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Keith v. Valdez2/20/1997
also assert that the sanctions imposed were for a course of improper conduct in this case and the previously dismissed action.
However, these contentions were considered and rejected by the trial court when it denied Keystone's motions to dismiss. Further, the ruling imposing the sanctions was not based on any misconduct other than a failure to sign the disclosure certificate.
II.
Among issues that may arise on remand is Keith's contention that the trial court erred in characterizing her negligence claim as one for negligent supervision and in declining to conclude that she had stated a proper negligence claim. We agree that such was error.
A.
In regard to the proper characterization of Keith's claim, we note that Keith's first complaint contained a claim for relief against Valdez based on negligence and claims against Keystone including negligent supervision/entrustment and negligence. The negligence claim against Keystone alleged that it had a "duty to that class of persons who are apt to come in contact with the drivers to monitor not only the employee drivers of the vans but the operation of said vehicles at all times that the drivers were on call, upon information and belief being twenty-four hours per day." It further alleged that Keystone had breached the duty by failing to monitor properly the checking out of the keys to drivers, failing to monitor its employees, and failing to provide proper check-out procedures for the vans.
The complaint here contained the same claims for relief including the same negligence claim against Keystone, except that the negligent supervision/entrustment claim against Keystone was omitted.
Thus, based upon a comparison of the two complaints, we conclude that Keith properly stated a claim for negligence against Keystone and did not intend to assert a negligent supervision/entrustment claim here. Accordingly, the trial court erred in not determining whether Keystone owed a common law duty of care to Keith.
B.
We also agree with Keith that her allegations would adequately state a claim for negligence against Keystone.
Whether a particular defendant owes a legal duty to a particular plaintiff, as well as the scope of the duty, are questions of law for a court to resolve. The court should consider several relevant factors in determining whether to recognize a duty in a particular case. These factors include the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor. Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo. 1993).
No one factor is controlling and other considerations may also be relevant in determining whether a duty exists. Essentially, the question is one of fairness under contemporary standards, that is, whether reasonable persons recognize and agree that a duty exists. Once a court has determined the existence of a duty, the court must consider the scope of the duty and define the applicable standard of care against which to measure the defendant's conduct. The finder of fact then must determine whether the defendant breached that duty. Bath Excavating & Construction Co. v. Wills, supra.
Keith alleged that the keys to a fleet of Keystone vans were left hanging in an unlocked room, that unrestricted twenty-four hour access to the room existed, that Keystone employees had occasionally borrowed the vans for personal use, and that Keystone had experienced numerous problems concerning the use of alcohol an
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