Premises Liability Lawyer
What are “premises liability” cases?
A premises liability case arises when a person is injured or killed on someone else’s property due to an unsafe condition. In Colorado the controlling law is often referred to as the “Premises Liability Statute,” but it is titled by the legislature as “Actions against landowners.” C.R.S. §13-21-115. For your convenience, a copy of the statute is linked here.
The statute was enacted during a period of tort reform – a time of legislation promoted by, lobbied for, and often written by the insurance industry. The statutes enacted were intended to reduce and limit claims which could be made by victims of wrongdoing. Caps on money damages were enacted to limit awards no matter what the jury found. Lawsuits which had historically turned on a standard of reasonable care were thereafter to be controlled by statutory provisions which severely limited the situations in which a victim could collect damages.
In premises cases, the statute was expressly intended to “create a legal climate [to] promote private property rights and commercial enterprise and … foster the availability and affordability of insurance”. C.R.S. §13-21-115(1.5)(d). At the heart of Colorado’s Premises liability statute is the legal duties owed to an injured person depends upon what the “status” is of the victim. Was the victim a “trespasser,” a “licensee,” or an “invitee.” Each classification is owed a different level of duty with the invitee being owed the higher duty of care, the licensee a more limited duty of care, and the trespasser owed a duty only against an intentional harm.
The technical differences are very important. Your lawyer must determine what the status is of the injured person in your case. Your lawyer must also be intimately familiar with other laws such as the doctrine of “attractive nuisance,” the limitations on liability of public agencies and governments under the Colorado Governmental Immunity Act (CGIA) and various statutes which govern recreation providers such as the Colorado Ski Safety Act, the Colorado Passenger Tramway Safety Act, and statutes especially pertaining to horseback riding stables and dude ranches, and also the statute governing dog-bite cases. All of these statutes have interplay with the Premises Liability Statute and may have overlapping or intersecting applicability.
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For a more detailed explanation of the Premises Liabilty Act (often referred to in legal papers as: “PLA”) please read on.
What Makes A Premises Liability Case Unique:Trespasser, Licensee, Invitee
- A trespasser is a person who enters or remains on the land of another without the landowner's consent. A trespasser may recover only for damages willfully or deliberately caused by the landowner. A trespasser has no claim of damages for an unfilled and unmarked hazard such as a hole, a build-up of ice, a stray nail, or an out-of-code stairway.
- “Licensee” means a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent. “Licensee” includes a social guest such as your dinner guest, or your neighbor who comes over for coffee. A licensee may recover only for damages caused either by the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or by the landowner's unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.
- An “invitee” is defined as a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain. That means that your plumber is an “invitee,” as you would be as a customer of a store – whether you buy something or not. A more stringent duty of care is owed to invitees. An invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
What types of cases are governed by the Premises Liability Act?
The PLA is very broad. It governs many types of cases.
- “Slip and fall.” A slip and fall can result from unmanaged ice and snow, an oil or petroleum leak, spilled products at the store – such as the infamous banana peel, or spoiled vegetables, or a stair step without a non-skid surface.
- “Trip and fall.” A trip and fall case can result from an out-of-code stairwell, an unlit stairwell, uneven steps, a wrinkle in carpet, items on the floor, a botched linoleum or tile floor, a bad curb or pothole on a private drive.
- Ladder, climbing, or do-it-yourself work at a neighbor’s home – such as helping with tree-trimming, lawn work, roof repair, or indoor work.
- Guest injuries, such as lit candles catching hair or clothing on fire; chairs breaking; bannisters breaking, or railings breaking on elevated patios.
The distinction between invitee and licensee is best shown by some examples.
Invitees’ case examples:
- The failure to put anti-slip strips in a hotel shower/bath caused a severe back injury to the hotel guest.
- At a private office building, the failure to manage a build up of snow and water from a badly placed roof downspout caused a build-up of ice on the private sidewalk leading to the building. The ice caused a paralyzing injury to a gentleman who was arriving for a business meeting.
- An unsecured bread slicer caused a customer’s serious hand injury at a grocery store.
- A mountain jeep tour company’s driver had an accident on an old mining road. A paying customer sustained serious neck and back injuries.
- At a medical office building a stairwell light had broken and went unfixed; in the dark, a patient tripped on the steps and fell fracturing her wrist and her hip.
- At a lube shop, workers would track oil, anti-freeze and grease into the customer waiting area. No effort was made to wipe shoes or to mop floors. A customer fell and sustained injuries.
- The tenant of an older home fell to her death down the basement steps; a freshly broken hand-rail was found.
- Guest who fell from ladder leading to sleeping loft could claim that the ladder and loft area violated building codes. The PLA does not preclude a party from arguing that certain statutes and ordinances are relevant to establishing the standard of reasonable care, and thus that the violation of that statute or ordinance is evidence of a failure to exercise reasonable care.
Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565, 575 (Colo. 2008)
- Victims of shooting at a family planning clinic were invitees for purposes of the PLA. They were allowed to maintain a claim against the clinic for claims under the PLA. There was “some evidence” that the clinic knew or should have known of the risk of an active shooter attacking the facility. Wagner v. PPFA, 2019 COA 26, (Feb. 21, 2019).
- But in the Aurora Theater shooting cases, the court held that the PLA governed the claims. In order to make the claim, the victim must establish the possible liability of a landowner when someone is injured on his property “by reason of the condition of such property, or activities conducted or circumstances existing on the property.” A movie-theater patron is considered an “invitee” who “may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” However, the Court found that the murderer’s premeditated and intentional actions were the predominant cause of plaintiffs' losses and concluded that a reasonable jury could not plausibly find that Cinemark’s actions or inactions were a substantial factor in causing the tragedy. Nowlan v. Cinemark Holdings, Inc., 12-CV-02517-RBJ-MEH, 2016 WL 4092468, (D. Colo. June 24, 2016)
Licensee liability case examples:
- The rail breaking at a private homeowner’s porch sending a guest tumbling to a paralyzing injury;
- A teenage grandchild playing with a loaded firearm shot his friend in the face;
- Some reported cases involving “licensees” include:
- a volunteer offered to trim a tree for a neighboring house of worship. The volunteer was seriously injured when a falling branch fell onto him. The court held the volunteer was a “licensee.” Rieger v. Wat Buddhawararam of Denver, Inc., 2013 COA 156, 338 P.3d 404.
- A youth was the guest of a church association which held a winter camp. The youth was injured in an ATV accident. Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1263 (Colo. App. 2010).
- A neighbor was returning a borrowed propane tank. Corder v. Folds, 2012 COA 174.
Trespasser case examples
- A “For Sale” sign in house's front yard did not create an implied invitation for a person to enter the property and inspect the home’s exterior. The person fell, was injured, sued, and was dismissed because she was held to be a trespasser. Rucker v. Fed. Nat'l Mortgage Ass'n, 2016 COA 114
- Attractive nuisance – The premises liability statute did not modify the doctrine of attractive nuisance as applied to persons under fourteen years of age. An attractive nuisance is defined to be the maintenance of an attraction that entices one, typically a child, to trespass. It must be an “unusual thing, of unusual attraction, not an ordinary thing. An example of an attractive nuisance case handled by us is the matter of J.G. J was a 5 year-old boy living in rural Colorado near the banks of a large irrigation ditch. The ditch was crossed by a small and unstable footbridge. During the Spring runoff J.G. and his 6 year-old friend climbed onto the footbridge, it swayed and fell into the bank-high fast running water. G.’s friend was drowned. J.G., suffered a profound brain injury due to anoxia. We contended successfully that the footbridge constituted an attractive nuisance.
Public v private sidewalks. Absent wrongdoing by a property owner, no duty is owed to pedestrians on the adjacent public sidewalk. “Similarly, in Bittle v. Brunetti, 750 P.2d 49, 50 (Colo. 1988), the plaintiff brought a negligence claim against commercial property owners alleging that the owners' failure to shovel the sidewalk abutting their property caused him to fall and injure himself. Addressing the question of whether the owners owed the plaintiff a duty of care in such circumstances, we explained that “absent a special relationship between a plaintiff and a defendant, we will not impose a duty on the defendant to take affirmative measures to prevent a harm to the plaintiff.”
N.M. by & through Lopez v. Trujillo, 2017 CO 79, ¶ 32
- Government premises liability. Colorado law limits when public entities may be sued. “Public entities” include, to name but a few: schools and school grounds; libraries, fire stations and police/sheriff stations; recreation facilities such as recreation facilities such as work-out centers and meeting spaces and public parks including walkways, bike paths, and buildings, water parks, golf courses, and playgrounds.
As if it were a game of “Chutes and Ladders,” before the Premises Liability Act can be invoked against a public entity, it is first necessary to show that the public entity can be sued. Whether the public entity can be sued depends on the law which protects the government. This law is the Colorado Governmental Immunity Act, commonly known as “CGIA.” C.R.S. § 24–10–101 TO 109.
The CGIA serves as a general shield from tort liability for public entities. Despite the CGIA's protective function, the legislature has carved out several waivers that, when applicable, automatically render public entities vulnerable to tort liability. In a premises type case, after showing that a waiver of immunity applies, “liability of the public entity shall be determined in the same manner as if the public entity were a private person.”
Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 13.
Thus, the PLA is applicable when the CGIA provides that there was a waiver of the public entity’s immunity.
These types of complexities and intellectual acrobatics are why it is important to have an experienced attorney handling your case. The CGIA requires a particular form of notice to be delivered by a claimant within 180 days of the incident (of course, subject to some very narrow exceptions).
- Design and structure work. A contractor, during its work on a property, is protected as a defined “landowner” during the progress of the job. But, once a contractor leaves the scene of work, and no longer is in control of the premises, it will be judged under the same negligence standard that applies to anyone else whose product or conduct allegedly causes an injury. A common law standard should be to the contractor which has therefore a duty to act as a reasonable contractor would act under the same or similar circumstances for the protection of persons who foreseeably might come into contact with its or its subcontractors' work product. Ziel v. White Lodging Services Corp., 2008 WL 8065292 (Colo.Dist.Ct.)
How We Helped a Client Win a Premises Liability Case
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