The Landowners' Liability Statute
| Publication year | 1989 |
| Pages | 207 |
1989, February, Pg. 207. The Landowners' Liability Statute
In 1986, the General Assembly established revised standards of care for landowners with respect to the condition of, and activities conducted on, their premises.(fn1) CRS § 13-21-115(fn2) imposes significant limitations on the liability of landowners. The statute restores variable levels of responsibility to visitors, depending on the purposes of their visit to the premises, by creating new standards of care and new visitor classifications. It legislatively overrules Mile Hi Fence v. Radovich,(fn3) a 1971 case setting a simple negligence standard which changed what had been the common law. However, the statute does not just codify the common law as it existed prior to Mile Hi Fence. This article points out the differences between pre-1971 common law and the statute and offers an analysis that may help practitioners apply the statute.
The rules which developed at common law reflected a balancing of interests between the landowner's use of the property and the visitor's transit across it. Depending on the classification of the visitor, the landowner had a greater or lesser duty of care under the common law.(fn4) The classifications and associated duties of care which developed prior to 1971 grew out of the need to hold land-owners responsible for injuries caused by the condition or use of their property, balanced against the freedom to manage and use the premises as the landowners desired. As the law developed and was applied in Colorado, the rules generally could be stated as follows.
Landowners had a legally protected interest in the exclusiveness of their possessions. No duty was imposed to provide visitors with a safe place to trespass or protect their wrongful use of the property. Trespassers assumed the risk of whatever might be encountered. Landowners were liable only for willful injury to trespassers.(fn5) At common law, a trespasser was anyone who entered the premises without privilege created by the consent of the landowner.
In balancing the competing interests of the unrestrained use of the landowners' property against the safety of visitors, the earlier common law carved out an exception to the limited liability rules in favor of child trespassers.(fn6) Under this exception, now codified by the statute as CRS § 13-21-115(2), landowners were obligated to exercise reasonable care to protect children, who were too young to appreciate certain dangers, by either excluding them from the property or making the property safe.
This doctrine was only applied to uncommon and hidden dangers. Where the danger was ordinary and apparent, it was expected that the child's guardians would keep the child from the premises. Unlike other states, Colorado requires that the "nuisance" attract or invite the trespass.(fn7) Some examples of attractive nuisances are heavy pipes in an unguarded lot, parked trolley cars and merry-go-rounds; things found not to be attractive nuisances are junk cars, ponds and swimming pools.(fn8)
Licensees were persons who had a privilege to enter the premises created by consent or otherwise, but who were not invitees.(fn9) The consent is all that distinguished licensees from trespassers. Such persons entered the premises for their own purposes, rather than any purpose or interest of the landowners. Some examples of licensees were social guests, persons coming to borrow tools, door-to-door salespersons, charitable solicitors and fire fighters.(fn10)
The common law recognized that licensees' visits were for their own purposes and not that of the landowners. It also acknowledged that the visits were with the knowledge and consent of the landowners. Consequently, a heavier burden was placed on the landowners. The landowners owed licensees the obligation not to injure them willfully, to use reasonable care to protect them from
The common law recognized that land-owners, for their own business purposes, expressly or implicitly opened their property to visitors. Consequently, the law imposed an affirmative duty on landowners to use reasonable care to protect invitees against known dangers or dangers they could have discovered with reasonable diligence.(fn12) The danger also had to pose an appreciable risk of harm.(fn13)
The balancing of competing interests reflected in the rules developed at common law were harsh toward visitors. It was this harshness and the fact that courts frequently determined the visitors' status as a matter of law on summary judgment that led the Colorado Supreme Court to overturn these rules in Mile Hi Fence.(fn14) For all intents and purposes, Mile Hi Fence eliminated the classifications of visitors which had been developed at common law: trespassers, licensees and invitees. After abolishing these classifications, the court announced that a single, simple negligence standard would apply to all visitors to the premises.
Mile Hi Fence ended the balancing between the landowners' interest in the unfettered use of their property and the need to provide some recompense to injured visitors. No weight was to be given to the landowners' interest in doing whatever they wished with their own property---landowners owed to all visitors the same...
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