Over 20 years ago, in Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987), the Colorado Supeme Court decided that a case for negligence could be brought against a defendant who was not the "unknown third person" who committed the intentional criminal act which injured the plaintiff. See Taco Bell, 744 P.2d at 46 (“this court has never decided whether this duty encompasses taking reasonable measures to protect business patrons from injuries caused by the criminal acts of unknown third persons”). [Note: see this post for relation to premises liability.]
As construed by later courts, “existence of a duty of care must be determined by assessing the following factors: (1) the risk involved; (2) the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct; (3) the magnitude of the burden in guarding against the injury; and (4) the consequences of placing the burden on the defendant.” Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 297 (Colo. App. 2009)(citing Taco Bell).
But certain holdings in Taco Bell have been ignored by subsequent courts. For example, courts have construed Taco Bell as requiring evidence of “prior similar” incidents at the specific premises before foreseeability is found. That is not a mandatory inquiry.
The court in Taco Bell held, for example, that: “No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards—whether reasonable persons would recognize a duty and agree that it exists.” 744 P.2d at 46. That holding reflects the vitality of the common law tradition. Hence, foreseeability is not the essence of negligence law in Colorado, if anything, fairness is!
