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Avoiding Premises Liability Claims for Colorado Businesses

Author: Bradley Damm

Guest Editor: Kiran Gupta

April 2, 2021 9:00am

I. What is Premises Liability?

Colorado’s Premises Liability Act is found under C.R.S. § 13-21-115. This Act provides the sole remedy for those injured on land possessed by another landowner.1 The term “landowner” includes authorized agents or other persons in possession of real property or otherwise legally responsible for the condition of real property or the activities conducted or circumstances existing on real property.2 The Premises Liability Act divides a landowner’s duty of care by the classification of the injured person.3 These include “invitees,” “licensees,” and “trespassers.” This article focuses on the duties owed to invitees.

An “invitee” is “a person who enters or remains on the land of another to transact business in which the parties are mutually interested” or “in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.”4 An “invitee” is a person whose presence on the real property was “affirmatively invited” and not just “merely permitted.”5 An invitation can be implied from conduct by the landowner that justifies the public into believing the landowner desires the public to enter the land.6 Examples of invitees include customers transacting business, participants in non-commercial activities held on real property such as church patrons or participants in paid organized group events, persons attending classes or events open to the public,7 and contractors working on the property of another.8

II. When May a Business Be Found Liable?

Under the Premises Liability Act, an invitee may recover 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.”9 Exceptions exist for real property classified as agricultural land or vacant land.10

The difficult part of this standard for businesses is that a “reasonableness” standard must almost always be determined by the trier of fact (i.e., the jury), which requires the parties to go through trial to reach an outcome. In the last two years, Colorado juries have awarded invitees damages under the Premises Liability Statute for a range of conduct the jury found to be unreasonable, including under the following circumstances:

    1. 1. Plaintiff suffered soft tissue injuries when the seat on an electric cart at Wal-Mart failed;11
    2. 2. Plaintiff suffered a fractured elbow and ankle injury from tripping over a conduit pipe sticking out of a Wal-Mart deli case;12
    3. 3. Plaintiff fell into an uncovered crawl space opening while viewing an apartment;13
    4. 4. Plaintiff slipped on a slippery substance on the floor;14 and
    5. 5. Plaintiff slipped and fell on ice located in a condominium’s common area.15

Juries have also found property owners not liable under the Premises Liability Act, including under the following circumstances:

      1. 1. Store owner not liable for failing to prevent wet, slippery floors near the entrance of the store;16
    1. 2. Motocross track owner not liable for an assault occurring on its property;17
    2. 3. Store owner not liable for slip and fall injury suffered due to wet floor in front of grocery store freezer.18
  1. III. Takeaway

The outcome of premises liability cases may be more susceptible to the makeup of the jury than other types of cases. This can make premises liability cases unpredictable. However, there are ways to protect landowners. Defense methods for voir dire and trial strategy help to reduce exposure. By personalizing the business and taking responsibility for circumstances under the business’s control, clients can demonstrate to the jury the reasonableness of their actions and protect them from premises liability exposure.

1 C.R.S. 13-21-115(2).

2 C.R.S. 13-21-115(1).

3 C.R.S. 13-21-115(5).

4 C.R.S. 13-21-115(5)(a).

5 Wycoff v. Grace Community Church of Assemblies of God, 251 P.3d 1260, 1266-67 (Colo. App. 2010)

6 Id.

7 Id. (citing Restatement (Second) of Torts § 332; Bryan A. Garner, Black’s Law Dictionary 226 (9th ed. 2009); Post v. Lunney, 261 So.2d 146, 148 (Fla. 1972); McKinnon v. Wash. Fed. Sav. & Loan Ass’n, 414 P.2d 773, 777-78 (1966); In re Parental Responsibilities of H.Z.G., 77 P.3d 848, 851-53 (Colo. App. 2003); Thomas v. St. Mary’s Roman Catholic Church, 283 N.W.2d 254, 258 (S.D. 1979); Home v. N. Kitsap School Dist., 965 P.2d 1112, 1118 (1998)).

8 Warembourg v. Excel Electric, Inc., 471 P.3d 1213, 1222 (Colo. App. 2020).

9 C.R.S. 13-21-115(3)(c)(I)

10 C.R.S. 13-21-115(3)(c)(II)

11 Miller v. Walmart, 2019WL7584539 (D. Colo. 2019).

12 Brockar v. Wal-Mart Stores, 2019WL4316954 (Denver County Dist. Ct. 2019).

13 Tobin v. Hargreaves III; Hargreaves, Jr.; Hargreaves, Case No. 2018CV32151 (Denver County Dist. Ct. 2019).

14 Ford v. Dillion Cos. d/b/a King Soopers, 2018WL6815036 (Denver County Dist. Ct. 2018).

15 MacDaniel v. Boston Commons Master HOA d/b/a Boston Commons Master Ass’n, JVR No. 1811280042 (Arapahoe County Dist. Ct. 2018).

16 Jones v. Wal-Mart, 2019WL5773934 (El Paso County Dist. Ct. 2019).

17 R. Nichols v. Linkus; I.M.I. Motorsports, JVR No. 1903130025 (Weld County Dist. Ct. 2018).

18 Lee v. Dillon Cos., JVR No. 1809040043 (Jefferson County Dist. Ct. 2018).

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