Casey v. Christie Lodge Owners Ass'n, Inc.

• Citation: 923 P.2d 365
• Decision Date: 30 May 1996
• Docket Number: No. 95CA1450,95CA1450
• Parties: Jo Ann CASEY, Plaintiff-Appellant, v. CHRISTIE LODGE OWNERS ASSOCIATION, INC., a Colorado corporation, Defendant-Appellee. . V
• Court: Court of Appeals of Colorado

Page 365

923 P.2d 365

Jo Ann CASEY, Plaintiff-Appellant, v. CHRISTIE LODGE OWNERS ASSOCIATION, INC., a Colorado corporation, Defendant-Appellee.

No. 95CA1450.

Colorado Court of Appeals Div. V.

May 30, 1996.

Rehearing Denied July 11, 1996.

Frederick W. Newall, Colorado Springs, for Plaintiff-Appellant.

Wells, Anderson & Race, LLC, Geoffrey S. Race, Denver, for Defendant-Appellee.

Opinion by Judge CASEBOLT.

Plaintiff, Jo Ann Casey, appeals the summary judgment entered against her and in favor of defendant, Christie Lodge Owners Association, Inc. (Christie), on her claim of negligence. Plaintiff also appeals the trial court's order denying her request to amend the complaint. We affirm.

Plaintiff's complaint alleged that she was injured while a guest at Christie Lodge when a storage door under a bunk bed opened and struck her in the shin as she was walking by.

After conducting discovery, Christie filed a motion for summary judgment in which it asserted there was an absence of evidence that it actually knew or should have known of a danger associated with the storage door. The trial court granted Christie's motion and, at the same time, denied plaintiff's request to amend her complaint.

I.

Plaintiff first contends that the trial court erred in granting summary judgment. We disagree.

Summary judgment is appropriate when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo.1992).

When a party moves for summary judgment on an issue upon which the party would not bear the burden of persuasion at trial, the moving party's initial burden of production may be satisfied by showing an absence of evidence in the record to support the non-moving party's case. The burden then shifts to the non-moving party to establish a triable issue of fact and failure to meet that burden will result in summary judgment in favor of the moving party. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987).

Section 13-21-115, C.R.S. (1995 Cum.Supp.) sets forth the standards under which a landowner may be held liable for conditions of the property or for activities conducted there and requires the court to determine the status of the person seeking recovery. Here, there was no dispute that plaintiff's status was that of an invitee. Thus, in order to recover on her claim, plaintiff would have to prove that Christie violated the statutory standard of care for a landowner with respect to an invitee set forth in § 13-21-115(3)(c)(I), C.R.S. (1995 Cum.Supp.).

That statute provides, in relevant part, that an invitee can 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."

In its motion for summary judgment, Christie attached an excerpt from the deposition of its Assistant General Manager and Chief Financial Officer. She testified that there had never been any reported incidents at Christie Lodge of bunk bed storage doors opening on their own.

Christie also attached portions of the deposition transcript of its head of maintenance at Christie Lodge. That individual, who had performed maintenance at Christie Lodge for approximately ten years, testified that both before and after the alleged incident, they had "never had a problem with [the storage doors] falling open."

Finally, Christie also attached responses to interrogatories executed by Christie's General Manager indicating that there had never been an accident at Christie Lodge similar to that alleged by plaintiff.

In our view, this evidence submitted by Christie satisfied its initial burden of production on the issue of whether it knew or should have known of a danger relating to the storage doors and shifted the burden to plaintiff to establish a genuine issue of material fact. See Continental Air Lines, Inc. v. Keenan, supra.

In a two-page response to Christie's summary judgment motion, plaintiff referenced a portion of the transcript from the deposition of the head of maintenance in which he testified that approximately two months before the alleged accident, a maintenance employee of Christie installed two "latches" or "catches" on the storage doors in question.

Plaintiff argues that this evidence of a repair created genuine issues of fact as to whether the repair was adequate, and thus should have precluded summary judgment. This argument might be persuasive had there been any evidence of a prior accident involving the storage doors, of the storage doors falling open, or of some other basis by which Christie either knew or should have known of a danger associated with the storage doors. It also might have merit if plaintiff had adduced any evidence that the reason for repair of the door catches had anything to do with the storage door falling open, that the replacement catches were themselves defective, or that their installation was substandard.

However, plaintiff presented no such evidence. Indeed, as indicated in the trial court's order, plaintiff failed to correlate the repair to any evidence that Christie knew or should have known of a danger associated with the doors. The trial court concluded there was "no support for the conjecture that [Christie] should have known of the danger."

When a court is considering a summary judgment motion, the non-moving party is entitled to all favorable inferences that may reasonably be drawn from the undisputed facts. See Trinity Broadcasting of Denver, Inc. v. Westminster, 848 P.2d 916 (Colo.1993). However, here, the evidence of the repair alone, without some evidence of the reason for the repair or that the repair created any hazard, is insufficient to create a genuine issue of material fact concerning whether Christie knew or should have known of a danger relating to the doors. Thus, we conclude that the trial court acted correctly in granting Christie's motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (if no genuine issue of fact exists as to an essential element of plaintiff's case, summary judgment is...