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Felger v. Larimer County Board of County Commissioners6/22/1989
Opinion by JUDGE CRISWELL
The plaintiff, Mark Felger, appeals the summary judgment dismissing his claim against the defendants, the Larimer County Board of County Commissioners (Board) and James Black, as the sheriff of Larimer County (Sheriff). Plaintiff's complaint asserted that the defendants were negligent in administering the county's "useful public service" program under § 42-4-1202(4), C.R.S. (1984 Repl. Vol. 17), as a result of which plaintiff suffered personal injuries. The trial court concluded, however, that neither defendant owed any common law duty of due care to plaintiff and that each had properly performed any duty that the statute imposed upon them. We agree that there was no duty owed to plaintiff by the Board. However, we conclude that the Sheriff owed plaintiff a duty of due care, the claimed violation of which presented a genuine question of fact. Thus, we affirm the judgment in part and reverse it in part.
Section 42-4-1202(4), C.R.S. (1984 Repl. Vol. 17) requires any person who is convicted of an alcohol- or drug-related driving offense to serve a period of "useful public service." Such service must be work which is "beneficial to the public" and which involves a "minimum of direct supervision or other public cost," but which does not "endanger the health or safety of any person" required to perform such service. Section 42-4-1201(4)(g)(I), C.R.S. (1984 Repl. Vol. 17).
The sentencing court, the probation department, the county sheriff, and the board of county commissioners are all enjoined to cooperate with one another to identify "suitable work assignments" for this purpose, and an offender "sentenced to such work" must complete the service required within the time established by the court. Section 42-4-1202(4)(g)(II)(A), C.R.S. (1984 Repl. Vol. 17).
The statute provides that there may be established a useful public service program in each county under the direction of the chief probation officer. The purpose of such a program is to identify suitable work assignments with local governmental units or non-profit corporations; to interview offenders and to "assign" them to "suitable useful public service jobs"; and to "monitor" their "compliance" with their useful public service "assignments." Section 42-4-1202(4)(g)(II)(A) and (B), C.R.S. (1984 Repl. Vol. 17).
In Larimer County, however, the Sheriff, pursuant to an agreement between the probation department and himself, has undertaken to administer that county's useful public service program. There is no evidence that either the probation department or the Board plays any role in the day-to-day administration of this program in Larimer County.
Persons assigned to useful public service jobs are not considered to be public employees for purposes of the Governmental Immunity Act, § 42-4-1202(4)(g)(III), C.R.S. (1984 Repl. Vol. 17), and no governmental unit is required to provide coverage for them under the Workmen's Compensation Act, although it may choose to do so. Section 42-4-1202(4)(g)(IV), C.R.S. (1984 Repl. Vol. 17). However, at the time of the events involved here, the statute required that each offender was to be assessed a sum, not exceeding $40, to cover the agency's costs of administering the program, including the cost of a public liability insurance policy to cover the offender's actions while he was participating in the program, the limits of which policy cannot be less than $1,000,000. Section 42-4-1202(4)(g)(II)(C) and (4)(g)(V), C.R.S. (1984 Repl. Vol. 17), which was amended in 1987. See
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