Chapter 32 - § 32.3 • ELEMENTS DEFINED
| Jurisdiction | Colorado |
§ 32.3.1—Defendant Was a "Landowner"
A person need not hold title to property to be considered a landowner.18 Conversely, the statutory definition of "landowner" does not automatically make the holder of the title to the property a landowner.19 The statute defines a "landowner" to encompass both: (1) "an authorized agent or a person in possession of real property" and (2) "a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property."20 Thus, there are two ways that a person can be a "landowner" under the statutory definition.
First, to be a landowner, the person may be an "authorized agent or person in possession." Such possession need not necessarily be to the exclusion of all others, but if a landowner transfers complete control of the premises to a lessee, for example, the landowner is no longer a person in possession for purposes of the statute.21 "Logically, a person 'in possession of' real property is presumed to be responsible for the conditions, activities, or circumstances on that property."22
Whether a landlord is a "landowner" for purposes of the Act depends on whether he or she has sufficient control of the property. The Act does not set forth any criteria for making that determination, but case law has developed those criteria. For example, reservation of the right of inspection and the right of maintenance and repairs is not generally a sufficient attribute of control to support imposition of tort liability.23 On the other hand, where tenants had surrendered their right to exclusive possession and control over the property so as to share control with the landlord who had also reserved the power or authority to manage, superintend, direct, or oversee repairs on the premises, the landlord was "a person in possession."24
Under the second part of the definition, a landowner may be someone who is legally responsible for the condition of the property or for activities conducted or circumstances existing on the property. The statute was intended to cover a broad range of activities occurring on a landowner's property and is not "restricted solely to activities and circumstances that are directly or inherently related to the land."25 The Colorado Supreme Court has instructed that the focus is "whether the defendant is someone who is legally entitled to be on the real property and whether that defendant is responsible for creating a condition on real property or conducting an activity on real property that injures an entrant."26 This emphasis places "prospective liability with the person or entity that created the condition or conducted the activity on the real property that, in turn, caused injury to someone."27 A party's legal responsibility for the condition of the property may be determined by contract.28
A leading case applying both aspects of the statutory definition of "landowner" is Pierson v. Black Canyon Aggregates, Inc.29 The alleged landowner in Pierson was an independent contractor that had entered into an agreement with a county government that authorized the contractor to crush gravel at a gravel pit on property the county leased from private owners. The plaintiff was traveling along a road that ran through the gravel pit when he drove over an embankment caused by years of excavation. When he sued the independent contractor/operators, they argued that they were not landowners and therefore not liable. The Colorado Supreme Court disagreed and concluded that the independent contractor was both sufficiently in possession of the property to qualify as a landowner and was legally conducting an activity on the property that allegedly injured the plaintiff.30
Landowners may not delegate their duties to independent contractors. Thus, the fact that "someone performing services on property may constitute a landowner does not render the title owner of the land immune from liability."31 To the contrary, under the premises liability statute, "landowner status confers a nondelegable duty to maintain premises in a safe condition and a landowner cannot escape liability for conditions created by negligent subcontractors."32 The nondelegable duty "burdens the landowner with full liability under [the statute] regardless of fault imputable to other defendants or nonparties."33 Moreover, the statute expressly contemplates that there may be multiple landowners in a case.34 Because of the ability to apportion liability in Colorado, "in any personal injury action, plaintiffs generally name as defendants all parties who may bear even a minor amount of liability."35
Naturally, however, the premises liability statute and, therefore, the statutory definition of landowner, is inapplicable where a plaintiff was not "on the real property of" the defendant. Thus, the common law "no duty" rule in sidewalk injury cases, which provides that property owners owe no duty to pedestrians to keep sidewalks abutting their property maintained, repaired, or reasonably clear of naturally accumulating snow and ice, remains in effect.36 The fact that a municipal ordinance requires a property owner to clear adjacent sidewalks of snow and ice does not automatically cause the premises liability statute to abrogate the common law "no duty" rule.37 Critically, however, where a municipal ordinance or other public law requires an adjacent owner to maintain, repair or replace a sidewalk,38 that adjacent owner may be deemed a "landowner" because the ordinance or law renders him or her "legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property."39
To overcome the general common law "no duty" rule, an ordinance must clearly state that a property owner will be civilly liable for violating the ordinance.40 And if for some reason the provisions of the ordinance or law do not render the adjacent owner a "landowner," such that the premises liability statute applies to the claim, then the adjacent owner may still be liable to the plaintiff for ordinary negligence and/or negligence per se.41
Practice Pointer
When evaluating pursuit or defense of a premises liability claim involving someone alleging injury while using a public sidewalk, it is important that the practitioner research whether a state statute, county regulation, municipal ordinance, or other published law charges the owner of adjacent property with shoveling, clearing, maintaining, repairing, and/or replacing the sidewalk, and imposes civil liability for his or her failure to do so. The law varies significantly by jurisdiction. (In addition, depending on the sidewalk's location in relation to an adjacent building and the even surrounding area, it is possible that applicable building and fire codes, industry standards (such as American Society for Testing and Materials, or ASTM, standards), and federal statutes such as the Americans with Disability Act42 may inform or establish the existence and/or nature of a defendant's duty to shovel, clear, maintain, repair, and/or replace the sidewalk prior to the plaintiff's injury.) Given the case law discussed in this section, it may be prudent and even necessary for a plaintiff to plead alternative claims for negligence and negligence per se as well as a claim under the premises liability statute.
Similarly, a public entity generally has no duty to third parties to enforce safety regulations on property of which it is not the landowner. Thus, when a legislative scheme imposes a regulatory duty on a public entity to ensure that private parties comply with safety regulations, the public entity is not subject to civil tort liability for injuries sustained by a person on property of which the public entity is not the landowner if it fails to comply with its regulatory duty, absent an express legislative intent to create a civil tort remedy for such injuries.43
§ 32.3.2—Defendant Owed Plaintiff a Duty of Care
Under the statute, the duty owed by the landowner is determined by the plaintiff's legal status.44 The statute expressly provides that the court must determine as a matter of law whether the plaintiff is a trespasser, a licensee, or an invitee in accordance the statutory definitions, and if two or more landowners are defendants, the court makes the determination as to each one.45
A "trespasser" is a person who enters or remains on land without the landowner's consent.46 Colorado appellate courts have held that the term "consent" as used in the premises liability statute includes implied consent.47 Therefore, a landowner may consent to entry, even absent express words, by his or her course of conduct.48 A trespasser is owed a minimal duty: "A trespasser may recover only for damages willfully or deliberately caused by the landowner."49
A "licensee" is a person who enters or remains on the land for his or her own convenience or to advance his or her own interests, pursuant to the landowner's permission or consent.50 The term includes a social guest as well as a volunteer.51 A landowner must exercise reasonable care for the licensee regarding dangers he or she created and actually knows about, and must warn of dangers he or she did not create that are not ordinarily present on that type of property and that the landowner actually knows about.52 A licensee may recover only if the landowner unreasonably fails to carry out these duties.53
Finally, an "invitee" is someone who enters or remains on the land to transact business in which the parties are mutually interested or who enters or remains in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.54 The principal distinction between an "invitee" and a "licensee" is whether the person's presence on the land was affirmatively invited or merely permitted.55
A landowner owes the highest duty of care to an invitee. Generally, a landowner must...
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