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Felger v. Larimer County Board of County Commissioners6/22/1989
nd giving school employees authority to control students' behavior contribute to creation of special relationship between school and students).
Here, we conclude that the useful public service statute and the Sheriff's agreement with the county probation department together created such a special relationship between the Sheriff and an offender under that program that there came into existence a duty on the Sheriff's part to use due care in selecting the entities for whom the service is to be rendered and in monitoring the offender's work under that program.
A sheriff, or any other person having custody of another, is under a general duty to exercise reasonable care to prevent third parties from creating an unreasonable risk of harm to the person in custody. People ex rel. Coover v. Guthner, 105 Colo. 37, 94 P.2d 699 (1939); Restatement (Second) of Torts ยง 320 (1965). And, the statutory requirement that an offender participate in a local useful public service program under the direction of the local administrator results in the offender being placed in the custody of that local administrator while he is engaged in work assigned to him under that program. See Stoneking v. Bradford Area School District, supra.
As the program's local administrator, the sheriff undertook the statutory responsibilities of interviewing the plaintiff, assigning him a suitable job , and monitoring his compliance with that job. The General Assembly recognized that a legal relationship of some sort was being created between the offender and the local administrator by requiring the acquisition of public liability insurance to protect against liability arising from the offender's actions. Section 42-4-1202(4)(g)(II)(c), C.R.S. (1984 Repl. Vol. 17).
Thus, the Sheriff, by selecting the Society's project as a proper work assignment and by assigning the plaintiff to a job on that project, entered into a special and unique relationship with plaintiff that he did not have with other members of the general public. That relationship required the Sheriff to exercise reasonable care to see to it that plaintiff was not subjected to an unreasonable risk of personal injury as a result of the Society's actions.
We do not, of course, conclude that the Sheriff failed to perform his duty in this case. However, based on the materials presented to the trial court in conjunction with defendants' motion for summary judgment, neither can we conclude, as a matter of law, that that duty was performed. Thus, the trial court erred in entering judgment in favor of the Sheriff without a trial of the factual issue of his negligence.
II.
Unlike our conclusion with respect to the Sheriff, however, we also conclude that the statute's imposition upon the Board of the responsibility simply to cooperate in selecting useful public service projects, as distinguished from the responsibilities necessarily assumed by the local program's administrator, is insufficient to create any special relationship between the Board and any offender, or between it and any agency used for the performance of useful public service. Thus, we agree with the trial court that the Board owed no duty to plaintiff.
The judgment dismissing plaintiff's complaint against the Board is affirmed; the judgment dismissing that complaint against the Sheriff, in his official capacity, is reversed, and the cause is remanded to the district court for further proceedings consistent with the views expressed herein.
Judges Footnotes
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