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Swieckowski v. City of Fort Collins11/24/1995
In this personal injury action involving a bicycle accident, plaintiffs, Timothy W. Swieckowski, by and through his parents and next friends, S. Michael and Catherine A. Swieckowski, and his parents individually, appeal the summary judgment entered in favor of defendant, K. Bill Tiley. Defendant, City of Fort Collins (City) cross-appeals the trial court's refusal to dismiss plaintiffs' claims against it. We reverse and remand for further proceedings.
The undisputed facts reveal that, in October 1990, fifteen year-old Timothy Swieckowski was riding his bicycle on a City street at night, without a light. Contrary to applicable traffic regulations, he was proceeding along the unmarked edge of the southbound lane of the roadway next to the curb and gutter.
At the point of the accident, a newer, wider portion of the roadway on which he was riding abruptly narrowed to an older portion. Swieckowski's bicycle continued straight where the roadway narrowed and his bicycle left the paved portion of the road, dropping him into a ditch and causing severe injuries.
The installed curb and gutter led straight to the ditch. There were no signs, guards, barriers, signals, or markings warning of the narrowing of the road or the ending of the curb and gutter, although there was a barricade at the end of the sidewalk. The sidewalk was approximately ten feet away from the curb and gutter.
The newer portion of the road, together with curbing, gutters, sidewalks, and bicycle paths had been constructed by Tiley, an adjacent landowner, pursuant to a land development agreement between himself and the City. In February 1989, Tiley had conveyed a right-of-way over a portion of his land to the City for purposes of widening and improving a section of the road. After the right-of-way was conveyed to the City, Tiley had hired an engineer to design the road and a contractor to build it. Both the design and construction were required to meet certain City specifications. The City had accepted the roadway and all improvements in November 1989.
In their action against the City and Tiley, plaintiffs asserted, as pertinent here, that Tiley and his agents had carelessly and negligently designed and constructed the modifications and improvements to the roadway and that he was further liable under a premises liability theory. As to the City, plaintiffs contended that the unmarked narrowing of the road was a dangerous condition of the roadway, caused by the City's negligent act or omission in constructing or maintaining the roadway.
Tiley filed a motion for summary judgment and the City moved to dismiss. The trial court granted Tiley's motion, determining that Tiley did not owe plaintiffs a duty of care as a matter of law. The court denied the City's motion made pursuant to the Governmental Immunity Act (GIA), § 24-10-101, C.R.S. (1988 Repl. Vol. 10A). The trial court certified those judgments as final, see C.R.C.P. 54(b), C.A.R. 1(a)(1), § 24-10-108, C.R.S. (1988 Repl. Vol. 10A), and this appeal followed.
I.
Plaintiffs assert that the trial court erred in granting summary judgment in favor of Tiley. Specifically, they argue: (1) that Tiley may be held liable as a vendor of real property because he created a dangerous condition on the land and subsequently transferred it in that condition to the City; and (2) that the trial court erred in dismissing Tiley from the action without considering their claim for relief based on negligent construction, which was independent from any allegation that Tiley was liable as a landowner. Because we agree that, under the circumstances
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