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Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Emily Johnson, Plaintiff, v. Scott Gibson and Robert Stillson, Defendants.

SC S063188

SUPREME COURT OF OREGON

358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

November 13, 2015, Argued and Submitted

March 3, 2016, Decided

SUBSEQUENT HISTORY: Reconsideration denied by Johnson v. Gibson, 2016 Ore. LEXIS 281 (Or., Apr. 21, 2016)

PRIOR HISTORY:  [***1] US Court of Appeals Ninth Circuit 1335087. On certified questions from the United States Court of Appeals for the Ninth Circuit; certification order dated April 24, 2015; certification accepted June 4, 2015.

Johnson v. Gibson, 783 F.3d 1159, 2015 U.S. App. LEXIS 6551 (9th Cir. Or., 2015)

COUNSEL: Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause and filed the brief for plaintiff. With him on the brief was Christine N. Moore.

Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for defendants. With him on the brief was Denis M. Vannier, Deputy City Attorney.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Shenoa L. Payne, Haglund Kelley LLP, Portland.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Citycounty Insurance Services, Oregon School Boards Association, Special Districts Association of Oregon, and The International Municipal Lawyers Association.

Janet M. Schroer, Hart Wagner LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

JUDGES: Before Balmer, Chief [***2]  Justice, and Kistler, Walters, Landau, Baldwin, Brewer and Nakamoto, Justices.*

* Linder, J., retired December 31, 2015, and did not participate in the decision of this case.

OPINION BY: WALTERS

OPINION

[**1152]  [*626]   WALTERS, J.

This case is before the court on two certified questions from the United States Court of Appeals for the Ninth Circuit. See ORS 28.200 – 28.255 (providing for certification of certain questions of Oregon law from specified federal courts and appellate courts of other states to Oregon Supreme Court). As framed by the Ninth Circuit, the questions are (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.2 We conclude that the individual employees in this case do not qualify as “owner[s]” under the Act, and that we need not address the second certified question.

1 ORS 105.672(4), which defines “owner” for purposes of the Act, was amended in 2009, and those changes [***3]  went into effect January 1, 2010. Or Laws 2009, ch 532, § 1. Plaintiff alleges that her injuries occurred in July 2009. We therefore assume, as do the parties, that the Ninth Circuit’s questions refer to the version of the statute in place at the time plaintiff’s injuries occurred. That statute is ORS 105.672(4) (2007).

The current version of ORS 105.672(4) provides: “‘Owner’ means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.”

2 The remedy clause provides: “[E]very man  [HN1] shall have remedy by due course of law for injury done him in his person, property, or reputation.” Or Const, Art 1, § 10.

This case arose when plaintiff, who is legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City.

[*627]  Plaintiff filed her [***4]  complaint in federal district court, invoking federal claim and supplemental jurisdiction. Plaintiff alleged, under federal law, that the City had violated Title II of the American’s with Disabilities Act (ADA), 42 USC sections 12131 to 12165, and, under state law, that all three defendants were liable for negligently causing her injuries. The City filed two motions: A motion to substitute itself as the sole defendant, pursuant to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.302; and a motion for summary judgment.

The district court denied the City’s motion for substitution. Johnson v. City of Portland, CV No 10-117-JO (D Or Feb 10, 2011) (“Johnson I“). The court reasoned that substitution of the City would violate the remedy clause in Article I, section 10, of the Oregon Constitution, because the City was immune from liability under the Public Use of Lands Act. Had the court substituted the City as the sole defendant in the case, the only defendant would have been immune and entitled to dismissal, leaving plaintiff without a remedy for her injury. Id.

The district court granted the City’s motion for summary judgment, in part. The court granted the City summary judgment as to plaintiff’s federal ADA claim, leaving plaintiff’s negligence claim as her only remaining claim. The [***5]  district court declined to retain supplemental jurisdiction over that state law claim and dismissed the case. Id.

Plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Plaintiff again alleged a state law negligence claim against defendants Gibson and Stillson, and those defendants again filed a motion to substitute the City as the sole defendant under the OTCA. In Johnson II, the district  [**1153]  court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F Supp 2d 1075, 1082 (D Or 2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under the Public Use of Lands Act. Id. at 1083. The district court agreed, reasoning that employees who maintain land qualify as “owner[s]” under that Act, and that defendants Gibson and Stillson were therefore immune from liability.  [*628]  Id. at 1085. The court also held that the Public Use of Lands Act does not violate the remedy clause. Id. at 1088. The court granted defendants’ motion for summary judgment. Id. at 1089. Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit certified to this court the two questions now before us.

We begin with the first question [***6]  posed and the text of the Oregon Public Use of Lands Act, which provides, in part:

[HN2] “Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes * * *. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes * * *.”

ORS 105.682(1). “Land” is defined as “all real property, whether publicly or privately owned.” ORS 105.672(3). “Owner” is defined as follows:

“‘Owner’ means the possessor of any interest in any land, including but not limited to possession of a fee title. ‘Owner’ includes a tenant, lessee, occupant or other person in possession of the land.”

ORS 105.672(4) (2007).

From that definition of “owner,” defendants make a three-step argument: First, that the definition of the term “owner” is ambiguous and is not limited to those with a legal interest in the land; second, that, considered in its proper context, the term includes owners’ employees and [***7]  agents; and third, that as City employees, defendants are entitled to recreational immunity.

Defendants’ argument focuses on the second sentence of the definition of “owner.” Defendants recognize that they do not qualify as “owner[s]” under the first sentence of that definition because they do not have legal title to, or a legal right in, the property where plaintiff was injured. However, they contend, the second sentence in the definition  [*629]  is broader, and it includes both persons who have a legal right in property–specifically, “tenant[s]” and “lessee[s]”–and those who do not–specifically, “occupant[s]” and those who are “in possession of the land.” Id. According to defendants, the dictionary definitions of those latter terms demonstrate that “owner[s]” include persons without legal or equitable title to, or interest in, land.

[HN3] A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual [***8]  physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” Id. “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” Id. at 1561. An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.” Id. 1560.

Like defendants, we surmise, from those definitions, that  [HN4] the terms “occupant” and “person in possession of the land” may include persons without legal or equitable title to, or interest in, the land. But that is not the only lesson we take from those definitions. Like plaintiff, we conclude that those terms describe persons who do more than  [**1154]  take up space on the land. Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made [***9]  of it. The terms “occupant” and “person in possession of the land” are used in the same sentence as the terms “tenant” and “lessee.” ORS 105.672(4) (2007). Tenants and lessees have the ability to decide who may use the space that they control and for what purposes. Under noscitur a sociis, a maxim of statutory construction that  [*630]  tells us that the meaning of an unclear word may be clarified by the meaning of other words used in the same context, it is likely that the legislature intended that “occupant[s]” and “person[s] in possession of the land” have the same type of control as tenants and lessees. See State v. McCullough, 347 Ore. 350, 361, 220 P3d 1182 (2009) (so describing noscitur a sociis). Under that interpretation, only persons with authority to control and exclude from the land qualify as “owner[s]” of the land.

Further support for that interpretation is found in the context in which the term “owner” is used in the Act. The Legislative Assembly enacted  [HN5] the Public Use of Lands Act in 1971 “to encourage owners of land to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Or Laws 1971, ch 780, § 2, codified as former ORS 105.660 (1971), now codified as amended as ORS 105.676 (emphasis added). The immunities [***10]  provided by the Act apply only if “[t]he owner makes no charge for permission to use the land.” Former ORS 105.688(2)(a) (2007), renumbered as ORS 105.688(3) (2010) (emphasis added). An individual without a right to exclude others from the land or to otherwise control use of the land does not have the decision-making authority that the statute contemplates–the authority to make the land available to the public or to charge for permission to use the land.

Defendants do not point us to any statutory context or legislative history that indicates that the legislature understood the terms “occupant” or “person in possession of the land” in ORS 105.672(4) (2007) to support the unbounded meaning that defendants ascribe to those terms.3 In fact, a case that defendants cite for a different proposition supports  [*631]  plaintiff’s narrow interpretation of those terms. In Elliott v. Rogers Construction, 257 Ore. 421, 433, 479 P2d 753 (1971), the court considered the standard of care that applied to a contractor that was building a road for its principal. In discussing that issue, the court observed that “[c]ases from other jurisdictions and legal writers do not treat a contractor as an occupier of land.” Id. at 432. In that case, the court was not interpreting the definition of “owner” in the Public Use of Lands Act, but its observation [***11]  about the legal meaning of the word “occupant” is consistent with our interpretation of that word as being limited to individuals with a right to control and exclude from the land.

3 Defendants do argue that the main sponsor of the bill that led to the current version of the Act stated that it was “designed to be very broad” and to “guarantee [landowners] that they [would not] be paying out of pocket for * * * allowing their property to be used.” Tape Recording, House Committee on Natural Resources, Subcommittee on Agriculture and Forestry, HB 2296, Jan 30, 1995, Tape 4, Side A (statement of Rep Kevin Mannix). However, we do not find that general statement of purpose to be of assistance in determining the meaning of defined terms in the statute. See State v. Gaines, 346 Ore. 160, 171, 206 P3d 1042 (2009) (“[I]t is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]”).

In this case, defendants do not argue that they had a right to exclude others from the land or to otherwise control the use of the land. Rather, they argue that the definition of “owner” is so ambiguous that it requires us to look beyond the words of the definition to the context surrounding ORS 105.682, particularly the [***12]  pre-existing common law. See Fresk v. Kraemer, 337 Ore. 513, 520-21, 99 P3d 282 (2004) (context includes pre-existing common law). Defendants contend that an examination of that pre-existing common law shows that the legislature must have intended “owner” to include persons who are employed  [**1155]  by, or are agents of, persons who are more classically denominated as owners.

Defendants argue that where land and property are concerned, the common law rule has long been that employees and agents have the same privileges and immunities as their principals. Defendants contend that, insofar as the legislature enacted and amended the Act in the context of that common law rule, it intended that that rule apply. Consequently, defendants assert, the legislature was not required to say explicitly what the common law already provides.

For the common law rule on which they rely, defendants point to two Oregon cases–Herzog v. Mittleman, 155 Ore. 624, 632, 65 P2d 384 (1937); and Elliott, 257 Ore. at 432-33. In the first of those cases, Herzog, the court examined a guest passenger statute that provided that a guest in a vehicle would have no cause of action against the owner or operator for damages unless the accident was “intentional on the  [*632]  part of [the] owner or operator or caused by his gross negligence or intoxication or his reckless disregard [***13]  of the rights of others.” Id. at 628. The question presented was whether a vehicle owner’s guest, who was operating the vehicle in question at the owner’s invitation, would be protected by the same rule on the theory that he was acting as the owner’s agent while driving the vehicle. The court looked to the Restatement (First) of Agency (1933) for assistance and began with section 343, which provides:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interest.”

Id. at 631 (internal quotation marks omitted). The court also looked to section 347 of the Restatement, which provides: “An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.” Id. (internal quotation marks omitted). Finally, the court quoted comment a to that section:

“a. Persons may have a personal immunity from liability with respect to all persons and for all acts, as in the case of a sovereign, or for some acts, as in the case of an insane person, or as to some persons as in the [***14]  case of a husband to a wife. * * * Unlike certain privileges such immunities cannot be delegated. On the other hand where an immunity exists in order to more adequately protect the interests of a person in relation to his property, the agent may have the principal’s immunity. Thus, the servant of a landowner while acting in the scope of his employment is under no greater duties to unseen trespassers than is the landowner[.]”

Id. at 631-32 (internal quotation marks omitted) (omission in original).

Reasoning from those provisions, the court explained that although “it is well settled that an agent who violates a duty which he owes to a third person is answerable for the consequences thereof,” if the agent is “acting within the authority, and pursuant to the direction of the principal, the agent is entitled to the same immunities as the principal would be had the principal done the same act under the  [*633]  same circumstances and such immunities were not personal to the principal.” Id. at 632. Applying that legal authority to the facts at hand, the court concluded that the standard of care set out in the statute was not personal to the principal–the car owner–but that it also extended to the agent–a guest that the owner [***15]  had authorized to drive the car. Id. at 633. The court further concluded that the plaintiff could not recover from the defendant-agent without a showing that the defendant-agent was grossly negligent. Id.

In the second of the Oregon cases that defendants cite, Elliott, the court considered whether a contractor working on a landowner’s property had the same limited duty of care to trespassers and licensees as did the landowner. 257 Ore. at 431-33. In that case, an employee of a construction company that was building a road for the State Highway Department accidentally injured a pedestrian who was crossing a portion of the road that had not yet been opened to the public. Id. at 424. The  [**1156]  court explained that, “[b]eing ‘clothed with the rights of the owner,’ [the construction company] was only under a duty to the plaintiff’s decedent to abstain from inflicting injury willfully or by active negligence.” Id. at 433. Because the plaintiff had alleged that the company’s employee had acted with wanton misconduct, however, the court held that the lawsuit could proceed. Id. at 434-35. Thus, without discussing the issues in the same terms used in the Restatement (First) of Agency, the court implicitly concluded that the standard of care applicable to the landowner [***16]  was not personal to the landowner, but that it also extended to the landowner’s agent.

In this case, defendants’ reliance on Herzog and Elliott is misplaced. Defendants draw general conclusions from the results in those cases without recognizing the distinction that is explicit in Herzog and implicit in Elliott–that is, the distinction between immunities that are personal to the principal and those that may extend to a principal’s agent. Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the  [*634]  sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets. The first case in which the court contemplated that issue was Mattson v. Astoria, 39 Ore. 577, 65 P 1066 (1901).

In Mattson, the plaintiff was injured as a result of the city’s failure to keep a public street in repair and suitable for travel. Id. at 578. The plaintiff challenged a clause of the city charter that exempted the city and members of [***17]  its council from liability for such failure. Id. The court said the following:

“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. * * * But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted.”

Id. at 579. Since Mattson, the court has consistently recognized that the liability of a local government as landowner is distinct from the liability of employees and agents of the government. For instance, in Gearin v. Marion County, 110 Ore. 390, 396-97, 223 P 929 (1924), the court explained:

“The constitutional guaranty that ‘every man shall have remedy by due course of law for injury done him in his person, property or reputation’ we think is self-executing and operates without the aid of any legislative act or provision. * * * It has, however, no application to an action sounding in tort when brought against the state or one of the counties of the state. In strict law neither the state nor a county is capable of committing a tort or lawfully authorizing one to be [***18]  committed. Counties, as well as the state, act through their public officials and duly authorized agents. The officers, agents, servants and employees of the state or a county, while in the discharge of their duties, can and sometimes do commit torts, but no lawful authorization or legal justification can be found for the commission of a tort by any such officer, agent, servant or employee. When a tort is thus committed, the person committing it is personally liable for the injury resulting therefrom. The wrongful act, however, is the act of the wrongdoer and not  [*635]  the act of the state or county in whose service the wrong-doer is then engaged. For the damages occasioned by the wrong thus committed it is within the power of the legislature to impute liability against the state or the county in whose service the wrongdoer is then engaged, or to exempt the state or county from such liability, but in either event the wrongdoer is himself personally responsible. It is the remedy against the wrongdoer himself and not the remedy which may or may not be imposed by statute against the state or county for the torts of its officers or agents  [**1157]  to which the constitutional guarant[y] applies.”

See also Rankin v. Buckman, et al., 9 Ore. 253, 259-63 (1881) (city [***19]  employees liable even when city is not).

From those cases, it appears that whether a principal’s immunity is personal to the principal or may extend to an agent is a matter of legislative choice subject to constitutional bounds. We presume that the legislature was aware of that existing law. Blachana, LLC v. Bureau of Labor and Industries, 354 Ore. 676, 691, 318 P3d 735 (2014). In addition, the Restatement (Second) of Agency section 347(1) (1958), which had been published by the American Law Institute when the Legislative Assembly enacted the Oregon Public Use of Lands Act in 1971, is in accord. It provides that “[a]n agent does not have the immunities of his principal although acting at the direction of the principal.” Id. Restatement section 347 comment a clarifies: “Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability. They are strictly personal to the individual and cannot be shared.” Subject to constitutional limitations, the legislature must determine as a matter of public policy how broadly to extend immunities.

Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents. The legal principles that [***20]  the court had previously applied, as well as the common law rules reflected in the restatements, recognized that the grant of immunity to a principal, particularly to a governmental principal, would not necessarily extend to the employees and agents of the  [*636]  principal. Whether a court would imply such an extension could depend, for instance, on whether the court considered the grant of immunity personal to the principal, or whether extension of immunity to an agent would eliminate a remedy that the Oregon Constitution requires.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

Second, we look to the [***21]  statute’s context and legislative history and note that, when it was originally enacted in 1971, the Act was supported by owners of forestland who wished to open their lands to the public for recreational uses such as hunting and fishing. Testimony, Senate Committee on State and Federal Affairs, SB 294, March 1, 1971 (written statement of Sam Taylor, a proponent of the bill). When originally enacted, the Act provided that “[a]n owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose.” Or Laws 1971, ch 780, § 3. Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

The legislature amended the Act in 1995 to make it expressly [***22]  applicable to public landowners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes  [*637]  in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons. Importantly, the legislature did not materially change the definition of owner in 1995. The 1971 Act provided that an “owner” is “the possessor of a fee title interest in any land, a tenant, lessee, occupant or other person in  [**1158]  possession of the land.” Or Laws 1971, ch 780, § 1. In 1995, the legislature broke the definition into two sentences and changed the phrase in the first sentence from “possessor of a fee title interest in any land” to “possessor of any interest in any land.” Or Laws 1995, ch 456, § 1. However, the legislature did not change the categories of persons to whom it granted immunity; in 1995, the legislature exempted the same persons from liability that it had exempted in 1971. When the legislature made the Public Use of Lands Act expressly applicable to public landowners in 1995, it did not demonstrate an intent to broaden the Act to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners [***23]  who commit negligent acts from responsibility for injuries caused by such acts.

Defendants argue, however, that other statutory context points in that direction. Defendants call our attention to the fact that just four years earlier, in 1991, the legislature had amended the OTCA to provide that a claim against a public body is the sole remedy for the torts committed by employees of that public body. Or Laws 1991, ch 861, § 1. Defendants contend that, in light of that amendment, the Public Use of Lands Act must be read to shield governmental employees and agents; otherwise, the immunity it grants to governmental landowners would mean nothing. We disagree. The Public Use of Lands Act applies not only to public landowners, but also to private landowners. Just as it did before the amendment of the OTCA, the Public Use of Lands Act protects all “owner[s]” from liability in their capacity as “owner[s].” Just like private owners, public owners are exempt from liability for their own acts. The fact that public owners are not, in addition, exempt from liability for the acts of their employees or agents does not make the immunity granted by the Public Use of Lands Act illusory. The fact that public owners, like [***24]  private owners, are not shielded from liability if they employ non-owners who cause injury to  [*638]  others in the negligent performance of their duties does not mean that the Public Use of Lands Act has no purpose.

The legislature knows how to extend immunity to governmental employees and agents when it chooses to do so. See ORS 368.031 (immunizing counties and their officers, employees, or agents for failure to improve or keep in repair local access roads); ORS 453.912 (immunizing the state and local government and their officers, agents and employees for loss or injury resulting from the presence of any chemical or controlled substance at a site used to manufacture illegal drugs); ORS 475.465 (immunizing the state, DEQ, EQC, and their officers, employees, and agents from liability to a person possessing chemicals at alleged illegal drug manufacturing site).4 The legislature did not make that express choice in the Public Use of Lands Act. Should the legislature wish to extend the immunity provided to “owner[s]” to governmental employees and agents, it is free to do so, within constitutional bounds. However, we are unwilling to insert into the definition of “owner” in ORS 105.672(4) (2007) terms that the legislature did not include. See ORS 174.010 (office [***25]  of judge is to ascertain what is contained in statute, not to insert what was omitted or to omit what was inserted).

4 Another example, although enacted after the Public Use of Lands Act, is a 2011 statute that grants immunity relating to public trails. ORS 105.668(2) immunizes a “city with a population of 500,000 or more” and its “officers, employees, or agents” from liability for injury or damage resulting from the use of a trail or structures in a public easement or an unimproved right of way.

We answer the Ninth Circuit’s first certified question as follows:  [HN6] Individual employees responsible for repairing, maintaining, and operating improvements on Cityowned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.

The certified questions are answered.

 

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Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act

Oregon Recreational Use Statute

Oregon Public Use of Lands Act

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

105.672. Definitions for ORS 105.672 to 105.696. 3

105.676. Public policy. 3

105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

105.688  Applicability of immunities from liability for owner of land; restrictions. 4

105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 8

105.699. Rules applicable to state lands. 9

105.696  Duty of care or liability not created; exercise of care required of person using land. 9

105.699  Rules Applicable to State Lands. 10

105.700. Prohibiting public access to private land; notice requirements; damages. 10

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

As used in ORS 105.672 to 105.696 :

(1)       “Charge”:

(a)             Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b)             Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2)       This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

105.688  Applicability of immunities from liability for owner of land; restrictions.

(1) Except as specifically provided in ORS 105.672 to 105.696, the immunities provided by ORS 105.682 apply to:

(a) All land, including but not limited to land adjacent or contiguous to any bodies of water, watercourses or the ocean shore as defined by ORS 390.605;

(b) All roads, bodies of water, watercourses, rights of way, buildings, fixtures and structures on the land described in paragraph (a) of this subsection;

(c) All paths, trails, roads, watercourses and other rights of way while being used by a person to reach land for recreational purposes, gardening, woodcutting or the harvest of special forest products, that are on land adjacent to the land that the person intends to use for recreational purposes, gardening, woodcutting or the harvest of special forest products, and that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes, gardening, woodcutting or the harvest of special forest products; and

(d) All machinery or equipment on the land described in paragraph (a) of this subsection.

(2) The immunities provided by ORS 105.682 apply to land if the owner transfers an easement to a public body to use the land.

(3) Except as provided in subsections (4) to (7) of this section, the immunities provided by ORS 105.682 do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(5) The immunities provided by ORS 105.682 for gardening do not apply if the owner charges more than $ 25 per year for the use of the land for gardening. If the owner charges more than $ 25 per year for the use of the land for gardening, the immunities provided by ORS 105.682 apply to any use of the land other than gardening. If the owner charges more than $ 25 per year for permission to use a specific part of the owner’s land for gardening and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(6) The immunities provided by ORS 105.682 for woodcutting do not apply if the owner charges more than $ 75 per cord for permission to use the land for woodcutting. If the owner charges more than $ 75 per cord for the use of the land for woodcutting, the immunities provided by ORS 105.682 apply to any use of the land other than woodcutting. If the owner charges more than $ 75 per cord for permission to use a specific part of the owner’s land for woodcutting and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(7) The immunities provided by ORS 105.682 for the harvest of special forest products do not apply if the owner makes any charge for permission to use the land for the harvest of special forest products. If the owner charges for permission to use the owner’s land for the harvest of special forest products, the immunities provided by ORS 105.682 apply to any use of the land other than the harvest of special forest products. If the owner charges for permission to use a specific part of the owner’s land for harvesting special forest products and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(8) Notices under subsections (4) to (7) of this section may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

105.696  Duty of care or liability not created; exercise of care required of person using land.

ORS 105.672 to 105.696 do not:

(1) Create a duty of care or basis for liability for personal injury, death or property damage resulting from the use of land for recreational purposes, for gardening, for woodcutting or for the harvest of special forest products.

(2) Relieve a person using the land of another for recreational purposes, gardening, woodcutting or the harvest of special forest products from any obligation that the person has to exercise care in use of the land in the activities of the person or from the legal consequences of failure of the person to exercise that care.

105.699  Rules Applicable to State Lands.

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

 


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!

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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


When you are mountain biking on land you are unfamiliar with, probably private land, any condition of the land causing any injury is your responsibility to find.

Michigan mountain biker that struck a cable gate liable for his own injuries because of the Michigan Recreational Use Statute. Actions of the land owner in creating the gate were not gross negligence when they had posted the property with no trespass signs.

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

State: Michigan, Court of Appeals of Michigan

Plaintiff: Thomas H. Schoonbeck

Defendant: v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Michigan Recreational Use Statute

Holding: for the defendant land owner and land lessee

Year: 2015

The plaintiff was mountain biking on private land that was adjacent to state land. While traveling down a trail he was injured when he struck a cable being used as a gate strung between two trees. The cable had a “No Trespassing” sign facing away from the plaintiff’s direction of travel so people coming onto the land could see the sign.

The land was owned by one defendant, Nielsen, who leased the land to Donajkowski and Kelly to use for hunting. Donajkowski and Kelly created the cable gate because it was the cheapest and easiest gate to erect. They also placed “no trespassing” signs around the property and at the corners of the property.

The plaintiff sued for negligence and gross negligence. The defendants filed a motion for summary disposition on the negligence claim and argued that installing a gate was not gross negligence. The trial court agreed, and this appeal followed.

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

The Michigan Recreational Use statute is very comprehensive. The statute covers any cause of action, which is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” on the land. That definition also is based on premise’s liability law, which is the law that is based on ownership of land.

The plaintiff’s argued the statute was based on laws occurring on the land, not of the land. Mainly the law dealt with nuisance claims, which is “unreasonable interference with a common right enjoyed by the general public.”

However, the argument failed in total because the nuisance argument was not raised in the lower court so it could not be argued in the appellate court.

The next argument was whether erecting (stringing) a cable gate on the land was gross negligence. The plaintiff argued the gate case created with “deliberate indifference to the likelihood that an injury would result.”

The court then looked at the definition of gross negligence in Michigan.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” “Willful and wanton misconduct is not a high degree of negligence; rather, it is in the same class as intentional wrongdoing.”

The plaintiff argued the defendants should have done more. They should have built a gate at the other end of the property, notified neighbors the land was now closed or turned the No Trespassing sign around. However, allegations that someone could have done more are not proof that what was done was gross negligence. “To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others.”

The allegations of the plaintiff were the defendants could have done more, not that what they did was grossly negligent.

At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.

The actions of the defendant were not grossly negligent and the Michigan Recreational Use Statute provides protection for the negligence claims. The trial court dismissal of the complaint was upheld.

So Now What?

I don’t have mostly indifference to the plaintiff in this case. Mountain biking is defined by its falls, just like skiing. Not falling, not trying hard enough, etc.

Here the landowner/lease did what every other landowner did. The real sole issue was, whether the landowner should have done more when the status to the land allegedly changed. However, the plaintiff did not even prove that. The prior landowner did not allow mountain biking or other activities; he just did not go out and try to stop them.

If you own the land, and you don’t want people on it, do what the law requires to protect your land.

If you are a mountain biker, make sure you know where you are before you go barreling down a trail. Much like a terrain park skiing, check out the jumps before cruising through them.

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Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

Thomas H. Schoonbeck, Plaintiff-Appellant, v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen, Defendants-Appellees.

No. 318771

COURT OF APPEALS OF MICHIGAN

2015 Mich. App. LEXIS 223

February 10, 2015, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1] Muskegon Circuit Court. LC No. 12-048517-NO.

CORE TERMS: gate, trespassing, cable, gross negligence, wanton misconduct, willful, causes of action, installed, trail, nuisance claims, grossly negligent, recreational, material fact, premises liability, motorcycles, installing, favorable, struck, tenant, lessee, bike, snowmobiles, land use, claims of negligence, facts giving rise, questions of fact, de novo, genuine issue, nonmoving party, reasonable minds

COUNSEL: For THOMAS H. SCHOONBECK: ALANA LYNN WIADUCK, MUSKEGON, MI.

For CASEY J. KELLY: JAMES M SEARER, MUSKEGON, MI.

For ROGER W. NIELSEN: JOSEPH P VANDERVEEN, GRAND RAPIDS, MI.

JUDGES: Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.

OPINION

Per Curiam.

Plaintiff, Thomas H. Schoonbeck, appeals as of right the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of defendants, Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen. Schoonbeck was injured when he struck a cable gate while riding a dirt bike on property that Nielsen had leased to Donajkowski and Kelly. The trial court ruled that the recreational land use act (the Act), 324.73301, barred Schoonbeck’s claims. We affirm.

I. FACTS

In September 2010, Schoonbeck was riding a dirt bike on Nielsen’s property when he struck a cable gate that was suspended across a trail between two trees. According to Trooper Brian Cribbs’s report of the incident, the cable was installed along a fairly straight section of the trail that had a “very slight curve” about 87 feet before where Schoonbeck struck it. A 10 x 14-inch sign that read “Private Property — No Trespassing” was attached to the middle of the cable. The sign faced the opposite direction from which Schoonbeck was traveling.

At his deposition, Nielsen testified that he had rented the property for hunting [*2] and recreational purposes to Donajkowski and Kelly at the time of the accident. A two-track trail traversed the property from the southwest to the northeast. In affidavits, various neighbors stated that the property did not have “no trespassing” signs and that they walked, rode bikes, and used motorcycles or snowmobiles on the property’s trails. Nielsen testified that he had previously seen some evidence that people rode motorcycles or snowmobiles across the property. However, according to Nielsen and Donajkowski, there were “no trespassing” ribbons at the corners of the property and “no trespassing” signs along its borders.

Kelly testified that he was not aware that motorcycles or snowmobiles crossed the property, but he wanted to inform people that the property was private because it abutted state land. Donajkowski testified that he wanted to put a gate on the trail to stop traffic. Nielsen testified that Donajkowski asked to install a gate on the property and complained that people were trespassing on it with motorcycles and off-road vehicles.

According to Kelly, about a week after leasing the property, he and Donajkowski installed “no trespassing” signs and a cable gate with a “no [*3] trespassing” sign on it. They installed a cable gate because it was the easiest kind of gate to install. It was Kelly’s first time on the property and Donajkowski’s second time on the property. Donajkowski testified that the “no trespassing” sign faced outward from the property.

In August 2012, Schoonbeck filed this suit. He alleged claims of negligence and gross negligence against Nielsen, Donajkowski, and Kelly. In May 2013, Nielsen moved for summary disposition under MCR 2.116(C)(8) and (10). In pertinent part, Nielsen contended that the Act barred Schoonbeck’s claims because Donajkowski and Kelly’s act of installing the cable gate was not grossly negligent or malicious. Donajkowski and Kelly also moved for summary disposition, adopting Nielsen’s arguments and further contending that they were not grossly negligent and did not commit willful or wanton misconduct. Schoonbeck responded that the Act did not apply and, even if it did apply, there were material questions of fact regarding whether Donajkowski and Kelly were grossly negligent or committed willful and wanton misconduct.

In a brief written opinion, the trial court granted the defendants’ motions under MCR 2.116(C)(10). It determined that the Act barred Schoonbeck’s [*4] claims. Schoonbeck now appeals.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

This Court reviews de novo issues of statutory interpretation. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting a statute, our goal is to give effect to the intent of the Legislature. Id. at 665. The statute’s language is the best indicator of the Legislature’s intent. Id. If the language of a statute is unambiguous, we must enforce the statute as written. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). This Court should not read language into an unambiguous statute. McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010).

III. APPLICATION OF THE RECREATIONAL LAND USE ACT

First, Schoonbeck contends the Act does not apply because it is limited to premises liability causes of action. We disagree.

The Act provides that “a [*5] cause of action” generally does not arise from a nonpaying outdoor recreational user’s use of an owner’s land unless the user’s injuries were caused by the owner’s gross negligence or willful and wanton misconduct:

Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]

A cause of action is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” Davis v Kramer Bros Freight Lines, Inc, 361 Mich 371, 376-377; 105 NW2d 29 (1960); also see Black’s Law Dictionary (9th ed) (“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”).

The plain language of the statute bars any cause of action, not only those [*6] causes of action that sound in premises liability. Had the Legislature wished to limit the statute to a narrower set of circumstances, it could have used the words “cause in action sounding in premises liability” rather than the more general term “cause of action.” See Neal, 470 Mich at 665-666. It did not do so. We decline to read additional language into the statute and, therefore, we reject Schoonbeck’s argument that the Act only applies to claims sounded in premises liability.

Second, Schoonbeck contends that the trial court erred by granting summary disposition because the Act does not apply to nuisance claims. “A public nuisance is an unreasonable interference with a common right enjoyed by the general public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995). In this case, regardless of whether revoking an implied license to trespass constitutes a nuisance or whether the Act bars nuisance claims, Schoonbeck did not assert a nuisance claim in his complaint. He asserted only claims of negligence and gross negligence. Since Schoonbeck did not plead a nuisance claim, nor does he provide argument to support that the trial court erred by granting summary disposition on potentially meritorious claims that the plaintiff did not raise, we fail to see how he [*7] can be deemed to have addressed a nuisance claim. Moreover, we decline to make Schoonbeck’s arguments for him. See VanderWerp v Plainfield Charter Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). Accordingly, we reject this assertion because Schoonbeck did not allege a nuisance claim.

IV. GROSS NEGLIGENCE AND WILLFUL OR WANTON MISCONDUCT

Schoonbeck contends that the trial court erroneously granted summary disposition because there was a question of material fact regarding whether Donajkowski and Kelly’s installation of the cable gate showed a deliberate indifference to the likelihood that an injury would result. We conclude that Schoonbeck did not show a genuine issue of material fact regarding whether Donajkowski and Kelly acted with gross negligence or willful and wanton misconduct.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Maiden, 461 Mich at 123; Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden, 461 Mich at 122-123. Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” Boumelhem v Bic Corp, 211 Mich App 175, 185; 535 NW2d 574 (1995). “Willful and wanton misconduct is not a high degree [*8] of negligence; rather, it is in the same class as intentional wrongdoing.” Id.

Even accepting Schoonbeck’s assertions that Donajkowski and Kelly should have installed a gate at the other end of the property, faced a second sign inward on the gate, or informed the neighbors they were installing the gate, these allegations do not show a genuine question of material fact on the issue of gross negligence. An allegation that an actor could have done more or acted differently is not evidence of ordinary negligence, much less gross negligence. Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others. Id. At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.

In contrast, Donajkowski and Kelly provided evidence that they did not act with a deliberate indifference of whether an injury could result from installing the cable gate. Donajkowski and Kelly installed a “no trespassing” sign near the entrance to the property and hung a “no trespassing” [*9] sign from the cable gate. They installed the cable gate and sign on a fairly straight area of the trail. They also installed additional “no trespassing” signs. These signs faced toward the road, the logical direction from which to expect traffic would approach the gate. We conclude that, viewing the evidence in the light most favorable to Schoonbeck, reasonable minds could not differ concerning whether Donajkowski and Kelly’s action was so reckless that it showed a substantial lack of concern for whether an injury resulted. We conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10).

V. CONCLUSION

We conclude that the Act is not limited to premises liability actions. Further, we conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10) when Schoonbeck provided no evidence from which a reasonable juror could conclude that Donajkowski and Kelly acted recklessly.

We affirm. As the prevailing parties, defendants may tax costs. MCR 7.219.

/s/ Peter D. O’Connell

/s/ David H. Sawyer

/s/ Jane E. Markey