Chapter 3 - § 3.5 • CONTROL OF COMMON AREAS

• Jurisdiction: Colorado

§ 3.5 • CONTROL OF COMMON AREAS

At common law, if a landlord retained control of portions of an apartment building for the use and benefit of all the tenants, the landlord had a duty to exercise reasonable care to keep those portions in a safe condition for use by the tenants. Van Schaack & Co. v. Perkins, 272 P.2d 269 (Colo. 1954); Kopke v. AAA Warehouse Corp., 494 P.2d 1307 (Colo. App. 1972). The extent of this duty has been defined in numerous negligence cases. For example, the courts have required landlords to keep the following common areas in a safe condition: parking lots, sidewalks, and stairways. Yerly v. Jenik, 491 P.2d 980 (Colo. App. 1971) (not selected for official publication), on remand, 517 P.2d 872 (Colo. App. 1974) (parking lots); Frazier v. Edwards, 190 P.2d 126 (Colo. 1948) (sidewalks); Crosby v. Kroeger, 330 P.2d 958 (Colo. 1958) (stairways). Guests of tenants are also owed this duty. Palmer Park Gardens, Inc. v. Potter, 425 P.2d 268 (Colo. 1967); Crosby v. Kroeger, 330 P.2d 958 (Colo. 1958); Roessler v. O'Brien, 201 P.2d 901 (Colo. 1949).

Historically, the landlord had no duty to provide lighting for stairways or hallways unless there was an unusual or dangerous condition that required a special warning to tenants. Miller-DuPont, Inc. v. Service, 208 P.2d 87 (Colo. 1949).

The court in Lakeview Associates, Ltd. v. Maes, 907 P.2d 580, 586 n. 10 (Colo. 1995), held that for purposes of the PLA, a tenant is an invitee and thus is owed that statute's duty of care for invitees in common areas under the control of a landlord. In Lakeview, a tenant in an apartment complex for elderly persons slipped and fell on a patch of ice while walking across the complex's parking lot. She sustained temporary and permanent injuries. She lost her trial, but the appellate court reversed and remanded for a new trial. In the original trial, the court had determined that the tenant was a licensee and thus could recover only for damages caused by the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew, or by the landowner's unreasonable failure to warn of dangers not created by the landowner that are not ordinarily present on property of the type involved and of which the landowner actually knew. Id.; C.R.S. § 13-21-115(3)(b).

The Colorado Supreme Court's classification of the tenant as "invitee" raised the standard of the duty of care owed to the tenant, at least for...