Harris v. The Ark

• Decision Date: 06 May 1991
• Docket Number: No. 90SA137,90SA137
• Citation: 810 P.2d 226
• Parties: James B. HARRIS, Plaintiff-Appellant, v. THE ARK, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 226

810 P.2d 226

James B. HARRIS, Plaintiff-Appellant, v. THE ARK, Defendant-Appellee.

No. 90SA137.

Supreme Court of Colorado En Banc.

May 6, 1991.

Hall & Evans, Alan Epstein, Christine Van Coney, Malcolm S. Mead, Denver, Kenneth Dressner, Colorado Springs, for plaintiff-appellant.

Retherford, Mullen, Rector & Johnson, Neil C. Bruce, Colorado Springs, for defendant-appellee.

Justice QUINN delivered the Opinion of the Court.

The question in this case is whether section 13-21-111.7, 6A C.R.S. (1987), which defines assumption of risk as the voluntary or unreasonable exposure to injury or damage with knowledge or appreciation of the danger or risk and which requires the trier of fact to consider a plaintiff's assumption of risk in apportioning the degree of negligence between the plaintiff and the defendant in a tort action for damages, violates equal protection of the laws and due process of law under the United States and Colorado Constitutions. The trial court upheld the constitutionality of the statute, and we affirm the judgment. ¹

I.

In 1971 the General Assembly enacted a comparative negligence statute for ascertaining liability and damages in negligence cases. Ch. 125, sec. 1-3, 1971 Colo.Sess.Laws 496-97. This statutory scheme provides that the contributory negligence of a plaintiff shall not bar recovery in any action for negligence resulting in death or injury to persons or property as long as such contributory negligence "was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made." § 13-21-111(1), 6A C.R.S. (1987). In an action tried to a jury, the statute requires the jury to return a special verdict stating the amount of damages that would have been recoverable if there had been no contributory negligence and the degree of negligence of each party, expressed as a percentage. § 13-21-111(2)(a) & (b), 6A C.R.S. (1987). The trial court is then required to reduce the amount of the verdict in proportion to the amount of negligence attributable to the plaintiff, and, if the plaintiff's negligence is equal to or greater than the negligence of the defendant, the court must enter a judgment for the defendant. § 13-21-111(3), 6A C.R.S. (1987). The statutory scheme, as initially enacted, was silent on whether the affirmative defense of assumption of risk was to be considered a form of contributory negligence. In 1986, the General Assembly enacted section 13-21-111.7, 6A C.R.S. (1986), which states:

Assumption of a risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section 13-21-111. For the purposes of this section, a person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved. In any trial to a jury in which the defense of assumption of risk is an issue for determination by the jury, the court shall instruct the jury on the elements as described in this section.

This statute became effective on July 1, 1986, and was made applicable to "civil actions commenced on or after said date." Ch. 107, sec. 6, 1986 Colo.Sess.Laws 677, 679.

On the morning of February 10, 1986, the plaintiff, James B. Harris (Harris), a plumber employed by Davis Plumbing & Heating, slipped and fell on a snow-covered walkway while working on the premises of the defendant, The Ark, a chemical dependency treatment center located in Green Mountain Falls, Colorado. Harris filed a negligence action in the district court on March 2, 1987, and named The Ark as defendant. In his complaint Harris alleged that The Ark was negligent in permitting a known unsafe condition to exist on the premises and that The Ark's negligence caused his injuries and damages. The Ark denied Harris's allegation of negligence and alleged, as an affirmative defense, that Harris's injuries were caused by his own negligence. The case was tried to a jury on October 30, 1989.

The evidence at trial established that on the night prior to the accident a snowstorm had covered some of the walkways on The Ark's premises with two or three inches of snow. On the morning of the accident, Harris, who had been working in one of The Ark's buildings, was told that there was a heating problem in another building on the premises. Harris picked up a large propane torch and walked to the other building, where he relit the boiler. Although Harris was aware of several available return routes to the building where he previously had been working, he decided to take an icy and snow-covered walkway connecting the two buildings because it was shorter than the other available routes. While on the walkway, Harris slipped and fell on some steps and sustained injuries to his head and spine.

At the conclusion of the evidence, the trial court instructed the jury that negligence "means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect himself or others from bodily injury." In addition, the court instructed the jury that the owner of the premises has a duty to use reasonable care to maintain the premises in a reasonably safe condition and that a person who takes a particular route when that person knows or should know of a safer route is negligent "if a reasonably careful person would have taken the safer way under the same or similar circumstances." The court also gave the following instruction on assumption of risk, over Harris's objection:

A person assumes the risk of injury if he voluntarily or unreasonably exposes himself to injury with knowledge or appreciation of the danger and risk involved. Assumption of a risk by a person shall be considered by you in any apportionment of negligence which you make.

The jury returned a special verdict finding Harris fifty-six percent negligent and The Ark forty-four percent negligent. Because Harris's negligence exceeded The Ark's negligence, the trial court entered judgment for The Ark. Harris thereafter filed a motion for a new trial in which he challenged the constitutionality of section 13-21-111.7, 6A C.R.S. (1987), on which the trial court relied in instructing the jury. The trial court rejected Harris's claim, and this appeal followed.

II.

Harris argues that section 13-21-111.7 violates his right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and article II, section 25 of the Colorado Constitution. ² His basic contention is that the language of the statute, which attributes assumption of risk to a person who "voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved," allows the jury to find negligence on the part of a plaintiff when the plaintiff's conduct was voluntary but not necessarily unreasonable while, in contrast, the jury is permitted to find negligence on the part of a defendant only if the defendant's conduct was unreasonable. We are unpersuaded by this argument.

A.

Equal protection of the laws guarantees that persons who are similarly situated will receive like treatment by the law. E.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 587-88, 99 S.Ct. 1355, 1366-67, 59 L.Ed.2d 587 (1979); J.T. v. O'Rourke, 651 P.2d 407, 413 (Colo.1982). The level of judicial scrutiny in an equal protection challenge varies with the character of the classification and the nature of the right affected. Where the statutory classification does not infringe on a fundamental right or adversely affect a suspect class--such as one based on race or national origin--or does not establish a classification triggering an intermediate level of scrutiny--such as classifications based on illegitimacy or gender--a rational basis standard of review is the controlling legal norm in resolving an equal protection challenge. E.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973); Branson v. City and County of Denver, 707 P.2d 338, 340 (Colo.1985). Under the traditional or rational basis standard of review, a statute that treats classes of persons differently will be upheld so long as the classification has a reasonable basis in fact--that is, the classification is based on differences that are real and not illusory--and is reasonably related to a legitimate governmental interest. E.g., Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762, 15 L.Ed.2d 620 (1966); Tassian v. People, 731 P.2d 672, 675 (Colo.1987); Hurricane v. Kanover, Ltd., 651 P.2d 1218, 1222 (Colo.1982). A presumption of constitutionality attaches to a classification analyzed under the rational basis standard of review, and the challenging party must prove its unconstitutionality beyond a reasonable doubt. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Bath v. Colorado Department of Revenue, 758 P.2d 1381, 1386 (Colo.1988); Branson, 707 P.2d at 340.

"[I]n order to subject a law to any form of judicial review under the equal protection guarantee, one must be able to demonstrate that the law classifies persons in some manner." J. Nowak, R. Rotunda & J. Young, Constitutional Law 600 (2d ed. 1983). A threshold question in an equal protection challenge, therefore, is whether the classes created by a statute are similarly situated but nonetheless are subjected to disparate treatment. Beazer, 440 U.S. at 587-88, 99 S.Ct. at 1366-67; Board of County Commissioners of Saguache County v. Flickinger, 687 P.2d 975, 982 (Colo.1984). If the statutory classes are...