors, including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing this burden on the defendant are all relevant. Greenberg v. Perkins, 845 P.2d 530 (Colo.1993).

These factors, however, are not exclusive; a court may consider any other relevant factors based on the competing individual and social interests implicated by the facts of the case. Perreira v. State, supra. The question is essentially one of fairness under contemporary standards; that is, whether reasonable persons would recognize and agree that a duty of care exists. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987).

Generally, a duty of care is owed with regard to a person's affirmative conduct and such a duty extends to all who may be foreseeably injured if that conduct is negligently carried out. Greenberg v. Perkins, supra.

Plaintiffs and Tiley both urge us to declare that the Restatement (Second) of Torts §§ 352 & 353 (1965) are reflective of the applicable duty and they analyze a number of cases from other jurisdictions to support their proposition. Restatement § 352 provides:

Except as stated in § 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.

Restatement § 353 then delineates specific exceptions to the general rule of nonliability.

However, by its specific terms Restatement § 352 requires that the dangerous condition exist at the time that the vendee takes possession, a factor that, according to the undisputed facts, is absent here. The parties agree that Tiley conveyed the right-of-way to the City pursuant to an acceptance of the subdivision plat in February 1989. It was only after conveyance of the right-of-way occurred that the improvements were constructed. Consequently, no dangerous condition existed at the time Tiley conveyed the right-of-way to the City, and thus, those sections of the Restatement cited, even if we assume that they state the applicable law in Colorado, are not relevant.

The duty applicable to landowners who own property adjacent to public ways was stated in Ellsworth v. Colorado Beverage Co., 150 Colo. 19, 370 P.2d 159 (1962). In Ellsworth, a customer of the defendant slipped and fell on a city street adjacent to defendant's building. In rejecting the contention that the defendant owed the customer a duty to maintain the public street in a safe condition, the supreme court stated, as the applicable general rule:

'In the absence of statute the owner or occupant of adjoining property is under no obligation to repair the street in front of his premises, and is not liable for an injury arising from a defect therein which does not result from his affirmative act, or that of his agent or servant....'

Ellsworth v. Colorado Beverage Co., supra, 150 Colo. at 23, 370 P.2d at 161 (emphasis added).

Hence, no duty generally exists, except when the defect is created by the abutting owner. See also Cool v. Vesey, 31 Colo.App. 1, 499 P.2d 642 (1972) (stop-box installed by defendant in city right-of-way which benefitted defendant's property gave rise to duty of care); Sill v. Lewis, 140 Colo. 436, 344 P.2d 972 (1959) (defendant liable for injuries caused by ice when he discharged water onto sidewalk); Bittle v. Brunetti, 750 P.2d 49 (Colo.1988) (citing cases finding no liability for ice and snow hazards unless affirmatively created by landowner); E. McQuillin, Municipal Corporations § 54.42.20 (3d ed. 1994) (no liability by abutting owner for defect in public way unless created by landowner); Annot., Liability of Abutting Owner or Occupant for Condition of Sidewalk, 88 A.L.R.2d 331 (1963) (stating, at § 24, an exception to general rule of nonliability when acts of independent contractor affirmatively create dangerous condition).

Moreover, this formulation of a duty under such circumstances is also consistent with Restatement (Second) of Torts § 350 (1965) which provides A possessor of land over which there is a.... public highway is subject to liability for physical harm caused to travelers thereon by a failure to exercise reasonable care in creating or maintaining in reasonably safe condition any structure or other artificial condition...