Jefferson County School District R-1 v. Gilbert Ex Rel. Gilbert , 1986 Colo. LEXIS 621 ( 1986 )

QUINN, Chief Justice,

dissenting in part:

I respectfully dissent from Part II of the court’s opinion. While I agree that our decision in Jefferson County School District R-1 v. Justus, 725 P.2d 767 (Colo.1986), supports the trial court’s grant of summary judgment in favor of the school district, I dissent from the majority’s determination that summary judgment was properly entered in favor of the City of Arvada on the Gilberts’ negligence claim.

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Although summary judgment serves the salutary goal of saving judicial resources that might otherwise be expended in protracted litigation, it is not a substitute for a trial. E.g., Mount Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 239 (Colo.1984). This court’s affirmance of the summary judgment in favor of the city is predicated, in my view, on the erroneous premise that compliance with the standards set forth in the traffic control manual, adopted by the state department of highways pursuant to section 42-4-501, 17 C.R.S. (1984), constituted conclusive evidence of due care by the city. When this premise is rejected, as it should be, it is obvious that, notwithstanding the city’s compliance with the manual, the plaintiffs presented evidence which raised a question of fact as to the city’s failure to use reasonable care in designing the intersection and placing adequate traffic control signals at the intersection.

The majority turns its decision on section 42-4-501 which requires the state department of highways to adopt “a manual and specifications for a uniform system of traffic control devices” based essentially on “the most recent edition of the ‘Manual on Uniform Traffic Control Devices for Streets and Highways’ and other related standards issued or endorsed by the federal highway administrator.” The court holds that this statutory mandate defines the scope of the city's tort duty with respect to the design of, and the placement of traffic control signals at, the intersection. Contrary to the majority, I would hold that the City of Arvada’s compliance with the manual is merely one factor to be considered in determining whether the city was negligent under the particular circumstances of this case.

It is an accepted principle of tort law that compliance with a statute or an administrative regulation promulgated pursuant to a statute is not conclusive evidence of due care unless the statutory scheme specifically states that compliance is to serve as the standard for tort liability. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), on remand, 769 F.2d 1451 (10th Cir.1985); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984); Maryland Heights Leasing v. Mallinkrodt, 706 S.W.2d 218 (Mo.App.1985); Stone v. Sterling Drug, Inc., 111 App.Div.2d 1017, 490 N.Y.S.2d 468 (1985); W. Prosser & W. Keeton, The Law of Torts § 36 at 233 (1984). Compliance with a statute or administrative regulation, in other words, constitutes some evidence of due care, but does not preclude a finding of negligence where a reasonable person would have taken additional precautions. E.g., Blueflame Gas, Inc., 679 P.2d at 591; Restatement (Second) of Torts § 288C (1965). Nothing in section 42-4-501 suggests that compliance with the state department of highways’ manual is the outer limit of a city’s tort responsibility to design and maintain roadways in a reasonably safe manner for members of the public, including school children of tender years. Thus, while evidence of compliance with the manual would certainly be some evidence of the exercise of due care by the City of Arvada, nothing in section 42-4-501 prohibits a finding of negligence based on the city's failure to take additional precautions.

In this case the Gilberts raised factual questions sufficient to withstand the City of Arvada’s motion for summary judgment. In opposition to the motion for summary judgment, the Gilberts filed the affidavit of Robert J. Cantwell, a licensed professional engineer specializing in accident reconstruction and highway safety. Cantwell’s affidavit stated that he examined the intersection at Carr Street and Grandview Avenue and that, in his opinion, it was confusing and dangerous for kindergarten-age children who were walking in the crosswalk across Carr Street. His affidavit also stated that the confusing and dangerous condition could have been alleviated by the installation of a standard traffic signal light with a pedestrian push-button control device. Since section 42-4-501 did not preclude a finding of negligence based on a city’s failure to take additional precautions over and above those set forth in the state department of highway’s manual, Cant-well’s affidavit required the trial court to deny the city’s motion for summary judgment.

I would therefore reverse the judgment entered in favor of the city and remand the case for trial.

I am authorized to say that Justice DU-BOFSKY joins me in this dissent.