March 18, 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.

Colorado Court of Appeals: Medicare Benefits Fall Within Contract Exception to Collateral Source Rule

The Colorado Court of Appeals issued its opinion in Forfar v. Wal-Mart Stores, Inc. on Thursday, August 23, 2018.

Insurance—Collateral Source Rule—Medicare Benefits—Premises Liability.

Forfar, a Medicare beneficiary, slipped and fell at a Wal-Mart store. He filed a premises liability case. Before trial, Wal-Mart moved to exclude evidence of Forfar’s medical expenses owed under agreements he had with his medical providers. Forfar moved in limine to exclude evidence that he had received Medicare benefits. The trial court ruled that Wal-Mart could not present evidence to the jury as to the amount of the Medicare limits and that Forfar could not present evidence of private contracts between himself and any third-party medical providers. Forfar was allowed to present evidence of the reasonable value of medical services, for which he sought $72,636. After trial, Wal-Mart moved to reduce the damages under C.R.S. § 13-21-111.6, arguing that the economic damages awarded for medical expenses should be reduced to Medicare accepted rates. The trial court denied the motion, holding that Medicare benefits fall within the contract exception to the collateral source rule in C.R.S. § 13-21-111.6. The judgment entered on a jury verdict included $44,000 in economic damages for the reasonable value of medical services that Forfar had received.

On appeal, Wal-Mart contended that the trial court should have reduced the damages, arguing that the amounts paid by Medicare are dispositive of the necessary and reasonable value of medical services provided to Forfar. Pre-verdict, the collateral source rule, C.R.S. § 10-1-135(10)(a), bars evidence of collateral source benefits, and the correct measure of damages is the reasonable value of medical services. A benefit is not excluded from the definition of a collateral source simply because it comes from a government program. The trial court properly held Medicare benefits to be a collateral source inadmissible as evidence based on C.R.S. § 10-1-135(10)(a).

Wal-Mart also challenged the trial court’s holding that Medicare benefits fall within the contract exception to the collateral source rule. Post-verdict, the trial court is required to reduce a plaintiff’s verdict by the amount the plaintiff “has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company or fund.” The exception to this prohibits trial courts from reducing a plaintiff’s verdict by the amount of indemnification or compensation that the plaintiff has received from “a benefit paid as a result of a contract entered into and paid for by or on behalf of the plaintiff.” Medicare benefits fall within the contract exception to the collateral source rule of C.R.S. § 13-21-111.6. The trial court properly applied the contract exception to Medicare benefits.

Wal-Mart further contended that the trial court violated the Supremacy Clause by failing to apply the Medicaid statutes and regulations over the collateral source rule, asserting that no person may be liable for payment of amounts billed in excess of Medicare approved charges. The Medicare statutes Wal-Mart relies on do not preempt Colorado law holding it liable for the reasonable value of Forfar’s medical services.

The court of appeals declined to award Forfar attorney fees because the issues presented by Wal-Mart were novel and supported by some out-of-state authority.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Property Owner Is Not Liable Under PLA for Injuries Occurring on Sidewalk

The Colorado Court of Appeals issued its opinion in Andrade v. Johnson on Thursday, October 6, 2016.

Personal Injury—Summary Judgment—Premises Liability Statute—Negligence.

Andrade slipped and fell on the damaged public sidewalk adjacent to Johnson’s house and fractured her leg. Andrade filed a complaint against Johnson asserting premises liability and common law negligence claims. The district court granted Johnson’s motion for summary judgment on both claims.

On appeal, based on concessions in her opening brief, the court of appeals determined that Andrade did not contest entry of the summary judgment on the premises liability claim. Based on the undisputed fact that Andrade fell on a public sidewalk, the court concluded as a matter of law that Johnson was not a “landowner” for purposes of the premises liability statute, C.R.S. § 13-21-115 (the Act). Because Andrade’s injury did not occur on Johnson’s property, she had no claim under the Act, and the district court did not err in entering summary judgment on this claim.

Andrade also argued that the district court erred in entering summary judgment on the negligence claim, alleging Johnson had a duty to notify the city engineer about the damaged sidewalk and became liable for Andrade’s injury as a result of her failure to notify. The court considered whether the “no duty” rule was applicable and concluded that it was not because Colorado Springs City Code § 3.4.103(D) expressly provides for civil liability under the circumstances of this case. The court held that (1) the plain language of § 3.4.103(B) unambiguously imposes a duty on owners and occupants of real property to notify the city engineer about any damage to the public sidewalk abutting or adjacent to their property, and (2) this section expressly imposes liability on such owners or occupants when their failure to notify is the proximate cause of a third party’s injury. Because disputed issues of fact remain as to whether the public sidewalk was damaged and whether Johnson’s failure to report it was a proximate cause of Andrade’s injuries, the district court erred by entering summary judgment on this claim.

The summary judgment on the premises liability claim was affirmed. The summary judgment on the negligence claim was reversed and the case was remanded to the district court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “For Sale” Sign Only Invites Viewer to Contact Listing Agent, Not Enter Property

The Colorado Court of Appeals issued its opinion in Rucker v. Federal National Mortgage Association on Thursday, July 28, 2016.

Ellyn and David Rucker decided to purchase a house that their daughter, Kristin, would rent from them. David placed an offer on a house for which Kristin had had a showing with a Heter & Co. listing agent, but Ellyn had not seen the property, so Kristin took Ellyn to the house. There was a “For Sale” sign in the yard and a small notice on the door warning that trespassers would be prosecuted. After walking around the house and looking through some windows, Ellyn started walking from the house down the paved walkway to return to the car. She fell and sustained injuries.

Ellyn sued Federal National Mortgage Association (FNMA) and Heter for damages, alleging she was an invitee under the Premises Liability Act (PLA) because the “For Sale” sign constituted an implied invitation to the public. She also argued that she was an invitee because she was present on the property for purposes of a business transaction. The trial court disagreed and concluded Ellyn was a trespasser, finding that because she never obtained the express or implied consent of the landowner, she did not have an invitation to enter the property. The court did not address Ellyn’s business transaction argument. Upon Ellyn’s request, the court certified its “For Sale” sign order for immediate appeal. The court of appeals dismissed her appeal without prejudice, finding the issues were not ripe. Ellyn again raised the “For Sale” sign and business transaction issues in the trial court, and again the court ruled that Ellyn was not an invitee and rejected her arguments. She again requested the court to certify its order for immediate appeal.

Ellyn filed a second interlocutory appeal, seeking review of both the “For Sale” and business transaction orders. The court of appeals limited its review to the “For Sale” sign issue because the trial court declined to certify the business transaction issue for interlocutory appeal. On appeal, Ellyn contended that the “For Sale” sign created an implied representation that the public was requested, expected, or intended to enter the premises. The court of appeals disagreed. After examining case law from other jurisdictions, the court of appeals found that the “For Sale” sign created only an invitation to contact the listing agent, not to enter the property. Because the listing agent or landowner did not have a practice of allowing others to enter the property without express permission, Ellyn could not show that her entrance on the property was as an invitee.

The court of appeals affirmed the trial court.

Colorado Court of Appeals: Dog Owner Owes No Duty of Care to Person Injured by Truck Off Property

The Colorado Court of Appeals issued its opinion in Lopez v. Trujillo on Thursday, April 7, 2016.

Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Landowner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the court of appeals considered whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property and the dogs remained confined and never left the landowner’s property. The court held there was no such duty.

The court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the landowner under the PLA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Landowner Cannot Be Held Vicariously Liable Under PLA and Common Law

The Colorado Court of Appeals issued its opinion in Reid v. Berkowitz on Thursday, February 25, 2016.

Default Judgment—Premises Liability Act—Negligence—Exclusivity of Remedies.

Reid sustained injuries after falling through an unsecured guardrail at a construction site where Berkowitz was the general contractor. There were also subcontractors at the site. Reid sued Berkowitz, a landowner as defined by the Colorado Premises Liability Act (PLA). Berkowitz answered, made a jury demand, and designated the subcontractors as nonparties at fault. Reid amended his complaint to add claims of negligence against the subcontractors and named them as defendants.

The district court entered defaults against the subcontractors after they failed to answer and, after a damages hearing, the court entered judgments against them. The court made no findings on whether Berkowitz was vicariously liable for the judgments against the subcontractors.

The PLA claim against Berkowitz proceeded under a different judge to a jury trial at which the default judgments were not mentioned to the jurors. The jury awarded Reid damages, but despite Berkowitz’s request, was not instructed to apportion fault to the subcontractors nor to evaluate Reid’s comparative negligence.

On a prior appeal of the jury verdict, the Court of Appeals agreed that refusing the apportionment instruction was error but concluded the error was harmless because the subcontractors fault was imputable to Berkowitz, who had a nondelegable duty of care to Reid. The Court ordered a retrial solely on the issue of Reid’s comparative negligence, and a second jury allocated the fault 90% to Berkowitz and 10% to Reid. Berkowitz paid the amount awarded.

Reid then moved for declaratory relief, requesting that the district court find Berkowitz liable for 90% of the default judgments entered against the subcontractors, plus simple interest. After a hearing, the court held Berkowitz liable for the entirety of the default judgments with compound interest.

On appeal, Berkowitz argued multiple theories in support of his assertion that the court erred in finding him liable for the amount of the default judgments entered against the subcontractors. The sole argument the Court addressed was whether Berkowitz could be simultaneously liable for damages as a landowner under the PLA and vicariously liable for a default judgment under negligence theories against his subcontractors. Based on the unambiguous language of the statute, the Court held that the PLA is an exclusive remedy against a landowner for injuries that occur as a result of conditions, activities, or circumstances on his property.

The judgment and orders were reversed and the case was remanded to vacate the judgments against Berkowitz.

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

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.

Colorado Court of Appeals: Seller in Installment Land Contract Not Landowner Under Premises Liability Act

The Colorado Court of Appeals issued its opinion in Lucero v. Ulvestad on Thursday, July 16, 2015.

Installment Land Contract—Landowner—Colorado Premises Liability Act—Trespasser—Injuries—Negligence.

This case arose from 15-year-old Lucero’s unsupervised use of a steam room in a home purchased by Landers from Ulvestad. The installment land contract provided Landers immediate possession of the property, but record title would remain in Ulvestad’s name until Landers paid the entire purchase price. With permission from Landers, Lucero entered the steam room and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm. Lucero brought this lawsuit against both Landers and Ulvestad. The trial court found that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. The jury returned a verdict in favor of Ulvestad on Lucero’s claim under the Colorado Premises Liability Act (Act).

Lucero appealed the trial court’s determination that she was a trespasser on the property at the time she was injured. Based on the plain language of the installment land contract, Ulvestad, on the date possession of the property was transferred to Landers, was no longer a person “in possession of real property” or “legally responsible for the condition of real property.” Therefore, because Ulvestad was not a landowner under the Act, the trial court should have granted Ulvestad’s motion for a directed verdict. Therefore, Lucero was not harmed by the trespasser determination, and the judgment against Lucero was affirmed.

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

Colorado Supreme Court: Primary Tenant of Medical Building Not “Landowner” Under Premises Liability Act

The Colorado Supreme Court issued its opinion in Jordan v. Panorama Orthopedics & Spine Center, PC on Monday, April 13, 2015.

Premises Liability Act—Statutory Definition of “Landowner.”

In this case, the Supreme Court considered whether a clinic that was the main tenant at a medical campus qualified as a “landowner,” as defined by the Premises Liability Act, of a common area sidewalk where petitioner fell and sustained injuries. The Court determined that the clinic was not in possession of the sidewalk because it had only a right of non-exclusive use of the sidewalk and the landlord retained responsibility for maintaining that area. The Court then concluded that, under the terms of the lease and the facts of this case, the clinic was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there. Therefore, the clinic was not the landowner within the meaning of the Premises Liability Act. The judgment was affirmed.

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

Colorado Supreme Court: Dog, Not Property, Should Be Under Control of Owner for Exemption from Liability for Dog Bite

The Colorado Supreme Court issued its opinion in Robinson v. Legro on Tuesday, May 27, 2014.

Civil Actions Against Dog Owners—Working Dog Exemption—Statutory Interpretation.

The Supreme Court interpreted for the first time the phrase “on the property of or under the control of the dog’s owner” within the working dog exemption of Colorado’s civil dog bite statute, CRS § 13-21-124(5)(f). The Court held that the working dog exemption applies when a bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner. Therefore, the court of appeals erred in interpreting CRS § 13-21-124(5)(f) to mean that the property, rather than the dog, must be under the dog owner’s control for purposes of exemption from strict liability. Although the court of appeals erred in interpreting the statute, it correctly reversed the district court’s summary judgment order as to respondents’ claim under the dog bite statute. Accordingly, the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Summary Judgment Appropriate Where No Disputed Issue of Material Fact Exists

The Colorado Court of Appeals issued its opinion in Rieger v. Wat Buddhawararam of Denver, Inc. on Thursday, November 21, 2013.

Premises Liability—Summary Judgment—Licensee Versus Invitee—Vicarious Liability.

On July 26, 2010, Martin Rieger and his friend Chris Margotta volunteered their time to trim a large tree on property owned by Wat Buddhawararam of Denver, Inc. (Temple). While Rieger was holding a ladder for Margotta so he could cut branches, one of the branches fell off and struck Rieger, causing him serious injuries.

Rieger sued the Temple, which designated Margotta as a nonparty at fault. Rieger then amended the complaint to name Margotta as a defendant but subsequently voluntarily dismissed him, acknowledging that Margotta was immune from liability under the Volunteer Service Act and the Federal Volunteer Protection Act. Rieger still maintained that the Temple was vicariously liable for Margotta’s negligence.

The Temple filed for summary judgment pursuant to the Colorado Premises Liability Act (CPLA). The district court granted the Temple’s motion, and Rieger appealed.

Rieger argued that the district court erred by finding he was a licensee rather than an invitee for purposes of the CPLA. The district court concluded that Rieger was a volunteer, and Rieger offered no evidence that would contradict that conclusion. Volunteers generally are classified as licensees under the CPLA. Therefore, the court did not err.

Rieger also argued that the district court erred in holding that the Temple was not vicariously liable for Margotta’s negligence. The Court found that CRS § 13-21-115(2) clearly manifests the General Assembly’s intent to abrogate the common law of landowner duties and that it is the sole remedy for plaintiffs bringing claims against landowners for injuries occurring on their property. Rieger only argued he was an invitee, which the Court concluded he was not. He made no argument that the Temple had a duty to him as a licensee. Even if he had, the undisputed evidence was that the Temple did not create any danger nor did Rieger allege any failure to warn on the part of the Temple. The summary judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Comparative Negligence May Have Been An Issue in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Reid v. Berkowitz on Thursday, July 18, 2013.

Premises Liability—Injuries—Licensee—Duty of Care—Apportionment—Non-Delegable Duty—Comparative Negligence.

In this premises liability action under CRS § 13-21-115, defendant Daniel Berkowitz, doing business as Shimon Builders, appealed the judgment entered against him following a jury verdict in favor of plaintiff Rodney Reid. The judgment was affirmed in part and reversed in part, and the case was remanded.

Plaintiff, a construction worker, had accompanied his friend, a painter, to a house that was being constructed by defendant in Denver. Plaintiff sustained significant injuries when he tripped at the top of the stairs, grabbed a handrail that gave way, and fell three stories to the floor below.

Defendant contended that the trial court erred in determining that plaintiff was a licensee at the time of the incident. The trial court found that plaintiff was a licensee because (1) he had an ongoing business relationship with defendant; (2) he had worked on the construction site in question; (3) it was customary for workers on the project to help each other and defendant was aware of this custom; (4) workers had flexibility as to how and when they could perform their work; and (5) at the time of the accident, plaintiff was on the property helping the painter while waiting for a ride. Furthermore, defendant maintained an “open worksite,” meaning that it was acceptable for workers to bring additional help to the site to complete a task without defendant’s knowledge. These facts and circumstances are sufficient to support the trial court’s findings and conclusion that plaintiff had permission or consent to be on the premises.Therefore, the trial court did not err in concluding that plaintiff was a licensee.

Defendant also contended that the trial court erred in refusing to instruct the jury that it could apportion liability and fault to the two coworkers who had installed the handrail. Because the two coworkers owed plaintiff a duty of care, defendant was entitled to a jury instruction directing the jury to measure the fault of the two coworkers in addition to the fault of defendant. Thus, the trial court erred in rejecting defendant’s tendered instruction. However, any error was harmless because defendant had a non-delegable duty as a landowner to maintain the premises in a safe condition, and under the non-delegability doctrine, any fault of the two coworkers would be imputed to defendant in any event.

Defendant further asserted that the trial court erred in refusing to instruct the jury on plaintiff’s comparative negligence. There was evidence that plaintiff did not see the cords over which he claimed to have tripped; the cords might have been disclosed by the use of adequate light; and had he seen the cords, he might not have tripped. Therefore, there was sufficient evidence that justified giving an instruction on comparative negligence, and the trial court erred in rejecting it. The part of the judgment rejecting a comparative negligence instruction was reversed, and the case was remanded for a new trial on liability only.

Summary and full case available here.