Chapter 3 - § 3.6 • DANGEROUS CONDITIONS AND LATENT DEFECTS

• Jurisdiction: Colorado

§ 3.6 • DANGEROUS CONDITIONS AND LATENT DEFECTS

§ 3.6.1—General Rule: Opportunity to Inspect/Dangerous Condition/Patent or Obvious Defects

There is a sizeable body of law on issues involving a landlord's duty to tenants and guests of tenants when a dangerous condition exists on the premises. The general rule for a situation involving a patent, dangerous condition at the time the tenant takes possession of the property is:

[W]hen a . . . tenant has had an opportunity to inspect the condition of the premises sought to be rented, and any defects existing thereon are patent or obvious to the tenant's observation, the law exempts the landlord from liability for injuries to the tenant as a result of the defect. . . . In the absence of the landlord's covenant to repair, the tenant is said to have assumed the risk of loss or injury when he enters into defective premises and has had means of information equal to that of the landlord.

Davis v. Marr, 413 P.2d 707, 709 (Colo. 1966) (citations omitted). See also Davidson v. Fischer, 11 Colo. 583, 19 P. 652 (1888).

In Harless v. Geyer, 849 P.2d 904 (Colo. App. 1992), the court of appeals applied the general rule to a situation involving a tenant who was injured when she fell down the basement stairs in an older home. The landlord had not installed a handrail, but the court concluded that this was a patent defect plainly visible to the tenant prior to the tenant's occupancy under the lease. The court also rejected a negligence per se theory, holding that any alleged violation of the building code did not support recovery for the tenant because the home existed prior to the adoption of the building code, and no repairs or alterations to the home had been undertaken, which would have brought the building under the scope of the code.

§ 3.6.2—Latent, Dangerous Conditions

The exceptions to the general rule are situations where the landlord agrees to make repairs, as noted in Davis, 413 P.2d 707; those involving common areas (see discussion in § 3.5); and those where a latent, dangerous condition exists. This last exception was defined as follows in Baughman v. Cosler, 459 P.2d 294, 298 (Colo. 1969):

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if (a) the lessee does not know or have reason to know of the condition or the risk involved, and (b) the lessor knows or has reason to know of the condition, and he realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

The Baughman holding has been interpreted to mean that a lessor may owe a duty of care to a tenant if the latent, dangerous condition existed at the time possession was transferred. Perez v. Grovert, 962 P.2d 996, 998 (Colo. App. 1998).

The failure of the landlord to reveal the existence of a dangerous condition that was not discoverable by the tenant and that caused harm to the tenant has been held to be a defense to liability for rent for the remainder of a lease terminated by the tenant. Capitol Amusement Co. v. Anheuser-Busch, Inc., 94 Colo. 372, 30 P.2d 264 (1934).

As noted above, tenants are viewed as invitees for purposes of Colorado's premises liability statute (C.R.S. § 13-21115) (see also the discussion in § 3.5). Colorado appellate courts have decided that this statute constitutes the exclusive remedy against a landowner for injuries occurring on the landowner's property. For example, in Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), the court noted that the PLA is "preemptive and exhaustive" and cited with approval several Colorado Court of Appeals cases that held that the statute is the "exclusive remedy available for injured parties against landowners." Id. at 329. These cases included Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003); Teneyck v. Roller Hockey Colorado, Ltd., 10 P.3d 707 (Colo. App. 2000); and Thornbury v. Allen, 991 P.2d 335 (Colo. App. 1999).

In Vigil, the court decided that by choosing to exclusively set forth the nature and extent of duties owed by a landowner, the General Assembly also had abrogated the common law regarding defenses to the existence of such duties. In other words, a landowner may argue that he or she owed no duty to an injured plaintiff, but only pursuant to the defenses included in the statute. Specifically, the court held that the common law doctrine of "the open and obvious danger" did not provide a defense for the landowner because that phrase or any substantially similar phrase or concept was not referenced in the statute.

The PLA was amended in 2006 to allow the defense of comparative negligence in...