August 24, 2019

Colorado Court of Appeals: Summary Judgment Inappropriate Where Reasonable Security Measures May Have Prevented Harm from Gunman

The Colorado Court of Appeals issued its opinion in Wagner v. Planned Parenthood Federation of America, Inc. on Thursday, February 21, 2019.

Premises Liability—Summary Judgment.

Dear drove into the parking lot of the Colorado Springs clinic operated by Planned Parenthood of the Rocky Mountains (PPRM), a member of Planned Parenthood Federation of America, Inc. (PPFA) and shot several people in the parking lot, two of whom died. He then entered the clinic and wounded several more people. When police arrived he engaged in a lengthy gun battle, killing one officer and wounding five others.

Plaintiffs were the victims or survivors of other victims killed by Dear. Plaintiffs alleged they were invitees of PPRM under Colorado’s Premises Liability Act (CPLA). They also filed a common law negligence claim against PPFA, asserting PPFA controlled PPRM. The trial court granted summary judgment in favor of PPRM and PPFA on both claims.

On appeal, plaintiffs argued it was error to grant summary judgment in favor of PPFA because there was a genuine issue of material fact whether PPFA’s control over PPRM created a duty of care owed by PPFA to plaintiffs. This was a nonfeasance case, where the existence of a duty is recognized only in situations involving a limited group of special relationships between the parties. Here, the trial court correctly found that no such special relationship existed, that PPFA merely exercised discretion and not control over PPRM, and that it was not the owner or possessor of the land associated with the clinic. The court did not err in concluding that PPFA owed no duty to plaintiffs and in granting PPFA’s summary judgment motion.

Plaintiffs next argued that the trial court erred in concluding as a matter of law that Dear’s actions were the predominant cause of the injuries and deaths and in granting summary judgment to PPRM on that basis. Plaintiffs claimed they tendered sufficient evidence to raise genuine issues of material fact whether PPRM knew of reasonable security measures that would have prevented harm to the victims, and PPRM was sufficiently aware of the potential for criminal conduct against its clinics to prepare for the types of offenses Dear committed. Here, it was undisputed that the injured parties were invitees and PPRM was a landowner under the CPLA. The issue before the Court of Appeals was whether there was a genuine dispute of fact whether PPRM knew or should have known of the danger faced by the invitees. Plaintiffs presented evidence suggesting the risk of an active shooter incident in a Planned Parenthood facility like PPRM, especially one providing abortions, was not unknown. The Court found that there was enough of a dispute on this issue of material fact that it should go to a jury.

The summary judgment in favor of PPFA was affirmed. The summary judgment in favor of PPRM was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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