Jefferson County School District R-1 v. Gilbert Ex Rel. Gilbert

725 P.2d 774, 35 Educ. L. Rep. 294, 1986 Colo. LEXIS 621
CourtSupreme Court of Colorado
DecidedSeptember 8, 1986
Docket84SC327, 84SC335
StatusPublished
Cited by7 cases

This text of 725 P.2d 774 (Jefferson County School District R-1 v. Gilbert Ex Rel. Gilbert) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jefferson County School District R-1 v. Gilbert Ex Rel. Gilbert, 725 P.2d 774, 35 Educ. L. Rep. 294, 1986 Colo. LEXIS 621 (Colo. 1986).

Opinions

ROVIRA, Justice.

This case is a review of the court of appeals opinion in Gilbert v. City of Arvada, 694 P.2d 847 (Colo.App.1984), which dealt with negligence claims stemming from an automobile-pedestrian accident.

Shortly before noon on February 14, 1978, Christine Gilbert, a five-year-old kin[775]*775dergartner at Lawrence Elementary School in Arvada, Colorado, was injured while walking home from school with a classmate on Grandview Avenue. As the children crossed Carr Street at its intersection with Grandview, about five blocks from the school, Gilbert was struck by a car driven by Roy Miller.

The intersection in question is controlled by stop signs which stop traffic on Carr street and allow traffic on Grandview to flow unimpeded. Visibility at the intersection is clear and unobstructed in all directions. While Grandview forms a straight east-west line at this point, the northern and southern portions of Carr Street at the Grandview intersection are offset by approximately 13 feet, requiring vehicles traveling on Carr to steer slightly to the right as they cross the intersection in order to stay in the driving lane. Miller, who was traveling north on Carr, stopped at the stop sign on the south side of Grand-view. He struck Gilbert in the northern cross-walk after proceeding across Grand-view.

Gilbert and her parents brought an action alleging negligence against Miller, the Jefferson County School District R-l (the school district) and the City of Arvada (the city). They contended that the city was negligent in designing, constructing, and maintaining the intersection and that the school district was negligent in failing to post crossing guards during the late-mom-ing time period in which kindergartners walked home. Both the school district and the city moved for summary judgment. The school district argued that it was entitled to summary judgment on the grounds that it had no duty to provide crossing guards or other safety measures at an intersection more than five blocks from the school. The city contended that summary judgment should be granted in its favor on the grounds that the intersection was not unsafe, and submitted a supporting affidavit by Ronald Hensen, a professional engineer, stating that the intersection and all the crosswalks were designed and maintained in accordance with “nationally recognized engineering standards.”

In opposition to these motions, the Gil-berts contended that the school district assumed a duty to post crossing guards at the intersection and that the stop signs provided by the city did not provide adequate traffic control due to the offset nature of the intersection. In support of their argument, James Gilbert, Christine Gilbert’s father, submitted an affidavit stating that there were crossing guards at the intersection “during portions of 1978, but only for children walking home in the afternoon....” Robert Caldwell, a professional engineer, submitted an affidavit stating that the intersection was “confusing and dangerous to kindergarten-age children” and that use of a crossing guard or installation of a push-button traffic signal could have prevented this “confusing and dangerous situation.” Caldwell’s affidavit did not challenge Hensen’s statement that the intersection conformed with “nationally recognized engineering standards.”

After hearings on the motions, the trial court granted summary judgment in favor of both the school district and the city. The case against defendant Miller then proceeded to trial, where a verdict of negligence was returned against Miller. Miller did not appeal.

The Gilberts appealed both of the district court’s summary judgment orders. They argued that by placing crossing guards at the intersection at other times, the school district had assumed a duty to provide crossing guards during the times when kindergartners walked home. They also contended that Caldwell’s statement that the intersection was “confusing and dangerous” and could have been made safer through installation of a signal raised a genuine issue of fact sufficient to preclude summary judgment in favor of the city.

In a divided opinion the court of appeals reversed the grant of summary judgment for the school district, holding on the basis of Justus v. Jefferson County School District R-1, 683 P.2d 805 (Colo.App.1984), rev’d, 725 P.2d 767 (Colo.1986), that the existence of crossing guards at other times [776]*776raised a genuine issue as to whether the district had assumed a duty to provide crossing guards at the time Gilbert was injured. Gilbert v. City of Arvada, 694 P.2d 847, 848-49 (Colo.App.1984). The court also unanimously affirmed the grant of summary judgment for the city, stating that, “there was nothing to support [the Gilberts’] allegations that the city negligently designed, constructed, or maintained the intersection.” Id. at 848. It also noted, “That more could have been done, such as push-button stop lights, is irrelevant when what was done conformed to the standards.” Id.

Both the district and Gilbert petitioned this court for certiorari review. We granted certiorari on the school district’s petition in No. 84SC327 and the Gilberts’ petition against the city in No. 84SC335. We now reverse the court of appeals in No. 84SC327 and reinstate summary judgment in favor of the school district. We affirm the grant of summary judgment for the city in No. 84SC335.

I.

In No. 84SC327, the school district contends that the court of appeals erred in reversing summary judgment against the Gilberts on their assumption of duty claim. The court of appeals relied on its decision in Justus, 683 P.2d at 807, which held that the Jefferson County School District assumed a duty to prevent a six-year-old first-grader from leaving school on a bicycle. We granted certiorari in Justus and, in an opinion announced today, affirmed in part and reversed in part the court of appeals. See Jefferson County School District v. Justus, 725 P.2d 767 (Colo.1986). In that opinion we adopted the standard for assumption of duty set forth in the Restatement (2d) of Torts § 323 (1965), and discussed the application of that section to negligence actions in Colorado. We held that, in order to recover under an assumed duty theory,

A plaintiff must first show that the defendant, either through its affirmative acts or through a promise to act, undertook to render a service that was reasonably calculated to prevent the type of harm that befell the plaintiff. Second, a plaintiff must also show either that he relied on the defendant to perform the service or that defendant’s undértaking increased plaintiff’s risk.

Jefferson County School Dist. v. Justus, at 771 (citations and footnote omitted). In discussing the plaintiff’s burden in making the first of these showings, we noted that:

[T]he scope of any assumed duly ...

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Jefferson County School District R-1 v. Gilbert Ex Rel. Gilbert
725 P.2d 774 (Supreme Court of Colorado, 1986)

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Bluebook (online)
725 P.2d 774, 35 Educ. L. Rep. 294, 1986 Colo. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-county-school-district-r-1-v-gilbert-ex-rel-gilbert-colo-1986.