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Texas Campground not liable for wind, rain and rising rivers.

Campground on river sued when river rose, flooding the campground and washing plaintiff’s downstream.

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

State: Texas, Court of Appeals of Texas, Third District, Austin

Plaintiff: Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson

Defendant: UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers

Plaintiff Claims: negligence, premises liability, and gross negligence

Defendant Defenses: No Duty and Texas Recreational Use Statute

Holding: For the defendants

Year: 2016

Facts

Two couples took their RV’s to the defendant’s campground for the weekend. The first day the plaintiff’s took a canoe trip past the campground and took some cave tours. It was not raining when they went to bed. Around 6:00 AM, the surviving plaintiff woke up to a rainstorm and their RV’s floating.

The RV’s floated down the river. One plaintiff did not survive. The surviving plaintiffs sued the campground, campgrounds alleged owner and several employees. The plaintiff’s claims were based on alleging negligence, premise’s liability, and gross negligence. Overall, their claims were based on numerous claims that the campground had a duty to warn them of the flood.

Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.

The defendants filed numerous motions for summary judgment arguing they were protected by the Texas Recreational Use Statute, and they owed no duty to the plaintiffs. The trial court dismissed the plaintiff’s claims without comment. The appeal followed.

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

The appellate court started its analysis by stating the trial court was right and there was no duty owed to the plaintiffs.

Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters.

Texas Premises Liability Act requires landowners with liability for actual or constructive notice of a condition that poses an unreasonable risk of harm and did nothing to reduce or eliminate the risk.

When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge about a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury.

Rain swollen rivers were described by the court as a condition that came to the land, rather than a condition on the land. Even so, in Texas, rain, mud and ice are natural conditions that do not create an unreasonable risk of harm.

Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm.

The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee from precipitation or other acts of nature would place an enormous burden on the landowner.

Additionally, the court held the plaintiffs were aware of the issues because they could see the river from their campground and had canoed past the campground earlier in the day.

Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate pre-cautions against injury.

Landowners in Texas cannot be insurers of people on the land for those acts which the landowner has no control, those things we used to call “acts of God.”

Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. “[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.

A landowner can be guilty of gross negligence by creating a condition that a recreational user would not reasonably expect to encounter. However, there was no gross negligence nor negligence because the harm was not created by the landowner.

We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising river waters, caused by a natural weather event over which appellees could exercise no control. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains.

The court then summed up its ruling.

We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river, they were camping beside might rise in the event of heavy rain, posing a risk to the campground.

Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.

So Now What?

This is a good ruling. Acts of God have always been outside the control, by their definition and act, of man. Consequently, you should not be able to hold someone liable for such an act.

This may not be true for all situations, or in all states, but for Texas campground owners and landowners don’t need to worry about the rain.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson, Appellants v. UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers, Appellees

  1. 03-15-00271-CV

Court of Appeals of Texas, Third District, Austin

2016 Tex. App. LEXIS 5934

June 3, 2016, Filed

PRIOR HISTORY:  [*1] FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT. NO. C2012-0796D, HONORABLE DIB WALDRIP, JUDGE PRESIDING.

DISPOSITION: Affirmed.

JUDGES: Before Justices Puryear, Goodwin, and Field.

OPINION BY: David Puryear

OPINION

MEMORANDUM OPINION

Appellants Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson1 filed suit against appellees UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers for injuries sustained when the Guadalupe River overran its banks during a flash flood in June 2010.2 The trial court granted summary judgment in favor of appellees. We affirm the trial court’s orders granting summary judgment.

1 Cynthia Walker was married to Norman Walker, and Stephen Walker, Stephanie Walker Hatton, and Jordan Walker are their children. Caren Johnson is married to Terry Johnson, Cynthia’s brother. Cynthia, Norman, Caren, and Terry were camping together at Camp Huaco Springs when they were caught in the flood. Norman died, while Cynthia, Terry, and Caren were injured. Caren and Cynthia sued for their own injuries. Cynthia also sued as a representative of [*2]  Norman’s estate and, along with her children, as a wrongful death beneficiary.
2 UME, Inc. operates Camp Huaco Springs, WWGAF operates Rockin ‘R’ River Rides, a river-tubing and recreation outfitter, and William and Richard Rivers own the two businesses.

Factual Summary

In June 2010, Cynthia and Norman Walker and Terry and Caren Johnson went to Camp Huaco Springs in their RV campers for a weekend of camping and river rafting. When they arrived at the campground, they were assigned two parking spaces. The Walkers and the Johnsons parked their campers as directed. On Saturday, the Walkers and the Johnsons took a canoe trip on the river and went to tour nearby caverns. When they returned to the campsite and went to bed, it was not raining. They had not heard any weather reports and did not know heavy rain was forecast for that night. Cynthia woke at about 6:00 a.m. to thunder and lightning. She looked out the window and saw Terry was screaming that they had to leave. Cynthia looked down and noticed that the river had risen to surround the two campers, causing them to begin floating. The Walkers and Johnsons were all swept downstream in the flood. Norman died in the flood. Cynthia, Terry, and [*3]  Caren were rescued miles downstream from the campsite and all required medical attention.

Appellants filed suit alleging negligence, premises liability, and gross negligence. They asserted that WWGAF was liable because it was a joint enterprise with UME and that the Rivers brothers were liable under a theory of alter ego. Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.

UME and the Rivers brothers filed a traditional and no-evidence motion for summary judgment, asserting that the Texas Recreational Use Statute3 limited appellants to asserting a gross-negligence claim and that appellants could not show various elements of gross negligence; that there was no evidence that they had a duty to warn that the campground was in [*4]  a flood zone, to warn that severe weather was approaching, or to plan and prepare for flooding; that there was no evidence they had a duty to have and use speakers or sirens to warn guests; and that there was no evidence that appellants’ injuries were caused by any negligence on the part of UME or the Rivers brothers. UME and the Rivers brothers filed a separate motion for traditional and no-evidence summary judgment addressing appellants’ theories of alter ego and joint enterprise. WWGAF filed its own motion for summary judgment, asserting that it did not own or operate Camp Huaco, that it did not owe a duty to the Walkers and the Johnsons, and that it was a separate entity from Camp Huaco and could not be held liable under theories of joint enterprise or vicarious liability. The trial court signed several orders granting appellees’ motions for summary judgment without specifying the grounds.

3 See Tex. Civ. Prac. & Rem. Code § 75.002 (owner, lessee, or occupant of agricultural land who invites another onto premises for recreation owes invitee same duty that would be owed to trespasser and only owes duty not to injure invitee wilfully, wantonly, or through gross negligence); see generally id. §§ 75.001-.007 (chapter 75, titled [*5]  “Limitation of Landowners’ Liability”).

Discussion

The first question to be addressed, the answer to which is dispositive of this appeal, is whether appellees owed any duty to the Walkers and the Johnsons. Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters. Without such a duty, appellants’ premises-liability claims must fail.4

4 Although appellants alleged both negligence and premises-defect claims, “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct bythe owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010); see Scurlock v. Pennell, 177 S.W.3d 222, 224-25 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (citing Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)) (“Recovery for a negligent activity requires that a person have been injured by the activity itself, rather than by a condition created by the activity; in contrast, recovery for premises liability depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition about which the owner or occupier [of [*6]  land] knows or, in the exercise of ordinary care, should know.”). The claims raised by appellants clearly alleged that appellees had failed to take various measures that would have made the campsite safe; they did not allege “contemporaneous conduct . . . that caused the injur[ies].” See Smith, 307 S.W.3d at 776. We therefore consider appellants’ claims under a theory of premises liability. Regardless of the theory under which they are analyzed, appellants’ claims would fail because, as we explain below, appellees did not owe the duty that appellants claim was breached. See General Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008) (“Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.”).

When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge of a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). We initially note that appellants do not assert that a condition on the premises caused the tragedy and thus was the basis for liability. Instead, the injuries suffered by appellants were caused by a rain-swollen [*7]  river that inundated the campground, a condition that came to the premises.

Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex. 2004); see Scott & White Mem. Hosp. v. Fair, 310 S.W.3d 411, 412-14 (Tex. 2010) (“Because we find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.”); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex. App.–Eastland 2003, pet. denied) (landowner “does not have a duty to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot because such an accumulation does not constitute an unreasonably dangerous condition”).5 The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. See, e.g., M.O. Dental Lab, 139 S.W.3d at 676 (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee [*8]  from precipitation or other acts of nature would place an enormous burden on the landowner. See id.; see also Fair, 310 S.W.3d at 414 (requiring landowners “to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations”).

5 See also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (in premises defect case under Texas Tort Claims Act, supreme court held that “[w]hen there is precipitation accompanied by near-freezing temperatures, . . . an icy bridge is neither unexpected nor unusual, but rather, entirely predictable [and] is something motorists can and should anticipate when the weather is conducive to such a condition”); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (“Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable.”); Lee v. K&N Mgmt., Inc., No. 03-15-00243-CV, 2015 WL 8594163, at *3-4 (Tex. App.–Austin Dec. 11, 2015, no pet.) (mem. op.) (plant that extended over edge of flowerbed was not unreasonably dangerous condition; “The Texas Supreme Court has held that certain naturally occurring substances generally do not pose an unreasonable risk of harm. . . . Under the facts of this case, the plant, like mud and dirt, may have formed a condition that posed a risk of harm, [*9]  but on this record, we cannot conclude that it was an unreasonable risk of harm.”); City of Houston v. Cogburn, No. 01-11-00318-CV, 2014 WL 1778279, at *4 (Tex. App.–Houston [1st Dist.] May 1, 2014, no pet.) (mem. op.) (“as a matter of law, naturally occurring conditions that are open and obvious do not create an unreasonable risk of harm for purposes of premises liability”; tree roots over which plaintiff tripped were “open and obvious and were a naturally occurring condition”).

Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate precautions against injury.” M.O. Dental Lab, 139 S.W.3d at 676. In other words, as the supreme court has explained:

When the condition is open and obvious or known to the invitee, however, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions–whether because the danger is obvious or because the landowner provided an adequate warning–the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner’s premises. [*10]  This is why the Court has typically characterized the landowner’s duty as a duty to make safe or warn of unreasonably dangerous conditions that are not open and obvious or otherwise known to the invitee

Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (citations omitted). Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Id. at 203-04 (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)). Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. See, e.g., State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006) (“[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But a landowner can be liable for gross negligence in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.”); City of Austin v. Leggett, 257 S.W.3d 456, 475 (Tex. App.–Austin 2008, pet. denied) (flooded intersection was readily apparent and presented obstacle that would be open and obvious to ordinary motorists).

We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising [*11]  river waters, caused by a natural weather event over which appellees could exercise no control. See Fair, 310 S.W.3d at 414. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains. The Walkers and the Johnsons had gone canoeing on the river the day before the flooding occurred, and thus they were obviously aware of the river’s proximity to their campsite. This situation is indeed a tragic one, but it is not one for which appellees can be held to bear legal responsibility. We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river they were camping beside might rise in the event of heavy rain, posing a risk to the campground.6

6 We further note that, even if the campground had posted warnings or issued flood cautions when the Walkers and Johnsons checked into the campsite, there is nothing in this record to indicate that events would have turned out any differently. The Walkers and Johnsons went to bed not having heard that heavy rains would approach [*12]  and slept heavily enough that none of them woke up during the storm or to warnings by the local sheriff’s officers, who drove through the campsite at about 4:00 a.m., blowing an airhorn and flashing their car’s lights as they announced over their PA system that the river was rising.

Conclusion

Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.

David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: June 3, 2016

 


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

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

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

State: Mississippi, Court of Appeals of Mississippi

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

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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

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

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

NO. 2014-CA-00589-COA

Court of Appeals of Mississippi

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

April 21, 2015, Decided

COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.

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

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

OPINION BY: LEE

OPINION

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

LEE, C.J., FOR THE COURT:

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

FACTS AND PROCEDURAL HISTORY

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

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

STANDARD OF REVIEW

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

DISCUSSION

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

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

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

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

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

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

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

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

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

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


Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.

Case is a major change in the liability of a ski area to the skiers and boarders who ride any lift in Colorado.

Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499

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

Plaintiff: Carolyn S. Raup

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: Premises Liability Act, and for negligence, including negligence per se

Defendant Defenses: The negligence claims are Colorado Premises Liability Act

Holding: for the Defendant

Year: 2016

This case may be ongoing the decision may not be final. However, the ruling is game changing and changes a large section of the law in Colorado.

The plaintiff was riding a chairlift at one of the defendants Vail resorts during the summer. The Colorado Tramway Act requires lifts operated during the summer to have a comfort bar available to riders. As the plaintiff and two other riders were approaching the top terminal, they had intended to ride the lift back down.

The liftie (top terminal lift employee), ran out and started yelling at the rides to raise the safety bar and exit the lift.

The plaintiff and friends did not understand or know that riding around the terminal would trigger the emergency stop. The riders also did not know that the download capacity of a lift is very different from the upload capacity of the lift. Many times that download capacity is 25 to 33% of the upload capacity. That means instead of loading every chair downhill you may only be allowed to load every third or fourth chair.

The other two riders were able to exit the lift running down the exit ramp. The plaintiff fell suffering severe injuries. The plaintiff brought this suit in the Federal District Court of Colorado. Vail moved to dismiss the claims of negligence and negligence per se brought by the plaintiff.

The court granted Vail’s motion with the following analysis.

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

The court first looked at the requirements for the plaintiff to survive a motion to dismiss under Colorado law.

To survive a motion to dismiss under Rule 12(b)(6), the party asserting the claim “must allege that ‘enough factual matter, taken as true, [makes] his claim for relief … plausible on its face.'” (quotation and internal quotation marks omitted). “A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’

Thus, a party asserting a claim “must include enough facts to ‘nudge[] h[er] claims across the line from conceivable to plausible.

A motion to dismiss is filed normally before the defendant has filed an answer to the complaint. The motion is filed when their allegations in the complaint are not supported by the law or misstate the law. The court rarely grants these motions because as started above, there must be just a plausible claim to survive.

In this case, the issue was the claims of the plaintiff were not available under the law. Meaning the law did not allow the plaintiff to make those types of claims against a defendant.

In this case, the Colorado Premises Liability Act, the act which controls the liability of a landowner to people on his land, was the only way the plaintiff could sue. More importantly, did the Colorado Premises Liability Act preclude not only common law claims (negligence) against a landowner but also claims brought under the Colorado Skier Safety Act based on a ski area being the landowner.

An earlier interpretation by the Colorado Supreme Court in two different cases preempted the common law claims. “

I agree with Vail that the Vigil and Lombard cases make clear that all common law claims involving landowner duties, including negligence and negligence per se claims, are abrogated by the Premises Liability Act which provides the exclusive remedy.

The plaintiff argued the Colorado Tramway Act still allowed negligence claims. The act was  interpreted by a Supreme Court Decision in Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 80 (Colo. 1998), which held the ski area owed the highest degree of care to a rider on a chair lift, that of a common carrier.

However, the court found that Bayer had preempted by the Vigil act quoted above.

Six years after Bayer, the Colorado Supreme Court in Vigil made clear that the Premises Liability Act preempted all common law claims and provided the sole method of recovering against a landowner. Vigil, 103 P.3d at 328. The fact that Vigil did not reference Bayer does not change this result.

The plaintiff then argued the acts of the leftie were negligent and created a separate claim for negligence. However, again, the court found the actions were covered by the Premises Liability Act.

Vail’s duty of care to invitees such as Plaintiff is defined under the Premises Liability Act, which makes clear that it applies in actions by a person who alleges injury while on the property of another and by reasons of either the condition of the property or activities conducted on the property. This encompasses the allegations at issue in this case, including the injuries allegedly sustained by Plaintiff by activities of Vail’s employee in ordering Plaintiff and her fellow passengers to disembark from the chairlift. As such, the Premises Liability Act provides the only standard for recovery.

The court granted Vail’s motion to dismiss and dismissed the plaintiff’s negligence claims leaving only the premises liability claims.

So Now What?

Does this mean there is now a lower duty owed to riders of chairlifts in Colorado because they are classified as invitees under the Colorado Premises Liability Act? I don’t know.

However, it is clear; the Colorado Premises Liability Act supersedes all other recreational specific statutes that then limits the recovery against most recreation providers due to injuries on the land (or waters?).

REMEMBER, THIS CASE IS NOT OVER AND HAS NOT BEEN APPEALED. THE DECISION REVIEWED HERE 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.

 


Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499

Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499

Carolyn S. Raup, Plaintiff, v. Vail Summit Resorts, Inc., Defendant.

Civil Action No. 15-cv-00641-WYD-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2016 U.S. Dist. LEXIS 11499

February 1, 2016, Decided

February 1, 2016, Filed

PRIOR HISTORY: Raup v. Vail Summit Resorts, Inc., 2015 U.S. Dist. LEXIS 164999 (D. Colo., Dec. 9, 2015)

CORE TERMS: Liability Act, landowner, passenger, law claims, disembark, negligence per se, common law, chairlift, lift, chair lift, premises liability, quotation, tramway, Tramway Act, common law, reasonable care, obvious danger, malfeasance, preempted, amusement, partial, survive, ride, top, fracture, affirmative acts, ski lift, sole grounds, party asserting, en banc

COUNSEL: [*1] For Carolyn S. Raup, Plaintiff: Joseph J. Mellon, Mellon Law Firm, Denver, CO; Francis Vincent Cristiano, Cristiano Law, LLC, Denver, CO.

For Vail Summit Resorts, Inc., Defendant: Catherine Rittenhous Ruhland, Craig Ruvel May, Michael Norris Mulvania, Wheeler Trigg O’Donnell, LLP, Denver, CO; Samuel Nathan Shapiro, Vail Resorts Management Company, Legal Department, Broomfield, CO.

JUDGES: Wiley Y. Daniel, Senior United States District Judge.

OPINION BY: Wiley Y. Daniel

OPINION

ORDER

I. INTRODUCTION AND FACTUAL BACKGROUND

This matter is before the Court on Defendant Vail Summit Resort Inc.’s [“Vail”] Partial Motion to Dismiss Amended Complaint filed on June 1, 2015. A response in opposition to the motion was filed on June 12, 2015, and a reply was filed on June 26, 2015. Thus, the motion is fully briefed.

This case arises out of injuries Plaintiff sustained when she attempted to disembark from the top of the Colorado SuperChair chair lift at Breckenridge Ski Resort during the summer of 2013. (Compl. ¶¶ 11, 21-22.) Plaintiff alleges that this occurred at a Summer Fun Park at Breckenridge, which included scenic chair lift rides on the Colorado SuperChair. (Id., ¶ 11.) Vail is alleged to be the landowner of the Summer Fun [*2] Park, including the chair lift. (Id., ¶ 9.)

Plaintiff asserts that as she and two other passengers (Plaintiff’s daughter and a friend) were near the top and intending to go back down on the chair lift without unloading, suddenly a lift operator employed by Vail, on his own initiative, affirmatively and negligently rushed out of the building at the top waiving his hands and directed them to immediately “lift the bar” and get off the chairlift. (Id., ¶ 19.) Plaintiff alleges that pursuant to the Tramway Act, the passengers, including Plaintiff, were obligated to “follow verbal instructions that are given to [them] regarding the use of the passenger tramway.” (Id.) (citing Colo. Rev. Stat. § 33-44-105(1)). It is alleged that not only was there no apparent need for them to disembark at that point, since the ski lift was also used to transport individuals back down the mountain, the lift operator had or should have been in a position to have had other safe options for them to disembark, such as stopping the chairlift. (Id.)

According to the Complaint, the chairlift operator in fact knew or should have known as well that his affirmative command, if obeyed by Plaintiff, would put her in a precarious and dangerous situation, [*3] where Plaintiff, a middle aged woman, would have to suddenly raise the bar and disembark from the chairlift while the lift was moving toward a declining slope designed for skiers and not summer passengers. (Compl., ¶ 18.) The lift operator, as well, negligently made no effort to physically assist Plaintiff at the disembarking area. (Id, ¶ 19.) Also, it is alleged that the disembarking area was not properly designed for passenger traffic during the summer, particularly given the sudden command of the operator, but was instead only designed for skiers because of the steep slope that followed the area where passengers were to disembark. (Id., ¶ 20.) Thus, among many other things, Plaintiff alleges that Vail was operating a passenger tramway “while a condition exist[ed] 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 [Vail],” in violation of the provisions of the Tramway Act, at § 25-5-706(3)(c), C.R.S., and the violation of such provision is designated to constitute negligence on the part of the operator. (Id.) (citing C.R.S. § 33-44-104(2)).

Each of the three passengers allegedly obeyed [*4] the operator’s command to disembark. (Compl., ¶ 21.) Plaintiff’s daughter and her friend were able to jump off the chair lift, although the quickness of the maneuver and the steepness of the incline caused them to have to run forward for several steps before they could stop. (Id.) Plaintiff was allegedly not as fortunate. As she attempted to exit the lift, the chair struck her in the back and she fell to the left off the edge of the ramp onto the concrete and stone surface below, suffering serious injury, including, among other things, a left femur fracture, left tibial plateau fracture, and left ankle fracture dislocation. (Id., ¶ 22.) )

Plaintiff brings claims against Vail pursuant to the Premises Liability Act, Colo. Rev. Stat. § 13-21-115 (Count I) and for negligence, including negligence per se (Count II). Vail argues that Plaintiff’s negligence/negligence per se claims in Count II should be dismissed because the Premises Liability Act provides the sole grounds for relief.

II. ANALYSIS

A. Standard of Review

In reviewing a motion to dismiss, the court must “accept all well-pleaded facts as true and view them in the light most favorable” to the party asserting the claim. Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011). To survive a motion to dismiss under [*5] Rule 12(b)(6), the party asserting the claim “must allege that ‘enough factual matter, taken as true, [makes] his claim for relief … plausible on its face.'” Id. (quotation and internal quotation marks omitted). “A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quotation omitted).

Thus, a party asserting a claim “must include enough facts to ‘nudge[] h[er] claims across the line from conceivable to plausible.'” Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quotation omitted). Conclusory allegations are not sufficient to survive a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).

B. The Merits of Vail’s Arguments

The issue that must be resolved in connection with Vail’s partial motion to dismiss is whether the Premises Liability Act provides the sole grounds for relief in this matter, preempting Plaintiff’s negligence and negligence per se claims. Vail relies on the Colorado Supreme Court’s opinion in Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (en banc), which held that common law landowner duties did not survive the enactment of the Premises Liability Act. The Colorado Supreme Court based this holding on the fact that the “the express, unambiguous language of the statute evidences [*6] the General Assembly’s intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property.” Id. at 323.

Thus, Vigil noted the “broad scope of the statute”, which states in relevant part:

(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.

103 P.3d at 326 (quoting Colo. Rev. Stat. § 13-21-115(2)) (emphasis added). It held that this “is specific in its terms and is without ambiguity or qualification”, and showed that “the General Assembly indicated its intent to comply occupy the field and supersede the existing law in the area.” Id. at 328. The Assembly was found to have reiterated its intent to be comprehensive and exhaustive by using the language “only as provided in subjection (3).” Id. The Vigil court stated that “[t]his language, coupled with the precisely drawn landowner duties in subsection (3), leaves no room for application of common law tort duties. Id. Indeed, it found that “the premises liability classification of the duty owed licensees and [*7] invitees” was “complete and exclusive.” Id.

The Vigil court also found that the “operational mechanism of the statute . . . demonstrates the General Assembly’s intent to preempt common law tort duty analyses.” 103 P.3d at 328. Thus, it stated:

At common law the existence of a duty was a question of law to be determined by the court. . . .Under the premises liability statute, the only issue of law to be determined by the court is the classification of the injured plaintiff; liability and damages are questions of fact to be determined by the trier of fact. § 13-21-115(4). In keeping with our responsibility to give effect to every word and term contained within the statute, if possible, . . . a judge’s common law obligation to determine the existence of landowner duties is inconsistent with the limited role the statute assigns the judge, and would impermissibly enlarge the role of the court beyond that indicated in the statute’s plain language.

Id.

Since the statute was found to be clear and unambiguous on its face, the Colorado Supreme Court stated it “need not look beyond its plain terms” and “must apply the statute as written.” Vigil, 103 P.3d at 328. Even so, it found this “construction of the statute as preemptive and exhaustive is consistent [*8] with case law from the court of appeals and the observations of authoritative Colorado tort commentators.” Id. at 329. In so finding, the court cited several cases which held that the Premises Liability Act abrogates common law claims for negligence. Id. Finally, the court found that the passage of the Premises Liability Act also abrogated the common law regarding defenses to the existence of such duties, including the common law open and obvious danger doctrine that was at issue in that case. Id. at 330.

A few years later, the Colorado Supreme Court found that claims of negligence per se against a landowner to recover damages for injuries sustained on the premises are also preempted by the language of the Premises Liability Act. Lombard v. Colo. Outdoor Education Center, Inc., 187 P.3d 565, 574 (Colo. 2008) (en banc). Lombard court noted that “[t]he underlying principle of the common law doctrine of negligence per se is that legislative enactments such as statutes and ordinances can prescribe the standard of conduct of a reasonable person such that a violation of the legislative enactment constitutes negligence.” Id. at 573. “Thus, the doctrine serves to conclusively establish the defendant’s breach of a legally cognizable duty owed to the plaintiff.” Id. The court found that “it would be entirely [*9] inconsistent with the plain language of the statute and the holdings of this court to bypass the statute and allow for the imposition of liability on the basis of a negligence per se claim.” Id. at 575.

I agree with Vail that the Vigil and Lombard cases make clear that all common law claims involving landowner duties, including negligence and negligence per se claims, are abrogated by the Premises Liability Act which provides the exclusive remedy. While Plaintiff argues that Vigil’s holding addressed on the merits only as to the defense of the common law open and obvious danger and that its statements regarding common law claims involving landowner duties are dicta, I disagree. The Colorado Supreme Court’s interpretation of the scope of the Premises Liability Act was necessary to its ultimate holding in the case regarding whether the affirmative defense of open and obvious danger survived the codification of premises liability law despite the preemptive scope of the law. See Vigil, 103 P.3d at 328-332. Further, the Supreme Court reaffirmed its interpretation in Lombard.

Plaintiff also argues, however, that there is still a common law claim she can assert based on the Tramway Act, relying on Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 80 (Colo. 1998). In Bayer, the Colorado Supreme [*10] Court held that the Ski Safety Act and the Passenger Tramway Safety Act did not preempt a common law claim for injury on a ski lift or the highest degree of care standard that the common law had previously applied. Bayer, 960 P.2d at 72. I agree with Vail, however, that Bayer is not controlling here because the question of the applicability of the Premises Liability Act was not presented. Six years after Bayer, the Colorado Supreme Court in Vigil made clear that the Premises Liability Act preempted all common law claims and provided the sole method of recovering against a landowner. Vigil, 103 P.3d at 328. The fact that Vigil did not reference Bayer does not change this result.

I note that the Colorado Court of Appeals applied Vigil in Anderson v. Hyland Hills Park & Recreation Dist., 119 P.3d 533 (Colo. App. 2004), in a claim for negligence in connection with an amusement park. It addressed whether the trial court erred in applying the higher standard of care applicable to amusement ride cases rather than that in the premises liability statute. The Anderson court held that the Premises Liability Act preempted any common law claim and trumped the highest degree of care standard in the amusement ride context. 119 P.3d at 536. In reaching its conclusion, the Anderson court distinguished prior case law that applied the same “highest [*11] duty of care” common law claim as in Bayer. See id. The issue here is the same as presented in Anderson.

Plaintiff also argues, however, that Vail’s employee created for himself and his employer a duty of reasonable care at the point where he affirmatively acted and chose to order Plaintiff and her fellow passengers to immediately disembark from the chairlift — allegedly creating the peril which caused Plaintiff’s injuries. She asserts that this issue was not addressed in Vigil or Anderson, and that landowners cannot seek refuge with the Premises Liability Act for duties that they independently create for themselves by their own affirmative acts, particularly when such actions have nothing to do with the condition of the property or its maintenance.

In that situation, Plaintiff argues that the landowner’s potential liability is not confined to nor controlled by the Premises Liability Act since they don’t involve “failures to act” or acts of “nonfeasance” as addressed therein, but instead involve affirmative acts of malfeasance which the statute does not address. Plaintiff asserts that liability for acts of such malfeasance are instead controlled by the general analysis for tort liability [*12] as set forth in a non-exhaustive manner in the case of Univ. of Denver v. Whitlock, 744 P.2d 54, 56 (Colo. 1987). Plaintiff further relies on Westin Operator, LLC v. Groh, 347 P.3d 606, 2015 CO 25 (Colo. 2015) where the court found an independent duty to exercise reasonable care based upon the affirmative action and malfeasance of the landowner in evicting an intoxicated guest without exercising reasonable care in doing such.

I agree with Vail that Groh and Whitlock are not applicable here, as they did not address or involve the Premises Liability Act. Indeed, Groh dismissed a claim under that Act because “by its terms, it applies only when a plaintiff is injured on the defendant’s property, and Groh was injured off-premises. 347 P.3d at 610 n.3. The “assumed duty” found in Groh applies only in situations where no duty already exists. Here, Vail’s duty of care to invitees such as Plaintiff is defined under the Premises Liability Act, which makes clear that it applies in actions by a person who alleges injury while on the property of another and by reasons of either the condition of the property or activities conducted on the property. This encompasses the allegations at issue in this case, including the injuries allegedly sustained by Plaintiff by activities of Vail’s employee in ordering Plaintiff and her fellow passengers [*13] to immediately disembark from the chairlift. As such, the Premises Liability Act provides the only standard for recovery. Vail’s motion is granted, and Count II is dismissed.

III. CONCLUSION

Based on the foregoing, it is

ORDERED that Defendant Vail Summit Resort Inc.’s [“Vail”] Partial Motion to Dismiss Amended Complaint (ECF No. 11) is GRANTED. Count II of the Complaint, asserting negligence and negligence per se, is DISMISSED.

Dated: February 1, 2016

BY THE COURT:

/s/ Wiley Y. Daniel

Wiley Y. Daniel

Senior United States District Judge