A slip on the ice or snow can happen anywhere. Sometimes a step is missed
in a dark stairway and we fall. These kinds of things happen to everyone,
every day of the week. Sometimes we get hurt, sometimes we don’t.
For those slip and falls that result in a serious injury, where the fall
was unintended, unforeseen, and with little to no fault of your own, Colorado
provides those individuals with statutory relief under the Premises Liability
Act, § 13-21-115, C.R.S. Injured people, through the help of a licensed
attorney, can recover monetary compensation from the land owner in order
to pay their medical bills if they are able to meet and prove precise
criteria under the Act. In fact, the Act is supposed to be the exclusive
remedy for slip and fall or premises liability cases.
But condo and townhome owners may not be as protected. These owners, who
are typically surrounded by “common elements” within their
association, i.e. sidewalks, courtyards, stair cases, green areas, etc.,
may be completely barred from seeking recovery under the Premises Liability
Act if they encounter a serious slip and fall. The crux of the issue is
“Who owns the land?” It may not be who you think.
The “common elements”, or land that all the condo and townhome
owners share and traverse every single day, may contain some very real
and dangerous hazards in the winter and summer months. Sometimes this
land is owned by the association, wherein the association, acting as a
corporate entity, owns the land itself. In those cases the injured owner
may seek relief against the association as a corporate entity under the
Act as any other person.
However, it is also just as common to find that the association does not
own the land, and instead it is owned by the owners themselves, in a collective
form of ownership called “tenants in common”. For these owners,
a slip and fall on “common elements”, where the land is owned
by all the owners as “tenants in common”, then the owner may
not seek relief under thePremises Liability Act. An attorney will be able
to discern the correct answer for you from your association documents.
In Trailside Townhome Association, Inc. v. Acierno, 880 P.2d 1197 (Colo.
1994), the Colorado Supreme Court ruled that condo and townhome owners
may not use the Premises Liability Act in a slip and fall, wherein the
land that is alleged to have caused the injury was part of the association
and owned as tenants in common. To do so would be essentially mean suing yourself.
So now what? Fortunately the answer is not “just forget it”.
Many serious injuries occur on or in the common elements of condo and
townhome associations. The injured owners themselves may not have the
money to pay for the medical bills resulting from those injuries. Many
times, those injuries were avoidable and only caused by the negligence
(lack of reasonable care) of other people or management companies.
Although there may be a large difference in how the common elements are
actually owned in a condo or townhome association, there is usually very
little variance in the duties and responsibilities of the association
to maintain and repair those common elements. Ownership of land is only
one part of the equation. Who is responsible for its upkeep is the other
part. Ninety percent of the time, the answer is going to be “the
association”. These duties and responsibilities should be clearly
outlined in the association documents.
Therefore, for those condo and townhome owners who are barred from recovering
under the Premises Liability Act, the association’s lack of maintenance,
repair, or replacement of the common elements may allow them to seek relief
under alternative theories of breach of contract or breach of fiduciary
duty. These theories will cover clear violations of what would be considered
“reasonable care” by the association or its agents. Snow and
ice that is left on sidewalks for weeks after the last snow storm, especially
on the South side of a building, is a good example.
Naturally, they may not cover all situations, especially those where maintenance,
repair, or replacement is arguably discretionary. For example, a 1 inch
crack in a sidewalk may be a hazard, especially at night, but the city
building code does not recommend repair for anything less than 2 inches.
Municipal and county codes can be a great asset in determining “what
is reasonable” in terms of maintenance, repair, and replacement.
There are some limitations. For example, in Burbach v. Canwest Investments,
LLC, 224 P.3d 437 (Colo. App. 2009), the Court of Appeals ruled that the
premises liability statute did not change the
common law no duty rule for public sidewalks, even if there was a Denver
ordinance requiring it to clear the sidewalk of naturally accumulated
snow and ice.
In closing, individuals must always use reasonable care when walking or
using stairs. Failure to try and be safe, (i.e. walking into the middle
of a manhole that was blocked off by orange cones), will bar you from
any recovery. This article does not address slip and fall issues relating
to renters or “non-owners” in common interest communities,
nor guests or third parties, nor slip and falls on public or governmental
property. The statute and cases referred to in this article follow and
were provided by LexisNexis.
Please contact The Evans Firm if you have any questions.
TITLE 13. COURTS AND COURT PROCEDURE DAMAGES ARTICLE 21.DAMAGES PART 1.
GENERAL PROVISIONS GO TO COLORADO STATUTES ARCHIVE DIRECTORY C.R.S. 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.
TRAILSIDE TOWNHOME ASSOCIATION, INC., a Condominium Association doing business
in Colorado, and HUGHES MANAGEMENT, a Homeowners Association, Petitioners,
v. CINDY ACIERNO, Respondent. No. 93SC412 SUPREME COURT OF COLORADO 880
P.2d 1197; 1994 Colo. LEXIS 741; 18 BTR 1520 September 12, 1994, Decided
PRIOR HISTORY: [**1] .Certiorari to the Colorado Court of Appeals. DISPOSITION:
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
PROCEDURAL POSTURE: Respondent townhome owner sought review of the judgment
of the Colorado Court of Appeals in a negligence action involving petitioner
OVERVIEW: The issue before the court was what duty of care a townhome association
owed to a townhome owner in maintaining a swimming pool located in a common
area within the townhome complex. The lower court had granted summary
judgment to the townhome association. The court determined that the court
of appeals erred in holding that the townhome complex was a condominium.
The court concluded that to the extent that the provisions of the operative
documents creating the townhome complex and the association prescribe
the duties of the association to the townhome owners and are consistent
with public policy, those provisions controlled. The court determined
that a remand was necessary to permit the district to delineate the nature
of townhome association's duty of care to the townhouse owner and
to permit any necessary further determinations on the issues of breach
of duty and damages.
OUTCOME: The court affirmed the judgment in part, reversed it in part and
remanded the case with directions.
JUDGES: EN BANC. JUSTICE LOHR delivered the Opinion of the Court. CHIEF
JUSTICE ROVIRA specially concurs. [*1198] This case presents an issue
concerning the duty of care owed by a townhome owners association to a
townhome owner in maintaining a swimming pool located in a common area
within the townhome complex. In Acierno v. Trailside Townhome Ass'n.,
Inc., 862 P.2d 975 (Colo. App. 1993), the Colorado Court of Appeals reversed
the trial court's entry of summary judgment in favor of the defendants
in a negligence action brought by Cindy Acierno, an owner of one of the
townhomes, against Trailside Townhome Association, Inc. ("Trailside")
and Hughes Management ("Hughes"), the company hired by Trailside
to maintain the swimming pool. The action was based on an incident in
which Acierno suffered injuries as a result [**2] of diving into shallow
water in the pool. We agree that the summary judgment must be reversed
but disagree with the court of appeals' analysis concerning the legal
standard applicable to determine Trailside's duty of care. We therefore
affirm in part, reverse in part, and remand with directions. I. At the
time of the incident that resulted in this litigation, Acierno was the
owner of a townhome in Trailside Filing No. 5 Subdivision (the "townhome
complex") located in Jefferson County, Colorado. On June 23, 1990,
Acierno sustained severe head and neck injuries when she dived into a
swimming pool located in a common area of the townhome complex and struck
bottom. Acierno filed suit in Jefferson County District Court seeking
compensatory and punitive damages against Trailside, the incorporated
association whose members consisted of owners of lots in the townhome
complex, and Hughes, the company hired by Trailside to provide maintenance
services for the common areas within the townhome complex. She alleged
that both defendants were negligent for failing to maintain the water
level of [*1199] the swimming pool at an appropriate level and for failing
to install a divider rope to separate the shallow [**3] end of the pool
from the deep end. Acierno claimed that the negligence of the defendants
caused her unknowingly to dive into water that was too shallow and incur
injuries. 1 1 Acierno also asserted a strict liability claim based on
maintenance of a hazardous facility. The trial court dismissed this claim
on the motion of the defendants. The propriety of the dismissal is not
at issue on certiorari review. The defendants moved for summary judgment,
and the trial court granted that motion. In ruling for the defendants,
the trial court found that the swimming pool was owned by Trailside as
part of the common areas of the townhome complex and that Hughes was Trailside's
authorized agent for the purpose of property management. The court then
applied section 13-21-115, 6A C.R.S. (1987 & 1993 Supp.), the Colorado
landowners liability statute. Pursuant to that statute, it held that both
the defendants were "landowners," 2 and determined that Acierno
fit the definition of "licensee." 3 Applying the standard of
care owed by [**4] a landowner to a licensee, 4 the trial court granted
summary judgment in favor of the defendants, finding that the defendants
had presented affidavits denying that they "actually knew" of
the dangerous condition and that Acierno had failed to set forth specific
facts showing that there was a genuine issue for trial on this essential
element of her claim. See C.R.C.P. 56(e). 2 The trial court based its
determination that both defendants were landowners upon § 13-21-115(1),
which provides in pertinent part: 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. § 13-21-115(1), 6A C.R.S. (1987). 3 Under §
13-21-115(5), an entrant on land falls in one of three classifications:
trespasser, licensee, or invitee. The statute provides: As used in this
section: (a) "Trespasser" means a person who enters or remains
on the land of another without the landowner's consent. (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)
"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. § 13-21-115(5), 6A C.R.S. (1993 Supp.).
[**5] 4 § 13-21-115(3)(b) prescribes the duty owed by a landowner
to a licensee: (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. § 13-21-115(3)(b), 6A C.R.S. (1993 Supp.) (emphasis added).
case for reinstatement [*1200] of the plaintiff's complaint. In so
doing, it did not specify the standard to be applied by the trial court
in determining any duty of care owed by Trailside and Hughes to Acierno.
We granted certiorari on the following set of issues: Whether the court
of appeals erred in concluding the association involved in this case was
a condominium association. If so, what duty of care did the association
owe to its members under the facts of this case? We conclude that the
townhome complex is not a condominium [**7] and that a remand is necessary
to determine the duty of care owed by Trailside and Hughes to Acierno.
6 Acierno appealed, and the court of appeals reversed the trial court's
judgment. Proceeding from the premise that the townhome complex is a condominium,
and that therefore the owners of the individual lots are owners of undivided
interests in the common areas as tenants in common, see § 38- 33-102,
16A C.R.S. (1982), the court of appeals held that it was error to apply
section 13-21-115 to determine landowner liability. "By its terms,"
said the court, "the statute applies only to civil actions 'brought
against a landowner by a person who alleges injury occurring [**6] while
on the real property of another.'" Acierno, 862 P.2d at 977 (quoting
§ 13-21-115(2), 6A C.R.S. (1987)). "Since ownership of the common
areas in a condominium complex is vested in the individual unit owners
as tenants in common, it necessarily follows that plaintiff's injuries
here cannot be said to have occurred while she was using 'the property
of II. 5 We also granted certiorari on an additional issue based on the
premise that the townhome complex is a condominium. Because we determine
that it is not, we do not reach the additional issue. 6 No suggestion
is presented in this proceeding that any difference exists between any
duty of care owed by Trailside to Acierno and any such duty owed by Hughes
as its agent. For purposes of this certiorari review we assume that there
is no such distinction. The court of appeals determined that the another.'"
Id. Accordingly, the court of appeals concluded that section 13-21-115
was not applicable and that the trial court had therefore applied an incorrect
legal standard in resolving the defendants' motion for summary judgment.
It reversed the summary judgment and remanded the premises liability statute
does not apply where the injured party is a co-owner of the property upon
which she was injured. The court of appeals assumed that the townhome
complex where Acierno resided is a condominium. It pointed out that a
condominium is characterized by individual ownership of each unit together
with common ownership of the common elements. 7 It then concluded that
because the townhome complex is a condominium, [**8] Acierno was a co-owner
of the common areas, including the swimming pool. 7 § 38-33-102,
16A C.R.S. (1982), a part of the Condominium Ownership Act, reads in pertinent
part: Condominium ownership of real property is recognized in this state.
. . . Such ownership shall be deemed to consist of a separate estate in
an individual air space unit of a multi-unit property together with an
undivided interest in common elements. The separate estate of any condominium
owner of an individual air space unit and his common ownership of such
common elements as are appurtenant to his individual air space unit by
the terms of the recorded declaration are inseparable for any period of
condominium ownership that is prescribed by the recorded declaration .
. . . (Emphasis added.) The court of appeals erred in holding that the
townhome complex is a condominium. Condominium ownership in Colorado is
recognized and governed by statute. See Condominium Ownership Act, §§
38-33-101 to -113, 16A C.R.S. (1982 & 1993 Supp.). "The very
definition [**9] of a condominium requires the existence of an undivided
interest in common elements." Cherry Hills Resort Dev. v. Cherry
Hills, 790 P.2d 827, 830 (Colo. 1990); accord § 38-33-102, 16A C.R.S.
(1982); see Pleet v. Valley Greene Assoc., 371 Pa. Super. 530, 538 A.2d
567, 569 (Pa. Super. 1988) (the definition of condominium makes clear
that unless ownership interest in the common elements is vested in the
unit owners, the project is not a condominium); see also Country Greens
Village Ass'n v. Meyers, 158 Ga. App. 609, 281 S.E.2d 346 (Ga. App.
1981) (where development name did not include the word "condominium,"
and developer's declaration placed title to common areas in the association,
project did not comply with condominium act and was therefore not a condominium).
"'Thus . . . if the common elements were owned by an association
in which each unit owner was a member, the project would not be a condominium'."
Pleet, 538 A.2d at 569 (quoting a comment to the Uniform Condominiums
Act, § 1- 103, 7 U.L.A. 434 (1980)). 8 8 The Colorado Common Interest
Ownership Act, §§ 38-33.3-101 to -319, 16A C.R.S. (1993 Supp.),
adopted in 1991, also provides that "[a] common interest community
is not a condominium unless the undivided interests in the common elements
are vested in the unit owners." § 38-33.3- 103(a). That act,
however, is not applicable to the present case because the events at issue
preceded adoption of the act. [**10] Nothing in the documentation submitted
in connection with the defendants' motion for summary judgment contains
the word "condominium" or otherwise suggests an intent to create
condominium ownership. The common areas of the townhome complex are not
co-owned by the individual members. [*1201] Rather, these areas are wholly
owned by Trailside. This is made clear by the copies of the plat and portions
of the Declaration of Covenants, Conditions, and Restrictions for Trailside
Filing No. 5 (the "Declaration") submitted by the defendants
in support of their motion for summary judgment. The Declaration states
in Article IV, section 3, that title to the common area of the townhome
complex will be conveyed by the developer to Trailside "prior to
the conveyance of the first lot." In addition, Article I, section
3, of the Declaration defines "common area" as "all of
the real property including the improvements thereto owned by [Trailside]
for the common use and enjoyment of the Owners." Thus, Trailside,
a non-profit corporation, is clearly the intended owner of the common
areas. The trial court, without discussion, recognized this in its order
for summary judgment. Accordingly, the court of appeals' [**11] co-ownership
analysis was incorrect. 9 See generally Amy L. DeLaplace, Background and
Definitions, 11 The Colo. Lawyer 2737, 2741-42 (1982) (distinguishing
condominiums from other forms of ownership such as townhomes with homeowners
associations). 9 The court of appeals' error is hardly surprising.
Acierno alleged in her complaint that the townhome complex is a condominium.
The defendants admitted this allegation. The record is replete with references
to the development as a condominium. The caption of this case in the court
of appeals and in this court, as derived from the briefs of the parties,
has perpetuated this misdesignation. It is clear, however, from the documents
submitted by the defendants in support of their motion for summary judgment
that the townhome complex was not created under the Condominium Ownership
Act and incorporates legal relationships inconsistent with condominium
ownership. We next address the manner of determining the existence and
nature of any duty of care owed by Trailside and Hughes [**12] to Acierno
as the owner of a lot in the townhome complex. III. The district court
applied the landowner liability statute to determine the duty owed by
Trailside and Hughes to Acierno. The relevant provisions of the current
Colorado landowner liability statute were enacted in 1990 and reflect
an intent "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." § 13-21-115(1.5)(a), 6A C.R.S. (1993 Supp.). In
litigation to which the statute applies, the judge has the authority to
"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." § 13-21-115(4), 6A C.R.S. (1993 Supp.).
The trial court held that Acierno was a "licensee" under the
basic definition of that term 10 because she was on the property "with
the consent of [Trailside]," and "she was at the swimming pool
for her own convenience or to advance her own interests pursuant to the
landowner's permission or consent." The trial court held that
the defendants had not [**13] breached the standard of care owed to a
licensee and therefore granted summary judgment in favor of the defendants.
10 The three categories of entrants on land - - trespasser, licensee,
and invitee -- are defined in § 13-21-115(5), quoted supra at note
3. The court of appeals, on the other hand, held that the landowner liability
statute was inapplicable, based on the erroneous conclusion that Acierno
was the owner of an undivided interest in the common elements, including
the swimming pool. Acierno, 862 P.2d at 977. We reject the court of appeals'
analysis because of the erroneous premise from which it proceeds but also
conclude that the trial court failed to take full account of the relationship
between Trailside and Acierno in applying the landowner liability statute
and treating her as a licensee. Trailside is a nonprofit corporation whose
members are owners of lots in the townhome entity to which [**14] to delegate
and assign the powers of maintaining and administering the common areas
. . . ." Declaration, p. 1. The common areas are "owned by [Trailside]
for the common use and enjoyment of the Owners." Declaration, Art.
I, sec. 3. Each [*1202] owner of a lot has the right to use of recreational
facilities and may delegate the owner's "right of enjoyment to
the Common Area and facilities" to certain designated persons. Declaration,
Art. IV, §§ 1(c), 2. The Declaration, therefore, creates complex
relationships between the owners on the one hand and Trailside on the
other. A central purpose of the creation of Trailside was to create a
means for maintenance of common areas for the benefit of the lot owners.
The landowner liability statute delineates duties owed by landowners to
third persons who enter on the land under circumstances that cause those
persons to be categorized as trespassers, licensees, or invitees. §
13-21-115(3), 6A C.R.S. (1993 Supp.). The definitions of those terms have
no application to the relationship between Trailside and the owners, in
that the owners have a continuing right independent of association consent
to make use of the common areas by reason of their ownership [**15] of
lots in the townhome complex, whereas trespassers, licensees, and invitees
have no right to enter in the absence of consent. See § 13-21-115(5),
6A C.R.S. (1993 Supp.), defining "trespasser," "licensee,"
and "invitee," quoted in full at n.3 supra. 11 For this reason,
we conclude that the landowner liability statute is inapposite and do
not accept the trial court's mode of analysis -- first characterizing
Acierno as a "licensee," and then applying the landowner liability
statute to determine the nature of the duty owed by Trailside and its
agent Hughes. 11 Characterization of entrants upon land as trespassers,
licensees, or invitees is based on the existence and nature of landowner
Supp.). The determinations of the nature and extent of duties of care
owed by property owner associations, whether condominium associations
or townhome associations, to owners of property within a development,
and the consequences flowing from such determinations, [**16] are complex
and difficult, and have far reaching consequences. See generally Eric
T. Freyfogle, A Comprehensive Theory of Condominium Tort Liability, 39
Univ. of Florida L. Rev. 877 (1987). In resolving issues of this kind,
courts have adopted various approaches, and no consensus emerges from
the cases. 12 12 Some cases have held that homeowners associations have
the same duty to owners with respect to common areas as a landowner owes
to a tenant. E.g., Frances T. v. Village Green Owners Ass'n, 42 Cal.
3d 490, 723 P.2d 573, 229 Cal. Rptr. 456 (Cal. 1986) (condominium association
owed same duty to unit owner to provide adequate security measures for
common areas to protect against criminal acts as would be owed by a landowner
to a tenant); Moody v. Cawdrey & Associates, 6 Haw. App. 355, 721
P.2d 708, 713 (Hawaii App. 1986) (same); see Hemispheres Condominium Assoc.,
Inc. v. Corbin, 357 So.2d 1074, 1076 (Fla. App. 1978) (duty owed by condominium
association to unit owners analyzed by analogy to duty owed by landlords
to tenants). One court has held that the duties of associations to owners
are to be determined by the association's bylaws. Wescott v. Burtonwood
Manor Condo. Ass'n Bd. of Managers, 743 S.W.2d 555, 558 (Mo. App.
1987) (duties of condominium association to unit owners limited to those
included in association bylaws and state statutes). common law by agreement
with the unit owners. Schoondyke v. Heil, Heil, Smart & Golee, Inc.,
89 Ill. App. 3d 640, 411 N.E.2d 1168, 1170-71, 44 Ill. Dec. 802 (Ill.
App. 1980) (condominium association assumed a duty of snow removal not
imposed by common law by reason of agreement contained in condominium
declaration and association bylaws). Yet another court has suggested the
applicability of common law principles concerning duties of possessors
of land to determine the duty of a condominium association as possessor
of a sewer line in a common area to a unit owner as a person outside of
the land. Smith v. King's Grant Condominium, 640 A.2d 1276 (Pa. 1994).
This list is by no means comprehensive, but is illustrative of the variety
of approaches to development of standards of homeowner association duties
to unit owners in courts across the land. See generally 6 Patrick J. Rohan,
Real Estate Transactions §§ 7A.06[a], [b], 10.04 (1992).
[**17] We conclude that to the extent that the provisions of the operative
documents creating the townhome complex and the association prescribe
the duties of the association to the townhome owners and are consistent
with public policy, those provisions control. See Jefferson County School
District R-1 v. Justus, 725 P.2d 767, 769-72 (Colo. 1986) (discussing
duties imposed by law solely on the basis of the relationship between
the parties, and the relationship of assumed duties to claims of negligence).
These operative documents [*1203] could establish a duty giving rise to
tort obligations as well as create contractual obligations. See, e.g.,
Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1043-44 (Colo. 1983);
Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317-18 (Colo.
1980). A common law duty of care also may arise as a result of the association's
control over to a tenant. See, e.g., Van Schaack & Co. v. Perkins,
129 Colo. 567, 569-70, 272 P.2d 269, 270 (Colo. 1954) [**18] (stating
that a landlord who retains control of property for the use and benefit
of all tenants is under a duty to exercise reasonable care to keep those
areas in a safe condition). 13 Additionally, the Restatement (2d) of Torts
§ 323 (1965) provides a theory under which a tort action may arise
when one negligently performs an undertaking to render services either
gratuitously or for consideration. See Justus, 725 P.2d at 770. 13 At
least two theories have been offered to support the imposition of tort
liability on a lessor arising out of an agreement to repair prior to actually
undertaking repairs. See W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 63, at 444 (5th ed. 1984) ("Prosser").
First, because the lessor retained control of the area, the lessor remains
responsible for maintaining it in a safe condition for the benefit of
those who use it. Id. Second, given the relationship between the lessor
and lessee, the lessee has a special reason to rely upon the promise.
Id. See also Justus, 725 P.2d at 770. Moreover, policy considerations
place "the responsibility for harm caused by disrepair upon the party
best able to bear it, and most likely to prevent the injuries, at least
where he has expressed willingness to assume responsibility." Prosser
§ 63, at 444. [**19] To the extent that the duty issue cannot be
resolved by analysis of the documents alone, we conclude that our general
negligence principles provide a proper supplementary basis for determining
the existence and scope of any duty owed by Trailside to the townhome
owners. [HN1] The determination of whether a person has a duty to act
or refrain from acting to avoid injury to others is Halsted, 829 P.2d
373, 379 (Colo. 1992); Smith v. City & County of Denver, 726 P.2d
1125, 1127 (Colo. 1986). Such a determination involves weighty policy
considerations requiring a court to consider a number of different factors.
Justus, 725 P.2d at 769. Among those factors are "'the risk involved,
the foreseeability and likelihood of injury as weighed against the social
utility of the actor's conduct, the magnitude of the burden of guarding
against injury or harm, and the consequences of placing the burden upon
the actor.'" University of Denver v. Whitlock, 744 P.2d 54, 57
(Colo. 1987) (quoting Smith, 726 P.2d at 1127). This list [**20] is not
exhaustive and permits consideration of "other factors that may become
relevant based upon the competing individual, public and social interests
implicated in the facts of each case." Whitlock, 744 P.2d at 57.
"[HN2] The standard of care that must be met in order to satisfy
a recognized duty and thereby avoid breach is that of reasonable care
in light of the apparent risk." Casebolt v. Cowan, 829 P.2d 352,
356 (Colo. 1992). We are persuaded that the foregoing general principles
provide an appropriate framework within which the relevant considerations
for determining the existence and scope of any duty owed by Trailside
to Acierno and not defined in the townhome documentation can be identified
and weighed. The documentation before us, however, does not permit a fully
informed determination of the nature of Trailside's duties, and that
of its agent Hughes, to Acierno with respect to maintenance of the swimming
pool where Acierno was injured. Only selected pages of the Declaration
were presented in support of the defendants' motion for summary judgment.
The pages submitted suggest that the description of the rights of the
owners [**21] and the obligations of Trailside with respect to the common
areas are more fully described in the omitted pages. Other documents,
such as the articles of incorporation and bylaws of Trailside, may be
relevant as well. See generally Westcott, therefore, to permit the district
court to delineate the nature and extent of Trailside's duty of care
to Acierno and to permit any necessary further determinations of the issues
of breach of duty and damages. IV. We affirm the judgment of the Colorado
Court of Appeals insofar as it reverses the [*1204] summary judgment entered
by the district court, and we remand this case to the court of appeals
to be returned to the district court for reinstatement of the negligence
claim and for further proceedings consistent with the views expressed
in this opinion. CONCUR BY: ROVIRA CONCUR CHIEF JUSTICE ROVIRA, specially
concurs: The majority concludes that the townhome complex is not a condominium
because the individual lot owners do not co-own the common areas of the
townhome complex as required under the statutory definition of a condominium
set forth in section 38-33-102, 16A C.R.S. (1982). I agree with that conclusion.
[**22] I also initially agree with the majority's conclusion that
section 13-21- 115, 6A C.R.S. (1993 Supp.) is inapplicable. I write separately
however to express my concern that this conclusion may be inaccurate depending
upon the contents of the Declaration of Covenants, Conditions, and Restrictions
for Trailside Filing No. 5 (the "Declaration"), by-laws and
rules of the Association which are not before us. The Declaration appears
to be a document of nineteen pages in length, however, only pages one,
two, four and nineteen were submitted to the trial court. Neither was
a copy of the by-laws or rules of the Association filed with the court.
As such, the ability to make a precise determination as to the relationship
between the Association and the lot owners is speculative at best. Contrary
to the majority's outright rejection of section 13-21-115, I would
leave open the possibility that the Colorado landowner liability statute
may apply depending on the wording of the missing documents. The majority
bases its conclusion upon the finding that "the owners have a continuing
right independent of association consent to make use of the common areas
by reason of their ownership of lots in the [**23] townhome complex, whereas
trespassers, licensees, and invitees have no right to enter in absence
of consent." Maj. Op. at 11. As recognized by the majority, Article
I, section 3 of the Declaration clearly states that the common areas are
"owned by [the Association] for the common use and enjoyment of the
Owners." The Declaration further provides that title to the common
area of the townhome complex will be conveyed by the developer to the
Association. Declaration, Art. IV, § 3. The Declaration grants each
owner of a lot the ability to delegate their "right of enjoyment
to the Common Area and facilities" to certain persons pursuant to
the By-Laws. Declaration, Art. IV, §§ 1(c), 2. Although right
to use of the common areas is granted by virtue of owning a townhome,
Article III, section 1(c) of the Declaration grants the Association the
right to suspend an owner's right to use of the recreational facilities.
As such, the right to use these areas may be taken away for a certain
period of time and under certain circumstances. Article III of the Declaration
specifies further information relating to the common areas of the complex.
However, because this section is incomplete, it cannot be [**24] determined
what impact this may have upon the majority's conclusion that section
13-21-115 does not apply. It is obvious that further information concerning
the relationship between the Association and the lot owners exists within
the missing documents. It is also certain that duties imposed contractually
upon the owners (i.e. through rules, by-laws or declarations) by the Association
may increase the base duty owed to the lot owners by the Association.
However, because the record is incomplete as to the Declaration, by-laws
and other rules of the Association, it is inappropriate for this court
to determine with absolute certainty the duty owed by the Association
to the owners. Therefore, I would remand to the trial court with directions
to determine the duty owed to Acierno under the standard set forth in
the majority opinion, leaving open the possibility that the Colorado landowner
liability statute may apply.
Cynthia Burbach, Plaintiff-Appellant, v. Canwest Investments, LLC, Defendant-Appellee.
Court of Appeals No. 08CA2342 COURT OF APPEALS OF COLORADO, DIVISION SEVEN
224 P.3d 437; 2009 Colo. App. LEXIS 1961 December 24, 2009, Decided PRIOR
HISTORY: [**1] City and County of Denver District Court No. 07CV9223.
Honorable Morris B. Hoffman, Judge. DISPOSITION: JUDGMENT AFFIRMED.
PROCEDURAL POSTURE: Plaintiff pedestrian sued defendant property owner
after she slipped and fell on snow and ice that naturally accumulated
on a public sidewalk. The City and County of Denver District Court, Colorado,
entered summary judgment in favor of defendant on plaintiff's claim
under the premises liability statute, Colo. Rev. Stat. § 13-21-115
(2009). Plaintiff appealed.
OVERVIEW: Plaintiff brought a premises liability action against defendant,
alleging that she was injured when she slipped and fell on snow and ice
that had naturally accumulated on a public sidewalk adjacent to defendant's
property. Defendant moved for summary judgment, arguing that it was not
a landowner of the public sidewalk under the premises liability statute,
Colo. Rev. Stat. § 13-21- 115, and that the premises liability statute
did not abrogate the common law no duty rule notwithstanding a Denver
ordinance requiring it to clear the sidewalk of naturally accumulated
snow and ice. The district court agreed and granted summary judgment in
defendant's favor. The Court of Appeals of Colorado affirmed. Defendant
was not legally responsible for the condition of the sidewalk under the
premises liability statute. Defendant did not remove the snow voluntarily,
but rather did so pursuant to the snow removal ordinance to avoid the
imposition of penalties. It did not assume a duty to clear the sidewalk.
OUTCOME: The summary judgment was have a duty to pedestrians to keep the
sidewalk affirmed. reasonably clear of naturally accumulated snow and
ice. At common law, a snow removal ordinance requiring an owner of property
adjacent to a public LexisNexis(R)
OPINION BY: J. JONES OPINION [*438] Plaintiff, Cynthia Burbach, appeals
the district court's entry of summary judgment in favor of defendant,
Canwest Investments, LLC, on her claim under the premises liability [*439]
statute, section 13-21-115, C.R.S. 2009. We affirm. In this case, a municipal
ordinance imposed a duty on an owner of property adjacent to a public
sidewalk to clear the sidewalk of snow and ice. The primary question before
us is: Where such an ordinance exists, does the premises liability statute
operate to abrogate the common law rule -- referred to as the "no
duty" rule -- that such an owner does not owe a duty to pedestrians
to clear naturally accumulated snow and ice from an adjacent public sidewalk?
We answer that question "no." We further conclude that Canwest
did not assume a duty to pedestrians to clear the sidewalk [**2] merely
because it complied with the snow removal ordinance at issue from time
to time. Therefore, the no duty rule applies here, and Ms. Burbach's
premises liability claim against Canwest fails as a matter of law. I.
Background Ms. Burbach brought this premises liability action against
Canwest alleging that she was injured when she slipped and fell on snow
and ice that had naturally accumulated on a public sidewalk adjacent to
property Canwest owned. Canwest moved for summary judgment, arguing that
it was not a landowner of the public sidewalk under the premises liability
statute and that the premises liability statute did not operate to abrogate
the common law no duty rule notwithstanding that a Denver ordinance required
it to clear the sidewalk of naturally accumulated snow and ice. The district
court agreed that the premises liability statute did not displace the
common law no duty rule in these circumstances and granted summary judgment
in Canwest's favor. II. Standard of Review [HN1] We review de novo
the district court's grant of a motion for summary judgment. See A.C.
Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.
2005). [HN2] We also review de novo questions of statutory [**3] interpretation.
Clyncke v. Waneka, 157 P.3d 1072, 1076 (Colo. 2007); Miller v. Brannon,
207 P.3d 923, 928 (Colo. App. 2009). III. The Common Law No Duty Rule
As noted,[HN3] under Colorado common law, an owner of property adjacent
to a public sidewalk does not have a duty to pedestrians to keep the sidewalk
reasonably clear of naturally accumulated snow and ice. Bittle v. Brunetti,
750 P.2d 49, 51-55 (Colo. 1988); W.T. Grant Co. v. Casady, 117 Colo. 405,
410-12, 188 P.2d 881, 883-84 (1948). 1 In Bittle, the court held that,
at common law, a snow removal ordinance requiring an owner of property
adjacent to a public sidewalk to clear snow and ice from the sidewalk
does not render the no duty rule inapplicable because such ordinances
are "enacted primarily for the benefit of the community as a whole,
and individual pedestrians are only indirect beneficiaries." Bittle,
750 P.2d at 56-57 ("it is not fair or appropriate for courts to use
snow removal ordinances to impose civil liability absent explicit instructions
from the legislative branch of government"). Divisions of this court
have similarly ruled, in applying the common law, that such ordinances
do not impose liability on property owners [**4] to third persons absent
the express imposition of such liability. Woods v. Delgar Ltd., 226 P.3d
1178, 1183, 2009 Colo. App. LEXIS 1311 (Colo. App. 2009) (the negligence
per se doctrine is applicable only if the body enacting a snow removal
ordinance "specifically states that a property owner will be civilly
liable for violation of the ordinance"); Nordin v. Madden, 148 P.3d
218, 221 (Colo. App. 2006) (the violation of a snow removal ordinance
was not a basis for civil liability because nothing in the ordinance itself
imposed such liability); cf. Foster v. Redd, 128 P.3d 316, 319 (Colo.
App. 2005) (the district court properly granted summary judgment in favor
of the defendant on the plaintiff's negligence per se claim because
"an ordinance requiring adjoining owners to keep the city's sidewalks
and curbs 'in good condition' primarily benefit[ed] the municipality"
and, [*440] while it imposed a penalty for noncompliance, it did not create
civil liability for violators). 1 The owner may be liable, however, if
it engaged in an "affirmative act" to create the snow or ice
hazard. Bittle, 750 P.2d at 53-54 n.5. Here, it is undisputed that the
sidewalk was publicly owned and that[HN4] Denver's snow removal ordinance
[**5] does not create civil liability to pedestrians for a violation.
See Denver Rev. Mun. Code 1-13, 1-15, 49-551(a). Rather, a violation of
the ordinance subjects the property owner only to fines and imprisonment.
Denver Rev. Mun. Code 1-15. Therefore, Canwest has no liability to Ms.
Burbach at common law, as she concedes. She contends, however, that the
snow removal ordinance renders Canwest liable as a "landowner"
under the premises liability statute. We note that in Vigil v. Franklin,
103 P.3d 322, 329 n.12 (Colo. 2004), the supreme court indicated, in dictum,
that although the premises liability statute was not in effect when Bittle
was decided, the result in Bittle would have been the same if the statute
had been in effect "because the plaintiff was not injured 'while
on the real property of' the landowner defendant, but on a publicly
owned sidewalk." But because no Colorado appellate court has decided
whether the premises liability statute displaces the common law no duty
rule in these circumstances, we must address Ms. Burbach's contention
head on. IV. The Meaning of "Landowner" in the Premises Liability
Statute [HN5] Our primary tasks in construing a statute are to determine
and give effect [**6] to the General Assembly's intent. Brown v. Faatz,
197 P.3d 245, 252 (Colo. App. 2008); Premier Farm Credit, PCA v. W-Cattle,
LLC, 155 P.3d 504, 513 (Colo. App. 2006). We first look to the language
of the statute and construe it according to its plain and ordinary meaning.
Brown, 197 P.3d at 252; Premier Farm Credit, 155 P.3d at 513. "In
addition, we must construe the statute as a whole to give consistent,
harmonious, and sensible effect to all its parts." Premier Farm Credit,
155 P.3d at 513. [HN6] The premises liability statute provides the sole
remedy (if any) for a person alleging injury that occurred on "property
of another" and that arose out of a condition of the property. §
13-21- 115(2); Vigil, 103 P.3d at 328-29. It was enacted in response to
a decision by the supreme court, Mile High Fence Co. v. Radovich, 175
Colo. 537, 489 P.2d 308 (1971), which "overruled the common- law
principles of landowner liability that had turned on the status of the
person entering the property" as a trespasser, licensee, or invitee.
Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo. 2002).
Its express purposes are to (1) "promote a state policy of responsibility
by both landowners and [**7] those upon the land"; (2) "assure
that the ability of an injured party to recover is correlated with his
status as a trespasser, licensee, or invitee"; (3) "impos[e]
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"; (4) "create a legal climate which will promote
private property rights and commercial enterprise and will foster the
availability and affordability of insurance"; and (5) "protect
landowners from liability in some circumstances when they were not protected
at common law . . . ." § 13-21-115(1.5)(a), (c)-(e). More broadly
stated, it is clear the General Assembly intended "to establish a
comprehensive and exclusive specification of the duties landowners owe
to those injured on their property." Vigil, 103 P.3d at 328 (emphasis
added); see also id. at 332 (Kourlis, J., dissenting) ("[T]he statute
narrows the landowner's exposure to liability. . . . [T]he purpose
of the act is to constrain and limit [private landowner] liability.");
Pierson, 48 P.3d at 1219 ("The overriding purpose of the premises
liability statute is to clarify and to narrow private landowners'
liability [**8] to persons entering their land, based upon whether the
entrant is a trespasser, licensee, or invitee.") (emphasis added).
Notwithstanding the General Assembly's clear expression of intent
to narrow landowner liability, Ms. Burbach contends the General Assembly
effectively expanded that liability. Specifically, she contends the statute
defines "landowner" in a way which abrogates the common law
no duty rule -- that is, which renders an owner of property adjacent to
a public sidewalk a "landowner" of that sidewalk where a municipal
ordinance requires [*441] the adjacent landowner to remove snow and ice
from the sidewalk. We reject this contention. [HN7] An injured person
may bring a claim under the premises liability statute only against a
"landowner." See § 13-21-115(2). A person need not hold
title to property to be considered a "landowner" under the premises
liability statute. See Pierson, 48 P.3d at 1219. A "landowner"
includes "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."
§ 13-21-115(1). Here, Ms. Burbach does not contend that Canwest [**9]
was in possession of the sidewalk, and therefore that aspect of the definition
of a landowner is not before us. The supreme court has held that [HN8]
the phrase "a person legally responsible for the condition of real
property or for the activities conducted or circumstances existing on
real property" does not mean "someone who could be held legally
liable for the alleged tort." Pierson, 48 P.3d at 1220-21. Rather,
it means "a person who is legally conducting an activity on the property
or legally creating a condition on the property" because those persons
are "'responsible' for the activity or condition and, therefore,
prospectively liable to an entrant onto the property." Id. at 1221.
Ms. Burbach argues only that Canwest was "legally responsible"
for the condition of the sidewalk by virtue of conducting an activity
on the sidewalk, and so we limit our analysis to that aspect of the statutory
definition of a landowner. 2 2 [HN9] A private owner of property adjacent
to a public sidewalk is not accountable for creating a condition on the
sidewalk where the cause of the condition is naturally accumulated snow
and ice. See Woods, 226 P.3d at 1182, 2009 Colo. App. LEXIS 1311 ("By
definition, naturally accumulated snow and ice on [**10] sidewalks result
from natural, not human causes."). Ms. Burbach does not contend that
Canwest created the condition. In Pierson, [HN10] the court defined "responsible"
as "'[a]nswerable, accountable, (to); liable to be called to
account; having authority or control; being the cause.'" Id.
(quoting II New Shorter Oxford English Dictionary 2567 (1993)). And the
court made clear that, to be "legally responsible" by virtue
of "conducting an activity on the property," that activity must
have, "in turn, caused injury to someone." Id.; see also id.
("[T]he focus becomes whether the defendant is someone who is legally
entitled to be on the real property and whether that defendant is responsible
for . . . conducting an activity on real property that injures an entrant.")
(emphasis added). But [HN11] there is another, more fundamental, limitation
on the term "legally responsible" as used in the premises liability
statute -- one which requires rejection of Ms. Burbach's claim. As
noted, the statute governs liability vis-a-vis "property of another,"
which means the landowner's property. See Vigil, 103 P.3d at 329 n.12
(construing "property of another" as "'property of'
the landowner defendant" and stating, albeit [**11] in dictum, that
a public sidewalk (even as covered by a snow removal ordinance) is not
such a property). To be sure, one may be a landowner without having exclusive
or even partial possession of the property. But in defining "legally
responsible," we believe the court in Pierson intended to refer to
a party who, although not necessarily in possession of property, nonetheless
has a right to be on that property by virtue of some legally cognizable
interest in the property or a right personal to that party (i.e., distinguishable
from any right of the public generally). Absent such an interest or right,
the property in question is not "property of" the allegedly
liable party in any meaningful sense. [HN12] Though Denver's snow
removal ordinance imposes on property owners an obligation to remove snow
and ice from adjacent public sidewalks, it does not convey any legal interest
in the sidewalks to the adjacent property owners. Nor does it grant any
right to be on the sidewalk that is not possessed by the public generally.
Therefore, the snow removal ordinance does not make public sidewalks "property
of" adjacent property owners. [*442] In short, [HN13] we perceive
nothing in the language of the premises liability [**12] statute which
indicates the General Assembly intended to abrogate the no duty rule.
Indeed, as noted, the statute was intended to narrow, not expand, landowner
liability. We therefore decline Ms. Burbach's invitation for us to
construe the statute in a manner that would create the anomalous result
whereby one's liability as to property in which it does not have a
legal interest is expanded at the same time its liability as to property
in which it has a legal interest is contracted. See Fischbach v. Holzberlein,
215 P.3d 407, 409 (Colo. App. 2009) (a[HN14] court will not adopt an interpretation
of a statute that leads to an illogical or absurd result or that is at
odds with the legislative scheme). V. Assumption of Duty Though Ms. Burbach
appeals the summary judgment on her statutory premises liability claim,
and argues that Canwest is liable because it assumed a duty to her by
complying with the snow removal ordinance on other occasions, she does
not explain precisely how the alleged assumption of a duty renders an
entity a landowner within the meaning of the premises liability statute.
Nonetheless, we conclude that, even assuming an entity could become liable
under the statute by assuming [**13] a duty, Canwest did not assume a
duty here. Although Canwest employed maintenance personnel who shoveled
snow from the sidewalk from time to time, Canwest did not remove the snow
voluntarily, but rather did so pursuant to the snow removal ordinance
to avoid the imposition of penalties. Therefore, it did not assume a duty
to clear the sidewalk. See Jefferson County Sch. Dist. R-1 v. Justus,
725 P.2d 767, 770 (Colo. 1986) ("a[HN15] party may assume duties
of care by voluntarily undertaking to render a service") (emphasis
added). Moreover, as noted above, [HN16] case law is clear that a snow
removal ordinance does not create a duty to third persons absent an express
statement to that effect. The ordinance here contains no such statement.
In sum, we conclude that Canwest was not legally responsible for the condition
of the sidewalk under the premises liability statute. The district court
therefore properly granted summary judgment in Canwest's favor. The
judgment is affirmed. JUDGE RUSSEL and JUDGE TERRY concur.