*1 COUNTY SCHOOL JEFFERSON R-1, Petitioner,
DISTRICT
v. GILBERT, minor, by par her
Christine friends, next
ents and James GILBERT Mary Ann Gilbert and James Gil Mary Ann individual
bert and Gilbert
ly, Respondents. GILBERT, minor, by par her
Christine friends,
ents and next James GILBERT Mary Ann Gilbert and James Gil Mary
bert and Ann Gilbert individual Petitioners,
ly, ADA, municipal CITY OF ARV
corporation, Respondent. 84SC327,
Nos. 84SC335. Colorado,
Supreme Court of
En Banc.
Sept. Hames, P.C.,
Wood, Ris & F. Michael Jr., Denver, Latiolais, Ludwig, J. Clifton petitioner R-l. Dist. Whitworth, Ridge,
Richard L. Wheat Gilberts. Senter, Rice,
Greengard & Thomas S. Denver, City of Arvada.
ROVIRA, Justice.
is a review of the court of
This case
appeals opinion
Arva
da,
(Colo.App.1984),
stemming
negligence claims
dealt with
automobile-pedestrian
from an
accident.
February
Shortly before noon
Gilbert,
kin-
five-year-old
Christine
*2
motions,
In
Elementary
opposition
School
these
dergartner
Lawrence
to
the Gil-
at
Arvada, Colorado,
injured while
in
was
berts contended that the school district as
a
walking home from school with classmate
post
sumed a
crossing guards
to
at
As the children
Avenue.
on Grandview
signs
the
stop
intersection and that
its intersection with
crossed
Street at
Carr
provided by
city
provide
did not
ade
Grandview,
from the
five blocks
about
quate traffic control due to the offset na
school,
by a car driven
Gilbert was struck
of
In support
ture
the intersection.
of
by Roy Miller.
Gilbert,
argument,
their
James
Christine
is controlled
The intersection
father,
Gilbert’s
submitted an affidavit
signs
stop traffic on
by stop
Carr
stating
crossing guards
that there were
at
and allow traffic on Grandview to
street
“during portions
the intersection
unimpeded. Visibility at the intersec-
flow
walking
but
for children
home in the
and unobstructed
all di-
tion
clear
Caldwell, profes
Robert
afternoon....”
a
forms
a
rections. While Grandview
engineer,
sional
submitted an affidavit stat
straight
point,
line at this
east-west
ing
“confusing
that
the intersection was
portions of Carr
northern and southern
dangerous
kindergarten-age
to
chil
are
at the Grandview intersection
Street
crossing
guard
dren” and that use
a
feet, requiring
by approximately
offset
push-button
signal
installation of a
traveling
slightly
to
on Carr
steer
vehicles
prevented
“confusing
could have
right
they
cross the intersection
to
dangerous situation.” Caldwell’s affidavit
Miller,
stay
driving
lane.
in order to
challenge
did not
Hensen’s
that
statement
Carr,
traveling
stopped
who was
north on
“nationally
the intersection conformed with
stop sign
at the
on the south side Grand-
recognized engineering standards.”
view. He struck Gilbert
the northern
motions,
hearings
After
on the
the trial
proceeding
after
across Grand-
cross-walk
granted
judgment in
summary
court
favor
view.
city.
the school district and the
both
brought
parents
and her
an ac-
against
pro-
defendant Miller then
The case
Miller,
alleging negligence against
tion
trial,
negli-
ceeded to
where a verdict
(the
District R-l
Jefferson
Miller
gence
against
returned
Miller.
was
(the
district)
City
and the
of Arvada
school
appeal.
did
city). They
city
that
was
contended
designing, constructing, and
negligent
appealed both
the district
The Gilberts
maintaining
and that the
the intersection
They
summary judgment orders.
court’s
negligent
failing
school district was
crossing guards argued
by placing
crossing guards during the late-mom-
post
times,
the intersection at other
kindergartners
period in which
time
provide
district had assumed a
the school district and
walked home. Both
kin-
crossing guards during the times when
summary
city
judgment.
moved for
con-
dergartners
They
walked home.
argued
that it was enti-
school district
statement
that the
tended that Caldwell’s
grounds
on the
summary
tled to
“confusing
danger-
provide crossing
it had no
been made safer
ous” and could have
in-
guards
safety
or other
measures at an
raised a
through installation
tersection more than five blocks from the
preclude
genuine issue of fact sufficient
school. The
contended that
city.
summary judgment
favor
granted in its favor on
judgment should be
appeals
opinion
the court
a divided
grounds
was not
that the intersection
summary judgment
grant of
reversed the
unsafe,
supporting affida-
and submitted a
district, holding
on
basis
for the school
Hensen,
professional engi-
vit
Ronald
District
County School
Justus
neer, stating
intersection and all
that the
(Colo.App.1984),
P.2d 805
R-
designed and main-
the crosswalks were
the ex
rev’d,
(Colo.1986), rec-
“nationally
tained in accordance with
other times
crossing guards at
ognized engineering standards.”
istence of
genuine
issue as to whether the
took to render a service that
raised
was reason-
provide
prevent
ably
type
had assumed a
calculated
district
Second,
crossing guards
plaintiff.
harm that befell the
at the time Gilbert was
Arvada,
plaintiff must also show
injured.
either that he
Gilbert v.
perform
relied
the defendant to
(Colo.App.1984).
848-49
undértaking
or that
service
defendant’s
unanimously
court also
affirmed
plaintiff’s
increased
risk.
city,
stating
*3
for the
that,
support
nothing
“there was
[the
Justus,
Dist. v.
County School
Jefferson
allegations
city negli-
that
the
Gilberts’]
(citations
omitted). In
at 771
and footnote
constructed,
designed,
or maintained
gently
making
the
discussing
plaintiff’s burden in
intersection.” Id. at 848. It also not-
the
showings,
these
the first of
we noted that:
ed,
done,
“That more could have
such
been
any
duly
assumed
...
push-button
is
stop lights,
irrelevant
as
[T]he
performance
limited to the
with
must be
what was done conformed
the
when
undertaken,
of that
be-
due care
service
standards.” Id.
school
liability
cause the
district’s
under
petitioned
Both the district and Gilbert
voluntarily
duty
obviously
assumed
a
can
grant-
court for certiorari review. We
greater
undertaking
be no
than the
actu-
petition
ed certiorari on the school district’s
ally assumed.
petition
No.
in
84SC327 and the Gilberts’
against
the
in No.
We now
Justus,
84SC335.
County School Dist. v.
Jefferson
at
in
appeals
the court of
No.
reverse
n.
772 5.
summary judgment
and
84SC327
reinstate
light
in the
Even
most
favorable
favor
affirm
in
of the school district. We
Gilberts,
the
the standard
we
under which
grant
summary judgment
for the
the
a
summary judg
must evaluate motion for
city in No. 84SC335.
ment,
Dressel,
see Jones v.
A that the de- 849-50 must first show fendant, guards present when as through either affirmative several times its act, are released in the through promise many acts or under- children afternoon negligent provide dally standard). imposed not make it not to does Section 42-4- single grade when is dismissed in guards (1984), requires 17 C.R.S. adoption by morning.”). The trial court therefore the state of highways of “a correctly granted summary judgment in fa- specifications manual for a uniform district. vor system of traffic control devices” and au- adoption thorizes of the United De- States appeals judgment of the court of partment 84SC327, Transportation’s Manual on and the case re- reversed manded for reinstatement of Uniform Traffic (the Manual), favor Highways along Streets and School District. supplement setting with a forth excep- tions, additions, adaptations to the II. Colorado, applicable Manual that are 84SC335, the In No. Gilberts contend compliance require- means with this appeals affirming that the court of erred 42-4-503(1) ment. adds: Section summary judg- trial court’s *4 respective Local authorities their city. They argue that ment for the jurisdictions place shall and maintain by Hensen filed with its affidavit upon high such traffic devices control summary for motion contained ways jurisdiction they may under their as conclusory and unsubstantiated statements necessary carry deem to indicate and to support were insufficient to provisions out the of this article or local grant They judgment. court’s of warn, regulate, to ordinances or argue that or guide All traffic.... such traffic inappropriate because Caldwell’s affidavit control devices shall to the conform genuine raised a issue of fact as to whether specifications state manual and the intersection of Grandview and Carr was uniformity provided statewide negligently designed. disagree. We section 42-4-501. County 666 Eagle, Wheeler v. P.2d of (1984) 42-4-503(1), (emphasis 17 C.R.S. (Colo.1983), county 561 we held that a added). “duty roadway had a to maintain in a 42-4-501, Pursuant to section the state reasonably manner safe for members adopted highways the 1971 public Obviously, it.” who use that Manual, Highway Ad- edition of the Fed. applicable is also to cities. See Ste- min., Denver, Dep’t Transp., on U.S. Manual phen and 659 P.2d 666 Uniform Traffic (1971 (1971 ed.) Highways Streets and court The declined Wheeler to address Manual), supplement its 1975 to and own scope to reference trim Manual, Highways, the 1971 Div. Colo. ming plant growth edge county at the of a Highways, Dep’t Supplement Colorado grounds on the road failure exercise to Manual on Control Traffic Uniform reasonable care under the circumstances (1975 Highways Streets and Devices was a factual issue that should have been (1975 ed.) High- Supp.). See Colorado Colo. jury. left for the 666 at 561. The P.2d Comm’n, (Nov. 26, 241-D way Res. No. however, legislature, has delineated the 1975), Supple- reprinted 1975 Colorado roadway in scope superseded by a Although ment now at ii. reasonably safe manner in reference to the Supple- and Colorado 1978 Manual placement signs signals. of traffic and See Manual, ment both the 1971 to that -503(1), (1984); 42-4-501, 17 C.R.S. §§ cf. Supplement (Colo. and the 1975 Colorado Sobule, Manual Dare v. February 1978 when 1984) were in effect (duty may legislative derive from en place.1 question took the accident judi- actment the standard of conduct High- Supplement highway adopted 1971. See Colo. The state first October commission 9, 1971, Comm’n, way reprinted Preliminary Res. Oct. dated the 1971 Manual and Colorado following perti- city’s duty The Manual contains the provide safe traffic control provisions regard nent to traffic con- with 42-4-503(1) under section and the Manual. trols for school areas: Hensen’s city complied affidavit that
7A-1 Need for Standards with standards that delineate
Traffic control in school areas is a of its is therefore support sufficient to highly If subject. sensitive all the de- grant the trial summary judg- court’s met, parents mands of and others were ment. many police there more would have be presented Since the evidence in Hensen’s duty; and guards adult for school support affidavit sufficient to many signals, signs, more traffic summary judgment, we must address demands, however, markings. Such are remaining question of whether Cald- always in line with actual needs. well’s affidavit raised a sufficient factual Analyses many often show that at lo- question preclude summary judgment. cations, crossing request- school controls We believe that it did not. by parents, ed teachers and other citizens unnecessary costly are and tend to city’s duty to make its streets safe respect lessen the for controls that are by placing appropriate signs signals and/or important warranted. It is therefore effectively defined the Manual as the point regardless stress the engineering exercise judgment. of sound location, safe effective traffic 1A-3, 7A-6; 1971 Manual at §§ through control can best be obtained also 1978 Manual at 1A-4, (identi 7A-6 §§ application realistic uniform language). cal to be ad policies, practices and standards devel- *5 dressed here is therefore not whether the oped through engineering studies. unreasonably designed intersection was or viewpoint lay juror, unsafe from the of a Engineering Study Required 7A-6 but rather whether the traffic control de particular The decision to use a de- vices installed at con particular vice at a location should be engineering judgment formed with sound made engineering on the basis anof the Manual. See Smith v. required by as study the location.... State, 910, 317, 75 A.D.2d 427 319 N.Y.S.2d 7A-1, (emphasis 1971 Manual at 7A-6 §§ (N.Y.App.Div.1980)(city could not be held added); 7A-1, see also 1978 Manual at §§ negligent planning liable for of intersection (identical language). 7A-6 where traffic control devices conformed to light, In this it becomes clear that the state manual and were installed after ra statement contained in Hensen’s affidavit study by experts); Legg City v. tional that “The intersection and all the cross- Orleans, New 798, (La. 219 800-01 So.2d designed walks were and maintained in ac- (duty App.1969) traffic control nationally recognized engi- cordance with devices with reasonable care met when dis not, neering plaintiffs sug- standards” charged generally in accordance with ac Rather, gest, vague conclusory. standards). engineering cepted apparently exactly affidavit refers to those Supplement standards which define the The 1975 Colorado states: (Prelimi- ed.) (1978 Manual), Dep’t Highways, adopt in Colo. did Colorado Colorado nary) Supplement highway's to Manual on new Manual and the Uniform Traffic Highways Control Devices Streets and at ii Supplement new Colorado to that Manual until (1971). 26,1975, On November the commission 16, September Highway See Colo. readopted along per- the 1971 Manual with the 16, Comm’n, 1983), (Sept. Res. No. 1362-D re- Supplement. manent 1975 Colorado See 1975 High- printed Highways, Dep't in Div. of Colo. Supplement Although Colorado at ii. the Feder- ways, Supplement Colorado to Manual on Uni- Highway promulgated al Administration a new Control Devices Streets and Traffic form 1978, Admin., Highway Manual Dep’t Fed. U.S. (1983 ed.) (1983 Highways at ii Colorado Transp., Manual on Uniform Traffic Supp.). (1978 Highways Streets and
779 in- signals “confusing shall not be the intersection was Traffic control one more of dangerous stalled unless or kindergarten-age children” warrants [1971] Manual are met. suggested a method which safety Existing signals be shall reevaluated could have been increased. have whenever conditions The assertion that the intersec considerably changed determine dangerous tion was but could have been signals or not the can still be whether safer is simply made to support insufficient signals justified. shall be Unwarranted inference neg an that the intersection was removed.... ligently designed. to recover order (em- Supplement at 1975 Colorado 4C-2 § negligence, the Gilberts must show more phasis original); also 1978 Manual at care technically than increased (similar According language). 4C-2 § They also feasible. must establish that the Manual, eight there are situations than exercised less reasonable care. signal: of a traffic that warrant installation Metropolitan Service, E.g., Repair Gas Warrant 1—Minimum vehicular volume. Kulik, Inc. Interruption of continuous Warrant 2— intersection, Every no well matter how con traffic. trolled, presents danger pedestri some pedestrian Warrant 3—Minimum volume. placing pedestrian ans. Short of elevated crossings. 4—School Warrant intersection, walkways every each and over Progressive movement. Warrant beyond 5— task financial resources of experience. 6—Accident Warrant any municipality, way there is no com Systems. pletely danger. Warrant Mayor eliminate 7— Council Cumberland Tur Warrant 8—Combination Warrants. (1939) ney, 177 Md. A.2d 4C-2; Man- 1971 Manual at see also 1978 § (negligence may not be inferred from mere (identical language). With ual at 4C-2 § dangerous, fact that road or street since experience, exception accident safety except cannot be attained “absolute type is based on the number and of acci- cost”). prohibitive impracticable at a occurring period, within a 12-month dents perfect safety realistically Because is not (see 4C-8; 1971 Manual § attainable, required governments are local warrants, 4C-8, these Manual at each of *6 safety of only to achieve a reasonable level crossings), including the warrant for school 42-4-503(1) in with section conformance analysis or is on an of either traffic based engineering and the national standards set near pedestrian volume flow at and/or State, in the v. forth Manual. See Smith Manual subject intersection. See 1971 319; City New Legg 427 N.Y.S.2d at v. -10, 7A-3; 1978 at 4C-3 §§ Orleans, Summary 219 at So.2d 800-01. -10, The Man- Manual 4C-3 to 7A-3. at §§ appropriate therefore since judgment was volume, flow, specific pri- or ual sets forth no presented evidence con the Gilberts levels under each of the war-
or accident testimony those rea Hansen’s trovert rants. Id. safety standards met. sonable were appeal contains no evi- record on volume, flow, traffic Summary having proper- dence that traffic judgment been history at the intersection accident city, in favor of we affirm ly entered justify and Carr installa- Grandview would appeals court in No. judgment of the of the any tion of traffic under 84SC335. Nor did contained in the Manual.
warrants city gather failed allege C.J., that the QUINN, part, in DU- dissents engineer- perform requisite BOFSKY-, the data or in J., dissent No. joins prior making the determina- analysis 84SC335. signs safety require- stop tion that met DUBOFSKY, J., dissents in No. 84SC327. controlling ments the intersection. LOHR, J., participate. only does Rather, Caldwell’s affidavit states 780 Justice, dissenting part: at,
QUINN,
signals
control
Chief
intersection. Con-
I
trary
majority,
to the
would hold that the
from Part II of the
respectfully
I
dissent
compliance
of Arvada’s
with the man-
opinion.
agree
I
that our
court’s
While
merely
is
ual
one factor to be considered in
decision
School District
determining
negligent
whether the
was
Justus,
P.2d 767
725
-1
R
particular
under the
circumstances of this
trial court’s
supports the
(Colo.1986),
case.
in favor
summary judgment
deter
majority’s
district,
from the
I dissent
accepted principle
isIt
an
of tort law that
prop
summary judgment
mination
compliance with a statute or an administra
City of Arvada
in favor of
erly entered
regulation promulgated pursuant
tive
to a
claim.
negligence
on the Gilberts’
statute is not conclusive evidence of due
statutory
specifical
care unless the
scheme
appropriate
Summary judgment
is
ly
compliance is
states that
to serve as the
genuine
any
when there is no
issue as
See,
liability.
e.g.,
standard for tort
Silk
moving party
is
material fact and
enti
238,
Corp., 464
wood v. Kerr-McGee
U.S.
Al
tled to
as a matter of law.
(1984),
104 S.Ct.
at the intersection I Justice dissent Chief opinion. majority district had a II of the question whether the school from section in- provide crossing guards at the duty to returning kindergartners
tersection ultimately
home before noon is Serv., Repair Metropolitan
of law. Gas Kulik,
Inc. v. Keeton, Dobbs, D. R. Keeton also W. Owen, D. Prosser and Keeton on the
& weighed impos costs involved in majority be include the While the resolves this case on doctrine, duty, preventing assumption good future Samaritan the likelihood of beyond go possible there is no gravity I believe customary need harm. See harm and 395, 397, foresee- Grier, considerations of Colo.App. Turner v. 356, summary judg- ability Dobbs, to determine Keeton, whether (1979); R. Kee W. D. appropriate. ment was Owen, Torts, supra, ch. 7 at 298. D. ton & *8 unlikely consideration case I think it In this foreseeability harm is not 2. The against any militate of these factors would determining whether factor to be considered in if imposition school district of a provide cross- the school district owed ing guards foreseeability of harm the factual returning home from for children against the district. was resolved morning. kindergarten factors to in the Other