Chapter 43 - § 43.11 • LANDOWNER LIABILITY

• Jurisdiction: Colorado

§ 43.11 • LANDOWNER LIABILITY

§ 43.11.1—A Short History

Landowner liability has a long history in the common law. At common law, the duties of a landowner varied depending on whether the injured person was a "trespasser" (i.e., one on the property without the permission of the landowner), a "licensee" (one on the property pursuant to an agreement with the landowner), or an "invitee" (one on the property at the request of the landowner). The Colorado Supreme Court decided to abolish these categories and apply a single standard — namely, whether in the management of his or her property that landowner has acted "as a reasonable man in view of the probability or foreseeability of injury to others," and, although "a person's status as a trespasser, licensee, or invitee may, of course, in the light of the facts giving rise to such status have some bearing on the question of liability, . . . it is only a factor — not conclusive."¹⁶⁰

In 1986, the Colorado legislature intervened to provide greater protection to landowners. It enacted C.R.S. § 13-21-115, which the Colorado Supreme Court struck down as unconstitutional on equal protection grounds in 1989.¹⁶¹ The statute was amended in 1990 to cure the constitutional defect and with the purposes of effectuating "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," and creating "a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability of insurance." C.R.S. §§ 13-21-115(1.5)(c) and (d).¹⁶²

§ 43.11.2—The Landowner Liability Statute

The landowner liability statute as it exists today creates three classes of persons, although, the legislature stated, without intending to reinstate the common law categories. C.R.S. § 13-21-115(1.5)(e). The three classes are:

(a) "Invitee" means a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.
(b) "Licensee" means a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent. "Licensee" includes a social guest.

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