Widder v. Durango School District No. 9-R
60 P.3d 741
Colo. Ct. App.
2003
Check Treatment

*1 entity public entity s could be negligent, negligence

found and its would proximate dangerous

still be a cause of the

condition).

Here, the trial court partic- found that the place

ulаr where Martinez fell was known to problem area and that build-up

ice there continuing prob- chronic and

lem. The court also determined that knowledge

School District had notice and condition, ‍‌​‌​‌‌‌​​​​​​‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌‍and even if the School District knowledge

did not have of the accumulation fell, day

of ice the that Martinez it knew from

prior experience that ice would accumulate at

that location and would cause that condition.

Therefore, given findings, the trial court’s record, supported by are we con- determining

clude that it did not err in

Martinez had established that the School

District actual dangerous notice of the

condition.

The order is affirmed.

Justice Judge KIRSHBAUM* and

STERNBERG* concur. WIDDER, Plaintiff-Appellee,

Keith

v. 9-R,

DURANGO SCHOOL DISTRICT NO. district;

a Colorado school and Board of Durango

Education of School District 9-R,

No. a Colorado school district ‍‌​‌​‌‌‌​​​​​​‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌‍education, Defendants-Appel

lants.

No. 01CA1180. Appeals, Court of

Div. V. 20,

June 2002.

Rehearing July 25, Denied 2002.*

Certiorari Granted Jan. 2003.

* * Sitting by assignment J., Roy, grant. the Chief Justice under would Const, VI, provisions 5(3), of Colo. art. 24-51-1105, C.R.S.2001.

742 accidentally bumped

them” and foreheads day, the with one of the students. Later that plaintiff principal assistant informed interim had reported plaintiff that that the student him, plaintiff and was served “head buttеd” suspension. with notice of The interim plaintiff by superintendent letter advised recommending to he was the board and be terminated request hearing. could requested Plaintiff hear- superintendent. Following interim counsel, ing, plaintiff appeared with at which superintendent interim found different of ter- uphold would the recommendation she was a mination based on evidence that there found, her She also on head butt. based credibility weight of of the and assessment evidence, were de- actions inappropriate or the con- ‍‌​‌​‌‌‌​​​​​​‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌‍liberate result aрproved duct. The board recommenda- plaintiff, tion and dismissed originally complaint alleg- Plaintiff filed ing of contract and violation of breach 22-32-110(4)(c) (the immunity stat- former ute), 91 at 530 Colo. Sess. Laws ch. (now § 22-32- codified with amendments as C.R.S.2001). 109.1(9)(e), That provid- section any person ed that tеacher or who “[a] in Association, acts in with Education Charles Houser, adopted code of edu- Kaiser, Gregory F. Martha R. J. subject Lawler, cation ... shall not ... be to Cathy Sharyn Dreyer, L. E. Cooper, dismissal, Denver, Colorado, disciplinary proceedings, including Plaintiff-Appellеe. for as Defen- a result such lawful actions.” P.C., Semple, Mooney, B. Miller & Patrick judgment pleadings moved for on dants Denver, Colorado, Mooney, Shea, Wendy J. 12(c), pursuant trial which the Defendants-Appellants. for granted. Opinion Judge MARQUEZ. also allowed complaint amended McIn- file an based on mandamus, defendants, action Education, v. Board tosh Durango 9-R School District No. al- (Colo.App.2000). complaint The amended Durango Board of School Dis- Education leged damaged by that he was the board’s 9-R, appeal judg- trict No. court’s comply immunity failure to statute Widder, granting plaintiff, ment Keith rein- that he in the was entitled relief pay. statement and back We vacate the of mandamus to C.R.C.P. nature judgment and remand with directions. employed as a at a middle While custodian summary judg- for Durango, plaintiff a stu- Defendants then moved witnessed ment, being pushed another court denied. The court dent student rejected stop According contrary as to McIntosh defendants’ decided to incident. students, revers- plaintiff, approached he assertion the board’s actions are when squatted “eye eye of discretion and conclud- get he down with ible abuse ed that the court should supra, determine de novo a division of this court whether in violation determined that a probationary teacher who of the statute and entitled to a writ of man- disciplined a student was entitled to damus. pursue mandamus relief to enforce the im- *3 munity statute when the school board unilat- evidentiary hearing, After an the trial erally voted not to renew the teacher’s con- court ruled in favor of and ordered tract. The school board had asserted in a that he be reinstated and pay awarded back 12(b)(5) motion to dismiss that the plus statutory interest. appeal Defendants teacher’s contract was not renewed based on judgment. from this budget considerations. The division deter- mined that the statute exception creates an I. general to the grаnting rule school boards Defendants first contend that the trial employment discretion to terminate pro- court in determining erred de novo the facts hibits school boards basing termination underlying the dismissal In sup- decision. decisions on good actions taken in faith and contention, port of this argue defendants that in compliance with the school board’s disci- immunity statute does not divest a school pline codes. authority district of discipline or dis- an if miss the district determines The division in McIntosh concluded that employee’s that inappropri- conduct wаs immunity statute, to the the school ate refusing and that the trial court erred in specific board had a duty not to refuse to findings defer to the school district’s of renew the probationary teacher’s ‍‌​‌​‌‌‌​​​​​​‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌‍contract inappropriate by plaintiff.- conduct We good beсause of compliant code that the trial court in conducting erred a de disciplinary actions. The division also held hearing. novo prescribes the statute no avenue of relief for an alleged violation duty of this and that extraordinary Mandamus is an probationаry teacher had not af- been remedy may compel perfor be used to forded, have, and did not op- otherwise by public plain legal mance officials of a duty portunity to have his claim heard an upon which devolves them virtue of their impartial arbiter. enjоins office or which the law duty as a resulting from the office. ap Mandamus is appeal Because the in McIntosh concerned propriate upon the satisfaction of con three grant the trial court’s of the school board’s (1) legal right ditions: a clear to thе relief dismiss, motion to the division did not consid- (2) sought; legal duty part clear on the of er proffered the school board’s reason for not perform the district requested; the act renewing Rather, the teacher’s contract. (3) any lack remedy. of other available rеmanded the case to the district court with County Board County Comm’rs v. Road of evidentiary directions to conduct hearing Ass’n, (Colo.2000); Users 11 P.3d 432 Sher to determine that reason. The division stat- City Springs man v. Planning ed that mandamus requiring relief the rein- Comm’n, (Colo.1988). 763 P.2d 292 statement of granted the teacher should bе only if the trial court determined that compel perfor Mandamus lies to prohibited school board’s reason was by the purely mance of a duty ministerial involving immunity statute. discretionary right no requiring and not judgment. exercise of County Board of Here, argued defendants before thе trial Ass’n, County Comm’rs v. Road Users su immunity statute ‍‌​‌​‌‌‌​​​​​​‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌‍does not pra. immunize from termination if the The power, education has the board determines in its discretion that judgment, exercised in its discharge or methods used to a student are otherwise employment therefore, terminate the inapprоpriate not personnel. 22-32-110(l)(h), C.R.S. faith and in disciplinary 2001; County Adams rejected School Dist. No. 50 v. argu- code. The (Colo.1990). Dickey, 791 P.2d 688 interpretation ment based on its of Mein- contest that appeal, plaintiff does not On and determined whether tosh opportunity present any given wаs violation of the statute he was to offer at After evidence he wished an issue to be heard de novo. superintendent. Nor the interim does plaintiff, a hearing testimony from student economist, testifying at incident, prevented he assert he was witnessed the who witnesses, presenting student, hearing, calling complaining the interim assis- argument, During oral superintendent, interim evidence. principal, the tant director, stated that denial due counsel human resources and the district’s issue, “the issue here process was not the but there was the trial court determined violаted.” How- notion that is whether the statute was “any to sustain the not evidence ever, the immu- argue ... does head contact was deliberate” and *4 evidentiary hearing nity requires an good and in statute acted in faith that defendant Rather, plaintiff the relies before trial court. disсipline code. compliance with the requirement. on for that McIntosh disagree with the trial court’s We that, agree pursuant to the im We required a de that McIntosh novo conclusion statute, munity the not have dis board did hearing here. plaintiff to if his conduct was cretion dismiss McIntоsh, the case was remanded to In good compliance in with the in to whether the the trial court not determine statute disciplinary code. the does compliance good acted in faith and in teacher of its to deter not divest the board discretion code, tо disciplinary but rather de- with in good his conduct in fact was mine whether nonrenewal. termine reason compliance and in and so whether it faith good acted in faith dur- teacher Whether Additionally, we do warrants dismissal. not appear ing disciplinary incident does not requiring evidentiary an read McIntosh as in that to have been an issue case. every hearing the trial in case before involving disciplinary proceedings based on Moreover, in unlike the teacher indicating circumstances the statute. Absent here afforded plaintiff was a prоvided oppor an was not an superintendent to termi- prior the interim hearing, appropriate tunity for a more plaintiff repre- hearing, At that was nation. procedure is to seek review of board’s by opportunity counsel and had the to sented pursuant to deсision C.R.C.P. present evidence. Here, undisputed that the board’s it is appeal, In their brief on defendants assert plaintiff to not a decision terminate was uni- plaintiff given opportunity was to Instead, in lateral decision as McIntosh. present whatever evidence he wantеd. Ac- superintendent’s was based on the interim brief, cording plaintiff provid- to defendants’ finding, evidentiary hearing, an after superintendent the interim with ed in plaintiff engaged inap- deliberate The written statement. record indicates that propriate conduct. superintendent a lеtter the interim sent outlining stating evidence Therefore, in the trial court erred deter- findings. letter the evidence her The lists as mining de conduct in novo appraisals support regarding staff reviewed compliance good faith and in with disci- you plaintiff; notes” plaintiff; Thus, “thank plinary сode. is entitled achievement; a statement certificate to mandamus relief. attorney;” plaintiffs “on speaking policies suspension; on exclu- administrative II. sions, corporal punishment, suspension and students; trial Because conclude that the expulsion of letter from su- we right required was not to conduct a de novo re- perintendent on termination and re- view, report; con- hearing; investigative we need not address defendants’ quest students, plaintiff, tention that the court abused discre- statements teachers; and, by determining in Durango Herald records. tion acted statute, may impose with the compliance injunc- faith and in disci- and the court good relief if it that a tive determines violation pline code. has proceeding occurred. Such would not be a vacated, and the case judgment The is is review the school district’s with instructions reinstate the remanded would be accorded no deference. order. board’s 57(i). Judge Chief HUME concurs. It apparent is General Assembly discipline is public concerned about Judge ROY dissents. boards, protect schools and seeks to Judge dissеnting. ROY teachers, persons good and other who act in I respectfully dissent. faith and in with a disciplinary protects code. The statute these entities and view, 22-32-109.1(9)(e), my C.R.S. persons liability granting from civil immu- 32—110(4)(c)), (formerly codified at 22— nity liability by according criminal general board’s places limit оn a school defense, allegations affirmative and from employees. dismiss power excluding compli- child abuse faith sense, holding I with a disciplinary ance code from the defini- Education, v. McIntosh Board *5 22-32-109.1(9), child abuse. tion Therefore, in- (Colo.App.2000). 224 seems (formerly §at C.R.S.2001 сodified 22-32- congruous to me that the school board is (b)). 110(4)(a)(I)(III), given the initial determination as to whether employee dismissing pro- action in is Then, 22-32-109.1(9)(e) gives similar by according the statute and then scribed to a or protections person teacher other judicial that determination deference as the school board prohibiting majority holds. employ- school board from nonrenewal of an disagree I with the division in contract, taking any disciplinary ment McIntosh pursuant mandamus dismissal, including making any or note 106(a)(2) appropriate remedy C.R.C.P. is the that, еmployment apparent record. It is for under these circumstances. Mandamus lies reason, Assembly whatever the General has legal right, when there is a clear a clear persons specific concluded that these need legal duty, remedy. and no availablе prosecutors, protection public, from the acts, Mandamus deals with ministerial boards. To a school make board the discretion. See Jones v. Colora- involving acts its action initial arbiter of whether violates Examiners, Chiropractic do State Board statute, givе and then to that decision the (Colo.App.1994). normally accorded in an adminis- deference 106(a)(4) pursuant trative review to C.R.C.P. disagree majority I also with the protection accorded the statute dilutes judicial appropriate remedy here is review Assembly. and the General to C.R.C.P. Nor do I majority this case should Therefore, court, because the albeit McIntosh distinguished virtue of reasons, wrong for the a full conducted hear- the fact that district here the school held a ing, appropriate findings of made fact and hearing. By distinguishing rather lаw, conclusions of and ordered it, disapproving majority implies than reinstatement, I would affirm. it is law in instances in those employ- accord the school district did not hearing, with which I proposition

ee also

disagree. view, my disciplined or remedy has a under C.R.C.P. proceeding declaratory judgment. issue proceeding, is whether was in

the dismissal violation of