Recognizing the Duty of Public Entities
| Publication year | 1985 |
| Pages | 803 |
| Citation | Vol. 14 No. 5 Pg. 803 |
1985, May, Pg. 803. Recognizing the Duty of Public Entities
Are the actions of public entities measured by the same standards with which the rest of the world is measured? Recent Colorado Court of Appeals and Supreme Court decisions are pointing toward the not surprising fact that the standards are the same. Everyone must conform to a standard of reasonableness under certain circumstances in light of a foreseeable danger to others. Within Colorado, the case law has been moving steadily toward diminishing the gap between the public and private sectors.
In 1971, the Colorado Supreme Court seemingly obliterated any distinction between government and private citizens regarding the responsibilities which both have to the victims of tortious conduct. Evans v. Board of County Comm'rs, County of El Paso(fn1) involved deteriorated concrete steps at the courthouse, and Fourney v. School District No. 1(fn2) involved a dangerous road crossing at a junior high school. In both cases, the court held that the defense of sovereign immunity did not apply.
Following the Evans and Fourney rulings, the Colorado Governmental Immunity Act was passed. The Act specifically provided that sovereign immunity is waived as a defense in an action for damages for injuries resulting from operation of a motor vehicle by a public employee in the course of employment; operation of any public hospital, correction facility or jail; a dangerous condition of any public building; a dangerous condition interfering with traffic or the sidewalk; or a dangerous condition in any public water, gas, sanitation, electrical, power or swimming facility.(fn3)
Even before the Evans decision, Colorado Supreme Court decisions acknowledged the liability of governmental entities engaged in the following activities: a dangerous condition existing in a gravel pit;(fn4) when there was negligent construction and maintenance of a viaduct;(fn5) and where the test was ordinary negligence with no immunity present.(fn6)
In 1979, the Colorado Court of Appeals drew the line in Turner v. Grier.(fn7) In Turner, the Fire Prevention District offered and promoted a one-time fire safety program for children, using a school yard on a summer evening. Plaintiff was injured when hit by an automobile going to the safety program and asserted that the defendant Fire Protection District should have used flashing yellow lights for the protection of the children going to the school program. The lights had been available at school crossings, but had been turned off for the summer.
The court held that no duty existed, explaining that duty does not depend on foreseeability alone, and noted that "many other factors must be considered,"(fn8) as enumerated in such other cases as Raymond v. Paradise Unified School District.(fn9) Those "other factors" include the following:
1) social utility of the activity;
2) the kind of person with whom the actor is dealing;
3) the workability of a rule of care;
4) the relative ability of the parties to bear the financial burden of injury;
5) the availability of means by which the loss may be shifted or spread;
6) statutory and judicial law coloring the parties' relationship;
7) the prophylactic effect of a rule of liability;
8) limitations imposed by budget; and
9) "moral imperatives which judges share with their fellow citizens."(fn10)
With such a buffet of decision-making handles, the trial judge may be in a
very difficult position. In litigation where the public entity is a defendant, the public entity will undoubtedly file a motion for summary judgment pointing to these various factors as reasons it should not be held accountable for its actions. The trial judge would then become not only a one-person jury, but a one-person legislature.
It must be noted that after the court outlined all of those factors, in Raymond it affirmed a judgment on behalf of the plaintiff, a seven-year-old who had been injured at a bus loading stop on high school property. In applying all of the above policy considerations, the court noted:
1) the school district provided the bus transportation for students;
2) many students were approximately seven years old;
3) the loading area in question was on school property;
4) the loading area was used by many buses;
5) the loading area was known to be dangerous; and
6) the loading area required supervision.(fn11)
The issue of whether the limited supervision was...
To continue reading
Request your trial