Jordan v. Panorama Orthopedics & Spine Ctr., PC

• Decision Date: 13 April 2015
• Docket Number: Supreme Court Case No. 13SC545
• Citation: 346 P.3d 1035,2015 CO 24
• Parties: Barbara JORDAN, Petitioner v. PANORAMA ORTHOPEDICS & SPINE CENTER, PC, Respondent
• Court: Colorado Supreme Court

346 P.3d 1035

2015 CO 24

Barbara JORDAN, Petitioner

v.PANORAMA ORTHOPEDICS & SPINE CENTER, PC, Respondent

Supreme Court Case No. 13SC545

Supreme Court of Colorado.

April 13, 2015

Attorneys for Petitioner: Burg Simpson Eldredge Hersh & Jardine, PC, Diane Vaksdal Smith, Nelson P. Boyle, Englewood, Colorado, Schatten Law Firm, Marc L. Schatten, Denver, Colorado, Susan Morath Horner, P.C., Susan Morath Horner, Boulder, Colorado.

Attorneys for Respondent: Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, Ray Lego & Associates, Michael Adams, Greenwood Village, Colorado.

Attorneys for Amici Curiae Colorado Defense Lawyers Association and National Federation of Independent Business Small Business Legal Center: Thomas Pollart & Miller LLC, Forrest Plesko, Greenwood Village, Colorado.

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Law Offices of Dianne Sawaya, LLC, Michael Douglass–Harris, Denver, Colorado, Ogborn Mihm, LLP, Thomas Neville, Denver, Colorado.

En Banc

Opinion

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶ 1 In this case, we consider whether the Premises Liability Act, § 13–21–115, C.R.S. (2014) (“PLA”), applies to a commercial tenant defendant in a lawsuit seeking damages for injuries the plaintiff sustained in a common area. Specifically, we must decide whether the tenant in this situation qualifies as a “landowner” under the PLA.¹

¶ 2 The PLA defines a “landowner” to include both “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). The respondent, a large orthopedics clinic, is the main tenant at a medical campus that also includes a physical therapy group, an imaging group, and a surgery center. The petitioner was a patient at the clinic who sustained serious injuries when she tripped and fell over an unevenness in the sidewalk outside the clinic—a common area under the terms of the clinic's lease. She asserted a premises liability claim against the clinic, alleging that the clinic failed to exercise reasonable care to protect against a danger of which it knew or should have known. At trial, the clinic moved for a directed verdict on grounds that it was not a landowner under the PLA. The trial court denied the motion, and the jury ultimately found in favor of the petitioner.

¶ 3 The clinic appealed and the court of appeals reversed, concluding that the clinic was not a landowner for purposes of the PLA. We granted certiorari review and affirm the judgment of the court of appeals. Because the clinic neither was in possession of the sidewalk where the petitioner fell, nor was it legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there, we hold that it was not a landowner as defined by the PLA and therefore cannot be held liable under that statute's provisions.

I. Facts and Procedural History

¶ 4 Petitioner Barbara Jordan sued Respondent Panorama Orthopedics & Spine Center, PC (“Panorama”) for negligence and premises liability. After receiving medical treatment at Panorama, Jordan was walking to meet her husband, who was waiting for her in the parking lot, when she tripped over uneven sidewalk slabs near Panorama's main entrance. She fell and suffered a concussion and an orbital fracture

.

¶ 5 Panorama is a large orthopedics clinic that receives upwards of 100,000 patient visits each year. The single medical building on the “Panorama Medical Campus” bears a sign with Panorama's name on it, although there are three other tenants in the building who also provide services to Panorama's patients. Under Panorama's lease with landlord PPG MOB Fund IB, LLC, Panorama has twenty-five reserved spaces in the parking lot for its exclusive use, and it operates a reception desk for the entire building.

¶ 6 Panorama's lease defines the leased “Premises” as “that space in the Building shown on the floor plan ... containing approximately 31,401 rentable square feet.” The lease distinguishes “Common Areas” as those areas in the building complex provided by the landlord for the general non-exclusive use of tenants and others and defines such areas specifically to include sidewalks:

The term “Common Areas” is defined as all areas and facilities outside the Premises and within the Building Complex that are provided and designated by the Landlord from time to time for the general nonexclusive use of Landlord, Tenant and of other tenants of the Building and their respective employees, suppliers, and invitees, including but not limited to ... sidewalks ....

(Emphasis added.)

¶ 7 Under the lease, the landlord retains responsibility for maintaining the common areas.² Panorama routinely notifies the property managers via email about safety issues such as snow and ice on the sidewalks. If the landlord fails to provide maintenance, the lease allows Panorama to take reasonable steps to cure the landlord's failure and “the minimum steps as are reasonably necessary” to provide emergency repairs. Panorama also directs its employees to fill out incident forms if a Panorama employee is involved when a patient is injured anywhere on the property, and it sometimes reports these incidents to the property managers. In its lease, Panorama “assumes all risk of damage to property or injury to persons in, upon or about the Premises from any cause” and agrees to indemnify the landlord for any claim related to the tenancy.

¶ 8 Before trial, Panorama filed a C.R.C.P. 56(h) motion for determination of a question of law, asking the trial court to rule that Panorama owed no duty of care to Jordan under either the PLA or common law negligence. Panorama argued that it was not a statutory landowner under this court's holding in Pierson v. Black Canyon Aggregates, Inc. , 48 P.3d 1215 (Colo. 2002), and therefore was not liable under the PLA. In Pierson , we held that the PLA's dual definition of landowner broadly encompasses, first, an authorized agent or person “in possession of” land—i.e., one who occupies the land with intent to control it, although not necessarily to the exclusion of all others. Id . at 1219–20. Second, the alternate definition includes a person who is “legally conducting an activity on the property or legally creating a condition on the property.” Id . at 1221. Relying on Pierson's discussion of the PLA's alternate definition of landowner, Panorama argued it was not responsible for creating a condition in the common areas, did not conduct an activity there, and had only a non-exclusive right to the use of those areas. As for Jordan's separate negligence claim, Panorama contended that it owed no duty to Jordan under a negligence theory because it had no control over the injury-causing circumstance.

¶ 9 The trial court ruled that the record before it was insufficient to determine whether Panorama owed Jordan a common law duty of care because a factual dispute existed over Panorama's ownership, possession, and control of the sidewalk where Jordan fell. Thus, it denied Panorama's motion to determine that it owed no duty. Nevertheless, citing Pierson, the trial court concluded that, if Panorama owed Jordan a legal duty of care, any such duty would “fall within the purview of the [PLA] because a finding that [Panorama] was in possession or control of the injury-causing circumstances would render [Panorama] a landowner within the meaning of the [PLA].” It therefore dismissed Jordan's negligence claim.

¶ 10 Jordan's premises liability claim was tried to a jury. At the close of Jordan's case, Panorama moved for a directed verdict on grounds that it was not a landowner under the PLA because it had no control over the sidewalk. It also argued that there was no evidence that it either created a condition or conducted an activity on the sidewalk that caused Jordan's injuries.³

¶ 11 The trial court denied the motion, observing that Panorama was the “major tenant” that “seemed to exert more control than the usual tenant with reference to the parking lots and the sidewalks.” It further noted that Panorama was “legally conducting an activity on the property” by providing medical services. Finally, it considered the indemnity clause in the lease to be evidence that Panorama “assumed the risk” and was responsible for any activity or condition in the common areas. The jury found in favor of Jordan and awarded $411,689 in damages.

¶ 12 Panorama appealed,⁴ and a split panel of the court of appeals reversed. Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, ¶ 2, ––– P.3d ––––. The majority concluded that Panorama was not a landowner because it was not in possession of the sidewalk and did not create a condition or conduct an activity on the sidewalk that caused Jordan's injuries. See id. at ¶ 23. First, the majority reasoned that Panorama was not in possession of the sidewalk because it did not “occupy” the sidewalk but rather occupied only the leased Premises. Id. at ¶ 26. Moreover, the record reflected no evidence of Panorama's intent to “control” the sidewalk; rather, the emergency and cost sharing provisions of the lease only highlighted that the landlord was responsible for ordinary and continuing maintenance of the common areas, and the indemnification provision pertained only to incidents on the leased Premises, not the common areas. See id. at ¶ 27. Second, the majority held that Panorama was not conducting an activity on the sidewalk merely because it operated a business inside the office building or because Panorama's patients (among other members of the public) used the sidewalk to walk to and from the building's parking lot. Id. at ¶¶ 30–31, 34.⁵ Finally, the majority noted that Jordan had identified no causal connection between her injuries and any activity Panorama conducted on the sidewalk. See id. at ¶ 40.

¶ 13 In dissent, Judge Richman reasoned that, by operating a medical clinic that...