The Colorado Premises Liability Statute
| Publication year | 1996 |
| Pages | 71 |
| Citation | Vol. 25 No. 5 Pg. 71 |
1996, May, Pg. 71. The Colorado Premises Liability Statute
The duties a landowner owes to persons coming onto his or her land are governed by the Colorado "premises liability statute."(fn1) In 1971, the Colorado Supreme Court discarded the common law rules of premises liability that had governed throughout this century and charted a new course in this area based on general negligence principles. Dissatisfaction with that new regime triggered passage in 1986 of the premises liability statute, as the Colorado General Assembly attempted to institute a statutory standard of premises liability that mirrored the old common law rules. The 1986 version of the statute was ruled unconstitutional, however, and in 1990, the General Assembly substantially amended it to correct its infirmities.
Two recent decisions of the Colorado appellate courts, Jules v. Embassy Properties, Inc.(fn2) and Trailside Townhome Association v. Acierno,(fn3) provide a useful springboard for discussing the history of the statute, how the courts have interpreted it to date and several issues that the courts have yet to address.
Prior to 1971, the duty a landowner owed to a person who came on his or her land turned exclusively on the characterization of that person as a trespasser, licensee or invitee.(fn4) Application of the common law rules often resulted in harsh decisions against injured plaintiffs, however, and in 1971 in Mile High Fence v. Radovich,(fn5) the Colorado Supreme Court formally rejected use of the common law classification rules as the sole factor in determining the duty a landowner owed to a person coming onto his or her land. Instead, the court held that general negligence principles should be applied. The court stated that an injured plaintiff's status as a trespasser, licensee or invitee would thereafter be only one factor that the court would consider in determining a landowner's liability for injuries sustained by persons coming onto his or her land.
Mile High remained the law in Colorado until 1986, when the General Assembly enacted the premises liability statute. The express purpose of the statute was to reverse what the General Assembly viewed as the uncertainties and inequities that Mile High had introduced into the law of premises liability by putting back into effect as conclusive of a landowner's duty to persons coming onto his or her land the common law classification rules that Mile High had rejected. However, the 1986 version of the statute would be short-lived.
Although the express intention of the General Assembly in enacting the premises liability statute was to revive the common law rules of premises liability, the statute's drafters did not simply restate the common law rules. Most significantly, as it turned out, the 1986 version of the statute accorded more protection to a licensee than it did to an invitee.(fn6) It was this incongruity that would lead the Colorado Supreme Court to void the 1986 version of the statute as violative of the equal protection clauses of both the U.S. and Colorado constitutions.
The 1986 version of the statute actually survived its first constitutional challenge. In March 1989, in Giebink v. Fischer,(fn7) the U.S. District Court for the District of Colorado upheld the constitutionality of the statute in the face of an equal protection challenge. Without discussion, the Giebink court held that the statute did not involve any fundamental right or suspect class and that as a result, the statute had only to be reasonably related to a legitimate state objective, in this case protecting the state's economy,(fn8) in order to withstand attack.
Later that same year, in Gallegos v. Phipps, III,(fn9) the Colorado Supreme Court was presented with another equal protection challenge to the 1986 version of the statute. In Gallegos, the Supreme Court expressly declined to follow Giebink and ruled that the statute violated the equal protection clauses of both the U.S. and Colorado constitutions. The crucial difference in Gallegos was how the court framed the equal protection issue.
Unlike the Giebink court, the Supreme Court in Gallegos characterized the state objective sought to be furthered by the statute as being "to promote responsibility among both landowners and those upon the land" by making a landowner's liability "depend upon the landowner's knowledge of the other person's presence and the reason for the presence on the property."(fn10) The court found this to be a legitimate state objective. However, by characterizing the objective in this manner, the court put itself in a position to analyze the statute in detail to determine whether its provisions were reasonably related to furthering that objective or, in the court's words, whether the statute
bore a "rational relationship" to the objective.
As previously noted, the 1986 version of the statute imposed on landowners a higher duty of care to licensees than to invitees. Under the common law rules that governed prior to the Mile High decision, however, landowners owed a higher duty of care to invitees than to licensees. Because of this inversion of duties, the court held that the statute could not be justified either "historically or logically" and was "fundamentally flawed and [could not] be interpreted to fairly allocate responsibility within the limitations imposed by the federal and state constitutional guarantees of equal protection of the law."(fn11)
The General Assembly was quick to react to Gallegos. In 1990, it substantially amended the statute to address the constitutional infirmities the Supreme Court had perceived in the 1986 version.
In the 1990 version of the statute, the General...
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