Chapter 32 - CHAPTER 32 PREMISES LIABILITY

• Jurisdiction: Colorado

Chapter 32 PREMISES LIABILITY

Teresa D. Locke, Esq.
W. Darin Locke, Esq.

SYNOPSIS

§ 32.1 DEFINITION

§ 32.2 ELEMENTS

§ 32.3 ELEMENTS DEFINED

§ 32.3.1—Defendant Was a "Landowner"
§ 32.3.2—Defendant Owed Plaintiff a Duty of Care
§ 32.3.3—Defendant Breached the Duty of Care
§ 32.3.4—Damages Caused by Defendant's Breach

§ 32.4 DEFENSES

§ 32.4.1—Comparative Negligence
§ 32.4.2—Assumption of Risk
§ 32.4.3—Designation of Nonparty at Fault
§ 32.4.4—Exculpatory Clauses in Contract
§ 32.4.5—Governmental Immunity
§ 32.4.6—Statutory Immunity
§ 32.4.7—Other Defenses
§ 32.4.8—Statute of Limitations

§ 32.5 REMEDIES

EXHIBITS

Exhibit 32A—Sample Complaint for Premises Liability — Against Retail Store — with Claim for Negligence Against Another Customer
Exhibit 32B—Sample Amended Complaint for Premises Liability — Minor Child Injured by Dangerous Condition (Amended to Add Request for Exemplary/Punitive Damages After C.R.C.P. 26 Disclosures Demonstrating Willful and Wanton Conduct)

§ 32.1 • DEFINITION

Premises liability is a tort action brought against a landowner by a person who has been injured while on the real property of another and by reason of the condition of such property or through activities conducted or circumstances existing on such property.¹ Perhaps more than any other cause of action in Colorado, the parameters of premises liability have been developed through a tug of war between the legislature and the judiciary. Until 1971, a landowner's duty of care was determined based on the common law classification of the injured party as a trespasser, licensee, or invitee.² In 1971, the supreme court overruled the common law principles that based landowner liability on the status of the person entering the property, and instead applied general negligence law, with the status of plaintiff's entry on the land being only one factor to consider.³

In 1986, the legislature enacted the first premises liability statute and reinstated the requirement to determine the status of an injured party as an invitee, licensee, or trespasser in order to determine a landowner's duty.⁴ Three years later, in 1989, the Colorado Supreme Court held that the statute was unconstitutional because it afforded less protection to invitees than licensees.⁵ In response, the legislature amended the statute to address the equal protection concerns but retained the status classifications. That statute, C.R.S. § 13-21-115, included a number of findings by the General Assembly. First, the legislature recognized that the amended statute was not intended to reinstate the common law status categories as they existed in 1971.⁶ Rather, the legislature declared that the original 1986 statute was enacted "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."⁷ Second, the legislature declared that the amendment's purpose was to "impos[e] 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."⁸ Finally, the legislature...