Many Colorado legal actions for personal injury or death which occur on business premises - fast food outlets like Taco Bell, mega-stores like Walmart, or movie theatres like the Aurora Cinemark - plead both statutory premises liability and common law negligence. See for example Keller v. Koca, 111 P.3d 445, 446 (Colo. 2005)(noting that in addition to claim of negligent supervision, plaintiff alleged “alternate theory of premises liability”). Certainly pleading both seems prudent so as to properly represent honest folks injured by a dangerous condition on the premises and as to which the owner or lessor failed to take reasonable care.
However, pleading both statutory liability and common law negligence liability may become less typical if the courts insist on applying certain remarks in several cases issued by the Colorado Supreme Court, especially Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), and Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo. 2008).
The relevant section of the Colorado Premises Liability Act is C.R.S. § 13-21-115 (2), which provides:
In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.
In Vigil, 103 P.3d at 326, the Colorado court found: “several panels of the court of appeals have held the statute to be the ‘exclusive remedy’ available for parties injured on the property of another.”
The tenor of the case law regarding premises liability indicates that going forward Colorado courts will exhibit greater confidence, rejecting negligence theories and sending the statutory premises liability claim only to the jury, relying on the holdings from Vigil and Lombard:
The express, unambiguous language of subsection (2) of Colorado's premises liability statute evidences the General Assembly’s intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property….
By using the language “any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another,” the General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area….
In addition, when the General Assembly used the language “only as provided in subsection (3),” it reiterated its intent to be comprehensive and exhaustive. This language, coupled with the precisely drawn landowner duties in subsection (3), leaves no room for application of common law tort duties.
Vigil, 103 P.3d at 328(underscoring added). See also Teneyck v. Roller Hockey Colorado, Ltd., 10 P.3d 707, 709 (Colo. App. 2000)(where injured sports spectator brought negligence action against facility owner, court held that “General Assembly has enacted the premises liability statute, which provides the sole means of recovery for a plaintiff against a landowner”).
Indeed, long before Vigil, in Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365, 367–68 (Colo. App. 1996), the court affirmed summary judgment against plaintiff because plaintiff did not allege any statutory landowner duty, a lesson for trial counsel.
As for federal courts, in Sofford v. Schindler Elevator Corp., the district court held:
During argument, counsel agreed that the premises liability statute establishes the exclusive remedy against a landowner in Colorado for injuries occurring on his property. The statute provides, in pertinent part:
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.
§ 13–21–115(2) (emphasis added). That language is unambiguous, and I hold, consistent with existing Colorado authority, that plaintiff may recover against landowner United only pursuant to that statute and not under any other theory of negligence, general or otherwise.
954 F. Supp. 1459, 1461 (D. Colo. 1997).
The Colorado Supreme Court appears to leave little room for doubt. In Lombard, 187 P.3d at 574, the court “conclude[d] that a plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence.”
Still, it appears that there is no downside - not yet anyway - to pleading a common law negligence claim in tandem with a staturory premises liability claim when the facts would appear to support only the latter when viewed by the light of the foregoing case law.
