Summary
mentioning attractive nuisance claim brought by plaintiff
Summary of this case from SW ex rel. Wacker v. Towers Boat Club, Inc.Opinion
No. 79CA1172
Decided July 3, 1980. Rehearing denied July 31, 1980.
In action to recover for damages suffered by plaintiffs as a result of methane gas explosion in storm sewer, the trial court granted city summary judgment, and plaintiffs appealed.
Reversed
1. NEGLIGENCE — City Sued — Injuries of Children — Methane Gas Explosion — Storm Sewer — No Liability — Near Park. Where city was sued for injuries which children sustained in explosion of methane gas in storm sewer, it could not be held liable based on existence of nearby park in which children had been playing, where park was owned, controlled, operated, and maintained by another governmental entity, and there was no showing that city had any responsibility or duty in connection therewith.
2. Action Against City — Children Injured — Methane Gas Explosion — In Storm Sewer — Duty — Entrance Damaged — Allowed Children — Enter Sewer. In action arising from injuries suffered by children who entered storm sewer in which thereafter an explosion of methane gas occurred, the defendant city had a duty to maintain the entrance to the storm sewer and, in so doing, to use reasonable care, and it would be liable for breach of this duty if it knew or should have known that bars on the sewer entrance were bent or had been pried apart sufficiently to permit the children to enter, but failed to take reasonable precautions to correct the condition.
3. JUDGMENT — Action Against City — Children Injured — Methane Gas Explosion — In Storm Sewer — Fact Issue Present — Attractive Nuisance — Summary Judgment Precluded. In action arising from injuries suffered by children who entered storm sewer in which thereafter an explosion of methane gas occurred, the documents in support of and in opposition to summary judgment for defendant city presented a fact issue as to whether the sewer and its entrance constituted an attraction to the children; hence, summary judgment should not have been entered for city.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Edward A. Jersin, Julie M. Reardon, for plaintiffs-appellants.
Kenneth C. Groves, for defendants-appellee.
Plaintiffs appeal a summary judgment entered in favor of the City of Sheridan (Sheridan). We reverse.
Plaintiffs, individually and as parents of children who were injured in August 1976 in an explosion of a storm sewer filled with methane gas, sued a number of defendants, including Sheridan. On this appeal, we are concerned only with plaintiffs' claims against Sheridan.
For purposes of summary judgment, the pleadings, affidavits, depositions, and exhibits establish the following undisputed facts. In May 1968 the Denver Board of Water Commissioners requested authorization from Sheridan to install a 48-inch storm sewer culvert under South Clay Street in Sheridan. This culvert would connect with an existing culvert and would carry storm drainage eastward to be discharged in the South Platte River. Sheridan authorized the installation and also accepted for maintenance the entrance to the culvert. For several years prior to the explosion, the land to the east of South Clay Street outside the city limits of Sheridan and above the existing storm sewer was used as a sanitary land fill. The operation of the land fill created methane gas, which seeped into and became trapped in the storm sewer.
In August 1976 plaintiffs' children were playing in Chase Park, which is in Sheridan and approximately 100 yards from the entrance to the storm sewer culvert. The children entered the sewer through the bars in the heavy metal grate (the trashrack) covering the entrance. These bars had apparently been bent or pried apart. At some point within the confines of the sewer, one of the children lit a match. The methane gas ignited, resulting in an explosion, fire, and injuries to the children.
Plaintiffs brought suit and provided notice to the public entity defendants in compliance with § 24-10-109, C.R.S. 1973. They alleged that Sheridan was liable on three alternate theories: (1) negligently maintaining, in too close proximity, Chase Park and a storm sewer which could be entered easily by children of tender years; (2) maintaining an "attractive nuisance" based on the fact that the sewer and the entrance thereto located in Sheridan were attractive to children; or (3) negligence in failing to take reasonable precautions to prevent the entry of children into the sewer. Plaintiffs further alleged that Sheridan knew or, in the exercise of reasonable care, should have know that young children were entering the sewer, and that it knew or should have know about the presence of methane gas in the sewer. Summary judgment was entered in favor of Sheridan on all three theories of liability.
[1] We see no basis for imposing liability on Sheridan based on the existence of Chase Park. The park was owned, controlled, operated, and maintained by defendant South Suburban Metropolitan Recreation and Park District, and there was no showing that Sheridan had any responsibility or duty in connection therewith. Where no duty is owed, liability cannot be imposed. Turner v. Grier, 43 Colo. App. 395, 608 P.2d 356 (1979).
[2] However, Sheridan did have a duty arising from its contractual acceptance of the responsibility for maintenance of the sewer entrance. This duty extended beyond merely installing a trashrack; it was to maintain the entrance, and, in so doing, to use reasonable care. See Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). It appears that the bars on the trashrack were bent or had been pried apart sufficiently to allow children to enter the sewer. Sheridan is liable for breach of this duty if it knew, or should have known, that a condition existed which involved an unreasonable risk of harm to members of the public, and if it failed to take reasonable precautions to correct the condition. Mile High Fence Co., supra.
[3] Sheridan also may owe another duty of care. The documents supplied in support of and in opposition to the summary judgment motion disclose a fact issue concerning whether the sewer and its entrance constituted an attraction to children. If so, Sheridan had a duty to take reasonable precautions to prevent children from entering the sewer or to protect from personal injury any children who might be attracted thereto. See Simkins v. Dowis, 100 Colo. 355, 67 P.2d 627 (1937).
Consequently, since a duty existed as a matter of law, summary judgment should not have been entered because numerous fact questions relating to whether Sheridan breached that duty remained, including: (1) whether the sewer and its entrance constituted an attraction to children; (2) whether Sheridan knew or should have known the condition of the sewer entrance and that children were entering the sewer; (3) whether it knew or should have known of the presence of methane gas in the sewer; (4) whether it improperly maintained the storm sewer entrance; and (5) whether improper maintenance, if any, was a cause of the children's injuries.
Judgment reversed and cause remanded for further proceedings consistent with this opinion.
JUDGE COYTE and JUDGE KIRSHBAUM concur.