The Ferae Naturae doctrine prevents a landowner from being liable for injuries to guests from wildlife.

In Texas, the landowner was not liable for the damages caused by a bite from a Brown Recluse Spider when it bit a tenant on the property.

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

State: Texas, Supreme Court of Texas

Plaintiff: Henry McCall

Defendant: Homer Hillis

Plaintiff Claims: premises liability

Defendant Defenses: ferae naturae

Holding: for the Defendant

Year: 2020

Summary

Ferae Naturae means naturally wild. Since the guest knew Brown Recluse Spiders were around and had seen them, he could not hold the landowner liable for the damages suffered when he was bitten by one. The Texas Supreme Court held that since the plaintiff knew spiders were around, and they were wild animals; the landowner/defendant was not liable.

Facts

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall. The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B. According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area. However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

Analysis: making sense of the law based on these facts.

Premise’s liability is based on the theory that a landowner owes a duty to someone coming upon their land. The duty owed is dependent on the status of the person coming on the land. That status is usually based on the relationship between the landowner and the guest.

A landowner owes the most duty to an invitee.

When the injured person qualifies as an invitee, as McCall did, then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.”[A] (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious.

There are exceptions to this rule. One is the open and obvious rule. A landowner does not owe the invitee a duty to warn or protect an invitee from an open and obvious danger on the land. If the risk is concealed, then the landowner must warn the invitee or protect the invitee from the risk.

The doctrine of ferae naturae is another duty that the landowner need not warn about. The doctrine of ferae naturae applies to wild animals and in a broader definition in some states to wind or water.

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”).

There is an exception to the ferae naturae rule, if the wild animals are found in artificial structures or places where they are not normally found, then the landowner does have a duty to warn. The ferae naturae does not apply to zoos or to a keeper of wild animals.

Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).

Because the landowner did not know the Brown Recluse Spiders were inside the building, he did not owe a duty to the plaintiff to warn him of the spiders. Further because the plaintiff did have actual knowledge that spiders were on the property he knew of the possible risks. The court stated there was no duty to warn a guest about something they already know.

The court held the landowner was not liable for the acts of the wild animal.

So Now What?

Since in most states, wild animals are owned by the state and since no one, contrary to whatever you see on TV or believed from Disney in the past, can control a wild animal, landowners are not liable for their actions. Consequently, holding a landowner liable for something he or she does not own and cannot control is difficult and does not create a legal duty.

The facts in this case are convoluted, but what allowed the landowner to succeed was the fact the plaintiff, who was living on the property for free, knew that dangerous spiders were around on the property. Since the landowner did not know there were Brown Recluse Spiders on the property the landowner could not be liable.

What do you think? Leave a comment.

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Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Homer Hillis, Petitioner,

v.

Henry McCall, Respondent

No. 18-1065

Supreme Court of Texas

March 13, 2020

On Petition for Review from the Court of Appeals for the Fourth District of Texas

OPINION

Debra H. Lehrmann Justice

The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous wild animals on his property. In this premises-liability case arising out of a brown-recluse spider bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee. The landowner argues that he owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence of spiders on the property. The court of appeals held that the property owner failed to conclusively establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor. We agree with the landowner and reverse the court of appeals’ judgment.

I. Background

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall.[ 1] The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.[ 2]

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B.[ 3]According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area.[ 4] However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.-San Antonio 2018). Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine of ferae naturae. Id.

II. Discussion

A. Standard of Review

A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); see also Tex. R. Civ. P. 166a(c). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).

B. Premises Liability and Ferae Naturae

“A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).[ 5] Further, the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). When the injured person qualifies as an invitee, [ 6] as McCall did, [ 7] then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 204.

Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we have approached the scope of the duty differently in some circumstances. For example, we have held that a premises owner generally has no duty to protect invitees from the criminal acts of third parties on the owner’s property, but we recognize an exception “when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del LagoPartners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206 (characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious or known to the invitee). Pertinent to this case, we have also recognized that, with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). Under this longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897 (citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no pet.).

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 Am Jur. 2d, Animals § 62 (2007)).[ 8] In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe burden and potential consequences of imposing a general duty on a landowner with respect to “indigenous wild animals in their natural habitat, in the normal course of their existence.” Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV, 2012 WL 5974032, at *3 (Tex. App.-Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a landowner owed no duty to a construction worker who was bitten by a spider at a construction site, in part because the spider was “in its natural habitat in the normal course of its existence” and the employer had engaged in no affirmative or negligent acts to draw spiders to the area).

However, courts applying the ferae naturae doctrine have long recognized an additional exception to the general no-duty rule, holding that a landowner: could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558 S.W.2d 58, 61 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no duty to exercise reasonable care to protect invitees from the acts of wild animals on the property “until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur”). Under that exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not-arises with respect to “wild animals found in artificial structures or places where they are not normally found.” Nami, 498 S.W.3d at 897.

We generally agree with the policies underlying imposing such a duty on landowners with respect to wild animals that pose an unreasonable risk of harm inside artificial structures like homes, stores, hotels, and offices. While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, we also do not expect invitees as a general matter to exercise any particular vigilance with respect to wild animals when inside.[ 9] Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558 S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).[ 10]

Hillis argues that this exception amounts to a “new duty” that places an untenable burden on landowners. We disagree. First, it comports with the general premises-liability duty imposed on landowners with respect to invitees as well as the consistently recognized caveat to the ferae naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet, 558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless indigenous insect or spider does not in and of itself amount to a reason to know of the presence of the kinds of insects or spiders that present a danger to invitees. On the other hand, a property owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees neither know nor should know of the heightened risk. This strikes an appropriate balance between protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

Having outlined the parameters of the pertinent duty, we turn to its application to the facts of this case.

C. Analysis Viewing the evidence in the light most favorable to McCall, the pertinent facts are as follows: • Hillis’s property is in Fredericksburg, in the Texas Hill Country. • Hillis rented a cabin on the property to McCall and used a residence on the property as a B&B, mainly for weekend rentals. • Hillis conducted pest control in the B&B on an as-needed basis by instructing the housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests. • McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking under the kitchen sink for a leak. • Brown recluse spiders are indigenous to Texas. • Hillis had read about brown recluse spiders on the internet and knew that they were indigenous to Texas and thus that they could be on his property. • McCall did not know brown recluse spiders were indigenous to Texas. • McCall had seen spiders on several occasions in both the cabin and the B&B. When he saw spiders in the B&B, he would notify Hillis, who passed along the information to the housekeeper who prepared the B&B for guests. • Customer reviews of the B&B had never mentioned insects. • Hillis had no actual knowledge of the presence of brown recluse spiders on his property before McCall was bitten. • McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s property before McCall was bitten.

On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding the fact that the injury occurred inside the B&B. McCall’s position is essentially that because Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and thus had a duty to warn McCall.[ 11] We disagree.

First, as noted, knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had identified or should have identified that the spiders McCall previously reported seeing inside the house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was referring to brown recluses or to any other type of venomous spider. The record thus conclusively negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the B&B.

Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.[ 12] According to McCall, Hillis should have warned him that the spiders McCall himself had seen could have been venomous. But it is simply common knowledge that some spiders are venomous and others harmless. We will not impose a duty on a landowner to warn an invitee about something he already knows. See Nami, 498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an artificial structure depends in part on a determination that the invitee cannot reasonably be expected “to realize the danger or guard against it”).

As noted, the existence of a duty is a question of law that depends on the underlying facts. Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not. On the record before us, we hold that Hillis negated a duty to McCall as a matter of law.

III. Conclusion

The trial court correctly granted summary judgment for Hillis on McCall’s premises-liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that McCall take nothing.

———

Notes:

[ 1] Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.

[ 2] Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was “happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s version of events.

[ 3] McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in the B&B.

[ 4] According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.-San Antonio 2018). Neither party references deposition testimony to that effect, and our review of the record revealed no such testimony.

[ 5] We balance several factors in determining whether a duty exists, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury, and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

[ 6] An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas, 518 S.W.2d at 536.

[ 7] McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an invitee.

[ 8] We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing Restatement (Second) of Torts § 506 cmt. a (Am. Law Inst. 1977)). We see no reason to treat arachnids differently.

[ 9] In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to wild animals.

[ 10] We need not address whether an additional exception exists when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of the risk.

[ 11] McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders to the property.

[ 12] The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.” 562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial court’s attention in his summary judgment motion and reply.

———


Crashing while mountain biking is an inherent risk under Indiana’s law.

The plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

State:  Indiana, Court of Appeals of Indiana

Plaintiff: (At Trial) Richard Kaler 

Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation

Plaintiff Claims: Premises Liability 

Defendant Defenses: No liability and Contributory Negligence 

Holding: For the Defendants (at Trial) 

Year: 2017 

Summary

Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.

Facts 

This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions. 

The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.

The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.

He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”

Analysis: making sense of the law based on these facts.

All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.

The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner. 

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger. 

The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often. 

He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions. 

Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.

The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.

As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.

Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.

The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence 

“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.

If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims. 

Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.

So Now What? 

Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great. 

Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims. 

What do you think? Leave a comment. 

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Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.

1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.

Court of Appeals Case No. 49A04-1604-CT-865

COURT OF APPEALS OF INDIANA

73 N.E.3d 712; 2017 Ind. App. LEXIS 133

March 23, 2017, Decided

March 23, 2017, Filed

PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642

COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.

JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.

OPINION BY: Riley

OPINION

[*714] Riley, Judge.

STATEMENT OF THE CASE2

2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.

P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.

P2 We reverse.

ISSUES

P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:

(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and

(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.

FACTS AND PROCEDURAL HISTORY [**2]

P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.

P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).

P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control [] and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.

P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.

P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.

P9 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

P10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.

II. Premises Liability

P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 639-40.

4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:

When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.

Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.

5 All parties agree that Kaler is an invitee of the City.

P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.

P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is [] whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.

P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.

P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.

P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.

II. Contributory Negligence

P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.

[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.

P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:

It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.

Id. at 600.

P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).

P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.

[*720] CONCLUSION

P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.

P25 Reversed.

P26 Crone, J. and Altice, J. concur


Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.

Door swings both ways in the law. Ski areas used the Colorado Premises Liability Act to lower the standard of care and effectively eliminate claims for lift accidents in Colorado. Here the same act is used to rule a release is void for accidents occurring on premises. However, the release was badly written and should have been thrown out.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

State: Colorado, Colorado Court of Appeals

Plaintiff: Wendy Jane Stone

Defendant: Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.

Plaintiff Claims: Negligence and violation of the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2016

This case is going to change a lot of releases in Colorado, and possibly nationwide. Similar decisions concerning health club releases have occurred in other states for the same or similar reasons. Basically, your have to write a release correctly, or it is void.

Remember the articles about Vail using the Colorado Premises Liability Act to defeat claims for lift accidents? (See Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner and Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?) The same act has been used to void a release in a health club case.

The Colorado Premises Liability Act is a law that tells a landowner (which is broadly defined to include renters as well as landowners indoors and out) how they must treat three types of people on their land or as in this case, a person who is in a health club.

Here the plaintiff had washed her hands in the locker room, and as she was leaving she tripped over the blow dryer cord fracturing her right ankle.

Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

The plaintiff’s injuries arose from her being the land, not for using the benefits of the health club.

The plaintiff sued for negligence and for violation of the Colorado Premises Liability Act. The Colorado Premises Liability Act sets for the duties owed by a landowner to someone on their land based on the relationship between the landowner and the person on the land. Pursuant to an earlier Colorado Supreme Court decision, the Colorado Premises Liability Act provides the sole remedies available to persons injured on the property of another.

The trial court dismissed the plaintiff’s claims based upon the release used by the health club, and the plaintiff appealed.

This decision is new and there is a possibility that it could be appealed to the Colorado Supreme Court and reversed.

Analysis: making sense of the law based on these facts.

The plaintiff filed here a complaint with two claims, negligence and breach of the Colorado Premises Liability Act. The court first looked at the negligence claim. The court found that negligence claim was properly dismissed, but for a different reason that the release stopped the claim. Here, the Colorado Premises Liability Act provides the only legal recourse against a landowner, so the negligence claim has no validity.

The PLA thus provides the sole remedy against landowners for injuries on their property established that the PLA abrogates common law negligence claims against landowners.

Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court; therefore, correctly ruled against her on that claim.

When a statute as in this case the Colorado Premises Liability Act, states the only way to sue is under this act, the statute bars all other ways or theories to sue.

The plaintiff’s argument then was the release that was written and signed by the plaintiff only covered the activities in the health club and did not provide protection from a suit for simply being on the premises.

As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court then reviewed the general rules surrounding release in Colorado law.

Generally, exculpatory agreements have long been disfavored.” Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language.

Under Colorado law, clear and unambiguously language is reviewed based on the lengthy, the amount of legal jargon and the possibility of confusion.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Colorado has a four-part test to determine the validity of a release.

Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language.

The court quickly ruled that the first three factors were not at issue in this case.

In Colorado, there is no public duty based on recreational services. Recreational services are neither essential nor a matter of practical necessity. The third factor was also met because the defendant did not have any advantage. The plaintiff was free to obtain the services of the defendant someplace else.

The fourth factor provided the issue the case would resolve around, “Whether the intention of the parties was clear and unambiguous.”

The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable.

The court found eight ways the release in this case failed.

First, the release was very small type, dense fine print.

First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

Second, the release was full of confusing legal jargon, including the following terms:

…affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.

This jargon was found to mitigate against the idea the release was clear and simple to understand.

Third, the release, referenced clauses, identified as chapters, which even the attorneys for the defendant found confusing. Nor could anyone explain what the references to chapters referred to.

Fourth the focus of the release was on the use of the exercise equipment. The court pointed out five instances in the release that related to the use of the equipment and none relating to occupation of the premises. Meaning the court found a release must release the claims the plaintiff is complaining of.

The fifth reason was the use of the term “inherent.” (As I’ve stated before and given presentations on, inherent is a limiting term you do not want to use in a release.) The court said the use of this term was only applied under Colorado law to apply to activities that are dangerous or potentially dangerous. A locker room is not inherently dangerous so the term is confusing in this case.

In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.

The sixth issue the court had was the language between the different release terms was “squirrely.” (In 35 years of practicing law, I have used the term a lot, but never in a courtroom, and I’ve never seen it in a decision.) The way the language referred back to other clauses in the release and attempting to identify what injuries were actually covered created ambiguities and confusion. The defense counsel for the health club admitted the language was squirrely.

The seventh issue was the general language of the release used to broaden the release, (after using the narrowing term inherent). The release was full of “but for” or “but is not” type of phrases. It was an attempt to broaden the language in the release, which only made the release more confusing.

Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive.

The use of these terms created more ambiguity in the release. Specifically, the language created an expansive versus restrictive flow in the release, none of which referenced the locker room.

Based on the above language the court found the release was not clear, unambiguous and unequivocal.

Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

The negligence claim was dismissed, and the claim under the Colorado Premises Liability Act was allowed to proceed.

So Now What?

First remember, this case could still be appealed and changed by the Colorado Supreme Court. However, the logic and reasoning behind the Colorado Appellate Court decision is well laid out and clear. I don’t think these are issues the Colorado Supreme Court is going to take on.

Colorado has jumped onto the release bandwagon I’ve been telling people about for 25 years.  Your release has to be written in English, it needs to be understandable, and it needs to cover everything. Most importantly, it needs to be a separate document with no fine print, no legal jargon and easily read. You can no longer hide your release on the back of an agreement using fine print and expect it to protect you from claims.

Colorado has been a state where releases are rarely over-turned. However, this was a crappy piece of paper that had release language on it. The print was too small; the language was so confusing the attorney for the health club did not understand it and the court pointed this fact out.

Your release needs to be well written, needs to be written by an attorney, needs to be written by an attorney who understands what you do and the risks you are presenting to your guests/customers/participants.

If you are interested in having me prepare a release for you, download the information form and agreement here: information-and-agreement-to-write-a-release-for-you-1-1-17

For more articles on this type of releases found in health clubs see:

Sign-in sheet language at Michigan’s health club was not sufficient to create a release.            http://rec-law.us/28J1Cs8

For articles explaining why using the term inherent in a release is bad see:

Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.   http://rec-law.us/1SqHWJW

 

What do you think? Leave a comment.

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Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

* Formatting in this case maybe different when finalized by the Court.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Wendy Jane Stone, Plaintiff-Appellant, v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc., Defendants-Appellees.

Court of Appeals No. 15CA0598

COURT OF APPEALS OF COLORADO, DIVISION I

2016 Colo. App. LEXIS 1829

December 29, 2016, Decided

OPINION

[*1] City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

¶ 1 In this action seeking recovery for personal injuries sustained at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary judgment entered in favor of defendants, Life Time Fitness, Inc.; Life Time Fitness Foundation; and LTF Club Operations Company, Inc. (collectively, Life Time), on Stone’s negligence and Premises Liability Act (PLA) claims based on injuries sustained when she tripped on a hair dryer cord after washing her hands. The principal issue presented on appeal is whether the district court correctly ruled that Stone’s claims are contractually barred based on assumption of risk and liability release language contained in a member usage agreement (Agreement) she signed when she became a member of Life Time.

¶ 2 We disagree with the district court’s conclusion that the exculpatory provisions of the Agreement are valid as applied [*2] to Stone’s PLA claim. Consequently, we reverse the judgment as to that claim and remand the case for further proceedings. We affirm the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below the sink counter constituted a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. She asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the Agreement Stone signed when she joined Life Time. Life Time argued that the Agreement was [*3] valid and enforceable, that it expressly covered the type and circumstances of her injuries, and that it barred Stone’s claims as a matter of law. A copy of the Agreement appears in the Appendix to this opinion.

¶ 6 After full briefing, the district court granted Life Time’s motion, concluding that the Agreement was “valid and enforceable” and that Stone had released Life Time from all the claims asserted in the complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P. 56(c). We review de novo an order granting a motion for summary judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and PLA claims, and she pursues both claims on appeal. The trial court’s summary judgment ruled in favor of Life Time without distinguishing between Stone’s negligence and PLA claims. It simply concluded that the [*4] exculpatory clauses in the Agreement were “valid and enforceable” and released Life Time from all claims asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a correct judgment for reasons different from those relied on by the trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her [*5] claims.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

established that the PLA abrogates common law negligence claims against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d, 2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court therefore correctly ruled against her on that claim. We now turn to the effect of the exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room. We agree.

1. Law

¶ 14 “Generally, exculpatory agreements have long been disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. Id.; Jones [*6] v. Dressel, 623 P.2d 370, 375 (Colo. 1981). This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Our supreme court has explained:

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Id.

¶ 15 Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s position. The supreme court has specified that no public duty is implicated if a business provides recreational services. See Chadwick, 100 P.3d at 467 (addressing guided hunting services and noting that providers of recreational activities owe “no special duty [*7] to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see also Hamill, 262 P.3d at 949 (addressing recreational camping services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services provided, courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity. See Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (snowmobiling not a matter of practical necessity), aff’d, 127 F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (whitewater rafting not an essential service), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997). Stone attempts to distinguish those cases by asserting that people join fitness centers “to promote their health, not for the thrill of a dangerous recreational activity.” She cites no authority for such a distinction, and we are not persuaded that such activities as camping and horseback riding, at issue in the cases cited above, are engaged in for a dangerous thrill as opposed to the healthful benefits of outdoor exercise. Consequently, the recreational nature of the services Life Time provides does not weigh against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into if one party [*8] is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party’s negligence. See Hamill, 262 P.3d at 949; see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Possible examples of unfair disparity in bargaining power include agreements between employers and employees and between common carriers or public utilities and members of the public. See Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of unfair disparity is generally not implicated when a person contracts with a business providing recreational services. See id.; see also Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the services provided could have been obtained elsewhere. Hamill, 262 P.3d at 950. Nothing in the record indicates that Stone could not have taken her business elsewhere and joined a different fitness club or recreation center. Nor is there any other evidence that the parties’ relative bargaining strengths were unfairly disparate so as to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test – whether the intention of the parties was expressed in clear and unambiguous language. [*9]

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future negligence claims usually turns on the fourth Jones factor – whether the intention of the parties is expressed in clear and unambiguous language. Wycoff, 251 P.3d at 1263 (applying the Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679 (1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited with approval in Jones, 623 P.2d at 378. Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, [*10] successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” The use of such technical legal language militates against the conclusion that the release of liability was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears the following heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK.” At oral argument, counsel for Life Time conceded that the reference to multiple chapters was ambiguous and confusing, and he could not explain to what the chapters referred. Our research has not enlightened us on the subject. Conscientious lay persons could reasonably have skipped over the fine print appearing under that heading, believing it did not apply to them because they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation. Thus, the assumption of risk heading was not clear and unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of strenuous exercise and use of exercise equipment at the fitness center:

  • The opening paragraph [*11] of the Agreement contains the following warning: “All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a Life Time Fitness member.”
  • Under the confusing assumption of risk heading, the first sentence states, “I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness Center, the use of equipment and services at a Life Time Fitness Center, and participation in Life Time Fitness’ programs.”
  • There then follows a listing of types of risks, including the use of “indoor and outdoor pool areas with waterslides, a climbing wall area, ball and racquet courts, cardiovascular and resistance training equipment,” and other specified programs, as well as
  • “[i]njuries arising from the use of Life Time Fitness’ centers or equipment” and from activities and programs sponsored by Life Time; “[i]njuries or medical disorders resulting from exercise at a
  • Life Time Fitness center, including, but not limited to heart attacks, strokes, [*12] heart stress, spr [sic] broken bones and torn muscles or ligaments”; and “[i]njuries resulting from the actions taken or decisions made regarding medical or survival procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous. Thus, the General Assembly has provided for releases from liability in circumstances such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. Significantly, not one of these statutory exemptions from liability extends to the use of locker rooms, rest rooms, or dressing rooms associated with these activities. Rather, the releases of liability extend only to the dangerous or potentially dangerous activities themselves.

¶ 29 Colorado’s published cases concerning the term “inherent risks” similarly concern dangerous or potentially [*13] dangerous activities. For example, the term “inherent risks” has been addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909 P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch, Inc., 784 P.2d at 782; medical procedures or surgical techniques, Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977); and attendance at roller hockey games, Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported cases, the term “inherent risks” has been limited to dangerous or potentially dangerous activities, rather than accidents occurring in more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands. Indeed, Stone so stated in her affidavit submitted in opposition to the motion for summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we need consider is that set forth in the second exculpatory clause, labeled “RELEASE OF LIABILITY.” That provision begins [*14] by stating that “I waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” (Emphasis added.) The quoted language, however, is the first use of the term “injury” in the release of liability clause. So the scope of the release can be determined only by referring back to the confusing assumption of risk clause. It is not surprising then that Life Time’s counsel characterized the release’s reference to “such injury” as “squirrely.” In any event, all of the ambiguities and confusion in the assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011) (declining to treat the phrase as restrictive and citing Bryan A. Garner, A Dictionary of Modern [*15] Legal Usage 432 (2d ed. 1995)), with Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483 (Colo. App. 2008) (declining to conclude that the phrase took the statute out of the limiting rule of ejusdem generis). For purposes of deciding this case we need not resolve this conflict; the relevance of the conflict for present purposes is that it creates another ambiguity.

¶ 33 That ambiguity – expansive versus restrictive – is critical because nothing in the Agreement refers to risks of using sinks or locker rooms. The assumption of risk clause refers to the “risk of loss, theft or damage of personal property” for the member or her guests while “using any lockers” at a Life Time fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental injuries occurring in locker rooms, it knows how to draft a clear waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a membership agreement with Life Time in 2000 (eleven years before Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the [*16] Clubs[‘] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to

. . . .

(4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Chadwick, 100 P.3d at 467. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the judgment on her PLA claim is reversed, and the case is remanded for further proceedings on that claim.

JUDGE [*17] TAUBMAN and JUDGE FOX concur.


Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.

Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

State: Mississippi, Court of Appeals of Mississippi

Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.

One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.

They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.

Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.

The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.

The motion was granted, and the plaintiff appealed the decision.

Analysis: making sense of the law based on these facts.

The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.

Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured. 

Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.

To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”

Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.

He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.

Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp

The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.

However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.

Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.

The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.

An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.

So Now What?

The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because thclip_image002_thumb.jpge plaintiff miss-labels part of the case.

Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?

As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.

Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.

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Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser, appellant v. Wal-Mart Stores, Inc., Appellee

NO. 2014-CA-00589-COA

Court of Appeals of Mississippi

161 So. 3d 1128; 2015 Miss. App. LEXIS 216

April 21, 2015, Decided

COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.

FOR APPELLEE: THOMAS M. LOUIS, LEO JOSEPH CARMODY JR.

JUDGES: BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

OPINION BY: LEE

OPINION

[*1129] NATURE OF THE CASE: CIVIL – PERSONAL INJURY

LEE, C.J., FOR THE COURT:

P1. In this premises-liability case, we must determine whether summary judgment was appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was proper; thus, we affirm.

FACTS AND PROCEDURAL HISTORY

P2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his stepfather, Jim Purser, went to a Wal-Mart [*1130] store in Batesville, Mississippi, to purchase a basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found [**2] it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches. The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.

P3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment. Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to show the existence of a dangerous condition. Seth filed a motion to reconsider, which was denied. Seth [**3] now appeals asserting the trial court erred in granting Wal-Mart’s motion for summary judgment.

STANDARD OF REVIEW

P4. [HN1] In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). [HN2] The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established [**4] facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89 (¶13).

DISCUSSION

P5. [HN3] To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured [*1131] party. Titus v. Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).

P6. It is undisputed that Seth was a business invitee. [HN4] “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] [**5] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶6).

P7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or otherwise warn of a hidden danger necessarily depends on whether a dangerous condition existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient evidence of the essential elements of a claim of negligence – duty, breach, causation, and damages.

P8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart [**6] knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

P9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was designed to make it difficult for patrons to remove the bicycle from the rack, prompting a need for employee assistance, but fails to offer sufficient evidence of this assertion.

P10. Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same [**7] aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to return the bicycles to the rack immediately after each use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible [*1132] bicycles on the sales floor created a dangerous condition, this issue is without merit.

P11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial. This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., 157 So. 3d 44, 2013 WL 1809878 (La. Ct. App. 2013), an unpublished opinion the trial court cited in support of its conclusion that an unlocked or readily accessible bicycle does not constitute a dangerous condition. In Orr, a woman was injured when she was struck by an adult male riding a bicycle in Academy Sports and Outdoors. 157 So. 3d 44, Id. at *1.

P12. It is not disputed that Seth was an invitee at the time of his injury, and he acknowledges that the duty owed him was not in any way heightened due to his status as a minor. What Seth [**8] appears to be arguing is that the trial court incorrectly considered evidence of contributory negligence in determining whether a dangerous condition existed. Seth had learned how to ride a bicycle by the age of five and had been involved in other bicycle accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on whether an unlocked or readily available bicycle constitutes a dangerous condition. If an unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not matter whether a person of Seth’s age, experience, and intelligence could have perceived the danger because the danger did not exist. Because Seth failed to show how an unlocked or readily available bicycle constituted a dangerous condition, this issue is without merit.

P13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

Two decisions, if allowed to stand, will change the ski industry immensely. The standard of care owed to a passenger on a chairlift will drop considerably and allow ski areas a defense for the first time. At the same time, it should eliminate lawsuits by people who haven’t or should not be on a chairlift to begin with.

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Teresa Brigance

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115

Defendant Defenses: Colorado Premises Liability Act

Holding: for Defendant in dismissing some of the plaintiff’s claims

Year: 2016

This is another decision in a case that is probably still on going. The decision is a response to motions, there could still be a trial and appeal of all of the issues examined here.

Vail, owner of Keystone Ski Area where this accident occurred was sued for an injury a skier received getting off the lift. The plaintiff was taking a lesson from an instructor, an employee of the ski area. She was instructed on how to load and unload the lift. (I’m guessing she was a beginner based on this statement.) While unloading from the lift the back of her ski boots became wedged under the lip of the chair resulting in an injury to the plaintiff.

(That happens all the time loading a chair lift to me. My boots are high in the back, and a lot of chairs catch them. I can get money for that? I should ski every day and quit this job. Wait, this job doesn’t pay at all!)

The plaintiff sued. Vail filed a motion to dismiss the parts of the complaint and amended complaint of the plaintiff.

Analysis: making sense of the law based on these facts.

The court first looked at Vail’s argument the negligence and negligence per se claims should be dismissed. The court defined a negligence per se claim differentiating it from a negligence claim.

In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.”

Negligence per se occurs when the defendant violates a statute that the defendant was required to follow and the statute was intended to protect the person or the public from injury.

Vail’s argument was the complaint did not identify a specific statute that was violated. The complaint referred to the Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act, but not a particular part of either act that was violated.

The Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act both allow for negligence per se claims.

Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

However, the plaintiff failed to identify the specific part of the statute that was violated by the defendant. Even if an act was identified, the violation of the act must be clearly established by the plaintiff.

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a statute, “the violation of which can be clearly established. In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.

The negligence per se claims were dismissed because the plaintiff failed to identify the specific act and the specific injury the act was created to prevent.

The next issue was the application of the Colorado Premises Liability Act to the facts. The defendant Vail had argued in an earlier decision (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) that the Premises Liability Act preempted the Colorado Skier Safety Act. The same argument was being made here.

The Colorado Premises Liability Act contains the following provision.

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

This provision was further supported in an earlier Colorado Supreme Court decision, Vigil v. Franklin, which held the Premises Liability Act preempted all other types and forms of liability of a landowner. “Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.

The common law negligence claim no longer exists against a landowner, is it now a Premises Liability Act claim. This was supported earlier in the Raup decision, (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) “…holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act and must be dismissed.”

In this case, the incident occurred on land of the defendant.

Claim One is a common law negligence claim. Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.”

The plaintiff argued that a negligence claim survives because of the Defendant’s failure to “maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.”

However, the court found the plaintiff’s argument actually proved the issue. The incident occurred on the ground.

The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act.

The court went further to state the operation of the chair lift occurs on the land, is conducted on the ground that is the Defendants thus it is controlled by the Premises Liability Act.

Consequently, the plaintiff’s negligence claims were against a landowner and were preempted by the Colorado Premises Liability Act.

The final issue before the court was the defendant’s arguments that the claims against the individuals, the liftie and the ski instructor were duplicative in that as employees of the defendant, if proven the defendant was liable anyway. So those claims were the same as the other claims against the defendant Vail and should be dismissed. The court agreed.

So Now What?

The result is that instead of owing a skier on a chair lift the highest degree of care, that of a common carrier, the ski area owes a degree of care set forth to an invitee of a landowner.

13-21-115. Actions against landowners

(3)(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), 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.

That degree of care is the unreasonable failure to exercise reasonable care to protect against dangers which the landowner knew about or should have known about. This standard of care is significantly lower than that of a common carrier.

Again, this case is not over so the results could change!

clip_image002What do you think? Leave a comment.

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Colorado Premises Liability Act

COLORADO REVISED STATUTES

TITLE 13. COURTS AND COURT PROCEDURE

DAMAGES AND LIMITATIONS ON ACTIONS

ARTICLE 21.DAMAGES

PART 1. GENERAL PROVISIONS

C.R.S. 13-21-115 (2015)

13-21-115. Actions against landowners

(1) For the purposes of this section, “landowner” includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.

(1.5) The general assembly hereby finds and declares:

(a) That the provisions of this section were enacted in 1986 to promote a state policy of responsibility by both landowners and those upon the land as well as to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee;

(b) That these objectives were characterized by the Colorado supreme court as “legitimate governmental interests” in Gallegos v. Phipps, No. 88 SA 141 (September 18, 1989);

(c) That the purpose of amending this section in the 1990 legislative session is to assure that the language of this section effectuates these legitimate governmental interests by imposing on landowners a higher standard of care with respect to an invitee than a licensee, and a higher standard of care with respect to a licensee than a trespasser;

(d) That the purpose of this section is also to create a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability of insurance;

(e) That the general assembly recognizes that by amending this section it is not reinstating the common law status categories as they existed immediately prior to Mile Hi Fence v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) but that its purpose is to protect landowners from liability in some circumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent with the policies set forth in paragraphs (a), (c), and (d) of this subsection (1.5).

(2) In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section. Sections 13-21-111, 13-21-111.5, and 13-21-111.7 shall apply to an action to which this section applies. This subsection (2) shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age. A person who is at least fourteen years of age but is less than eighteen years of age shall be presumed competent for purposes of the application of this section.

(3) (a) A trespasser may recover only for damages willfully or deliberately caused by the landowner.

(b) A licensee may recover only for damages caused:

(I) 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

(II) 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.

(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), 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.

(II) If the landowner’s real property is classified for property tax purposes as agricultural land or vacant land, 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.

(3.5) It is the intent of the general assembly in enacting the provisions of subsection (3) of this section that the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and that the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover.

(4) In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee, in accordance with the definitions set forth in subsection (5) of this section. If two or more landowners are parties defendant to the action, the judge shall determine the application of this section to each such landowner. The issues of liability and damages in any such action shall be determined by the jury or, if there is no jury, by the judge.

(5) As used in this section:

(a) “Invitee” means 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.

(b) “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.

(c) “Trespasser” means a person who enters or remains on the land of another without the landowner’s consent.

(6) If any provision of this section is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the section shall be deemed valid.

HISTORY: Source: L. 86: Entire section added, p. 683, § 1, effective May 16.L. 90: (1.5), (3.5), (5), and (6) added and (3) and (4) amended, p. 867, § 1, effective April 20.L. 2006: (2) amended, p. 344, § 1, effective April 5.

Editor’s note: Subsections (5)(a) and (5)(c), as they were enacted in House Bill 90-1107, were relettered on revision in 2002 as (5)(c) and (5)(a), respectively.

RECENT ANNOTATIONS

A seller of property pursuant to an installment land contract is not a “landowner” and not responsible for injury to a third party on the property despite being the record title holder of the property if the seller is not in possession of the property at the time of the injury and is not otherwise legally responsible for the conditions, activities, or circumstances on the property pursuant to the contract. Lucero v. Ulvestad, 2015 COA 98, — P.3d — [published July 16, 2015].

ANNOTATION

Law reviews. For article, “Legal Aspects of Health and Fitness Clubs: A Healthy and Dangerous Industry”, see 15 Colo. Law. 1787 (1986). For article, “The Landowners’ Liability Statute”, see 18 Colo. Law. 208 (1989). For article, “The Changing Boundaries of Premises Liability after Gallegos”, see 18 Colo. Law. 2121 (1989). For article, “Recreational Use Of Agricultural Lands”, see 23 Colo. Law. 529 (1994). For article, “The Colorado Premises Liability Statute”, see 25 Colo. Law. 71 (May 1996). For article, “Stealth Statute: The Unexpected Reach of the Colorado Premises Liability Act”, see 40 Colo. Law. 27 (March 2011).

Constitutionality. The phrase “deliberate failure to exercise reasonable care” found in subsection (3)(c) is not unconstitutionally vague. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate article II, § 6, of the state constitution since that provision is a mandate to the judiciary and not the legislature. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate article V, section 25 of the state constitution since this provision applies uniformly to all landowners. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate equal protection since the provision of limited protection to landowners is reasonably related to the protection of the state economy. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

Unconstitutionality. This section violates both the federal and state constitutional guarantees of equal protection of the laws. Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989); Klausz v. Dillion Co., Inc., 779 P.2d 863 (Colo. 1989) (disagreeing with Giebink v. Fischer cited above) (decided prior to 1990 amendments).

The Colorado Premises Liability Act provides the exclusive remedy against a landowner for physical injuries sustained on the landowner’s property. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003); Vigil v. Franklin, 103 P.3d 322 (Colo. 2004); Anderson v. Hyland Hills Park & Recreation Dist., 119 P.3d 533 (Colo. App. 2004); Sweeney v. United Artists Theater Circuit, 119 P.3d 538 (Colo. App. 2005).

Section applies to conditions, activities, and circumstances on a property that the landowner is liable for in its capacity as a landowner. Defendant, in its capacity as a landowner, was responsible for the activities conducted and conditions on its premises, including the process of assisting a customer with loading a freezer he had purchased from defendant. Larrieu v. Best Buy Stores, L.P., 2013 CO 38, 303 P.3d 558.

This section preempts the common law creation of both landowner duties and defenses to those duties. Consequently, the open and obvious danger doctrine cannot be asserted by a landowner as a defense to a premises liability law suit. Vigil v. Franklin, 103 P.3d 322 (Colo. 2004).

Section does not require that damages resulting from landowner’s negligence be assessed without regard to negligence of the injured party or fault of a nonparty. Union Pac. R.R. v. Martin, 209 P.3d 185 (Colo. 2009).

Section does not abrogate statutorily created defenses, which were available to landowners before the 2006 amendment and afterward. The trial court correctly allowed defendants’ affirmative defenses of comparative negligence and assumption of the risk. Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708 (Colo. App. 2008), aff’d on other grounds sub nom. Volunteers of Am. v. Gardenswartz, 242 P.3d 1080 (Colo. 2010).

Premises Liability Act never expressly excluded the statutory defense of comparative negligence from its coverage, and limiting the statutory protection provided to landowners would tend to increase liability rather than protect landowners from liability. DeWitt v. Tara Woods Ltd. P’ship, 214 P.3d 466 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment).

Statute does not have to expressly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy. Stanley v. Creighton Co., 911 P.2d 705 (Colo. App. 1996).

Holding title to property is not dispositive in determining who is a landowner under subsection (1). Wark v. U.S., 269 F.3d 1185 (10th Cir. 2001).

The term “landowner” is no more expansive than the common law definition. Wark v. U.S., 269 F.3d 1185 (10th Cir. 2001).

A landowner is any person in possession of real property and such possession need not necessarily be to the exclusion of all others. Therefore, for purposes of this section, a landowner can be an independent contractor. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002).

This section offers its protection to a person who is legally conducting an activity on the property or legally creating a condition on the property. Such person or entity is responsible for the activity or condition and, therefore, prospectively liable to an entrant onto the property. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002); Wycoff v. Grace Cmty. Church, 251 P.3d 1260 (Colo. App. 2010).

Defendant is not a “landowner” where there is no evidence that it was in possession of the sidewalk or that it was responsible for creating a condition on the sidewalk or conducting an activity on the sidewalk that caused plaintiff’s injuries. Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, — P.3d –.

The test for determining if a victim is an invitee is whether she or he was on the premises to transact business in which the parties are mutually interested. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Trial court erred in ruling that plaintiff was defendant’s licensee rather than invitee. Therefore, jury instructions minimized the duties defendant owed to plaintiff under the Premises Liability Act. Wycoff v. Seventh Day Adventist Ass’n, 251 P.3d 1258 (Colo. App. 2010).

If the victim was on the premises at an employee’s invitation for either the employee’s benefit, victim’s benefit, or their mutual benefit, then she or he was a licensee or trespasser not an invitee. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Volunteers are generally classified as licensees. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003); Rieger v. Wat Buddhawararam of Denver, Inc., 2013 COA 156, 338 P.3d 404.

So long as a landowner retains possession of its property, it cannot delegate the duties imposed on it by subsection (1). Jules v. Embassy Props., Inc., 905 P.2d 13 (Colo. App. 1995).

When a landowner is vicariously liable under the nondelegability doctrine for acts or omissions of other defendants, the trial court should instruct the jury to determine the respective shares of fault of the landowner and the other defendants. But, in entering a judgment, the court shall aggregate the fault of the landowner with any other defendants for whom the landowner is vicariously liable. Reid v. Berkowitz, 2013 COA 110M, 315 P.3d 185.

But possession of property is not dependent upon title and need not be exclusive. Under this section, a party not an owner or lessee may nevertheless be a “landowner” if the party either maintains control over the property or is legally responsible for either the condition of the property or for activities conducted on the property. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

However, a contractor who would otherwise be categorized as a “landowner” during time of work on property is not liable if, at the time of the accident in question, the contractor was neither in possession of the property nor conducting any activity related to the property. In such a case, the plaintiff is not required to prove that defendant contractor had actual knowledge of the alleged dangerous condition. Land-Wells v. Rain Way Sprinkler & Lands., 187 P.3d 1152 (Colo. App. 2008); Collard v. Vista Paving Corp., 2012 COA 208, 292 P.3d 1232.

Contractor who had a legal responsibility for the condition of the premises and who was potentially liable for injuries resulting from that condition held to be a “landowner” for purposes of this section. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

When a public entity provides a public building for public use, it owes a nondelegable duty to protect invitees from an unreasonable risk to their health and safety due to a negligent act or omission in constructing or maintaining the facility. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000).

Owner of property adjacent to public sidewalk does not have a duty to pedestrians to clear sidewalk of snow merely because it complied with snow removal ordinance from time to time and on a voluntary basis in order to avoid the imposition of penalties. Burbach v. Canwest Invs., LLC, 224 P.3d 437 (Colo. App. 2009).

Snow removal ordinance does not make public sidewalks the “property of” adjacent property owners. The court therefore properly granted summary judgement since owner of property adjacent to public sidewalk was not legally responsible for the condition of the sidewalk. Burbach v. Canwest Invs., LLC, 224 P.3d 437 (Colo. App. 2009).

A landlord retaining sufficient control over an area or instrumentality has a duty to exercise due care in maintaining that area or instrumentality. Nordin v. Madden, 148 P.3d 218 (Colo. App. 2006).

In effect, this section establishes two separate elements for landowner liability: (1) Breach of a duty to use reasonable care to protect against a danger on the property, and (2) actual or constructive knowledge of the danger. Sofford v. Schindler Elevator Corp., 954 F. Supp. 1459 (D. Colo. 1997).

Statute’s requirement that the landowner “knew or should have known” of the danger can be satisfied by actual or constructive knowledge. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Plaintiff presented sufficient evidence to overcome defendant’s motion for summary judgment on the issue of knowledge because, as the builder, defendant had actual or constructive knowledge of the violation of a building code provision that was intended to ensure the safety of those on the premises, such as plaintiff. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Plaintiff may overcome summary judgment on the issue of a landowner’s unreasonable failure to exercise reasonable care by presenting evidence that the landowner violated a statute or ordinance that was intended to protect the plaintiff from the type of injury plaintiff suffered. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

A plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence. The language of the premises liability statute makes clear that a party may no longer bring a negligence per se claim against a landowner to recover for damages caused on the premises. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Building code violation may be evidence that owners failed to use reasonable care. Trial court did not err in tendering to a jury an instruction that included this statement, while rejecting other jury instructions that misstated the relationship between the common law and the premises liability act. Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412 (Colo. App. 2011).

No lessor liability for injuries. Under this section, as under common law, a lessor who has transferred possession and control over the leased premises to a lessee has no liability for injuries resulting from a dangerous condition of the premises absent proof as to one of the exceptions. Perez v. Grovert, 962 P.2d 996 (Colo. App. 1998).

Under this section, a landlord who has transferred control of the premises to a tenant is no longer a “person in possession” of the real property and is not liable for injuries resulting from a danger on the premises unless the landlord had actual knowledge of the danger before the transfer. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

And no landowner liability for injuries occurring on that portion of an easement exclusively owned, maintained, and controlled by easement holder. deBoer v. Jones, 996 P.2d 754 (Colo. App. 2000); deBoer v. Ute Water Conservancy Dist., 17 P.3d 187 (Colo. App. 2000).

The reservation of the right of inspection and the right of maintenance and repairs is generally not a sufficient attribute of control to support imposition of tort liability on the lessor for injuries to the tenant or third parties. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

This section does not reflect an intention to extend the application of the premises liability doctrine to the negligent supply of a chattel by a landowner. Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988).

This section does not apply to ski accident cases which are governed by the Ski Safety Act, article 44 of title 33, C.R.S. Calvert v. Aspen Skiing Co., 700 F. Supp. 520 (D. Colo. 1988).

This section would apply to ski accident cases which involve dangerous conditions that are not ordinarily present at ski areas since the Ski Safety Act, article 44 of title 33, C.R.S., protects skiers against only those dangerous conditions that are commonly present at ski areas. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

Claim of spectator injured by flying puck at hockey rink governed by this section. The common law “no duty” rule for injuries suffered by spectators at sporting events was superceded by this section. Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707 (Colo. App. 2000).

Subsection (2) does not apply when plaintiff is a co-owner of the area where the injuries were sustained, because the injury could not have occurred on the real property of another. Acierno v. Trailside Townhome Ass’n, Inc., 862 P.2d 975 (Colo. App. 1993).

Jury instructions presenting a general negligence theory with regard to an invitee was not prejudicial error, even if there is a meaningful difference between a failure to exercise reasonable care, in the instruction, and an unreasonable failure to exercise reasonable care, from the statute. Lawson v. Safeway, Inc., 878 P.2d 127 (Colo. App. 1994); Thornbury v. Allen, 991 P.2d 335 (Colo. App. 1999).

Because plaintiff is a landowner, trial court should have applied the standard of care in this section rather than the standard of care for operators of amusement devices contained in the jury instructions. Anderson v. Hyland Hills Park & Recreation Dist., 119 P.3d 533 (Colo. App. 2004).

The provisions of this act do not apply to the common areas of a townhome complex that are owned by a townhome owners association, because the townhome owners have a continuing right of access to the common areas in the townhome complex by virtue of their status as owners, regardless of whether the association has given consent. Trailside Townhome Ass’n, Inc. v. Acierno, 880 P.2d 1197 (Colo. 1994).

Rather, the relationship between the townhome owners association and the townhome owners is controlled by the duties specified in the operative documents creating the townhome complex and the association, to the extent those duties are consistent with public policy. Trailside Townhome Ass’n, Inc. v. Acierno, 880 P.2d 1197 (Colo. 1994).

Under this section, a tenant is classified as an invitee, as a customer of the landlord in a continuing business relationship that is mutually beneficial, regardless of the particular activity in which the tenant was engaged when injured. Maes v. Lakeview Assocs., Ltd., 892 P.2d 375 (Colo. App. 1994), aff’d, 907 P.2d 580 (Colo. 1995); Pedge v. RM Holdings, Inc., 75 P.3d 1126 (Colo. App. 2002).

Plaintiff who paid admission was invitee and not a social guest. Social hosts do not typically require their guests to sign permission slips and pay for their hospitality. Wycoff v. Grace Cmty. Church, 251 P.3d 1260 (Colo. App. 2010).

Cyclist was an invitee at the time of the accident. While there was no evidence that cyclist was on a bike path in response to landowner’s express representation that the public was requested, expected, or intended to enter or remain on the property, there was evidence of an implied representation of this through “Bicycle Path, No Motorized Vehicles” signs. Nelson v. United States, 20 F. Supp. 3d 1108 (D. Colo. 2014).

Cyclist was a licensee where there was evidence of a course of conduct and usage in connection with a bike path before cyclist’s accident that showed that the landowner knew that people were using the path for recreational purposes and did not affirmatively preclude them from its use. Nelson v. United States, 20 F. Supp. 3d 1108 (D. Colo. 2014).

A social guest of a tenant is a licensee absent a showing that the guest entered the premises to transact business with the landlord or that the landlord represented that the guest was expected to enter or remain. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

Contractor with legal responsibility for the condition of the premises owes an employee of a lessor of the premises a duty of care which this section imposes upon a landowner with respect to an invitee. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

The liability of a landowner to a licensee under this section is to be limited to situations in which the landowner possesses an active awareness of the dangerous condition. Wright v. Vail Run Resort Cmty. Ass’n, 917 P.2d 364 (Colo. App. 1996); Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Attractive nuisance doctrine applies to all children, regardless of their classification within the trespasser-licensee-invitee trichotomy. S.W. v. Towers Boat Club, Inc., 2013 CO 72, 315 P.3d 1257.

Summary judgment in favor of landlord proper in absence of any evidence concerning landlord’s knowledge of alleged defect. Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365 (Colo. App. 1996).

Section covers claims for negligent supervision and retention when a claim relates to the condition of property. Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365 (Colo. App. 1996).

Section does not abrogate claims that also arise under dog bite statute. Plaintiff bitten by defendant’s dogs on property where defendant qualified as a “landowner” could bring a claim under this section. Legro v. Robinson, 2012 COA 182, 328 P.3d 238, aff’d on other grounds, 2014 CO 40, 325 P.3d 1053.

The term “consent” includes both express and implied consent. The fact that the term “express or implied” is used with respect to an “invitee” but not with respect to a “licensee” or a “trespasser” does not preclude implied consent from being sufficient to make one entering property a “licensee” and not a “trespasser”. Corder v. Folds, 2012 COA 174, 292 P.3d 1177.

 


Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

Teresa Brigance, Plaintiff, v. Vail Summit Resorts, Inc., Defendant.

Civil Action No. 15-cv-1394-WJM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2016 U.S. Dist. LEXIS 31662

March 11, 2016, Decided

March 11, 2016, Filed

COUNSEL: [*1] For Teresa Brigance, Plaintiff: Trenton Jeffrey Ongert, Bloch & Chapleau, LLC, Denver, CO.

For Vail Summit Resorts, Inc., Defendant: Edward Timothy Walker, Samuel Nathan Shapiro, Vail Resorts Management Company, Legal Department, Broomfield, CO.

JUDGES: William J. Martínez, United States District Judge.

OPINION BY: William J. Martínez

OPINION

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S PARTIAL MOTION TO DISMISS AMENDED COMPLAINT

Plaintiff Teresa Brigance (“Plaintiff”) brings this action against Defendant Vail Summit Resorts, Inc. (“Defendant”). This matter is before the Court on Defendant’s Motion to Dismiss Amended Complaint (“Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 17.) Defendant filed the Motion on August 28, 2015. (Id.) On September 25, 2015, Plaintiff filed her Response to the Motion. (ECF No. 27.) Defendant filed its Reply on October 13, 2015. (ECF No. 31.) For the reasons set forth below, the Motion is granted in part and denied in part.

I. STANDARD OF REVIEW

Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them [*2] in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

II. BACKGROUND

The following allegations are taken from Plaintiff’s Amended Complaint (“Complaint”). (ECF No. 6.) The Court assumes these allegations to be true for purposes of this motion.

On March 23, 2015, Plaintiff visited the Keystone ski area, which is owned and operated by Defendant. (Id. ¶ 9.) Plaintiff participated in a ski lesson which was taught by Megan McKinney, an employee of Defendant. (Id. ¶ 6.) Ms. McKinney instructed Plaintiff on the procedures for getting on and off the chair lift. (Id. ¶ 7.) The chair lift was operated by an unknown chair lift operator who was also an employee of Defendant and whom the Court will refer to as John Doe. (Id. ¶ 26.) While unloading from the chair lift, Plaintiff’s ski boot became wedged between the chair and the ground at the [*3] unloading area, causing injury to Plaintiff. (Id. ¶ 8.)

Plaintiff filed this lawsuit on June 30, 2015. (ECF No. 1.) Plaintiff then filed an Amended Complaint on July 27, 2015. (ECF No. 6.) Plaintiff asserted numerous claims arising out of events related to the chair lift incident. (See id.) Plaintiff asserts claims for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115. (See id.)

III. ANALYSIS

Defendant, through its Motion, moves to dismiss all of Plaintiff’s claims except for the premises liability claim. (ECF No. 17.) Defendant argues that Plaintiff’s claim for negligence per se (Claim Two) should be dismissed for failure to state a claim. (Id. at 4.) Defendant further contends that Plaintiff’s claims for negligence (Claim One) and negligence per se should be dismissed as they are preempted by the Premises Liability Act. (Id. at 2.) Lastly, Defendant argues that Plaintiff’s claims for negligent supervision/training, negligence (respondeat superior), and negligent hiring should be dismissed as duplicative. (Id. at 6.) The Court will discuss these arguments in turn.

A. Negligence Per Se

[*4] Defendant argues that Plaintiff fails to state a claim for negligence per se. (ECF No. 17 at 4.) “In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002). Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. Id. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.” Id.

In its Motion, Defendant asserts that Plaintiff’s Amended Complaint fails to identify any statutory standard of care that has been violated. (ECF No. 17 at 4.) Plaintiff identifies two statutes as the basis of her negligence per se claim: the Skier Safety Act and the Passenger Tramway Safety Act. (ECF No. 6 ¶¶ 18-19.)

As to the Skier Safety Act, certain violations of that Act do constitute negligence per se. See Stamp v. Vail Corp., 172 P.3d 437, 443 (Colo. 2007). Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” Colo. Rev. Stat. § 33-44-104(2). However, Plaintiff fails to identify any requirement of that article–the Skier Safety Act–which has been violated. Instead, Plaintiff alleges that Defendant violated § 25-5-706(3)(d)–(e) of the Passenger Tramway Safety Act.1 Colo. Rev. Stat. § 25-5-706(3)(d)–(e). (See also ECF No. 6 ¶¶ 18, 20-21.) Section 25-5-706(3)(d)–(e) identifies certain situations in which the passenger tramway safety board may take disciplinary action. However, § 25-5-706(3)(d)–(e) is not a [*5] rule or regulation promulgated by the passenger tramway safety board and therefore Plaintiff does not properly state a claim for negligence per se under the Skier Safety Act.

1 Plaintiff identifies this language as coming from § 25-5-706(2)(d)–(e). However, it is clear that Plaintiff is actually referring to § 25-5-706(3)(d)–(e), since the language Plaintiff quotes is from that subsection of the statute.

In its response to the Motion, Plaintiff argues that the Passenger Tramway Safety Act provides a statutory standard of care independent of the Skier Safety Act. Specifically, Plaintiff stresses that § 25-5-706(3)(d)–(e) allows for disciplinary action to be taken if there is either “[w]illful or wanton misconduct in the operation or maintenance of a passenger tramway” or “[o]peration of a passenger tramway while a condition exists in the design, construction, operation, or maintenance of the passenger tramway which endangers the public health, safety, or welfare, which condition was known, or reasonably should have been known, by the area operator.”

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a [*6] statute, “the violation of which can be clearly established.” Hendrickson v. Doyle, F. Supp. 3d , , 2015 U.S. Dist. LEXIS 166362, 2015 WL 8533769, at *5 (D. Colo. Dec. 11, 2015). “In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.” Id. The language of § 25-5-706(3)(d) proscribes willful or wanton misconduct and § 25-5-706(3)(e) proscribes something akin to negligent conduct. This is not statutory language prescribing or proscribing some discrete action (e.g., all chairs must be two feet removed from the ground at the unloading area). Therefore, the Court finds that Plaintiff has failed to state a claim for negligence per se. The Court grants the Motion as to Claim Two and dismisses Claim Two without prejudice.

B. Premises Liability Act Preemption

The Colorado Premises Liability Act contains the following provision:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

Colo. Rev. Stat. § 13-21-115(2). Defendant does not dispute that it meets the statutory definition of a “landowner”. (ECF No. 17 at n.1.) Based on its status as a landowner and the language of [*7] § 13-21-115(2), Defendant asserts that it can only be found liable, if at all, under the Premises Liability Act. (Id. at 4.) Therefore, Defendant argues that Claims One and Two are preempted and must be dismissed. (Id. at 3-4.)

To support its argument, Defendant cites the Colorado Supreme Court in Vigil v. Franklin, 103 P.3d 322 (Colo. 2004). In that case, the court held that the language of § 13-21-115(2) was “specific in its terms and without ambiguity,” and demonstrated that the General Assembly intended “to completely occupy the field and supercede existing law in the area” of premises liability. Vigil, 103 P.3d at 328. Furthermore, “[t]his language, coupled with the precisely drawn landowner duties in subsection (3), leaves no room for application of common law tort duties.” Id. Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.” Id. at 330.

This Court has interpreted the Colorado Supreme Court’s opinion in Vigil and has held that “all common law claims involving landowner duties, including negligence . . . are abrogated by the Premises Liability Act which provides the exclusive remedy.” Raup v. Vail Summit Resorts, Inc., F. Supp. 3d , , 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *3 (D. Colo. Feb. 1, 2016); see also Giebink v. Fischer, 709 F. Supp. 1012, 1017 (D. Colo. 1989) (holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act [*8] and must be dismissed).

Claim One is a common law negligence claim. (See ECF No. 6.) Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. (Id.) Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.” Colo. Rev. Stat. § 13-21-115(2).

Plaintiff alleges in Claim One that her injury occurred due to Defendant’s failure “to maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.” (ECF No. 6 ¶ 15.) The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act. See Colo. Rev. Stat. § 13-21-115(2); see also Raup, 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *4 (holding that the affirmative actions of a chair lift operator, in directing passengers to exit the lift, qualified as activity conducted on the property for the purposes of the Premises Liability Act).

The Court thus has little difficulty in concluding [*9] that Plaintiff’s common law negligence claim is preempted by the Premises Liability Act. Accordingly, the Court grants the Motion as to Claim One and dismisses Claim One with prejudice. Since the Court dismissed Plaintiff’s claim for negligence per se in the previous section, the Court need not discuss, let alone decide, whether that claim should also be dismissed based on Defendant’s preemption argument.2

2 Defendant does not argue that Claims Three, Four, and Five are preempted by the Premises Liability Act. Therefore, the Court will also not address that issue.

C. Imputed Liability Claims

Defendant admits that both Megan McKinney and chair lift operator John Doe were employees of Defendant. (ECF No. 17 at 7.) Defendant further admits that both were acting within the scope of their employment at the time of Plaintiff’s incident. (Id.) As such, Defendant admits that it is liable under the theory of respondeat superior for whatever negligent acts or omissions of those two employees, if any, caused Plaintiff’s injuries. (See id.)

Defendant argues that, because it is vicariously liable for the employees’ negligent acts, claims based on other theories of imputed liability–Claims Three and Five–are [*10] duplicative and should be dismissed.3 (Id. at 7-8.) Defendant cites two trial court decisions from Colorado state court in which those courts dismissed claims based on theories of imputed liability that they found to be duplicative. (See id.) However, Defendant provides no state appellate precedential support for its position. (See id.)

3 In the heading for its third argument in the Motion, Defendant asserts that Plaintiff’s fourth claim for negligence (respondeat superior) should also be dismissed. (ECF No. 17 at 6, 8.) However, Defendant, in its discussion, does not argue that Claim Four should be dismissed. (Id. at 6-8.) Defendant’s argument in that section is limited to arguing that Claims Three and Five should be dismissed because they are duplicative of Claim Four. (See id.)

Moreover, Defendant fails to acknowledge that “[p]laintiffs may seek duplicative relief under federal and state statutes and common [law].” Big Cats of Serenity Springs, Inc. v. Vilsack, 84 F. Supp. 3d 1179, 1198 (D. Colo. 2015). The pursuit of alternative claims for similar relief is expressly permitted by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”). Plaintiff may not recover [*11] for the same injury under multiple theories of imputed liability, and at some point Plaintiff may have to choose between her theories. However, that is not a reason to dismiss any of Plaintiff’s claims at this stage. Accordingly, the Court denies Defendant’s Motion as to Claims Three, Four, and Five.4

4 In its reply, Defendant argues that Plaintiff’s claim for negligent hiring should also be dismissed on the grounds that Plaintiff failed to plead “what knowledge [Defendant] had or should have had at the time its employees were hired.” (ECF No. 31 at 6.) This argument was not made in the Motion itself and therefore the Court need not and will not consider it.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendant’s Partial Motion to Dismiss Amended Complaint (ECF No. 17) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion to Dismiss is GRANTED as to Claim One (Negligence) and Claim Two (Negligence Per Se) and DENIED as to all other claims;

3. Claim One of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITH PREJUDICE; and

4. Claim Two of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITHOUT PREJUDICE.

Dated this 11th day of March, 2016. [*12]

BY THE COURT:

/s/ William J. Martínez

William J. Martínez

United States District Judge


Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I.                  Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II.               Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III.           Defendant created a dangerous condition by making artificial snow; and

IV.            IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

·        Trespasser

·        Invitee

·        Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

·        Express

·        Implied

·        Primary

·        Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1.      Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2.    Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3.    No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4.    If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5.     If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

 

Defendant: Snow Creek, Inc.

 

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

 

Defendant Defenses: Assumption of the Risk

 

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

 What do you think? Leave a comment.

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Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.

WD 55070

COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT

6 S.W.3d 388; 1999 Mo. App. LEXIS 421

March 31, 1999, Opinion Filed

SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.

PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.

Thomas Magee, St. Louis, MO, for Respondent.

JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.

OPINION BY: ALBERT A. RIEDERER

OPINION

[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.

Factual and Procedural Background

On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:

10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.

Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.

Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.

Standard of Review

[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.

In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.

I. Duty of the Possessor of Land

Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.

A. Duty Owed To A Business Invitee

” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.

Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.

II. Assumption of Risk

Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).

A. Express Assumption of Risk

[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:

[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).

“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.

Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).

In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.

Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.

B. Implied Assumption of Risk

[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.

Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.

“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.

[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.

Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).

[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.

Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.

III. Release

Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.

Artificial Snow

We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.

Conclusion

The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.

Albert A. Riederer, Judge

Lowenstein and Stith, JJ., concur.

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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

Turene Lombard and Pueblo School District #60, Plaintiffs-Appellants, v. Colorado Outdoor Education Center, Inc., a Colorado non-profit corporation, d/b/a The Nature Place; and Sanborn Western Camps, Inc., a Colorado nonprofit corporation, d/b/a The Nature Place, Defendants-Appellees.
Court of Appeals No. 09CA2704
COURT OF APPEALS OF COLORADO, DIVISION THREE
2011 Colo. App. LEXIS 1401
August 18, 2011, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [*1]
Teller County District Court No. 02CV49. Honorable Edward S. Colt, Judge.

COUNSEL: James M. Croshal, Pueblo, Colorado; Mickey W. Smith, Pueblo, Colorado, for Plaintiff-Appellant Turene Lombard.
Ritsema & Lyon, P.C., Paul D. Feld, Denver, Colorado, for Plaintiff-Appellant Pueblo School District #60.
Taylor Anderson LLP, John M. Roche, Kevin S. Taylor, Jared E. Berg, Denver, Colorado, for Defendants-Appellees.
JUDGES: Opinion by JUDGE ROY. J. Jones and Criswell*, JJ., concur.
* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2010.
OPINION BY: ROY
OPINION
Plaintiffs, Turene Lombard (invitee) and Pueblo School District #60 (school district), appeal from the judgment entered on a jury verdict and the order awarding costs in favor of defendants, Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners), in this action under section 13-21-115, C.R.S. 2010 (premises liability act). We affirm the judgment, and affirm the order awarding costs in part and vacate it in part.
In February 2000 at the request of school district, invitee, a teacher employed by the district, attended an overnight [*2] training session which was held at a conference facility and resort owned and operated by owners. The resort had, among others buildings, eleven fourplex buildings, each unit of which had a main floor sleeping area, kitchenette, bathroom, and loft. Access to the loft was gained by a wooden ladder, with no handrails, that was fixed to the wall at the top and to the floor a distance from the wall at the bottom. In her unit, invitee climbed the ladder to the loft, which was equipped with a mattress, to read. She was injured when she fell descending the ladder.
Because invitee was within her scope of employment, she applied for and received substantial workers’ compensation benefits. Invitee and school district brought a joint action against owners under the premises liability act.
Owners filed, and the trial court granted, a motion for summary judgment on the ground that there was no evidence that they knew or should have known of a dangerous condition on their property. Invitee appealed, and a division of this court affirmed. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 179 P.3d 16 (Colo. App. 2007). On certiorari review, our supreme court reversed and remanded for trial. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo. 2008) [*3] (Lombard).
At trial, invitee presented evidence of the fall and the injuries she sustained. Through expert testimony, she presented evidence that the applicable building code required a code-compliant staircase for access to an upper floor habitable space, and that the acceptance of a ladder as an alternative design was not permitted by the building code because a ladder is not as safe as a staircase. She argued that owners knew or should have known the ladder was dangerous because it allegedly violated the building code.
Owners presented evidence that (1) they had no actual notice that the ladder constituted a dangerous condition; (2) the plans for the unit depicting the ladder access to the loft were approved by the county building department, which administered the building code; (3) the county building department issued a certificate of occupancy following the completion of construction; and (4) they had never received reports of any incidents involving, or injuries resulting from, the use of the ladders in the twenty-four years since the construction of the first units. In addition, there was conflicting evidence from which owners argued that invitee was negligent in her use of [*4] the ladder, and that her negligence was the cause of her injuries.
Following a seven-day trial, a jury returned a verdict for owners and responded to interrogatories on the verdict form as follows:
Question No. 1: Did the [plaintiffs] have injuries, damages and losses?
Answer No. 1: Yes
Question No. 2: Did [owners] . . . actually know about a danger on their property or using reasonable care should have known about it?
Answer No. 2: No
Question No. 3: Did the [owners] fail to use reasonable care to protect against the danger on their property?
Answer No. 3: No
Question No. 4: Was the [owners’] failure a cause of the [invitee’s] injuries, damages or losses.
Answer No. 4: No
(Emphasis added.)
Owners sought costs jointly and severally against invitee and school district, which the trial court awarded. This appeal followed.
At the outset, we note that there was no dispute that invitee was a business invitee within the meaning of the premises liability statute and that she suffered injuries. Invitee’s arguments focus on the jury’s negative response to the second interrogatory. These arguments assert error with respect to (1) the instructions given or refused; (2) the trial court’s refusal to admit [*5] into evidence plans for units constructed after the unit in question, which characterized the loft as “storage”; (3) the trial court’s refusal to allow invitee to call a third expert witness on the building code; and (4) the trial court’s failure to instruct the jury that an owner’s duties under the premises liability act are not delegable.
I. Premises Liability Act and Negligence Per Se
Because this case involves the relationship, if any, between the premises liability act and the common law doctrine of negligence per se, we deem it appropriate to begin with a discussion of that relationship after our supreme court’s decision in Lombard.
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. Lawson v. Safeway, Inc., 878 P.2d 127, 130 (Colo. App. 1994); Woolsey v. Holiday Health Clubs & Fitness Centers, Inc., 820 P.2d 1201, 1204 (Colo. App. 1991). A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages. Redden v. SCI Colorado Funeral Services, Inc., 38 P.3d 75, 80 (Colo. 2001); [*6] Miller v. Byrne, 916 P.2d 566, 577 (Colo. App. 1995).
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.
Section 13-21-115(3)(c)(I), C.R.S. 2010, establishes a standard of care owed by a property owner to an invitee: “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.” (Emphasis added.)
Lombard was decided in a summary judgment context. In that context, owners [*7] were required to show that there was no genuine issue as to any material fact, and that they were entitled to judgment as a matter of law. C.R.C.P. 56(c). Invitee, therefore was tasked to show through affidavits and other materials that there was a genuine issue as to a material fact and did so by producing evidence sufficient to raise negligence per se.
In discussing negligence per se in the premises liability act context, our supreme court stated in pertinent part:
The language of the premises liability statute makes clear that a party may no longer bring a negligence per se claim against a landowner to recover for damages caused on the premises. The premises liability statute is broad reaching in its scope . . . .
[In Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004), we concluded that the premises liability statute’s] “express, unambiguous language . . . evidences the General Assembly’s intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property.” 103 P.3d at 328. We noted that “the General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area.” Id. As such, we concluded [*8] that “the plain language preempts prior common law theories of liability, and establishes the statute as the sole codification of landowner duties in tort.” Id. Thus, it would be entirely inconsistent with the plain language of the statute and the holdings of this court to bypass the [premises liability] statute and allow for the imposition of liability on the basis of a negligence per se claim. Consequently, we conclude that a plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence.
However, in addressing the premises liability statute, it is an entirely separate question whether proof of the landowner’s violation of a statute intended for the plaintiff’s protection is evidence of the landowner’s “unreasonable failure to exercise reasonable care.”. . . . Consequently, although the premises liability statute has abrogated certain common law claims and defenses in the premises liability context, we do not find that the General Assembly has clearly expressed its intent to abrogate the common law principle that the violation of a statute is evidence of a failure to exercise due care. See Vigil, 103 P.3d at 327 . . . .
In the [*9] absence of guiding legislative intent to the contrary, we conclude that the General Assembly did not intend to 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.
. . . .
In sum, we hold that with respect to the statutory requirement regarding the landowner’s failure to exercise reasonable care, the plaintiff may overcome the landowner’s summary judgment motion by presenting evidence that the landowner violated a statute or ordinance. By necessity, this holding incorporates the common law’s requirement that the plaintiff show he is a member of the class the statute was intended to protect, and that the injuries he suffered were of the kind the statute was enacted to prevent.
Lombard, 187 P.3d at 574-75 (emphasis added)(additional citations omitted). Guided by this exposition, we address invitee’s arguments.
II. Jury Instructions
Invitee argues initially that the trial court erred in failing to deliver four instructions to the jury. We disagree.
A. Standard of Review
We review jury instructions de novo to [*10] determine whether the instructions as a whole accurately informed the jury of the governing law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo. App. 2007). We consider the court’s instructions as a whole. Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 63-64, 470 P.2d 34, 36-37 (1970). It follows that it is not error for the trial court to refuse a tendered instruction which correctly states an applicable legal proposition when the instructions given, taken as a whole, properly instruct the jury on that proposition. Id.; see also Underwood v. Dillon Cos., 936 P.2d 612, 615 (Colo. App. 1997).
Finally, Lombard is binding precedent and the law of the case. People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983) (citing Dando Co. v. Mangini, 107 Colo. 170, 172, 109 P.2d 1055, 1055-56 (1941); Morton v. Laesch, 52 Colo. 541, 125 P. 498 (1912); and Cache La Poudre Reservoir Co. v. Water Supply & Storage Co., 27 Colo. 532, 62 P. 420 (1900))(law of the case)); People v. Pahl, 169 P.3d 169, 176 (Colo. App. 2006)(binding precedent);.
B. Legal Presumption Instruction
Invitee tendered the following legal presumption instruction, which the trial court rejected:
Presumptions are legal rules based upon experience [*11] and public policy and established in the law to help the jury decide a case. If you find by a preponderance of the evidence that the ladder in [the unit in question] violated the Teller County Building Code, then you must find that the [owners] . . . knew or should have known that the ladder was a dangerous condition and that the [owners] failed to take steps to guard against that dangerous condition.
(Emphasis added.)
This proposed instruction by its terms would have created a conclusive presumption that, if the jury found there was a violation of a building code, owners were presumed to know not only of the violation but also that the violation constituted a dangerous condition within the meaning of the premises liability act, and that owners failed to take steps to guard against that dangerous condition. This proposed presumption instruction is contrary to the express holding and rationale of Lombard, which is that the violation of a statute or ordinance may be considered merely as “evidence of a failure to exercise reasonable care.” Lombard, 187 P.3d at 575 (emphasis added).
The trial court instructed the jury: “If you find that [owners] violated the applicable building code, you [*12] may consider that violation as evidence that [owners] failed to exercise reasonable care. You must consider all evidence regarding this issue in determining whether [owners] exercised reasonable care.”
The trial court further instructed the jury:
For the Plaintiffs . . . to recover . . . on their claims of premises liability, you must find all of the following have been proved by a preponderance of the evidence:
(1) The Plaintiffs had injuries, damages and losses;
(2) The Defendants actually knew about a danger on their property, or as persons or corporations using reasonable care, should have known about it;
(3) The Defendants failed to use reasonable care to protect against the danger of their property; and
(4) The Defendants’ failure was a cause of the Plaintiffs’ injuries, damages, or losses . . . .
These instructions correctly state the law under the common law and the premises liability act, and they are consistent with Lombard. That is, the jury could consider a building code violation as evidence that owners had failed to use reasonable care.
Therefore, the trial court did not err in rejecting the proposed legal presumption instruction.
C. Other Instructions
Invitee further argues that [*13] the trial court erred in rejecting the following proposed instructions:
(1) If the [owners] had to familiarize themselves with the Teller County Building Code in constructing [the unit in question], you may infer from that fact that the [owners] had or should have had notice that the ladder was a dangerous condition.
(2) The law requires the [owners] . . . to have known the requirement of the Teller County Building Code in effect at the time they built on their property any structures governed by the Code.
(3) If you find that [owners] or the Teller County Building Department knew or should have known that the ladder in question was a dangerous condition and failed to take reasonable steps to protect against it and that this dangerous condition resulted in [invitee’s] injuries, then you must find for the Plaintiffs on their claim for premises liability.
(Emphasis added.)
The first and third proposed instructions suffer from the same infirmity discussed above, that is, they equate knowledge of a violation of the building code with knowledge that the violation creates a dangerous condition within the meaning of the premises liability act. As invitee conceded in oral argument, however, not [*14] every violation of a building code results in a dangerous condition, or notice of a dangerous condition, within the meaning of the premises liability act.
The third rejected proposed instruction also suffers from a still more profound inconsistency with the law. It stated that if the county building department knew or should have known that the ladder constituted a dangerous condition, that knowledge would be imputed to owners, in presumably the same manner as notice to the officers, directors, employees, or contractors of owners is so imputed. Invitee has not provided, and we have not been able to find, any legal authority supporting this proposition.
The second proposed instruction is, standing alone, a correct statement of the law. However, the trial court sufficiently and correctly instructed the jury that (1) corporations can act only through their officers, employees, or agents; (2) any act or omission of an officer, employee, or agent of a corporation while acting within the scope of his or her employment is the act or omission the corporation; (3) a corporation knows a fact if it or its agents or employees have information that would lead a reasonable person to inquire further [*15] and that inquiry would have revealed that fact; and (4) parties are presumed to know the law applicable to their conduct, and ignorance of the law is no excuse.
In summary, the trial court did not err in rejecting the proposed instructions because the first and third were incorrect statements of the law and the jury was otherwise adequately and correctly instructed as to the second.
III. Evidentiary Rulings
Invitee next contends that the trial court erred in denying admission of a set of plans for the construction of units in 1990, and in prohibiting an expert witness endorsed by invitee from testifying. She further argues that the trial court abused its discretion in admitting into evidence a video demonstrating the use of the ladder because it had not been timely disclosed. We disagree with all three contentions.
A. 1990 Plans
A trial court has substantial discretion in deciding questions concerning the relevance and admissibility of evidence. Palizzi v. City of Brighton, 228 P.3d 957, 962 (Colo. 2010). Therefore, we will not disturb a trial court’s evidentiary ruling unless it constitutes an abuse of discretion. Id. A trial court abuses its discretion when its ruling is manifestly arbitrary, [*16] unreasonable, or unfair. Id.
At trial, invitee offered the 1990 building plans for lofts built in that year. Though the plans from which the loft in question was constructed showed a mattress in the loft implying that it was for occupancy, the 1990 plans designated the loft, as “storage space.” The trial court excluded the plans as irrelevant because they were drawn eight years after the unit at issue was constructed, and, relying on CRE 403, concluded that there was a significant chance that the plans could mislead the jury and confuse the issues.
Invitee argues that the 1990 plans put owners on notice that the unit in question here violated the building code, by showing a change in the designated use of the loft space. There was, however, ample evidence introduced through invitee’s expert witnesses that the ladder in the unit violated the building code at the time of its construction. Further the trial court instructed the jury that owners are required to follow the law, ignorance of the law is no excuse, and a violation of the building code is evidence that owners failed to exercise reasonable care.
Therefore, we conclude that the trial court did not abuse its discretion in denying [*17] admission of the 1990 plans into evidence.
B. Expert Testimony
Next, invitee contends that the trial court erred in prohibiting her third endorsed expert witness on the building code from testifying. Before a trial scheduled in 2005, invitee endorsed three liability experts. Before the 2009 trial, owners filed a motion requesting that the trial court limit invitee to only one expert witness on each issue. The trial court denied the motion.
At trial, owners objected to the second building code expert testifying because the testimony would be cumulative. In overruling the objection, the trial court stated:
We spent the bulk of the day on the first [building code] witness. And I will tell you right now that if I do allow this testimony, it will be much more streamlined. Quite frankly, it — I’m going to rule on this as it comes, and if I find it to be cumulative, I will rule on it at the time. I’m not going to do it in advance. But I will put the parties on notice that we won’t be spending much time on these extra experts. So you prepare your direct accordingly, sir, because we simply don’t have time.
Invitee argued that the third expert’s testimony would not be cumulative because he was an [*18] architect with experience examining building plans, whereas her first two experts were not plan examiners. Ultimately, the trial court concluded that the nearly seven hours of expert testimony on the alleged building code violations were sufficient.
We see no abuse of discretion here. Invitee did not demonstrate in the trial court, and does not do so here, that the third building code expert’s testimony added anything substantive to the evidence. Invitee’s counsel conceded at trial that the testimony was cumulative, stating that the third expert merely had a different background than those of the first two experts. Therefore, so would go the argument, the third expert would bolster and corroborate the testimony of the first two or, in the alternative, the third expert’s testimony would be more credible than that of the first two because of his different experience.
On appeal, invitee also contends that the trial court’s refusal to let the third expert testify violates the law of the case doctrine because the trial court had previously denied owners’ motion limiting expert witnesses. However, rulings made in the course of ongoing proceedings are interlocutory and may be rescinded or modified [*19] during those proceedings on proper grounds. In re Bass, 142 P.3d 1259, 1263 (Colo. 2006).
Therefore, we see no abuse of discretion in the trial court’s refusal to permit the testimony of the third building code expert and conclude that invitee has failed to demonstrate any prejudice from that refusal.
C. Video
Invitee next argues that the trial court erred in permitting owners to show to the jury a video recording of a person climbing up and down the ladder to one of the lofts. We disagree.
Whether to allow the use of models or other materials for the purpose of demonstration is a matter within the discretion of the trial court. Hampton v. People, 171 Colo. 101, 106, 465 P.2d 112, 114 (1970).
At the outset, we reject invitee’s law of the case argument for the reasons already stated.
Invitee filed a pretrial motion in limine requesting that the video (actually a collection of short videos) be excluded because it had not been timely disclosed. The trial court granted the motion, but later said it would reconsider the matter.
After the testimony of the first building code expert who had inspected the property, the trial court requested a copy of the video for review before ruling on whether [*20] to permit its use. At the time the video was offered, ten days after the trial court had indicated it would reconsider its admission, invitee argued for a mistrial, claiming that the admission of the video was prejudicial based on its untimely disclosure, not its content. Indeed, counsel stated, “I wouldn’t say that [the video is] prejudicial after review.”
In rejecting this argument, the trial court noted that invitee had been on notice for more than ten days that the court was going to review the video and make a decision on its admissibility. When the video was played for the jury, invitee cross-examined the witness and published to the jury several still images from the video.
Therefore, we conclude that the trial court did not abuse its discretion in admitting the video.
IV. Insurance
Invitee next argues that the trial court erred in denying her motion for a mistrial after owners’ counsel implied during his examination of witnesses and in closing argument that any money judgment would be paid by owners, when, in fact, owners were well insured. We are not persuaded.
Evidence that a party did, or did not, carry liability insurance, is not admissible. CRE 411.
During the examination of [*21] witnesses and in closing argument, invitee’s counsel made contemporaneous objections and eventually a motion for mistrial after the three following statements by owners’ counsel: (1) “Well as the attorney for the camp that is going to have to pay that money,” (2) “My client [has] to pay millions of dollars in the case,” and (3) “Rely on what you know to be true about personal responsibility and personal choices, and award no damages to [invitee] or [school district] payable by my client.”
The trial court overruled all of the objections, commenting as to the first objection that the courtroom was in such bedlam that the court doubted the jury heard the statement. The trial court overruled the second and third objections and denied the motion for a mistrial without comment.
An attorney’s attempt to refer to insurance coverage or a lack thereof at trial is improper. Prudential Prop. & Cas. Ins. Co. v. Dist. Court, 617 P.2d 556, 559-60 (Colo. 1980). We review evidentiary rulings for an abuse of discretion. Palizzi, 228 P.3d at 962. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.
In addition, “mere inadvertent or incidental mention [*22] of insurance [or the lack of insurance] before the jury does not automatically call for a mistrial; unless prejudice is shown, there is no reversible error in denying a mistrial.” Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6, 12 (Colo. App. 1986). Indeed, “only when the mention of insurance occurs in a flagrant manner that clearly prejudices the rights of a [party] is the trial court’s denial of the motion for a mistrial reversible error.” Cook Investment Co. v. Seven-Eleven Coffee Shop, Inc., 841 P.2d 333, 335 (Colo. App. 1992).
We cannot say that any of these statements, taken individually or cumulatively, was flagrant. Nor do we perceive any prejudice to invitee. The trial court is ultimately in the best position to determine the effect on the jury of these types of comments.
Therefore, we conclude that the trial court did not abuse its discretion.
V. Costs
Invitee next argues that the award of costs for expert witness fees for witnesses who were not called at trial and photocopying of owners’ client file upon substitution of counsel was error. We disagree as to the expert witness, but agree as to the photocopy expense.
Generally, a trial court enjoys broad discretion in [*23] awarding costs, and we will not overturn such an award absent an abuse of discretion. Morris v. Belfor USA Group, Inc, 201 P.3d 1253, 1261 (Colo. App. 2008).
Here, after a hearing, the trial court entered a written order in which it concluded that, “the costs requested by the prevailing party . . . were reasonable and necessary and properly awardable against plaintiffs.”
A. Non-testifying Expert Witness
First, invitee argues that the cost of the expert witnesses who were retained for purposes of testimony, but who did not testify, should not have been awarded. However, costs are permitted for non-testifying experts hired to provide advisory or consulting services, Mgmt. Specialists, Inc. v. Northfield Ins. Co., 117 P.3d 32, 38-39 (Colo. App. 2004), and costs are permitted for experts who do not testify “because some extrinsic circumstance rendered their testimony unnecessary.” Clayton v. Snow, 131 P.3d 1202, 1203 (Colo. App. 2006).
In this case, the experts’ testimony was not proffered because owners’ counsel concluded that the cross-examination of invitee’s experts was sufficient. The trial court found that the advice and assistance of owners’ experts contributed to the cross-examination [*24] of invitee’s experts.
We perceive no abuse of discretion in the trial court’s decision to award the costs of experts who were not called to testify.
B. Copying Owners’ Client File
Invitee also argues that the trial court erred in awarding owners’ costs for copying owners’ client file upon the discharge of owners’ first counsel. We agree.
Invitee relies, in part, on Colorado Bar Association Formal Ethics Opinion 104, Surrender of Papers to the Client upon Termination of the Representation (1999). That opinion deals with the obligation of an attorney upon termination of the representation to take reasonable steps to protect the client’s interests, including surrender of the client’s papers and property. While the analysis there is somewhat more extended, the fundamental premise of the opinion is that the client file is the property of the client and must be surrendered upon request. With respect to copying the client file prior to surrender, the opinion states, in part:
Numerous questions may arise concerning the costs of duplication of the papers and property at the time of delivery. Generally, consistent with recognition that the file must be surrendered to the client, absent agreement [*25] to the contrary, it is the lawyer’s responsibility to bear duplication costs if the lawyer believes that the lawyer should retain a copy. The fact that copies of documents may have been provided to the client previously does not eliminate the responsibility of the lawyer to provide the client with the file. If the lawyer wishes to keep copies of the documents to which the client is entitled, the lawyer can do so at his own expense.
While the Ethics Committee does not express opinions on the law, its guidance in this regard is, nevertheless, useful.
Here, owners, for whatever reason, voluntarily agreed to pay the discharged counsel the cost of photocopying the client file for the benefit or protection of counsel. Because owners agreed to pay that which they had no other obligation to pay, we conclude that we must vacate the order of the trial court awarding the cost of photocopying owners’ client file.
VI. School District’s Liability for Costs
School district contends that the trial court erred in awarding costs against it because it is a political subdivision of the state of Colorado and is exempt from an award of costs by C.R.C.P. 54(d). We agree.
C.R.C.P. 54(d) states that “costs shall [*26] be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.” (Emphasis added.)
School district, as a public school district, is a political subdivision of the state. Hazlet v. Gaunt, 126 Colo. 385, 397, 250 P.2d 188, 194 (1952).
In Waters v. District Court, 935 P.2d 981, 990 (Colo. 1997), an indigent parent’s appointed counsel brought a successful mandamus against the district court to compel payment of attorney fees incurred in the underlying action and requested an award of costs incurred in the mandamus action. In denying costs, our supreme court stated:
With regard to the State, we have interpreted these rules to mean that costs may be awarded against the State where there is an express legislative provision for costs against the State or where the State is in the position of a party litigant against whom costs are otherwise legislatively authorized to be awarded. See Bennett Bear Creek Farm Water & Sanitation Dist. v. City & County of Denver, 928 P.2d 1254, 1273-74 (Colo. 1996); Central Colo. Water v. Simpson, 877 P.2d 335, 349 (Colo. 1994); [*27] Passarelli v. Schoettler, 742 P.2d 867, 872 (Colo. 1987); Division of Employment & Training v. Turynski, 735 P.2d 469, 472-73 n.5 (Colo. 1987); Board of County Comm’rs v. Slovek, 723 P.2d 1309, 1313 (Colo. 1986); Lee v. Colorado Dep’t of Health, 718 P.2d 221, 228-29 (Colo. 1986). In this case, however, there exists no substantive legislative authorization for the award of costs separate from C.R.C.P. 59(d) and C.A.R. 39(b). The provision in CJD 89-3 for attorney fees and costs does not apply to Waters because she is representing herself, rather than her client, in this action. Thus, we find that the rationale of Central Colorado Water is applicable to this case, and we deny Waters’s request for costs in bringing this original proceeding.
935 P.2d at 990; see also Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 130 (Colo. 2005). Merely showing that the state is in the position of a party-litigant is insufficient to award costs against the state under a general costs provision. Farmers Reservoir, 113 P.3d at 130.
Here, owners have sought costs under C.R.C.P. 54(d), section 13-16-105, C.R.S. 2010, and section 13-16-122, C.R.S. 2010.1 These provisions are general costs [*28] provisions.
1 Section 13-16-105 reads, “If any person sues in any court of record in this state in any action wherein . . . a verdict is passed against him, then the defendant shall have judgment to recover his costs against the plaintiff . . . and the same shall be recovered of the plaintiff or demandant, by like process as the plaintiff or demandant might have had against the defendant, in case judgment has been given for the plaintiff or demandant.” Section 13-16-122 lists some items recoverable as costs.
Owners argue that because the school district initiated the proceeding, it waived any immunity from costs. They cite Division of Employment & Training v. Turynski, 735 P.2d 469, 472 n.5 (Colo. 1987), in support of this argument. In the footnote, our supreme court stated, in pertinent part, that, “by appealing the industrial commission’s award of benefits to the court of appeals and by petitioning for certiorari from the court of appeals’ affirmance of the commission ruling, [the state agency] had waived immunity and caused the claimant to incur high costs.” Id. The court cited Lee v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986), in which a successful litigant under the [*29] Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2010, recovered the each-person statutory limit on damages, which is inclusive of costs and interest of $150,000, and sought an award of costs against the department. The department’s insurance had a policy limit of $150,000 for each person and, in addition, a provision for the payment of costs and interest. The CGIA provided that if a public entity was insured with policy limits in excess of the statutory limit, the policy limits controlled. Our supreme court reversed the trial court’s award of costs but remanded for consideration of the applicability and scope of the insurance policy’s costs provision.
Lee is extremely limited in its scope, that is, the award of costs is limited by the insurance policy liability limits if higher than the statutory limit which includes costs and interest. Turynski, in our view, is not persuasive here because it arose in an administrative proceeding to which C.R.C.P. 54(d), section 13-16-105, and section 13-16-122, do not apply.
In addition, in interpreting Fed. R. Civ. P. 54, which is, for all practical purposes, identical to C.R.C.P. 54, federal courts have been clear that “in [*30] the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses.” Walling v. Norfolk Southern Ry. Co., 162 F.2d 95, 96 (4th Cir. 1947) (quoting United States v. Worley, 281 U.S. 339, 344 (1930)). This is true even if the costs are incurred in an unsuccessful action brought by the United States. Id., (citing DeGroot v. United States, 72 U.S. 419 (1866)).2
2 The school district is bringing a subrogation claim as it is self-insured for workers’ compensation coverages. § 8-41-203, C.R.S. 2010. It has long been recognized that public entities acting in a proprietary capacity are treated the same as private corporations. See, e.g., City of Northglenn v. City of Thornton, 193 Colo. 536, 542, 569 P.2d 319, 323 (1977)(water utility); Bd. of County Comm’rs v. City of Fort Collins, 68 Colo. 364, 189 P. 929 (1920) (same); Valdez v. Moffat County, 161 Colo. 361, 423 P.2d 7 (1967)(hospital). The school district appears to be litigating in a proprietary capacity. We have not found any authority in which the governmental-proprietary distinction has been applied to the award of costs under C.R.C.P. 54(b) or [*31] similar rules in other jurisdictions.
We conclude the award of costs against school district must be vacated. Having so concluded, we need not address school district’s related argument that it was error to award costs against it on a joint and several basis with invitee.
The judgment is affirmed. The orders awarding costs for copying owners’ client file upon a change of counsel and awarding costs against school district are vacated, and the cost order is otherwise affirmed.
JUDGE J. JONES and JUDGE CRISWELL concur.