Jordan v. Panorama Orthopedics & Spine Ctr., PC

• Decision Date: 06 June 2013
• Docket Number: No. 12CA0451,12CA0451
• Citation: 2013 COA 87,350 P.3d 863
• Parties: Barbara JORDAN, Plaintiff–Appellee, v. PANORAMA ORTHOPEDICS & SPINE CENTER, PC, Defendant–Appellant.
• Court: Colorado Court of Appeals

350 P.3d 863

2013 COA 87

Barbara JORDAN, Plaintiff–Appellee

v.PANORAMA ORTHOPEDICS & SPINE CENTER, PC, Defendant–Appellant.

No. 12CA0451

Colorado Court of Appeals, Div. VII.

June 6, 2013

Schatten Law Firm, Marc L. Schatten, Denver, Colorado; Susan Morath Horner, P.C., Susan Morath Horner, Boulder, Colorado, for Plaintiff–Appellee

Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Ray Lego & Associates, Michael Adams, Greenwood Village, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE J. JONES

¶ 1 This is a premises liability case. Plaintiff, Barbara Jordan, tripped and fell on a common area sidewalk leading to the building in which defendant, Panorama Orthopedics & Spine Center, PC (“Panorama”), leased office space. She successfully sued Panorama under the Premises Liability Act (the Act), § 13–21–115, C.R.S.2012.

¶ 2 We must decide whether Panorama was a “landowner” within the meaning of the Act, and therefore could be held liable thereunder. We conclude that Panorama was not a landowner within the meaning of the Act because there was no evidence that it was in possession of the sidewalk or that it was responsible for creating a condition on the sidewalk or conducting an activity on the sidewalk that caused Ms. Jordan's injuries. Therefore, we reverse the district court's judgment against Panorama.

I. Background

¶ 3 Panorama, a medical services provider, leased office space in an office building owned by another entity, as did three other tenants. Ms. Jordan went to Panorama for medical treatment. Following treatment, she left the building and began walking to her car, which was parked in the building's parking lot. While walking on a sidewalk leading to the parking lot, she tripped over a one-half-inch raised lip between concrete sections of the sidewalk. She fell and was injured.

¶ 4 Ms. Jordan filed suit against the property owner, the property manager, and Panorama, asserting claims for negligence and premises liability. Before trial, she settled her claims against the property owner and the property manager. Panorama then designated them as nonparties at fault. See § 13–21–111.5, C.R.S. 2012.

¶ 5 The district court granted Panorama's motion for summary judgment on the negligence claim, but denied Panorama's motion for summary judgment on the premises liability claim.¹ The latter claim was tried to a jury.

¶ 6 When Ms. Jordan finished presenting her case, Panorama moved for a directed verdict, asserting that the evidence had failed to demonstrate that it was a landowner under the Act. The parties agreed that the court, rather than the jury, should determine if Panorama was a landowner under the Act. The court made findings on the record and concluded that Panorama was a landowner.

¶ 7 The jury returned a special verdict for noneconomic damages of $180,000, economic damages of $81,689, and permanent physical and mental impairment

damages of $150,000. It apportioned thirty-percent of the fault to Panorama, sixty-percent to the property owner, and ten-percent to the property manager.

¶ 8 Panorama contends on appeal that the district court erred by (1) determining that it was a landowner under the Act; (2) improperly instructing the jury on nondelegation of a duty and awardable damages; and (3) erroneously admitting into evidence the indemnification clause in its lease. We agree with Panorama's first contention, and therefore need not address the others.

II. Standard of Review

¶ 9 In the district court, both parties took the position that whether a party is a landowner within the meaning of the Act is a question of law for the court to decide. On appeal, Panorama maintains that view, but Ms. Jordan posits that on appeal the issue presents a mixed question of fact and law. She argues that we must defer to the district court's findings of historical fact—reviewing them only for clear error—but that we should review its ultimate conclusion of law—Panorama's status as a landowner under the Act—de novo. The Act itself is silent on this issue, though it does say that the court is to determine whether a plaintiff is a trespasser, licensee, or invitee under the Act. § 13–21–115(4). Neither the Colorado Supreme Court nor this court appears to have squarely addressed the issue of the appropriate standard of appellate review.

¶ 10 We conclude that the issue whether a party is a landowner under the Act presents a mixed question of fact and law.

¶ 11 The Act applies only if the party sought to be held liable (or seeking to take refuge in the Act's liability limitations) is a “landowner,” as defined therein. § 13–21–115(1), (2) ; see Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo.2002). Whether a party is a landowner is akin to the question whether a party owes a legal duty to a particular plaintiff, a question that has consistently been regarded as one of law, subject to de novo review. See Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004) ; Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 465 (Colo.2003) ; Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1147 (Colo.1993). It is also akin to the question whether an entity is entitled to immunity, which our appellate courts have consistently regarded as one of law. See, e.g., Air Wisconsin Airlines Corp. v. Hoeper, 2012 CO 19, ¶ 20, 320 P.3d 830 ; Health Grades, Inc. v. Boyer, 2012 COA 196M, ¶ 25, ––– P.3d ––––, 2012 WL 5457419 ; Churchill v. Univ. of Colo., 293 P.3d 16, 25 (Colo.App.2010), aff'd, 2012 CO 54, 285 P.3d 986 ; Peper v. St. Mary's Hosp. & Med. Ctr., 207 P.3d 881, 888 (Colo.App.2008). And we do not see any qualitative distinction between the question whether a plaintiff is a trespasser, licensee, or invitee for purposes of the Act (which, as noted, the Act itself provides is a question to be resolved by the court), and the question whether a party is a landowner. Both questions involve determining whether a party fits within a statutory definition, and at least to that extent involve statutory interpretation. That type of inquiry is left to the court. Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005).

¶ 12 We also recognize, however, that the determination whether a party fits within the statutory definition of a landowner may require the resolution of questions of historical fact. Colorado appellate courts have consistently regarded such factual determinations as reviewable only for clear error, even if the ultimate legal conclusion drawn from those facts is reviewable de novo. People v. Pleshakov, 2013 CO 18, ¶ 16, 298 P.3d 228 ; Radcliff Props. Ltd. P'ship, LLLP v. City of Sheridan, 2012 COA 82, ¶ 9, 296 P.3d 310 ; Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 500 (Colo. App.2010).

¶ 13 Therefore, in reviewing a district court's determination that a party is a landowner under the Act, an appellate court should review the court's findings of historical fact for clear error, deciding only whether there is any evidence in the record to support those findings. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.2010) ; Byerly v. Bank of Colo., 2013 COA 35, ¶ 32, ––– P.3d ––––, 2013 WL979373 ; Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 2013 COA 20, ¶ 34, ––– P.3d ––––, 2013 WL 791140. An appellate court should review the district court's ultimate legal conclusion that a party is a landowner de novo.

¶ 14 In this case, though the district court noted and relied on many historical facts in ruling that Panorama is a landowner, those facts are undisputed. Thus, we determine only whether those undisputed facts mean that Panorama is a landowner, and do so de novo.Cf. Lakeview Assocs., Ltd. v. Maes, 907 P.2d 580, 583–84 (Colo.1995) (reviewing de novo whether the plaintiff was a tenant, licensee, or invitee because the controlling facts were undisputed); Wycoff v. Grace Cmty. Church, 251 P.3d 1260, 1265 (Colo.App.2010) (reviewing de novo whether the defendant was a landowner under the Act because the relevant facts were undisputed).²

III. Governing Law

¶ 15 The Act defines “landowner” as follows:

For purposes of this section, “landowner” includes, 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.

§ 13–21–115(1).

¶ 16 This definition is clearly broader than the term “landowner” might ordinarily suggest. A party need not hold title to the property to be considered a landowner within the meaning of the Act. Pierson, 48 P.3d at 1219 ; Wycoff, 251 P.3d at 1265–66. A tenant may, depending on the circumstances, be regarded as a landowner. See Pierson, 48 P.3d at 1219 n. 4 ; Wycoff, 251 P.3d at 1263, 1266 (entity which rented property to host an event was a landowner).

¶ 17 The supreme court has held that a party need not have exclusive possession of property to be considered “a person in possession of real property” under subsection 13–21–115(1). Rather, the party need only have a “sufficient” possessory interest in the property. Pierson, 48 P.3d at 1219–20.

¶ 18 Absent such a possessory interest, a party may be regarded as a landowner if it is “legally conducting activity or creating a condition on the property and therefore responsible for that activity or condition.” Id. at 1220. The focus in this context is “whether the defendant is someone who is legally entitled to be on the real property and whether the defendant is responsible for creating a condition on real property or conducting an activity on real property that injures an entrant. ” Id. at 1221 (emphasis added). This focus places “prospective liability with the person or entity that created the condition or conducted the activity on the real property that, in turn, caused injury to someone .” Id. (emphasis added). “[T]he cause of action must arise out of an injury occurring on the real property of another and by reason of the condition of the property or activities or circumstances directly related to...