University of Denver v. Whitlock
| Citation | 744 P.2d 54 |
| Decision Date | 05 October 1987 |
| Docket Number | No. 85SC391,85SC391 |
| Parties | 42 Ed. Law Rep. 950 UNIVERSITY OF DENVER, a Colorado corporation, Petitioner, v. Oscar WHITLOCK, Respondent. |
| Court | Supreme Court of Colorado |
Hall & Evans, Alan Epstein, Eugene O. Daniels, James A. Smith, Denver, for petitioner.
Gerash, Robinson, Miller & Miranda, P.C., Walter L. Gerash, Scott H. Robinson, Denver, for respondent.
Kripke, Epstein & Lawrence, P.C., Kenneth N. Kripke, Scott W. Lawrence, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.
Covington & Burling, Eugene D. Gulland, Marjorie E. Powell, Sheldon E. Steinbach, Washington, D.C., for amici curiae American Council on Educ. and the Nat. Ass'n of Student Personnel Administrators.
Plaintiff Oscar Whitlock obtained a judgment against defendant University of Denver in the amount of $5,256,000, as a result of a jury trial in Denver District Court, for injuries suffered in a trampoline accident that rendered him a quadriplegic. The trial court ordered certain relief from this judgment based upon the University's motion for judgment notwithstanding the verdict. Whitlock appealed, and the University cross-appealed. The Colorado Court of Appeals rejected the University's argument that it owed no duty to Whitlock, reversed the trial court's order granting relief from the judgment, and directed that the jury's verdict be reinstated. Whitlock v. University of Denver, 712 P.2d 1072 (Colo.App.1985). The University then petitioned for certiorari, and we granted that petition.
The principal issue presented by this negligence case is whether the University of Denver owed a duty of care to Whitlock, who was a student at the University and a member of a fraternity, to take reasonable measures to protect him against injury resulting from his use of a trampoline under unsafe conditions when the trampoline was owned by the fraternity and was located on the front lawn of the house that the fraternity leased from the University. We conclude that the University had no such duty. Therefore, we reverse the judgment of the Colorado Court of Appeals, which recognized such a duty, and return the case to that court with directions to remand it to the trial court for dismissal of Whitlock's complaint against the University of Denver. 1
The essential facts appear from the record of the jury trial in this case. On June 19, 1978, at approximately 10:00 p.m., plaintiff Oscar Whitlock suffered a paralyzing injury while attempting to complete a one-and-three-quarters front flip on a trampoline. The injury rendered him a quadriplegic. The trampoline was owned by the Beta Theta Pi fraternity (the Beta house) and was situated on the front yard of the fraternity premises, located on the University campus. At the time of his injury, Whitlock was twenty years old, attended the University of Denver, and was a member of the Beta house, where he held the office of acting house manager. The property on which the Beta house was located was leased to the local chapter house association of the Beta Theta Pi fraternity by the defendant University of Denver.
Whitlock had extensive experience jumping on trampolines. He began using trampolines in junior high school and continued to do so during his brief tenure as a cadet at the United States Military Academy at West Point, where he learned to execute the one-and-three-quarters front flip. Whitlock testified that he utilized the trampoline at West Point every other day for a period of two months. He began jumping on the trampoline owned by the Beta house in September of 1977. Whitlock recounted that in the fall and spring prior to the date of his injury, he jumped on the trampoline almost daily. He testified further that prior to the date of his injury, he had successfully executed the one-and-three-quarters front flip between seventy-five and one hundred times.
During the evening of June 18 and early morning of June 19, 1978, Whitlock attended a party at the Beta house, where he drank beer, vodka and scotch until 2:00 a.m. Whitlock then retired and did not awaken until 2:00 p.m. on June 19. He testified that he jumped on the trampoline between 2:00 p.m. and 4:00 p.m., and again at 7:00 p.m. At 10:00 p.m., the time of the injury, there again was a party in progress at the Beta house, and Whitlock was using the trampoline with only the illumination from the windows of the fraternity house, the outside light above the front door of the house, and two street lights in the area. As Whitlock attempted to perform the one-and-three-quarters front flip, he landed on the back of his head, causing his neck to break.
Whitlock brought suit against the manufacturer and seller of the trampoline, the University, the Beta Theta Pi fraternity and its local chapter, and certain individuals in their capacities as representatives of the Beta Theta Pi organizations. Whitlock reached settlements with all of the named defendants except the University, so only the negligence action against the University proceeded to trial. The jury returned a verdict in favor of Whitlock, assessing his total damages at $7,300,000. The jury attributed twenty-eight percent of causal negligence to the conduct of Whitlock and seventy-two percent of causal negligence to the conduct of the University. The trial court accordingly reduced the amount of the award against the University to $5,256,000.
The University moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. The trial court granted the motion for judgment notwithstanding the verdict, holding that as a matter of law, no reasonable jury could have found that the University was more negligent than Whitlock, and that the jury's monetary award was the result of sympathy, passion or prejudice. The trial court alternatively ruled that if the court of appeals should find that the trial court's ruling on the defendant's motion for judgment notwithstanding the verdict was in error, a remittitur would be entered, reducing the jury's award to $4,000,000. As a third alternative, in the event that the court of appeals should also disapprove the remittitur, the trial court ordered a new trial.
A panel of the court of appeals reversed all three rulings by a divided vote. Whitlock v. University of Denver, 712 P.2d 1072 (Colo.App.1985). The court of appeals held that the University owed Whitlock a duty of due care to remove the trampoline from the fraternity premises or to supervise its use, and that it was improper for the trial court to order a remittitur or, in the alternative, a new trial. The case was remanded to the trial court with orders to reinstate the verdict and damages as determined by the jury. The University then petitioned for certiorari review, and we granted that petition.
A negligence claim must fail if based on circumstances for which the law imposes no duty of care upon the defendant for the benefit of the plaintiff. E.g., Jefferson County School District R-1 v. Justus, 725 P.2d 767, 769 (Colo.1986); Leake v. Cain, 720 P.2d 152, 155 (Colo.1986); Franklin v. Wilson, 161 Colo. 334, 336, 422 P.2d 51, 51 (1966); Roessler v O'Brien, 119 Colo. 222, 227-29, 201 P.2d 901, 903-04 (1949). Therefore, if Whitlock's judgment against the University is to be upheld, it must first be determined that the University owed a duty of care to take reasonable measures to protect him against the injury that he sustained.
Whether a particular defendant owes a legal duty to a particular plaintiff is a question of law. Imperial Distribution Services, Inc. v. Forrest, 741 P.2d 1251, 1253-54 (Colo.1987); Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986); Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980). "The court determines, as a matter of law, the existence and scope of the duty--that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection." Metropolitan, 621 P.2d at 317. Accord Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 209 (Colo.1984). See Restatement (Second) of Torts § 328 B (1965); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 37, at 236 (5th ed. 1984) (cited hereafter as W. Keeton). In Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986), we set forth several factors to be considered in determining the existence of duty in a particular case:
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.
Id. at 1127. See Jefferson County School District R-1 v. Justus, 725 P.2d at 769. As the quoted language makes clear, this list was not intended to be exhaustive and does not exclude the consideration of other factors that may become relevant based upon the competing individual, public and social interests implicated in the facts of each case. See Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir.1979); W. Keeton, §§ 31, 53 at 359 n. 24. 2 A court's conclusion that a duty does or does not exist is "an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection." W. Keeton, § 53, at 358. Accord Bradshaw v. Rawlings, 612 F.2d at 138. "No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards--whether reasonable persons would recognize a duty and agree that it exists." Taco Bell v. Lannon, 744 P.2d 43, 46 (Colo.1987). See W. Keeton, § 53, at 359.
We believe that the fact that the University is charged with negligent failure to act rather than negligent affirmative...
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