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Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

Lombard v. Colorado Outdoor Education Center, Inc., 2011 Colo. App. LEXIS 1401

Court also insinuates that the case was brought to recover worker’s compensation benefits.

This suit was brought by a school teacher who was injured when she attended a training session. She had climbed into a loft to read and was injured when she climbed down. Because she was “working” at the time she received worker’s compensation benefits for her injuries.

The teacher was classified as a “business invitee” acting within the scope of her employment. She was there at the request or to do business with the land owner.

The suit was brought by the injured teacher and her school district. The school district would not have suffered any actionable loss, unless it was self-insured and/or acting under a subrogation clause in a worker’s compensation policy.

Summary of the case

The court started its discussion of the case comparing negligence per se and premises liability. Premise’s liability is defined as the duty owed by a land owner, or a person responsible for the land, such as a tenant, to someone coming upon their land. There are three types of invitees to land: trespasser, licensee and invitee. A trespasser is there without the consent and/or knowledge of the land owner. A License has permission to be on the land, but is not on the land for the benefit of the land owner. The duty of care is minimal with the trespasser and grows with the licensee and is the greatest with an invitee.

The court first started with the negligence side of the discussion. The court defined negligence under Colorado law as:

Negligence is the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury.

A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages.
The court then defined Negligence Per Se under Colorado law:

Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care. Lombard, 187 P.3d at 573. A plaintiff may recover under a negligence per se theory if he or she can establish that the defendant violated the statutory standard of care, that the statutory standard of care was intended to protect against the injuries sustained, and that the violation was the proximate cause of the injuries sustained. Id. Negligence per se, therefore, serves to conclusively establish the defendant’s breach of a legally cognizable duty owed to the plaintiff. Id.

Negligence per se used to be used to prove premise’s liability actions. However, that is no longer possible under Colorado law. Now a premise’s liability action must be proven according to the Colorado statute.

The plaintiff attempted to prove that the land owner/camp should have known that the ladder was dangerous, and therefore, they owed a duty to the plaintiff to either inform her of the danger or fix the ladder so it was not dangerous.

The jury found that although the plaintiff had been injured, there was no proof, the ladder was a dangerous situation that should have been fixed prior to the plaintiff entering upon the land. The plaintiff and the school district lost its case.

So Now What?

No one brought up the issue of assumption of the risk. By climbing up the ladder to read, she obviously assumed the risk of climbing down? However, assumption of the risk may not be a defense to a premise’s liability claim?

When you own or operate on land (and if you don’t I want to know what you do because water, rivers and lakes from a liability standpoint are land….) you owe the highest duty to people you invite to come on the land for your benefit. An easier way to define that is you owe the highest degree of care t your customers, guests and clients.

The issue then becomes when the law or code surrounding a building or structure has changed, and the building has not. An example would be fire code. Building’s built in the 60’s did not need smoke alarms, fire alarms, etc. Now days you must. It is difficult to determine what you must do, should do and don’t need to do.

However, there are a couple of things to do to keep you knowledgeably with issues.

· Every couple of years, invite a contractor or architect out to look at your structure. Do not ask for a written report, just take notes on what you should or must fix.
· Always fix any item that is a safety issue. Any law that was passed to keep people safe should be dealt with to keep your guests safe.
· Always make sure your buildings meet OSHA requirements. You may not need to have a railing that meets OSHA requirements for your guests but if your employees are on the deck, then you must. See OSHA issues $12,000 in fines for Ski Patrollers death to ski area.

· If you are dealing with minors/children, fix everything all the time.

What do you think? Leave a comment.

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