Stealth Statute: the Unexpected Reach of the Colorado Premises Liability Act
| Publication year | 2011 |
| Pages | 27 |
| Citation | Vol. 40 No. 3 Pg. 27 |
2011, March, Pg. 27. Stealth Statute: The Unexpected Reach of the Colorado Premises Liability Act
March 2011
Vol. 40, No. 3 [Page 27]
The Civil Litigator
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Holme Roberts and Owen, LLP, (303) 417-8510, timothy.reynolds@hro.com
About the Author
Kristin R. Anderson is an associate with Wells, Anderson and Race, LLC, Denver-(303) 813-6532, kanderson@warllc.com. She thanks Marc Brosseau of Brosseau, Bartlett, Seserman, LLC, and Shane Garman for their contributions to this article.
The Colorado Premises Liability Act provides the exclusive remedy against landowners for injuries sustained on land. This article provides a brief history of the Act, discusses courts' interpretations of who constitutes a "landowner" and what activities are covered under the Act, and addresses questions regarding which civil actions are barredby the Act and which affirmative defenses are applicable under the Act.
The state's premises liability act just might be the most important statute personal injury and litigation attorneys do not fully understand. It provides surprising answers to questions such as:
Is a janitorial contractor a landowner?
If a contractor fails to mop up a puddle and someone slips, can he or she be sued under a premises liability theory?
The Colorado Premises Liability Act (Act)(fn1) governs a landowner's liability for injuries sustained on property.(fn2) It provides, in pertinent part:
In any civil action brought against a landownerby a person who alleges injury occurring while on the real property of another and by reasons of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in ... this section.(fn3)
Until recently, the Act often was overlooked and received little attention from the appellate courts. In the last decade, however, Colorado courts have interpreted several key components of the statute, resulting in an unusually broad application. This article discusses the history of the Act, its unexpected reach, and its practical impact on claims and defenses in personal injury cases.
History of the Act
To appreciate the reach and impact of the Act, it is necessary to understand its origin and evolution. Before 1971, premises liability issues were governedby common law, and a landowner's duty depended on whether the injured party was a trespasser, a licensee, or an invitee. In Mile High Fence Company v. Radovich,(fn4) the Colorado Supreme Court abolished these classifications, reasoning that they created confusion and judicial waste and resulted in harsh consequences. Specifically, the Court noted that in many cases, the classification of the defendant landowner resolved its liability as a matter of law, denying the plaintiff the right to a jury trial. The Court held that, irrespective of classification, a landowner would be liable if he or she failed to act as a reasonable person in light of the foreseeability of injury to others.(fn5)
The rule of Mile High Fence remained intact until 1986, when the Colorado General Assembly enacted the first version of the Act and re-established the three-tier classification system. The legislature explained that the Act was intended to promote "a state policy of responsibilityby both landowners and those upon the land."(fn6) Sponsors of the bill argued that a change was necessary because the Mile High Fence standard led to unpredictable and inequitable results.(fn7)
Three years later, in Gallegos v. Phipps,(fn8) the Colorado Supreme Court held that the Act violated federal and state constitutional guarantees of equal protection, because it afforded greater protection to licensees than to invitees, in contrast to the common law principles in place before Mile High Fence. In 1990, the general assembly amended the statute to address the Court's equal protection concerns. The amendments impose a higher duty of care toward invitees than licensees, and a higher duty of care toward licensees than trespassers.(fn9)
In recent years, several landmark decisions have interpreted significant provisions of the Act, resulting in some clarification but also raising additional questions. In 2002 and 2003, the Colorado Supreme Court and the Colorado Courts of Appeals decided cases adopting a broad interpretation of "landowner," which greatly expanded the pool of potential defendants who could be sued and who could avail themselves of the exclusivity provisions of the Act.(fn10)
In 2004, in Vigil v. Franklin,(fn11) the Colorado Supreme Court first addressed the Act's exclusivity provision, holding that the Act was the sole remedy available against a landowner for injuries sustained on land. Consistent with this holding, Vigil ruled that the Act precluded a defendant from asserting the common law defense of "open and obvious danger." Vigil spawned a progeny of inconsistent opinions addressing the scope of the Act's exclusivity provision with respect to both claims against landowners and the availability of other common law defenses such as comparative negligence, assumption of the risk, and pro rata liability of defendants.(fn12)
Responding to this confusion, the legislature amended the Act in 2006 to clarify that these affirmative defenses applied to claims under the Act;(fn13) however, the amendments sparked greater confusion. For example, some courts reasoned that these defenses were available for claims arising before the amendment, while others, including the highly publicized Martin v. Union Pacific RR Co.(fn14)opinion, concluded that they were not. The Colorado Supreme Court reversed Martin in 2009 in Union Pacific RR Co. v. Martin,(fn15) holding that even before the amendments, the Act permitted the defenses raised in that case. Although Martin resolved one issue, courts have yet to answer other questions regarding coverage under the Act and the specific claims and defenses it bars.
Coverage of the Act
If the Act applies to a claim, it is the exclusive remedy and, in theory and usually in practice, bars any other claim against a landowner arising from the same incident. The applicability of the Act can be positive or negative to a party, depending on the circumstances. For plaintiffs, the Act may provide the only cause of action available, or it may provide the best one in a situation where negligence may be difficult to prove. For example, the broad application of the term "landowner" may allow plaintiffs to pursue defendants who otherwise would lack a duty toward the plaintiff in negligence claims.
For defendants, application of the Act bars negligence and related claims, and in some cases imposes a higher-or at least more defined-burden of proof. For example, a plaintiff-invitee must show that the defendant failed to exercise reasonable care to protect against a dangerous condition and knew or should have known of such condition. In the case of an unforeseeable event, such as the spontaneous opening of a storage door for the first time, a defendant has a realistic chance of obtaining summary judgmentby demonstrating a lack of actual or constructive knowledge.(fn16) Whether representing the plaintiff or the defendant, practitioners should be aware of the language of the Act and how it has been interpreted. Application of the Act to a particular claim depends on whether (1) the defendant is a "landowner" as definedby the Act, and (2) the injury occurred on real property "by reasons of the condition of such property, or activities conducted or circumstances existing on" the property.
Who is a Landowner
It might seem reasonable to assume that a landowner is the owner of the real property in question. The Act, however, defines a "landowner" more broadly as:
including, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.(fn17)
This definition includes parties who do not fit the common understanding of the term landowner.
There are three important points to keep in mind in determining whether a party is a landowner under the Act: (1) one need not own the land to be a landowner; (2) a landowner may not delegate its duties under the Act to an independent contractor; and (3) a landowner/lessor might transfer possession of its property to a tenant and, subject to exceptions, remove itself from the landowner category.
One need not own land to be a landowner. In Pierson v. Black Canyon Aggregates, Inc.,(fn18) one of the first cases to interpret the definition of "landowner," the plaintiff drove off a cliff into a gravel pit ownedby Montrose County but operatedby defendant Black Canyon. The lower court dismissed plaintiff's premises liability claim, concluding that Black Canyon was not a landowner under the Act. The appellate court affirmed, explaining that, although Black Canyon had a contractual right to mine and stockpile gravel, it did not have exclusive possession over the land; therefore, it was not solely responsible for "activities conducted or circumstances existing on" the property.(fn19)
The Colorado Supreme Court reversed that decision.(fn20) The Court examined the legislative history and concluded that the Act's overriding purpose was to "clarify and to narrow" the liability...
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