M. & M. Oil Transportation v. Board of County Com'rs

353 P.2d 613 (1960)

M. & M. OIL TRANSPORTATION, INC., Plaintiff in Error, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF ROUTT, State of Colorado, Defendant in Error.

No. 19304.

Supreme Court of Colorado. En Banc.

June 6, 1960.

Yegge, Hall & Shulenburg, Wesley H. Doan, Denver, for plaintiff in error.

January, Gilchrist & Blunk, Denver, for defendant in error.

MOORE, Justice.

In the trial court the plaintiff corporation filed its complaint against the Board of County Commissioners for Routt county in which it was alleged that the said Board was guilty of negligence in the care, construction and maintenance of a county road, in that material used in road building was negligently placed upon the roadway reducing the available area for travel between said material and the edge of the road, thus causing highway users to encroach upon the shoulders of the road which were not safe for travel because of use of inferior material; and that as a result of said negligent acts a truck belonging to plaintiff was damaged. Subsequent to the accident plaintiff made a demand upon the county for payment of its claim for damages, which was denied by the commissioners. The district court action followed. The county filed a motion to dismiss on the ground that the complaint failed to state a claim for relief. This motion was granted and judgment entered accordingly.

Counsel for plaintiff in error state in their brief that:

"The only issue to be resolved in this appeal is whether or not counties are liable for their torts under the laws of this State. * * *"

The trial court resolved this question in the negative. We approve.

Within recent weeks the court has considered this question at great length; has had the benefit of extended oral arguments by able counsel; and the issues have been fully treated by exhaustive briefs filed by counsel for the litigants, and by amici curiae.

The considered opinions of this court on the question presented by the record here will be found in the following cases, all of which have been very recently decided: *614 City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826; Faber v. State of Colorado, Colo., 353 P.2d 609; Berger v. Department of Highways of State of Colorado, Colo., 353 P.2d 612, and Liber v. Flor, et al., Colo., 353 P.2d 590. Under authority of the cases cited, and for the reasons set forth in the opinions filed therein, the judgment of the trial court in this action must be, and is, affirmed.

HALL and FRANTZ, JJ., dissent.

FRANTZ, Justice (dissenting).

Mr. Justice HALL and I expressed our views concerning immunity from suit or liability in City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826; Liber v. Flor, Colo., 353 P.2d 593, and Faber v. State of Colorado, Colo., 353 P.2d 610. I adhere to the views expressed in these several dissenting opinions, and therefore must dissent.

HALL, J., joins in this dissent.