Guerrero v. City of Colorado Springs

         Martinez & Lenihan, Joseph J. Lenihan, Pueblo, for plaintiff-appellant.

         Kane, Donley & Wills, Lee Wills, Colorado Springs, for defendant-appellee City of Colorado Springs.

         Grant, Shafroth, Toll and McHendrie, P.C., Ronald C. Butz, Denver, for defendant-appellee Atchison, Topeka & Santa Fe R. Co.

Page 882

         COYTE, Judge.

         Plaintiff alleged in his complaint that he was injured when a retaining wall upon which he was sitting gave way; that the retaining wall was 'built, owned and maintained' in a negligent manner by the defendant City of Colorado Springs and by the defendant railroad; and that plaintiff's resulting injuries were proximately caused by defendants' negligence. Defendants took the deposition of plaintiff, and subsequently each defendant filed a motion for summary judgment and brief in support thereof with supporting affidavits. The court after hearing oral arguments, 58 days after the last motion was filed, granted the motions of defendants and dismissed plaintiff's amended complaint with prejudice. Plaintiff appeals from this order and judgment. We affirm.

         The city in support of its motion for summary judgment submitted two affidavits. An affidavit from the Director of Public Works stated that a search of department records revealed no information regarding the construction of the wall and that he knew of his own personal knowledge that the wall was not maintained by the city. The second affidavit supporting the motion of the city was from a registered land surveyor who stated that he had surveyed the property and found that the place where the plaintiff was alleged to have been injured was not on city property. A photograph of the scene was attached to this affidavit.

         The railroad in support of its motion for summary judgment submitted the affidavit of a transitman working in the office of the division engineer stating that the railroad did not build and does not maintain the retaining wall or the portion of the drainage structure where the injury purportedly occurred nor, based on a search of department records, does not railroad own the property involved.

         Plaintiff filed a document entitled 'Opposition to Motion for Summary Judgment'. which was a statement by plaintiff's counsel attacking the credibility of defendants' affidavits and stating that plaintiff's counsel had not yet investigated and discovered matters to establish plaintiff's allegations.

          Plaintiff contends that the motions were premature as defendants had not yet filed their answers to the complaint and that the case was not at issue. This contention is not correct as C.R.C.P. 56(b) authorizes a defending party to file a motion for summary judgment prior to answering the complaint.

          The construction, ownership, and maintenance of the wall were material facts essential to the plaintiff's claim against the defendants. Defendants' affidavits stating that neither defendant built, owned, or maintained the wall were sufficient to show that there was no genuine issue as to those material facts. Once the defendants had affirmatively established that there was no factual basis upon which they could be liable to plaintiff for the alleged negligence, plaintiff was required to set forth facts showing that there was a genuine issue for trial. Terrell v. Heller & Co., 165 Colo. 463, 439 P.2d 989; Durnford v. Thornton, 29 Colo.App. 349, 483 P.2d 977. Plaintiff failed to file opposing affidavits under C.R.C.P. 56(c) and relied upon the mere allegations of his pleading. The Colorado Supreme Court in Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218, quoting from Bruce Construction Corp. v. United States, 5 Cir., 242 F.2d 873, 875, stated:

'(W)hen a movant makes out a convincing showing that genuine issues of fact are lacking, we require that the adversary adequately demonstrate by receivable facts that a real, not formal, controversy exists, and, of course, he does not do that by mere denial or holding back evidence.'

          The plaintiff offered no evidence to contradict the affirmative showing of nonliability made by defendants in support of their motions for summary judgment, nor did the plaintiff show that any other evidence he might have produced at trial would contradict the evidence upon which the trial court based its summary judgment. The trial court had no alternative but to conclude that there was no genuine issue of fact upon which the defendants could be found liable, and it properly granted their motions for summary judgment. Terrell v. Heller & Co., Supra.

         The judgment is affirmed.

         DWYER and ENOCH, JJ., concur.