Liber v. Flor , 143 Colo. 205 ( 1960 )

Mr. Justice Moore

delivered the opinion of the Court.

We will refer to the parties as they appeared in the trial court where plaintiff in error was plaintiff and defendants in error were defendants.

The action was filed by plaintiff in the district court of Ouray county to recover damages for the alleged tortious acts of defendants in storing dangerous explosives in a manner constituting an “ultra-hazardous activity.”

The defendants named individually and the defendant designated “Board of County Commissioners of the County of Ouray, Colorado,” filed an answer in which they alleged a number of defenses among which was the assertion that plaintiff’s complaint did not state facts sufficient to constitute a claim for relief against the defendants or any of them. Upon consideration of this particular defense the trial court ordered dismissal of the action and entered judgment for defendants. Plaintiff is here on writ of error.

The trial court, in entering the said judgment, commented as follows:

“ * * * cases of this same nature have been passed upon by the Supreme Court of the State of Colorado, said cases holding in this state that counties are not liable for torts, and that it would be inconsistent to relieve counties from liability and yet hold the officers liable, that it is immaterial whether such failure complained of on the part of the officers takes the form of negligence, nonfeasance or misfeasance. * * *”

The trial court unquestionably grounded its judgment upon the well established rule that a county is exempt from liability in tort actions based upon alleged negligence of its agents. C.R.S. ’53, 36-1-1, provides:

“Each organized county within the state shall be a body corporate and politic, and as such shall be empowered for the following purposes:

“ (1) To sue and be sued. * * *”

The first question presented by the record in the instant case is whether under the substantive law the county is liable to respond in damages for the negligent conduct of its agents. This court has not heretofore held that the state is liable in damages for the negligence of its servants; nor has it been held that other governmental corporate entities are liable for the tortious acts of their servants performing duties in furtherance of a governmental function, as distinguished from a proprietary function. Numerous decisions of this court have established the rule of no liability in such cases. County Commissioners v. Bish, 18 Colo. 474, 33 Pac. 184; Pitkin County v. Ball, 22 Colo. 125, 43 Pac. 1000; Town of Fairplay v. Park County, 29 Colo. 57, 67 Pac. 152; Miller v. Ouray Electric Light and Power Company et al., 18 Colo. App. 131, 70 Pac. 447; Richardson v. Belknap, 73 Colo. 52, 213 Pac. 335; Board of County Commissioners of Logan County v. Adler, 69 Colo. 290, 194 Pac. 621.

Our adherence to the well established rule in the above cited cases was announced in the case of City and County of Denver v. Madison, 142 Colo. 1,351 P. (2d) 826. Insofar as the liability of the County of Ouray is concerned this cause is controlled by the rule of the Madison case, supra. The trial court committed no error in dismissing the action as to the county.

The second question which requires determination is whether tne complaint states a claim against the individually named defendants. It is alleged in the complaint, in pertinent part:

“That the defendants or their agents, servants or employees who were then and there acting in the scope of their employment by the defendants, on the said date and for a long time prior thereto, had been storing large quantities of explosives, which were intrinsically dangerous in nature, in dangerous proximity to persons rightfully upon the public highway. The defendants knew or should have known, in the exercise of reasonable care, that there was a real and substantial danger to passersby and persons in proximity to the shed from the storing of the said dangerous explosives on the premises, and they well knew the dangerous character of the said explosives; yet, they negligently permitted the said explosives to remain in the said dangerous place and negligently failed to warn the public or the plaintiff of the dangers attendant thereto.”

“That the conduct of the defendants described herein was negligent and careless, and that said negligence and carelessness was the proximate cause of the injuries and damages to the plaintiff described hereinabove.”

These allegations are sufficient to state a claim for relief against the individual defendants when considered in connection with the allegations of damage suffered by plaintiff. From all that appears on the face of the complaint the individual defendants were the actual tort feasors, and if the evidence establishes this fact as to any one or more of them, they should be held liable in all respects as other tort feasors.

While there is nothing in the complaint to indicate that the individual defendants are members of the Board of County Commissioners of Ouray county, their status as such appears to be conceded in the briefs and arguments herein. Even so, this fact alone would not absolve them from individual liability. The applicable rule is stated in Schwalb et al., v. Connely, 116 Colo. 195, 179 P. (2d) 667, where 46 C. J. §330 is quoted as follows:

“The doctrine of respondeat superior applicable to- the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not, unless he, having the power of selection, has failed to use ordinary care therein, or unless he has been negligent in supervising the acts of such subordinates, or has directed or authorized the wrong.”

Thus, if the individual defendants were the actual tort feasors, or if the evidence is such as to bring their acts within the above quoted rule, the plaintiff would be entitled to recover. It follows that the trial court erred in dismissing the action as against defendants Flor, Porter and Zadra.

The judgment is reversed.

Mr. Justice Hall, Mr. Justice Frantz and Mr. Justice Doyle dissent.