The Changing Boundaries of Premises Liability After Gallegos

JurisdictionColorado,United States
CitationVol. 18 No. 11 Pg. 2121
Publication year1989
18 Colo.Law. 2121
Colorado Lawyer

1989, November, Pg. 2121. The Changing Boundaries of Premises Liability after Gallegos


Vol. 18, No. 11, Pg. 2121

The Changing Boundaries of Premises Liability after Gallegos

by Solomon L. Leftin

The boundaries of "premises liability" in Colorado have changed once again, as a result of the Colorado Supreme Court's recent decision in Gallegos v. Phipps.(fn1) Agreeing with the plaintiff in Gallegos, the court struck down as unconstitutional CRS § 13-21-115, Colorado's 1986 premises liability statute. The plaintiff contended that, among other things, the statute violated the constitutional guarantee of equal protection of the laws.(fn2)

The result of the Court's ruling in Gallegos is that the law established in Mile High Fence v. Radovitch(fn3) once again governs premises liability actions in Colorado. This article examines Gallegos and discusses the implications of this decision.

Background of Landowners' Liability in Colorado

Prior to 1971, Colorado subscribed to the traditional common law scheme of classifying entrants onto land as either trespassers, licensees or invitees.(fn4) A trespasser was defined at common law as a person who entered or remained on land without a privilege to do so and, most often, without the landowner's consent.(fn5) The landowner, at common law, never was liable to the trespasser for injuries sustained on the

land unless the landowner willfully or intentionally injured the trespasser or laid a trap for him.(fn6) The common law recognized an exception for trespassing children.(fn7)

Under common law, licensees were defined as persons who were privileged to enter or remain on another's land by reason of the landowner's consent.(fn8) A licensee entered on another's land for his or her own purposes. Although the licensee was entitled to some measure of protection from the landowner at common law, the licensee basically took the premises as he or she found it and had no right to demand a safe reception.(fn9)

The final and most privileged category in the common law was the invitee. An invitee was defined as a person who entered the land of another to confer a benefit, economic or otherwise, on the landowner.(fn10) At common law, the landowner owed the invitee the duty to (1) exercise reasonable care to maintain the premises in a reasonably safe condition, (2) seek out conditions that may be unreasonably dangerous to the invitee, (3) warn the invitee of the dangerous condition and (4) if a warning would not be sufficient, otherwise make the premises reasonably safe.(fn11)

Colorado's common law regarding premises liability was all but eradicated in 1971 by the Colorado Supreme Court in Mile High Fence. The decision in this case rejected the traditional classification scheme in favor of a standard "reasonable man" foreseeability test to determine a landowner's liability. The rigid system of classifying entrants onto land was replaced by a more or less traditional negligence test. The Mile High Fence court stated:

A person's status as a trespasser, licensee, or invitee may, of course, in light of the facts giving rise to such status, have some bearing on the question of liability, but it is only a factor---not conclusive.(fn12) (Emphasis in original.)

In 1986, the Colorado General Assembly enacted CRS § 13-21-115, which legislatively overruled Mile High Fence and attempted to codify the common law, with some modification.(fn13) Finally, just a little more than two years after the statute was signed into law, it was overruled in Gallegos.

The Gallegos Decision

Gallegos arose as a result of an incident in a tavern in Georgetown, in which Mr. Gallegos fell down a staircase. Thereafter, Gallegos and his wife...

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