Tag Archives: Premises Liability Act

Barbara Jordan v. Panorama Orthopedics & Spine Center, PC., 2015CO24 (April 13, 2015)

♪This land is your land, it’s not my land, I’m not a landowner, so you can’t sue me… Plaintiff tripped and fell on common area sidewalk outside a medical campus. She sued the main tenant. Under the Premises Liability Act (PLA), only “landowners” could be liable for injuries on their land. There are two kinds of landowners: those in possession of the land, and those who are legally responsible for conditions on the land. This case addressed the second category and limited its scope. Here, under its lease, the defendant could not exclude anyone from occupying the land, was not responsible for maintenance or the condition of the sidewalk, and was not conducting any activities on the sidewalk; it also did not assume a duty to repair the sidewalk or create the condition that caused the injuries. Under these facts, the Court held the commercial tenant was not a landowner.



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S.W., a minor by and through, David Wacker; and Rhonda Wacker v. Towers Boat Club, Inc., 2013CO72 (Dec 23, 2013)

“It’s innocence when it charms us, ignorance when it doesn’t.” Mignon McLaughlin. A child “licensee” (invited guest) was severely injured while playing on a bungee run. The opinion addresses the interplay between Colorado’s premises liability statute CRS 13-21-115, the common law doctrine of attractive nuisance, and whether the common law applies to all types of child entrants on land or, as the court of appeals held, only to trespassers. The Court concluded the doctrine applied to all children because the common law (incorporated into the statute) did not make a distinction. If the object attracted the child and caused injury, the doctrine applies. The dissents’ perspective differed. Justice Eid argued the child should be treated as a licensee. In Justice Marquez’s view, the object’s attraction causes a child to trespass, and thus the doctrine only applies to trespassers.



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Court of Appeals reversed in S.W. ex rel. Wacker v. Towers Boat Club, Inc.

Below is a reproduction of the Court’s Advance Sheet Headnote.  A full CLR summary and post will follow.

No. 12SC391, S.W. ex rel. Wacker v. Towers Boat Club, Inc. – Attractive Nuisance – Section 13-21-115, C.R.S. (2013).

 In this attractive nuisance case, the Colorado Supreme Court considers whether, under Colorado’s premises liability statute, section 13-21-115, C.R.S. (2013), the attractive nuisance doctrine applies only to trespassing children but not to licensees or invitees. The Supreme Court holds that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. The Supreme Court therefore reverses the judgment of the court of appeals because it erroneously held that the attractive nuisance doctrine only protects trespassing children.

A link to the Supreme Court’s decision is HERE. 

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Rodney Reid v. Daniel Berkowitz, d/b/a Shimon Builders, 2013COA110 (July 18,, 2013)

“Flying is learning how to throw yourself at the ground and miss.” – HHGTTG. Here, Plaintiff fell three stories in a dimly lit house under construction when a handrail gave way. He sued Defendant/landowner and two builders who negligently put up the handrail. The builders defaulted. The jury found for Plaintiff. Defendant appealed. The trial court did not give an instruction to apportion fault between Defendant and the builders; the court of appeals held it should have. But, since landowners have a nondelegable duty to keep property safe, and thus, Defendant was vicariously liable for all of the builders’ liability, the error was harmless. The evidence did support Plaintiff’s contributory negligence, so it was an error not to offer that instruction. Finally, Plaintiff was a licensee, not a trespasser. The case was remanded for a determination of plaintiff’s fault only.



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Gary Larrieu v. Best Buy Stores, L.P., 2013CO38 (June 24, 2013)

“Thousands of possibilities [to sue]. Get yours.” – Best Buy tagline. Plaintiff was on Best Buy’s property to purchase a refrigerator and was injured. Plaintiff sued under the Premises Liability Act (PLA) and ended up in federal court. The district court dismissed, finding the PLA only applies to activities “directly and inherently” related to the land. On appeal, the Tenth Circuit certified a question to the Court asking if that was correct. Answer: no. The PLA is more broad than “directly and inherently,” but not so broad that it applies to any tort on another’s property. Interpreting Pierson v. Black Canyon, the Court held that the PLA applies to “conditions, activities, and circumstances on the property” that the landowner is liable for as a landowner. Thus, the fact-specific inquiry must include whether the injury was caused by the landowner’s actions as the landowner.



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Barbara Jordan v. Panorama Orthopedics & Spine Center, PC, 2013COA87 (June 6, 2013)

“Step on a crack, break your back.” And then sue. Here, plaintiff tripped on a crack in a sidewalk in front of a medical clinic leasing the building it occupied. She sued under the Premises Liability Act, CRS 13-21-115. The clinic argued it was not a “landowner,” and thus not liable. The court of appeals’ majority agreed. The clinic was not a landowner because it did not have a “sufficient” interest in the sidewalk. The clinic did not occupy the sidewalk – just the building; it did not control the sidewalk, though it had some maintenance responsibilities under its lease; and it did not conduct an activity on the sidewalk – its activities occurred in the adjacent building. The dissent would have held that the clinic had sufficient control over the only entrance to its offices because patients would park in spaces exclusively for patients, who must then use the sidewalk to access the clinic.




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Holly Averyt v. Wal-Mart Stores, Inc., 2013COA10 (January 17, 2013)

Time is money, especially to a judgment creditor. Here, a jury found for Plaintiff in a slip-and-fall case. But the trial court vacated the judgment and ordered a new trial. Plaintiff appealed to the Supreme Court, which reinstated judgment. The trial court awarded damages and post-judgment interest at the statutory rate of 9%. On appeal again, Defendant argued that the correct post-judgment interest rate should be the market-based rate, currently at 3%, used if a judgment debtor appeals. The court of appeals disagreed, holding that CRS 13-21-101’s appealing-judgment-debtor market rate does not apply to a judgment creditor who appealed after judgment was vacated, because a favorable judgment had been entered. Separately, though Defendant’s challenge to the sufficiency of the evidence was unsuccessful; it was not groundless or frivolous, so attorney fees were not awarded.



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New grant in S. W., a minor v. Towers Boat Club, Inc.

The Supreme Court granted certiorari review in 1 civil case, related to the premises liability statute. See the CLR’s summary of the court of appeals decision HERE.

Click HERE for the Summary of the Issue for which certiorari review was granted.

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Gail Collard v. Vista Paving Corporation, 2012COA208 (November 21, 2012)

Wile E. Coyote never got the Road Runner to smack into his wall painted like a road. Here, City hired Vista to construct medians in the middle of a road. The medians were completed by Vista and accepted by the City. For a while, the double yellow stripes led straight into the median, where plaintiff crashed her car. She sued Vista under both the PLA and common law negligence. After rejecting the application of the PLA because Vista was not a “landowner,” the court of appeals adopted new construction liability standards. It rejected the “completed and accepted” doctrine under which construction companies owed no duties to third parties after completing work. The court adopted a “foreseeability rule” making companies potentially liable even after work is completed, if it would be unreasonable to expect another party to mitigate a danger. The case was remanded to apply the new standard.



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Melanna Marcellot v. Exempla, Inc. d/b/a Exempla West Pines, 2012COA200 (November 8, 2012)

The treatment of mental health patients is, by all accounts, stressful. One source of stress can be the potential that a patient might become violent and harm others. For the provider, the threat of lawsuits arising from patient behavior could impose significant costs. To address this, the legislature generally granted mental health providers immunity from civil actions claiming a failure to ward or protect any person. In this case, a visiting psychiatric educator entered a facility with students and was told that no patients presented a special risk. She was then assaulted by a patient. She sued the provider. The trial court granted the hospital’s motion to dismiss under the immunity statute. The court of appeal affirmed, rejecting her arguments that the statute did not apply to her situation, or that it only applied to outpatients. The case was dismissed.



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