Summary
In Wheeler, we reversed summary judgment in favor of the government when a pedestrian was injured while walking on a county road where there was no sidewalk. "A genuine issue exists as to whether, under the circumstances, the County failed in its duty to exercise reasonable care to ensure the safety of motorists and pedestrians who travel upon County Road 13."
Summary of this case from City of Aspen v. MeseroleOpinion
No. 81SC342
Decided July 11, 1983.
Certiorari to the Colorado Court of Appeals
Robert A. Francis, P.C., James L. Gilbert, for petitioners.
Hall Evans, David R. Brougham, for respondent.
We granted certiorari to review the Court of Appeals' decision in Wheeler v. Baker, 636 P.2d 1326 (Colo.App. 1981), which affirmed the district court's entry of summary judgment in favor of the defendant, Eagle County. We reverse and return this case to the Court of Appeals with directions to remand to the district court for trial.
The plaintiffs, Kellie Marie Wheeler and her parents, John and Joan Wheeler, sued Thomas D. Baker and the County of Eagle (County) to recover for injuries sustained by Kellie when she was struck by Baker's vehicle while walking on Eagle County Road 13, a paved two-lane county road. The claims against Baker were settled and the County obtained summary judgment on the remaining claims. The affidavits submitted by the parties established that County Road 13 was adjacent to the KOA trailer court where a substantial number of high school students resided. Because a number of students resided at the trailer court, the Basalt high school homecoming floats were constructed in an area near the trailer court.
Kellie and several other friends were walking along County Road 13 after they had finished working on the homecoming floats. The road had only a narrow shoulder which dropped off into a ditch. Trees and bushes extended to the edge of the roadway forcing pedestrians to walk on the pavement. Kellie was struck by the vehicle driven by Baker while walking on the pavement.
In their complaint, the plaintiffs alleged that the County was negligent in failing to maintain County Road 13 in a reasonably safe condition for pedestrian use. The district court concluded that the County had no obligation to construct sidewalks along county roads and had no duty of care to pedestrians who sustained injuries while walking on the road. Summary judgment was granted in favor of Eagle County when the trial court held that the County could not under any circumstances be held liable for the injuries to the plaintiffs. The Court of Appeals affirmed, holding that Eagle County had no duty to provide a walkway for pedestrians and, accordingly, was not negligent.
We granted certiorari to determine whether it was error to enter summary judgment in this case and now reverse.
The standard to be applied in ruling upon a motion for summary judgment is set forth in C.R.C.P. 56(c), which provides:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
Summary judgment is a drastic remedy and should not be granted when a genuine issue exists as to any material fact. Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Ginter v. Palmer Company, 196 Colo. 203, 585 P.2d 583 (1978).
The affidavits submitted in response to the defendant's motion established material questions of fact which preclude entry of summary judgment. The factual predicate was that a large trailer court, where a number of high school students resided, was located near County Road 13. Trees and bushes which extended to the edge of the road forced pedestrians to walk on the pavement. A genuine issue exists as to whether, under the circumstances, the County failed in its duty to exercise reasonable care to ensure the safety of motorists and pedestrians who travel upon County Road 13. Therefore, a summary judgment should not have been entered for the County.
The district court and the Court of Appeals held that, because the County had no duty to construct pedestrian walkways along its roads, the County was absolved from all liability under all circumstances. The issue in this case is not whether the County is required to construct a sidewalk along County Road 13, but whether it breached its duty to maintain the roadway in a reasonably safe manner for members of public who use it. Stephen v. City and County of Denver, 659 P.2d 666 (Colo. 1983). The Washington Supreme Court pointed out the error of entering summary judgment in a similar case when it declared:
"To sustain [Spokane County's] contention would be to hold, as matter of law, that regardless of the conditions existing on the bridge, regardless of the magnitude of the risk to pedestrians, and regardless of how simple and economical the construction of a sidewalk, or the reservation of space for pedestrians, might be, the county would nevertheless be absolved from any liability for negligence."
Berglund v. Spokane County, 4 Wn.2d 309, 318-319, 103 P.2d 355, 360 (1940)
The trier of fact must determine whether there was a dangerous condition on County Road 13 which created an unreasonable risk of harm to those who use it. It is within the purview of the jury to decide whether the County knew or should have known of the condition and the risk to the public created by the obstructions on the road. Whether the County failed to exercise reasonable care under the circumstances and thereby caused the plaintiff's injury is a factual issue in this case that cannot be resolved by summary judgment.
Accordingly, we reverse the judgment of the Court of Appeals and return this case with directions to remand to the district court for trial.
JUSTICE ROVIRA and JUSTICE QUINN dissent.