Summary
In Mile High Fence Company v. Radovich, 28 Colo. App. 400, 474 P.2d 796 (1970), an on-duty police officer, characterized by the defendant as a licensee, was injured as he walked down an alley in the course of his work and stepped into an unprotected hole dug by the defendant.
Summary of this case from Ouellette v. BlanchardOpinion
No. 70-220 (Supreme Court No. 23496)
Decided July 21, 1970. Rehearing denied August 11, 1970. Certiorari granted October 1, 1970.
Personal injury action by policy officer who, while conducting night time surveillance of prostitute and her prospective customer, stepped into a post hole seven inches off the public way and on private property. From judgment for plaintiff, defendant appealed.
Affirmed
1. NEGLIGENCE — Status — "Trespasser" — "Licensee" — "Invitee" — No Longer Controlling — One Element — Ordinary Standards of Negligence. The status of an entrant to private property as being a "trespasser," "licensee," or "invitee" is no longer controlling, but is only one element among many to be considered under ordinary standards of negligence.
2. Duty — Landowner — Condition of Land — No More — No Less — Other Tort-Feasor — Reasonable Man — Under the Circumstances. The duty required of a landowner or the person charged with responsibility for the condition of the land is no more nor no less than that of any alleged tort-feasor: He must conduct himself as a reasonable man under the circumstances on land which he controls as well as in other places.
3. Categories — Factor — Finder of Fact — Principal Question — Owner — Act as Reasonable Person — Probability of Injury — Persons Entering Property. Although the categories of "trespasser," "licensee," and "invitee" are a factor which the finder of fact should still consider, the principal question should be: "Did the owner (or party responsible for the particular condition of the premises) act as a reasonable person in view of the probability of injury to persons entering upon the property?"
4. Plaintiff — Strayed — Public Way — Seven Inches — Post Hole — No Warning Devices — Accident Foreseeable — Protective Measures — Should Have Been Taken — Refusal of Directed Verdict — Defendant — Correct. Where uncontroverted evidence showed that defendant had dug post hole on property abutting a public way, that plaintiff had inadvertently strayed, at night, only seven inches from that public way when he stepped into the hole and was injured and that there were no protective or warning devices guarding the hole and that the dirt in the area of the hole was level with the alley; held, under these circumstances, an accident such as occurred was entirely foreseeable; and it was proper for the trial court to conclude that some protective measures should have been taken; thus, court was correct in refusing to direct a verdict for defendant.
5. Issues — Finder of Fact — Police Officer — Not Contributorily Negligent — Failure to Use Flashlight — Use — Revealed Presence — Prostitute — Background Light — Caution — No Evidence — Knowledge — Hazards — Subject Property. Issues of negligence, contributory negligence, proximate cause and assumption of risk are for the finder of fact to determine and only where the facts are clear and not in dispute may the court determine contributory negligence, thus police officer was not contributorily negligent as a matter of law by his failure to use his flashlight to illuminate post hole where trial court determined that had he done so he would probably have revealed his presence to prostitute and her prospective customer whom he was following and where court had before it evidence of background light, evidence of plaintiff's caution, and no evidence that plaintiff knew or should have known of hazards on the subject property.
Error to the District Court of the City and County of Denver, Honorable Edward J. Keating, Judge.
Sheldon, Bayer, McLean Glassman, George M. Allen, for plaintiff in error.
Bruno and Bruno, H. D. Reed, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in reverse order of their appearance at trial and are referred to in this opinion by their trial court designation.
The matter before this Court for review is the trial court's judgment on the issue of defendant's liability for personal injuries received by plaintiff from stepping into a hole dug by defendant on private property belonging to a third party not here involved. At the time of the accident, plaintiff was a Denver police officer performing his duties.
The record shows that at approximately 11:00 p.m. on February 23, 1966, plaintiff, while conducting surveillance of a known prostitute and her prospective customer, was walking down an alley abutting property on which defendant was constructing a fence. While so doing, he stepped into a hole dug by defendant, located near the edge of the paved portion of the alley, and broke his left leg at the knee. He required hospitalization and treatment commensurate to that injury. He thereafter sued defendant to recover for his injuries, and received judgment.
Uncontroverted testimony showed (1) that the hole into which plaintiff stepped was a post hole, approximately 15 inches in diameter and three feet in depth, dug by defendant in connection with the construction of a fence for the property owners; (2) that the hole was only seven inches removed from the paved portion of the alley; (3) that posts had already been inserted in all other such holes on either side of the subject hole, and that the subject hole was the only one without a post inserted in it; (4) that there were no warning lights, barricades or other protective devices guarding the hole; and (5) that the area was unlit, except for background light coming from the streetlights and business establishments in the surrounding area.
Testimony also indicated that there was sufficient background light for plaintiff to see the existing row of fence posts and other objects in the alley; but that he was unable to see the subject hole and was unaware that he was off of the alley and onto private property. Further, testimony showed that the dirt bordering the hole was level with the alley and was frozen hard; but that some of it was on the paved portion of the alley itself. Finally, although plaintiff had a flashlight in his possession, he did not use it.
Based upon this evidence, the court found defendant liable for creating a hazardous condition which proximately caused plaintiff's injuries, and awarded plaintiff damages.
Defendant assigns as error (1) the trial court's failure to direct a verdict in its favor, on grounds that plaintiff was a licensee on private property at the time of his injury, to whom defendant owed no duty; and (2) the trial court's failure to find plaintiff contributorily negligent as a matter of law.
DIRECTED VERDICT ISSUE
The substance of defendant's first assignment of error is that the trial court erred in not finding that plaintiff, as a police officer coming onto private property for purposes other than the benefit of the owner/occupier of that property, was a licensee by operation of law, to whom the owner/occupier had no duty of care and to whom defendant, as an independent contractor performing work for the owner and therefore standing in the owner's shoes, also had no duty of care.
We have long been restricted by a straightjacket of highly technical and arbitrary classifications as to the duties of landowners in respect to injured entrants, which have often led to confusion in the law and inequity in the results of decided cases. Recovery of an entrant has largely been a matter of chance, dependent upon into which pigeonhole the law put him — e.g., "trespasser," "licensee," or "invitee" — each of which had radically different consequences in law.
[1,2] However, a recent trend toward abolishing these rigid concepts has been pronounced ( e.g., Rowland v. Christian, 69 Cal.2d 108, 70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R. 3d 496, and Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313). In Colorado, the distinctions have apparently been, if not completely abolished, at least relegated to their proper place. Kenney v. Grice, 171 Colo. 185, 465 P.2d 401. An entrant's status as "trespasser," "licensee," or "invitee" is no longer controlling, but only one element among many to be considered in determining the landowner's liability under ordinary standards of negligence, with the duty required of the landowner (or the person charged with responsibility for the condition of the land, as in this case) being no more or no less than that of any other alleged tort-feasor: he must conduct himself as a reasonable man under the circumstances, on land which he controls as well as in other places. Comment, Torts — Occupier of Land Held to Owe Duty of Ordinary Care to All Entrants — "Invitee," "Licensee," and "Trespasser" Distinctions Abolished, 44 N.Y.U.L. Rev. 426 (1969). Except in those cases where reasonable minds could not differ, whether he has done so, or not, is always a question for the finder of fact. Bates v. Stagg, 157 Colo. 456, 404 P.2d 530.
Even though the above categories are a factor which the finder of fact should still consider, the principal question should not be, "In what category shall we place the injured person?" but rather, "Did the owner (or party responsible for the particular condition of the premises) act as a reasonable person in view of the probability of injury to persons entering upon the property?" Kenney, supra, and Rowland, supra.
For purpose of applying this standard to the instant case, we find uncontroverted evidence that defendant dug the hole; that the property involved abutted a public way; that plaintiff, as a member of the general public and notwithstanding his police officer status, had every right to use the public way; that he inadvertently strayed only seven inches from that public way when he stepped into the hole and was injured; that there were no protective or warning devices whatsoever guarding this hole; and that the dirt in the area of the hole was level with the alley so that it was not identifiable as a separate area, readily discernible from the alley.
Under these circumstances, an accident such as occurred in the instant case was entirely foreseeable, and it was proper for the court to conclude that some protective measures should have been taken.
We therefore hold that the trial court was correct in refusing to direct a verdict for defendant on the ground that it owed the plaintiff no duty.
CONTRIBUTORY NEGLIGENCE ISSUE
Defendant argues that plaintiff was contributorily negligent as a matter of law when he failed to use his flashlight to illuminate the subject hole. We disagree.
The court determined that plaintiff was not contributorily negligent for failing to use his flashlight (finding that had he done so, he would probably have revealed his presence to the parties he was following). The court had before it evidence of sufficient background light for plaintiff to see the row of fence posts along the alley and other obstacles in the area ( e.g., a phone pole); and evidence that plaintiff was walking cautiously. On the other hand, there was no evidence before the court indicating plaintiff knew, or should have known, that there was an open post hole or any other such hazard on the subject property so close to the alley. Further, since plaintiff could see a row of fence posts already in place, he could reasonably assume, if he assumed anything, that there were no unfilled post holes in between them.
Issue of negligence, contributory negligence, proximate cause, and assumption of risk are for the finder of fact to determine. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928. Only in rare cases, when the facts are clear and not in dispute, may the court determine contributory negligence as a matter of law. Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861.
ON PETITION FOR REHEARING