Wheeler ex rel. Wheeler v. Baker , 636 P.2d 1326 ( 1981 )

STERNBERG, Judge.

The minor plaintiff, Kellie M. Wheeler, was critically injured when struck by an automobile while walking along a two-lane, paved county road in Eagle County. This action was brought by her parents for injuries and damages sustained as a result of the collision. The case against Baker, the driver of the car, and his parents subsequently was settled. Eagle County was sued on the theory that it had a duty to provide a pedestrian walkway along the county road. The trial court granted summary judgment for Eagle County, and the Wheelers appeal. We affirm.

Before a negligence action can be maintained, there must be a duty of care, and whether such duty exists is a question of law to be decided by the court. Metropolitan Gas Repair Service, Inc. v. Kulik, Colo., 621 P.2d 313 (1980). In granting summary judgment, the trial court assumed, as the Wheelers alleged, that the county had failed to provide a “safe and sufficient” pedestrian walkway. It was undisputed that there was no sidewalk and virtually no shoulder at the site where the accident occurred. And, the record indicates that trees and bushes growing from an adjacent barrow pit extended to the edge of the traveled portion of the thoroughfare, forcing pedestrians to walk on the pavement.

The trial court concluded, and we agree, that a county’s failure to provide a pedestrian walkway along a rural road cannot constitute actionable negligence. See Oliver v. City of Denver, 13 Colo.App. 345, 57 P. 729 (1899). The general rule is that failure to construct a sidewalk is not actionable negligence. 19 E. McQuillin, Municipal Corporations § 54.37 (3d ed. 1967); see also Aruel v. City of Baton Rouge, La.App., 234 So.2d 458 (1970); Nugent v. City of Louisville, Ky., 252 S.W.2d 915 (1952). The decision to install a sidewalk is within the discretion of the elected county officials. 13 E. McQuillin, Municipal Corporations § 37.-18 (3d ed. 1971); C. Antieau, 4 County Law § 37.07 (1966); see § 30-20-601, et seq., C.R.S.1973. And, “[t]he exercise of the power [to construct a sidewalk] being discretionary, a failure in this respect cannot be considered actionable negligence.” Oliver v. City of Denver, supra.

Since none of the facts in dispute at the time summary judgment was granted were pertinent to the resolution of this issue, it was not error to resolve the issue on defendant’s motion for summary judgment. See Turner v. Grier, Colo.App., 608 P.2d 356 (1979). And, because we agree with the trial court’s conclusion that, as a matter of law, there was no duty, we affirm.

The judgment is affirmed.

COYTE, J., concurs. PIERCE, J., dissents.