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• Title: Mason V. Adams
• Author : Colorado Court of Appeals
• Release Date : January 26, 1997
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 53 KB

Description

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jack M. Wesoky, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellant Defendant, State of Colorado, appeals the order of the trial court denying its motion to dismiss, pursuant to the Governmental Immunity Act, the negligence claim filed by plaintiffs, Lloyd D. Mason and Walter Belcher. We reverse and remand for further findings. Defendant, Nancy Bowen Adams, lost control of her car as she was attempting to pass plaintiffs' truck on a state highway. The car struck the truck, resulting in injuries to plaintiffs. The day before, the State, through the Department of Transportation's highway operations and maintenance division, had repaired and covered the roadway with "aggregate" consisting of sand and gravel. Plaintiffs alleged the accident was caused by the negligence of the car's driver, the State, or both. The State filed a motion to dismiss the claim against it pursuant to C.R.C.P. 12(b)(1), asserting the claim was barred by sovereign immunity. The parties stipulated the trial court could rule on the State's motion based on their briefs and evidentiary submissions. The trial court reviewed the briefs and submissions, including the reports of two experts who had determined the accident was caused at least in part by the condition of the roadway. The court's order included the following findings of fact, which are not challenged on appeal: (1) the State had repaired and laid loose gravel on the stretch of highway on which the accident occurred 30 hours prior to the collision; (2) the highway had been open to traffic since the repairs were completed; (3) the State had not posted signs warning of loose gravel; (4) the State had not "broomed" the road surface to remove excess gravel after performing the repair; (5) the painted centerline and "fog line" delineating the lane of travel were not visible because of gravel cover; (6) from the direction of the vehicles' travel the gravel was located just after a slight curve and after a slight rise in elevation; (7) traveling from that direction, it was difficult to determine whether the gravel overlay was well bonded to the road surface; (8) the gravel from the repair work had been displaced from the normal tire paths and lay at a depth of two inches or more at the shoulder, center line, and between the traveled paths of both traffic lanes; and (9) the posted speed limit was 55 miles per hour. Based on these findings, the trial court determined that the loose gravel on the roadway constituted a dangerous condition, as defined in Section24-10-103(1), C.R.S. 1997; the State should have discovered and removed or mitigated the dangerous condition before the accident occurred, either by removing the excess sand and gravel or by posting signs; and the dangerous condition had been a cause of the accident. The court therefore concluded sovereign immunity was waived pursuant to Section24-10-106(1)(d)(I), C.R.S. 1997, which incorporates the definition of "dangerous condition" in Section24-10-103(1).

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