Tort and Insurance Law, 0521 COBJ, Vol. 50, No. 5 Pg. 46

PositionVol. 50, 5 [Page 46]

50 Colo.Law. 46


No. Vol. 50, No. 5 [Page 46]

Colorado Lawyer

May, 2021

Expanding Potential Exposure for Businesses

Causation Standards and the Planned Parenthood Shooting Opinion


This article discusses Rocky Mountain Planned Parenthood, Inc. v. Wagner and its impact on the analysis of causation in tort claims.

In a case that "truly tests the boundaries of the proximate cause inquiry,"1 the Colorado Supreme Court recently expounded on—and arguably altered—the standards governing the analysis of causation not only under the Colorado Premises Liability Act (CPLA),2 but also for all common law tort claims. In doing so, the Court has made foresee ability a prime focus of the proximate cause inquiry in Colorado. This analysis expands property owners' exposure to liability for intentional harmful acts carried out by third parties on the property. It also potentially expands liability for tort defendants in other contexts where the actions of multiple parties contribute to the same harm.

Rocky Mountain Planned Parenthood, Inc. v. Wagner signals a limit on the "predominant cause" doctrine, which previously allowed property owners and tort defendants to evade liability for intentional conduct of others. At the same time, the case highlights that the duty-of-care principle remains a viable means to restrict liability for higher-level corporate entities not in a special relationship with the plaintiff.

This article discusses Wagner, which arose from a 2015 mass shooting at a Planned Parenthood facility in Colorado Springs.

Overview of Wagner

In Wagner, an anti-abortion group released Internet videos purporting to depict Planned Parenthood staff discussing selling fetal tissue and organs for medical research. Following the videos' release, Planned Parenthood facilities throughout the country saw a spike in threats against the organization's facilities and staff members. Among the anti-abortionists who observed the videos was Robert Dear. Enraged by the videos, Dear went to Planned Parenthood of the Rocky Mountains (PPRM) in Colorado Springs armed with numerous guns, propane tanks, and a ballistic vest. He began firing on individuals in the parking lot and then continued the massacre inside the building. Following a five-hour standoff with police, Dear surrendered. Three people were killed and nine others were injured.

Plaintiffs—a group of injured victims and survivors of deceased victims—filed suit against PPRM claiming they were invitees under the CPLA. They also filed suit against PPRM's national parent organization, Planned Parenthood Federation of America (PPFA), claiming negligent supervision and failure to require or instruct PPRM to maintain adequate safety measures.

The trial court granted PPRM summary judgment, finding that, to the extent PPRM's conduct may have contributed to plaintiffs' injuries, PPRM's conduct was not a proximate cause of those injuries because Dear's conduct was die "predominant" cause of die harm and his conduct was not reasonably foreseeable.

The trial court also granted PPFA summary judgment, holding that PPFA owed no legal duty to plaintiffs because PPFA was not in a recognized "special relationship" with plaintiffs that could give rise to liability based on conduct that occurred at an individual Planned Parenthood chapter's facility.

On appeal, die Colorado Court of Appeals unanimously affirmed summary judgment for PPFA. However, with respect to PPRM, die division split, with die majority reversing summary judgment on die issue of causation. The majority held that plaintiffs produced sufficient evidence to overcome summary judgment and go to die jury on whether PPRM knew or should have known of die potential for violent acts at its facility yet failed to provide adequate security. In so ruling, the Court diverged from prior federal district of Colorado cases recognizing that die acts of criminal mass murderers constituted die "predominant" cause of injuries inflicted so as to relieve property owners of liability as a matter of law.3 The Court remanded the case for trial against PPRM on the CPLA claim.

The Colorado Supreme Court granted certiorari to review the following issues:

1.whether an individual who acts to cause mass casualties without regard to his or her own survival or capture is necessarily die predominant cause of harm to die victims of die individual's attack, such that a landowner cannot be liable under die CPL A for a failure to implement security measures that the plaintiffs allege may have prevented die harm; and

2. whether the Court of Appeals erred in concluding that PPFA did not owe a duty of care to the patrons of the PPRM Colorado Springs facility.

The Court Splits on Proximate Cause

Affirming die judgment of die Court of Appeals, die Supreme Court split 4-3, with Justice Gabriel authoring die...

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