April 23, 2018

Colorado Court of Appeals: Person with Permission to Enter Property but Not Express Invitation is Licensee Under PLA

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, December 31, 2015.

Interlocutory Appeal—Premises Liability Act—Dog Bite Statute—Colorado Recreational Use Statute.

The Robinsons are sheep ranchers who hold a permit issued by the U.S. Forest Service (USFS) that allows them to graze sheep within the White River National Forest (subject land). Ms. Legro sustained serious injuries when two of the Robinsons’ predator control dogs attacked her on a road on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the District had permit authorization to access the road. The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

The Robinsons moved for summary judgment, arguing that the Colorado Premises Liability Act (PLA) preempted the Legros’ common law claims and they were not subject to liability under the dog bite statute because of the working dog exemption. The district court granted the motion. The Legros appealed, and a division of the Court of Appeals in Legro Iaffirmed that the Robinsons were landowners under the PLA, but concluded it was error to find the working dog exemption defeated the Legros’ strict liability claim. The Supreme Court granted certiorarito consider whether the Court in Legros Icorrectly interpreted the working dog exemption. The Supreme Court found it had been incorrect and that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property.

On remand, the Legros were granted leave to amend their complaint to add a claim for relief under the PLA. In a CRCP 56(h) motion, the Robinsons asked the district court to determine the duty they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS) applied, so Ms. Legro was a trespasser. Alternatively, they argued Ms. Legro was neither an invitee nor a licensee under the PLA.

The district court held that the CRUS did not apply to this case and that Ms. Legro was a trespasser as to the Robinsons under the PLA. Sua sponte, it also ruled that the working dog exemption barred the Legros’ strict liability claim because the Robinsons’ grazing permit created a sufficient property interest to satisfy the exemption.

The Legros argued it was error to find that Ms. Legro was a trespasser, and the Court of Appeals agreed. The grazing permit from the USFS provided a sufficient basis to infer that, by accepting the permit, the Robinsons consented to Ms. Legro’s entry on the property. The permit allows the USFS to determine who may enter the property, and therefore the Robinsons impliedly consented to entry on the property by anyone the USFS allowed. The Court then looked to whether Ms. Legro was affirmatively invited (invitee) or merely permitted (licensee). Because the USFS merely permitted Ms. Legro’s entry as part of the permit for the bike race, she was a licensee, not an invitee.

The Legros also argued it was error to hold that the working dog exemption applied so as to insulate the Robinsons from strict liability under the dog bite statute. The Court agreed, finding that the grazing permit did not confer a property interest in the subject land and therefore the exemption did not apply. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

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