Henderson v. Master Klean Janitorial, Inc.

• Decision Date: 10 April 2003
• Docket Number: No. 02CA0637.,02CA0637.
• Citation: 70 P.3d 612
• Parties: William HENDERSON, Plaintiff-Appellant, v. MASTER KLEAN JANITORIAL, INC., Defendant-Appellee.
• Court: Colorado Court of Appeals

70 P.3d 612

William HENDERSON, Plaintiff-Appellant, v. MASTER KLEAN JANITORIAL, INC., Defendant-Appellee.

No. 02CA0637.

Colorado Court of Appeals, Div. III.

April 10, 2003.

Darrell S. Elliott, P.C., Darrell S. Elliott, Timothy P. McCaffrey, Kristen A. Spaeth, Denver, Colorado, for Plaintiff-Appellant.

White & Steele, P.C., Kevin W. Hecht, Franz Hardy, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge DAVIDSON.

In this premises liability action, plaintiff, William Henderson, appeals from the summary judgment dismissing his complaint against defendant, Master Klean Janitorial, Inc. We affirm.

Plaintiff alleged that he was injured when he slipped and fell down a flight of stairs at his place of employment, a telephone call center in an office building which his employer leased from the building owner. Plaintiff asserted that as he descended the stairs from the second floor to the first, he slipped on water present on the steps.

Pursuant to the premises liability act, § 13-21-115, C.R.S.2002, plaintiff sued defendant, a contractor hired by the property manager on behalf of the owner to perform cleaning and maintenance services at the building. The complaint alleged, inter alia, that defendant was in possession and control of the premises, permitted a dangerous condition to exist, and failed to warn of the existence of the condition.

Defendant moved for summary judgment, which the trial court granted on two alternative bases: (1) defendant was not a landowner as defined under the act; and (2) as a matter of law, defendant did not breach the duty of care owed to plaintiff. Because we agree with the trial court that defendant did not breach the duty of care owed to plaintiff, we affirm.

Our review of an order granting a motion for summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo. 1995)

.

I.

Plaintiff first contends that the trial court erred in determining that defendant was not a "landowner" under § 13-21-115. We agree.

The premises liability act sets forth when a "landowner" may be held liable for the condition of or activities conducted on its property, Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365 (Colo.App.1996), and provides the exclusive remedy against a landowner for injuries sustained on the landowner's property. Thornbury v. Allen, 991 P.2d 335 (Colo.App.1999); see also Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459 (D.Colo.1997)

.

Under § 13-21-115(1), C.R.S.2002, a "landowner" is defined as including, "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." These definitions must be read in the disjunctive. See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo.2002)(Pierson II)

(landowner definition directs alternative inquiries); see also Wark v. United States, 269 F.3d 1185 (10th Cir.2001)("landowner" includes three types of persons: agents, possessors, and parties legally responsible for the condition of the property).

Relying on Pierson v. Black Canyon Aggregates, Inc., 32 P.3d 567 (Colo.App.2000)(Pierson I), defendant argued, and the trial court agreed that, absent exclusive possession and some type of ownership or leasehold interest in the property, a party does not fall within the definition of "landowner" for purposes of the act. Thus, under that rationale, the trial court determined that here, defendant was not a "landowner."

However, after the trial court's ruling, the supreme court reversed Pierson I, concluding in relevant part that the General Assembly intended a broad definition of landowner and, therefore, for purposes of § 13-21-115(1), "possession" of property is not dependent upon title and need not be exclusive. In its decision, the court cited the definition of the term "possessor of land" as set forth in the Restatement (Second) of Torts § 328E (1965) as "a person who is in occupation of the land with intent to control it." See Pierson II, supra, 48 P.3d at 1219

. The supreme court determined that the defendant had maintained requisite control over the property to be considered in possession of it and, thus, was a "landowner" pursuant to the act.

Defendant argues, however, that unlike the circumstances in Pierson II, it did not control those areas of the facility that it had contracted with the owner to clean. Specifically, defendant points to its contract for services that sets forth in explicit detail the tasks which defendant was required to perform on a daily, weekly, monthly, and quarterly basis for the ground floor lobby, public areas, tenant occupied areas, tenant unoccupied areas, restrooms, and loading dock area.

Moreover, defendant asserts that, unlike the facts in Pierson, where the defendant performed gravel crushing activity on property designated a gravel pit, here, defendant has no interest in the office building or the telephone call center. Rather, defendant incidentally provides janitorial services at the building. Plaintiff has established no other connection between defendant and the building or the call center.

We agree with defendant. Under the undisputed terms of defendant's contract with the owner's property manager, the latter retained control over the maintenance of the facility, including the manner and method of defendant's cleaning services. Cf. Pierson II, supra (defendant contractor maintained authority to control performance of details of the work, while lessee was interested only in the results obtained). Thus, conversely, we conclude that defendant was not sufficiently in control of the property to be a "landowner" on this basis.

Likewise, we agree that the purpose of defendant's business, to maintain the property, was not sufficiently linked to the purpose of the property for defendant to be in possession of it. Compare Pierson II, supra (where lessee is interested only in the results to be achieved and delegates the conduct and control of the work to a contractor, the contractor is deemed to be in possession of the property), with Jules v. Embassy Props., Inc., 905 P.2d 13 (Colo.App.1995)

(landowner who hired third party to manage its property did not give up its right to possession of the property), Wiedmeyer v. Equitable Life Assurance Soc'y, 644 N.W.2d 31 (Iowa 2002)(property owner was deemed possessor of shopping mall even though owner contracted with third party for snow removal on the property), and Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687 (Mo.Ct.App.1999)(landowner retains possession of premises if it has substantial involvement in overseeing contractor's work and controlling the physical activities of contractor's employees or the details of the manner in which the work is done).

Plaintiff argues, however, that even if defendant did not possess the property, it is still a landowner under § 13-21-115(1) because it was legally responsible for creating a condition or conducting an activity on the property that allegedly resulted in injury to plaintiff. We agree.

The common definition of a "responsible" person is one who is likely to be called upon to answer for his acts, answerable as the primary cause, motive, or agent, or creditable or chargeable with the result. Webster's Third New International Dictionary 1935 (1976).

Here, pursuant to its contractual obligation to clean the facility, defendant was responsible for conducting an activity on the property that allegedly resulted in injury to plaintiff. It is undisputed that plaintiff slipped and fell on water present on the stairs and that defendant had a contractual obligation to mop up any spills of which it was aware. It is further undisputed that defendant's employee, the day porter on duty at the building, received a call to clean up a spill on the stairwell where plaintiff fell.

Thus, defendant, through the day porter, had a legal responsibility for the condition of the stairs and was potentially liable for injuries resulting from that condition, pursuant to its contract. Cf. Wark v. United States, supra

(defendant not legally responsible for condition of road because it never contracted with record owner to maintain road).

Accordingly, we conclude as a matter of law that defendant is a "landowner" pursuant to § 13-21-115(1), under the circumstances here. Consequently, the trial court's grant of summary judgment to defendant on this basis was error.

II.

However, we agree with the trial court's alternative ruling, albeit on different reasoning, that summary judgment nevertheless was proper because even if defendant is a landowner, the undisputed facts demonstrate that defendant did not breach the duty of care owed to plaintiff. See Sundheim v. Bd. of County Comm'rs, 904 P.2d 1337 (Colo. App. 1995),

aff'd, 926 P.2d 545 (Colo. 1996). (when possible, appellate court is to affirm even if it is necessary to do so on grounds different from those relied upon by trial court).

Summary judgment is appropriate only if 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. See C.R.C.P. 56(c); Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo. 1992). In reviewing a motion for summary judgment, we must view the allegations in the complaint in the light most favorable to the nonmoving party. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988)

.

A.

Under the premises liability act, the General Assembly imposes certain duties upon landowners to promote responsibility by both landowners and those on the land and to ensure that an injured party's ability to recover is correlated with his or her status as a trespasser, licensee, or invitee. Section 13-21-115(1.5)(a), C.R.S.2002.

As relevant here, an invitee is one who "enters or remains on the land of...