Gallegos v. Phipps, No. 88SA141

Docket NºNo. 88SA141
Citation779 P.2d 856
Case DateSeptember 18, 1989
CourtSupreme Court of Colorado

Page 856

779 P.2d 856
Bernie L. GALLEGOS and Sandra Gallegos, Plaintiffs-Appellants,
v.
Lawrence C. PHIPPS, III, Douglas MacConnell, Agnes A.
MacConnell, as individuals and directors of Red Ram
Management, Inc., a Colorado corporation, and Red Ram
Management, Inc., a Colorado corporation, Defendants-Appellees.
No. 88SA141.
Supreme Court of Colorado,
En Banc.
Sept. 18, 1989.
Rehearing Denied Oct. 16, 1989.

Page 857

Jeffrey R. Edelman and Joseph R. Haughain, Denver, for plaintiffs-appellants.

Wood, Ris & Hames, P.C., Bruce F. Fest and Christian N. Lind, Denver, for defendant-appellee Lawrence C. Phipps, III.

Yu, Stromberg & Huotari, P.C., Frederick Y. Yu, Denver, for defendants-appellees Douglas MacConnell, Agnes MacConnell and Red Ram Management, Inc.

Justice ERICKSON delivered the Opinion of the Court.

The appellants, Bernie Gallegos and Sandra Gallegos, appeal from a jury verdict finding the defendants not liable for injuries suffered by Bernie Gallegos when he fell down a staircase located on defendants' property. Specifically, the appellants claim, inter alia, that section 13-21-115, 6A C.R.S. (1987) (actions against landowners), violates the constitutional guarantee to equal protection and is therefore unconstitutional. We agree and accordingly reverse. 1

I.

On December 28, 1986, appellant Bernie L. Gallegos fell down a flight of stairs at a Georgetown, Colorado, bar and restaurant known as the Ram and suffered substantial injuries. The Ram, built in the 1890's and located in an area which has been historically preserved on the National Register of Historic Places, was operated by co-defendant Red Ram Management, Inc. on premises leased from co-defendants Mickey E. Feuts, Lawrence C. Phipps, III, and Jeanne Neal, d/b/a Red Ram Venture.

Gallegos and his wife brought suit against Red Ram Management, Inc. and its directors, Douglas MacConnell, Kathleen Brauge, and Agnes MacConnell, as well as Red Ram Venture. 2 The Gallegoses asserted three claims. The first claim, denoted "premises liability," was grounded in section 13-21-115, 6A C.R.S. (1987), and alleged that the stairwell which Gallegos fell down was dangerous, that the appellees knew it was dangerous but failed to either warn or protect its patrons from the danger, and that the danger created by the stairwell was not ordinarily present on property of that type. The second claim was brought by Gallegos' wife for loss of consortium. The final claim alleged that agents of the appellees, specifically Ram bartenders, willfully and wantonly served intoxicants to the visibly intoxicated Gallegos in violation of Colorado law. The appellants claimed that as a result of these willful and wanton acts, Gallegos suffered serious injury. The appellees defended on the theory that Gallegos' fall and injuries were caused by his self-induced intoxication and not by any dangerous conditions on the premises. The appellees also asserted that the stairwell at the Ram was typical of stairwells found in other late nineteenth-century Georgetown buildings and hence did not constitute a danger not ordinarily present on similar property.

The appellees filed a motion for summary judgment and the trial court dismissed Gallegos' claim for negligent service of an intoxicant. The remaining two claims proceeded to trial. During trial, the appellees presented testimony that Gallegos was in a "drunken stupor" and, before falling, began descending the stairs in an awkward manner by placing his back against the wall and crossing one foot over the other. Expert testimony was presented to establish that the stairs at the Ram were typical of those found in similarly aged Georgetown buildings and that the Ram stairs were safely constructed and maintained.

The appellants countered by alleging that the appellees' service of excess alcohol, coupled with the knowledge that the stairway was dangerous and the failure to warn of that danger, established that appellees deliberately failed to exercise reasonable

Page 858

care regarding a known danger. Alternatively, appellants argued that section 13-21-115, the premises liability statute, denied Gallegos equal protection of the laws inasmuch as under the statute a landowner was required to warn licensees, but not invitees such as Gallegos, of dangers on the property.

At the conclusion of the testimony, the trial court gave the jury an instruction drawn from section 13-21-115(3)(c), which provided, in part, that:

In order for the Plaintiff, Bernie Gallegos, to recover from the Defendants on his claim of premises liability, you must find all of the following have been proved:

1. The Plaintiff incurred injuries;

2. The Defendants deliberately failed to exercise reasonable care to protect against a danger on the premises;

3. The danger was one not ordinarily present on the kind of premises involved;

4. The Defendants had actual knowledge of the danger; and

5. The Defendants' deliberate failure to exercise reasonable care was a cause of the Plaintiff's injuries.

The jury returned a verdict in favor of the appellees on both of the appellants' claims. In response to special interrogatories submitted with the instructions, the jury specifically found that Gallegos was negligent and had suffered his injuries because of his own negligence. The jury also found that Gallegos' injuries were not caused by any dangerous condition at the Ram and that the Red Ram Management, Inc. did not deliberately fail to exercise reasonable care to protect against dangers which are not ordinarily present on property of the kind involved. 3 Accordingly, the trial court entered a judgment on the verdict in favor of the appellees and the case was dismissed.

II.

Bernie and Sandra Gallegos now appeal from the trial court's decision, raising fourteen separate claims of error. We address the first constitutional issue only: Whether section 13-21-115 denies appellants equal protection of the laws. 4

Page 859

Section 13-21-115, entitled "Actions against landowners," governs the liability of landowners 5 and provides, in part, that:

(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. 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) If the plaintiff entered or remained upon the landowner's real property without a privilege to do so, which privilege is created by the consent of the landowner, the plaintiff may recover only for damages willfully or deliberately caused by the landowner.

(b) If the plaintiff entered or remained upon such property with the consent of the landowner, but the entry was for the plaintiff's own purposes and not the purposes of the landowner, the plaintiff may recover only for damages caused by the landowner's deliberate failure to exercise reasonable care in the conduct of the landowner's active operations upon the property or by the landowner's failure to warn of dangers which are not ordinarily present on property of the type involved and of which the landowner actually knew.

(c) If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner's deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.

(4) In any action to which this section applies, the judge shall determine whether paragraph (a), (b), or (c) of subsection (3) of this section is applicable. 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.

III.

Equal Protection

The fourteenth amendment to the United States Constitution provides that "[n]o state shall ... deny to any person within its jurisdiction the equal protection

Page 860

of the laws." U.S. Const. amend. XIV, § 1. The right to equal protection of the laws is supported by the Due Process Clause of article II, section 25 of the Colorado Constitution, see, e.g., Heninger v. Charnes, 200 Colo. 194, 197, 613 P.2d 884, 886 (1980), and "guarantees that all parties who are similarly situated receive like treatment by the law." J.T. v. O'Rourke, 651 P.2d 407, 413 (Colo.1982). Statutes challenged as violative of equal protection requirements are presumed to be constitutional and the challenging party bears the burden of proving unconstitutionality beyond a reasonable doubt. High Gear & Toke Shop v. Beacom, 689 P.2d 624, 630 (Colo.1984). Because section 13-21-115 does not infringe upon a fundamental right, a suspect class, or a classification triggering an intermediate standard of review, the statute need only have some rational basis in fact and bear a rational relationship to a legitimate governmental interest to be valid. See Board of County Comm'rs v. Flickinger, 687 P.2d 975, 982 (Colo.1984); Austin v. Litvak, 682 P.2d 41, 49-50 (Colo.1984); Dawson by & through McKelvey v. Public Employees' Retirement Ass'n, 664 P.2d 702, 708 (Colo.1983); see also Lindsey v. Normet, 405 U.S. 56, 70, 92 S.Ct. 862, 872, 31 L.Ed.2d 36 (1972).

Appellants' equal protection argument can be summarized as follows: first, the statutory scheme is arbitrary and unreasonable, and bears no rational relationship to a legitimate state objective, because it accords...

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39 practice notes
  • Bath Excavating & Const. Co. v. Wills, No. 91SC522
    • United States
    • Colorado Supreme Court of Colorado
    • March 15, 1993
    ...premises liability and to resurrect the common-law classification scheme that Mile High Fence Co. laid to rest. See Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989). However, Gallegos held that the premises liability statute violated federal and state constitutional guarantees of equal pro......
  • Vigil v. Franklin, No. 03SC479.
    • United States
    • Colorado Supreme Court of Colorado
    • November 30, 2004
    ...109, sec. 1, § 13-21-115, 6A C.R.S. (1987), 1986 Colo. Sess. Laws 683, but that statute was held unconstitutional in Gallegos v. Phipps, 779 P.2d 856, 862-63 (Colo.1989), thereby reinstating the Mile High Fence common law duty analysis. Thereafter, the General Assembly amended the statute i......
  • Colorado Ass'n of Public Employees v. Board of Regents of University of Colorado, No. 89SA476
    • United States
    • Colorado Supreme Court of Colorado
    • December 24, 1990
    ...existence of the reorganized hospital as a private, nonprofit entity also must fail. See § 2-4-204, 1B C.R.S. (1980); Gallegos v. Phipps, 779 P.2d 856, 863 We recognize that the statute contains a severability clause. § 23-21-409, 9 C.R.S. (1990 Supp.). However, we find that the debt financ......
  • Rosenthal v. Dean Witter Reynolds, Inc., No. 94SC403
    • United States
    • Colorado Supreme Court of Colorado
    • December 18, 1995
    ...we give full effect to the intent of the legislature. United Blood Servs. v. Quintana, 827 P.2d 509, 522 (Colo.1992); Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989); Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988). To determine legislative intent, we look first to the words used in the st......
  • Request a trial to view additional results
38 cases
  • Bath Excavating & Const. Co. v. Wills, No. 91SC522
    • United States
    • Colorado Supreme Court of Colorado
    • March 15, 1993
    ...premises liability and to resurrect the common-law classification scheme that Mile High Fence Co. laid to rest. See Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989). However, Gallegos held that the premises liability statute violated federal and state constitutional guarantees of equal pro......
  • Vigil v. Franklin, No. 03SC479.
    • United States
    • Colorado Supreme Court of Colorado
    • November 30, 2004
    ...109, sec. 1, § 13-21-115, 6A C.R.S. (1987), 1986 Colo. Sess. Laws 683, but that statute was held unconstitutional in Gallegos v. Phipps, 779 P.2d 856, 862-63 (Colo.1989), thereby reinstating the Mile High Fence common law duty analysis. Thereafter, the General Assembly amended the statute i......
  • Colorado Ass'n of Public Employees v. Board of Regents of University of Colorado, No. 89SA476
    • United States
    • Colorado Supreme Court of Colorado
    • December 24, 1990
    ...existence of the reorganized hospital as a private, nonprofit entity also must fail. See § 2-4-204, 1B C.R.S. (1980); Gallegos v. Phipps, 779 P.2d 856, 863 We recognize that the statute contains a severability clause. § 23-21-409, 9 C.R.S. (1990 Supp.). However, we find that the debt financ......
  • Rosenthal v. Dean Witter Reynolds, Inc., No. 94SC403
    • United States
    • Colorado Supreme Court of Colorado
    • December 18, 1995
    ...we give full effect to the intent of the legislature. United Blood Servs. v. Quintana, 827 P.2d 509, 522 (Colo.1992); Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989); Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988). To determine legislative intent, we look first to the words used in the st......
  • Request a trial to view additional results

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