Parker v. City and County of Denver

Mr. Justice Holland

dissenting.

With a firm belief that the effects of the majority opinion are so far reaching and particularly devasting to municipalities, I dissent therefrom and am actuated to an expression of my views thereon.

Of first consideration is the fact that, in my opinion, the overruling of the Burrows and Phillips cases of long standing is gratuitous and not called for or required. These cases have not been attacked by counsel for plaintiff and it seems that counsel relied upon the defect in the case at bar as being more than one and three-eighths inches as shown by some of the testimony in the case. This disputed evidence, of course, leaves no room for the application of the rule as determined by the trial court and ruling thereon as a matter of law. In other words, the evidence before the trial court did not justify the application of the law as set out in the decided cases, and the question should have been submitted to the jury if there was any evidence to the effect that the defect was more than one and three-eighths inches; and in that event, if there was substantial proof that the defect or rise in the sidewalk was more than one and three-eighths inches, then the city could not with safety rely on the two cases as an excuse for its failure to remedy the defect, and the rule of constructive notice to the city would apply. However, it had a right to ignore, without liability, unevenness in sidewalks of one and three-eighths inches or less, and this case, if retried on remand as the majority opinion directs, should be submitted to the jury *366with great care shown in the instruction on the question of whether or not under the decided cases and all the circumstances, the city had notice, since it is elementary that notice of the defect is essential before liability would attach. It is difficult to conceive of how it can be said in the trial of this case that the law imputes notice when prior to the trial and for twenty-nine years, the municipality was not required to notice defects less than one and three-eighths inches in height, but after the trial, and when this court has seen fit to say that the rule or the responsibility of the city did not exist yesterday but it does today. The case should be remanded with instructions that at a new trial the court should instruct the jury that in the instant case if the jury found the elevation or defect in the sidewalk to be less than one and three-eighths inches, it should find for defendant. The majority opinion, to do justice in the case at hand, should go no further; however, if the majority is inclined to overturn the rule in the Burrows and Phillips cases, let its action be prospective and not retroactive to the damage of a party litigant without notice on a sudden change in its responsibility.

If the opinion, after overruling the cases of Burrows v. Denver, 76 Colo. 17, 227 Pac. 840, and City of Colorado Springs v. Phillips, 76 Colo. 257, 230 Pac. 617, the court laid down a clear and unmistakable rule that in all cases the question of negligence was one for a jury and the liability of the city or the municipality not to be measured by inches and so declared as a matter of law, I admit there is forceful logic in support thereof; however, if that result obtains, then the existence of any kind of a defect may be deemed evidence of neglect on the part of the city and is tantamount to making the municipality an insurer of the safety of persons using the sidewalks, and that requirement of a city is nowhere required in the law.

In this connection the majority opinion leaves the question here involved clouded with uncertainty, be*367cause, it is stated, “There may be instances in which the court, with judicial propriety, may determine that the defect in the sidewalk is so slight that actionable negligence becomes a question of law.” And further, “We believe it improper and error for the court to undertake to determine actionable negligence by a fraction of an inch * * * .” If one trial judge should determine that an unevenness that is one and three-eighths inches in a sidewalk is so slight that there is no actionable negligence, should he be reversed, because, after all, the rule of measurement that the court is now trying to get away from still remains an instrument in the minds and hands of the trial judge. What is reasonable or unreasonable under these cases is in nearly all of the decisions, left dangling between the judge and the jury. In the Burrows and Phillips cases, supra, which by the majority opinion are overruled, there is a rather unmistakable standard which provides reasonable security for the municipality involved, as well as guidance for a trial court. The case of Nelson v. City of Denver, 109 Colo. 113, 122 P. (2d) 252, therein cited, adds more confusion and uncertainty to the field of what we like to think of as settled law, because in that case it is said, “ * * * and sometimes the defect is such that, as a matter of law, it is not actionable.” It is therefore apparent that nothing really positive and definite has been determined by the majority opinion, other than to throw further uncertainty around the interests of all parties who may be involved; leaves the city in the position of being compelled, in order to avoid liability, to have and maintain its sidewalks without defect whatever; it enables a complainant to take the chance of recovery under any conditions; and handicaps the trial court in the exercise of perfect freedom in their judgment and discretion.

From the municipality’s standpoint there was no uncertainty in our former cases, at least to the extent that an unevenness in a sidewalk of one and three-eighths inches was not actionable; and the rule there laid down *368has been the guiding light of the municipality for twenty-nine years. It had the unquestioned right to rely on that certainty of the rule as announced by our court and not be concerned as to the correctness thereof, and the rights and interests of the municipality in the case at bar should not be buried with the ruins of the Burrows and Phillips cases. As to the results of this particular case, the maxim of stare decisis applies with peculiar and almost irresistible force. That maxim assures municipalities, as well as individuals, that insofar as they act on authoritative rules of conduct, their rights will be protected in the courts. It cannot be said that leading up to the case at hand, that the city acted on a mistaken view or on an arbitrary conclusion of its own. It should not be required to repeat that before a liability would attach, the city must have notice, actual or constructive. If it had actual notice of a defect of one and three-eighths inches, was it negligent in not correcting the defect? How could it have constructive notice of something that our court had said was not actionable, and failure to repair would not be negligence.

Two things are certain in this case. Counsel for plaintiff knew or should have known of the rule in these two cases as it stood at the time of bringing the action; and further knew or should have known that the burden was upon plaintiff to take herself out from under that rule by proof of a greater defect than the rule discountenanced, which she failed to do by any of her witnesses with any degree of satisfactory proof. The other certainty in this case is, that the city under the rule so fixed in its transactions concerning these defects, had the right to rely thereon without attaching liability, and the mere fact that the city was without any knowledge that our court would suddenly, and without warning, make it liable, and that liability would fall on it without notice. Its rights and interests depended upon what was a certainty in the decided cases that are now overthrown. It has been said that the doctrine of stare decisis has *369greater or less force, according to the nature of the question decided, those questions where the decisions do not constitute a business rule and in such cases is met only by the general considerations which favor certainty and stability in the law and where a decision relates to the validity of certain modes of transacting business, the maxim becomes quite imperative and courts are not at liberty to change it to the instant damage of the party involved.

After all, the question in this case is not whether the two decisions complained of are correct, but whether or not they were decisions that had been made, and business conducted, and the responsibility of the city depended on the faith thereof. A municipality, as well as individuals, has the right to rely with certainty upon the decisions of this court in cases where the governmental functions of the city are to be regulated. As drastic as the change may be, it must, in justice, be done without damage. The decision here strikes directly at the method of doing business as permitted by this court and where it has been so acted upon for many years, therefore the maxim of stare decisis becomes imperative. The omission of so-called duty in the instant case does not show, or tend to show, negligence and this court should be the first to hold that in the case at bar, it was excusable. Before liability should attach here, the defect must be shown to have been of such character that prudent persons would anticipate danger to users of the sidewalk in question, and in the application of that rule, it must be borne in mind that nowhere does the law require a measure of duty that is impossible of fulfillment. It is further to be considered that the city’s position here is not based upon its own construction of what is reasonably safe, or upon any self-devised custom, but is based upon the decisions of our court. It was not a mistaken view or an arbitrary conclusion of its own. Finally, what is the measure of reasonableness when used in the standard of duty required of the city to keep its sidewalks *370reasonably safe for use? The particular area involved here had no doubt been used by thousands of pedestrians without mishap. Further, where is the measure or standard to be used by trial courts in determining that the defect is so slight that actionable negligence becomes a question of law? After all, we are back at about the place where we started, except in cases where the defect is so obviously dangerous that it could not be questioned. However, municipalities now face the uncertainty of harrassing litigation arising from claims involving any kind of a defect and must rest their chances on the peculiar idea of what is reasonable or insignificant according to the particular judge presiding. And further, in my opinion, the municipality is in the unheard of position of being an insurer of the safety of all persons using its streets or sidewalks.