Chapter 28 - § 28.7 • PREMISES LIABILITY

• Jurisdiction: Colorado

§ 28.7 • PREMISES LIABILITY

§ 28.7.1—Common-Law Classifications

Prior to 1971, Colorado followed the common-law rule that a landowner's duty of care varies according to the relationship he or she bears to the person on his or her premises.¹⁵³ In 1971, after noting that there was a trend toward abolishing the arbitrary classification of "trespasser," "licensee," and "invitee,"¹⁵⁴ the Colorado Supreme Court, in Mile High Fence Co. v. Radovich,¹⁵⁵ abandoned the common-law rule, explaining its decision as follows:

Colorado, like most jurisdictions, has generally followed the common law distinctions between trespassers, licensees, and invitees in determining the standard of care owed by the occupier of land towards those who come upon the land. However, it is apparent from an examination of our decisions that on occasion we have departed, in the interest of justice, from strict adherence to the common law classifications and the respective duties imposed thereby. In fact, on occasion, this court has disregarded status and has permitted liability to depend upon a determination of whether the occupant acted as a reasonable man in view of the foreseeability of injury to the entrant. Our departures from status classification took place without reconsideration of the common law rule. This indicates that this court has recognized the problem but has been reluctant to meet it head on. Commentators have suggested numerous reasons to abandon the system; however, those which now compel this court to act are (1) that the system creates confusion and judicial waste, and (2) that by preventing the jury from applying changing community standards to a landowner's duties, a harshness which is inappropriate to a modern legal system has been preserved.
. . . Rigid adherence to common law classifications results in the resolution, in many instances, of the owner's liability as a matter of law. . . .

Thus, trial court determinations that the plaintiff was a trespasser rather than a licensee, or a licensee rather than an invitee, have kept the injured party from having a jury determination on the issue of negligence. Similarly, where a trespassing child has been injured, court conclusions as to the unusualness or the attractiveness of the features of the land have prevented jury consideration of the defendant's activities. Where verdicts have been rendered, they have been overturned either because this court has characterized the plaintiff differently from the trial court or because the classifications covered by the jury instructions would not support the verdict rendered.
. . . Because of the harsh consequences and judicial waste which have resulted from adherence to status classification, this court takes today's action. We draw support for this change in direction from a reading of the law which suggests that plaintiff's status should no longer be dispositive of a landowner's liability.
. . .

It becomes obvious from an in-depth analysis of the various sections and comments of the Restatement [of Torts], that status, particularly that of licensee or invitee, is not the controlling determinant of liability. Again, it is the foreseeability of harm from the failure by the possessor to carry on his activities with reasonable care for the safety of the entrants which determines liability.

In short, as we read the Restatement, even where the status of the entrant is a factor to be considered in the determination of a possessor's liability for harm to an entrant, it is not controlling. With this understanding of the Restatement, we . . . adopt it as a guide for determination of the duties and possessors of lands towards those who may enter.¹⁵⁶

§ 28.7.2—Premises Liability Statute

In 1986, the Colorado Legislature enacted a landowner liability statute,¹⁵⁷ the purpose of which was "to promote a state policy of responsibility by both landowners and those upon the land as well as to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee."¹⁵⁸ (Under this statute, the judge determines whether a plaintiff is a trespasser, a licensee, or an invitee.¹⁵⁹ )

The statute was amended in 1990, "to assure that the language of this section effectuates these legitimate governmental interests by imposing on landowners a higher standard of care with respect to an invitee than a licensee and a higher standard of care with respect to a licensee than a trespasser."¹⁶⁰

It was recognized, however:

[T]hat by amending this section it is not reinstating the common law status categories as they existed immediately prior to Mile Hi [sic] Fence v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) but that its purpose is to protect landowners from liability in some circumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent with the policies set forth in paragraphs (a), (c), and (d) of this subsection (1.5).¹⁶¹

C.R.S. § 13-21-115(2) provides, in part:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

Thus, the statute sets forth the circumstances under which a landowner may be held liable for the condition of or the activities conducted on his or her property,¹⁶² and provides the exclusive remedy against a landowner for injuries sustained on the landowner's property.¹⁶³ A plaintiff may not recover under any other theory of negligence, general or otherwise.¹⁶⁴ In enacting the Colorado Premises Liability Act, the General Assembly clearly and manifestly expressed its intent, through the plain language of the statute, to abrogate the common law landowner duties.¹⁶⁵ The Colorado Supreme Court has stated, in checklist form, the requirements of the statute: "'(1) the landowner [ ] actually knew or should have known [ ] of the danger to the invitee and (2) the landowner [ ] unreasonably failed to exercise reasonable care [ ] to protect the invitee from that danger.'"¹⁶⁶

The statute is not, however, all inclusive. For example, where a townhome owners' association is the owner of common elements in a townhome complex and the unit owners have a continuing right, independent of association consent, to use the common elements, a unit owner entering upon the common elements is neither a trespasser, a licensee, nor an invitee, and therefore the landowner's liability statute does not apply.¹⁶⁷ The statute does not abrogate claims under the dog bite statute,¹⁶⁸ and in a proper case, both the dog bite statute and the Premises Liability Act may be applied.¹⁶⁹

Landowner

C.R.S. § 13-21-115(1) provides:

For the purposes of this section, "landowner" includes, 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.

This definition is clearly broader than the term "landowner" might ordinarily suggest. A party need not hold title to the property to be considered a landowner within the meaning of the Act.¹⁷⁰ The issue of whether a party is a "landowner" under the Act presents a mixed question of fact and law.¹⁷¹ One's title is not dispositive in determining who is a "landowner" under the statute.¹⁷² Whether a party is a landowner is akin to the question of whether a party owes a legal duty to a particular plaintiff, a question that has consistently been regarded as one of law, subject to de novo review.¹⁷³ The term "person in possession" applies to those who have title and possession and to nontitle-holders with exclusive possession, such as tenants or easement holders who have complete possession and control over the property.¹⁷⁴ A lessor who has granted exclusive possession to a lessee is not a "person in possession,"¹⁷⁵ but prior to entering into a lease, a lessor may be a "person in possession."¹⁷⁶ One who enters the property of another to perform work pursuant to an agreement with the owner, even though not having exclusive possession, may be a "landowner."¹⁷⁷ For example, a janitorial service, responsible for cleaning the premises, is liable as a "landowner" for injuries resulting from its failure to clean up a spill on a stair-well.¹⁷⁸ But a defendant is not a "landowner" where, at the time of the accident, the defendant is not in possession of the property or conducting any activity related to, or creating the condition of, the hazard.¹⁷⁹

The owner of an amusement ride is a "landowner."¹⁸⁰

Attractive Nuisances

The statute does not abrogate the doctrine of attractive nuisance as applied to persons under 14 years of age.¹⁸¹ All children under 14 years of age, regardless of their classification under the Premises Liability Statute, may bring a claim for attractive nuisance.¹⁸²

Common Law Defenses

As originally enacted, the landowner liability statute did not preserve common law defenses, such as the defense of "open and obvious danger."¹⁸³ In 2006, however, the statute was amended to provide that the statutory defenses of comparative negligence,¹⁸⁴ pro rata liability of defendants,¹⁸⁵ and assumption of risk¹⁸⁶ apply in actions against landowners.¹⁸⁷

Classification of Plaintiff

The landowner's standard of care is determined by the classification of the injured party.¹⁸⁸

Trespassers¹⁸⁹

A trespasser is "a person who enters or remains on the land of another without the landowner's consent."¹⁹⁰ The term "consent" as used in the Act includes implied consent.¹⁹¹ A trespasser may recover only for damages willfully or deliberately caused by the landowner.¹⁹²

Licensees

A licensee is a person who enters or remains on the land of another for the licensee's own convenience or to advance his or her...