Lombard v. Colorado Outdoor Educ. Center

• Decision Date: 25 January 2007
• Docket Number: No. 05CA1781.,05CA1781.
• Citation: 179 P.3d 16
• Parties: Turene LOMBARD and Pueblo School District # 60, Plaintiffs-Appellants, v. COLORADO OUTDOOR EDUCATION CENTER, INC., a Colorado non-profit corporation, d/b/a The Nature Center, and Sanborn Western Camps, Inc., a Colorado non-profit corporation, Defendants-Appellees.
• Court: Colorado Court of Appeals

179 P.3d 16

Turene LOMBARD and Pueblo School District # 60, Plaintiffs-Appellants, v. COLORADO OUTDOOR EDUCATION CENTER, INC., a Colorado non-profit corporation, d/b/a The Nature Center, and Sanborn Western Camps, Inc., a Colorado non-profit corporation, Defendants-Appellees.

No. 05CA1781.

Colorado Court of Appeals, Div. IV.

January 25, 2007.

Certiorari Denied September 17, 2007.

Law Office of Mickey W. Smith, Mickey W. Smith, Pueblo, Colorado; Gradisar, Trechter, Ripperger, Roth & Croshal, James M. Croshal, Pueblo, Colorado, for Plaintiff-Appellant Turene Lombard.

Law Office of Jeffrey C. Fleischner, Jeffrey C. Fleischner, Greenwood Village, Colorado, for Plaintiff-Appellant Pueblo School District # 60.

Burg Simpson Eldredge Hersh & Jardine, P.C., Diane Vaksdal Smith, David K. TeSelle, Englewood, Colorado, for Defendants-Appellees.

Opinion by Judge ROY.

Plaintiffs, Turene Lombard (the teacher) and Pueblo School District # 60 (the employer), appeal the trial court's summary judgment in favor of defendants, Colorado Outdoor Education Center, Inc., and Sandborn Western Camps, Inc. (collectively, the camp). We affirm.

Plaintiffs commenced this proceeding alleging that the teacher was injured when she slipped and fell from a ladder in her room while attending programs at "The Nature Place," a conference facility, lodge, and camp owned and operated by defendants. The ladder connected the lower floor of her unit with an upper level loft which provided an additional sleeping area. The employer's interest in this matter is that it has paid, and continues to pay, workers' compensation benefits to the teacher.

The camp filed a motion for summary judgment in which it asserted that there was no evidence that it actually knew or should have known that the ladder was a dangerous condition. The teacher filed a cross-motion for summary judgment. The trial court granted the camp's motion, and this appeal followed.

I. Facts

The facts are undisputed. On February 26, 2000, the teacher, in the course of her employment, was attending a conference at the camp's facility and was staying in the lodge. Her lodge unit measured twenty feet by twenty feet. The lower level had a closet, kitchenette, and bathroom along one wall, all of which measured approximately ninety square feet. The loft, positioned above the closet, kitchenette, and bathroom, also measured approximately ninety square feet. The loft's floor was seven and one-half feet above the lower level. An attached ladder connected the two levels.

The ladder consisted of eight treads approximately fifteen inches wide and five and one-half inches deep, situated between two two-by-six side rails. The ladder had no hand rails or guard rails and was "leaning" against the wall to which it was attached at a seventy-six degree angle to the floor. There were, however, rails and walls at the top of the ladder with which a person could steady and orient himself or herself before starting down the ladder. The teacher apparently slipped on, or missed, a step as she was descending the ladder, fell to the lower floor, and suffered injuries.

The unit was constructed between 1981 and 1983 by the camp from plans prepared by an "Architectural Designer." The camp obtained a building permit from the county, which approved the plans, conducted the requisite inspections, and issued a certificate of occupancy. The construction was accomplished with the then president of the camp acting as a general contractor and an employee acting as a subcontractor.

The camp submitted the affidavit of an employee stating that, after a thorough review of the records and interviews with current and former employees, there had been no accidents or injuries associated with the use of ladders in the unit in question or the other forty-three similarly designed units in the seventeen years the subject unit had been used and the twenty years since the first of such units was constructed. Nor had the camp been advised by anyone that the ladders constituted a dangerous condition.

Plaintiffs responded with the reports and affidavits of two expert witnesses, both architects, which stated that the ladder violated the provisions of the applicable building code, International Conference of Building Officials, Uniform Building Code §§ 3301, 3305 (1976), and, therefore, constituted a dangerous condition. They further opined that a traditional or standard stairway was required. One expressed the additional opinion that the ladder did not comply with American National Standards Institute (ANSI) Standard A14.3-1974 (safety requirements of fixed ladders), and, therefore, constituted a dangerous condition. The ANSI standard is not a law or a regulation.

II. Issue

The issue presented here is whether a violation of an applicable building code provision on a premises, without more, can constitute a dangerous condition about which the owner actually knew, or should have known, such that the owner is liable under § 13-21-115, C.R.S.2006, for personal injuries sustained by an invitee. Or, put another way, can negligence per se based on the violation of an applicable building code provision in the construction of a premises, without more, establish liability under § 13-21-115? We conclude that it can not.

III. Standard of Review for Summary Judgment

Summary judgment is appropriate when 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. The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo.1992). In a case where a party moves for summary judgment on an issue on which that party would not bear the burden of persuasion at trial, the initial burden of production may be satisfied by showing the court that there is an absence of evidence in the record to support the nonmoving party's case. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). We review a grant of summary judgment de novo. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998).

IV. Premises Liability Statute

When construing statutes, our primary duty is to give effect to the intent of the General Assembly, looking first to the statute's plain language. In re 2000-2001 Dist. Grand Jury, 97 P.3d 921 (Colo.2004). If a statute is clear and unambiguous on its face, then we need not look beyond the plain language and must apply the statute as written. Garhart ex rel. Tinsman v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo.2004). In addition, "[w]e construe statutory and constitutional provisions as a whole, giving effect to every word and term contained therein, whenever possible." Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1273 (Colo.2001).

Finally, as here, where the interaction of common law and statutory law is at issue, "`[s]tatutes in derogation of the common law must be strictly construed, so that if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication.'" Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997) (quoting Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)).

The premises liability statute was adopted in direct response to Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), for the stated purpose of "protect[ing] landowners from liability in some circumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent with the policies set forth in [the same subsection]." Section 13-21-115(1.5)(e), C.R.S. 2006. In Mile High Fence, a police officer conducting surveillance late at night stepped into an empty post hole located on private property seven inches off of a paved alley. The officer obtained judgment against the fencing company responsible for constructing the fence, which argued on appeal that the officer was a licensee and, therefore, it did not owe him a duty of care. The supreme court, after concluding that the common law classifications of invitee, licensee, and trespasser were harsh, established one standard of care for possessors of real property. The standard adopted was one of a reasonable landowner in view of the probability or foreseeability of injury to others. And while the classification of the injured party's status could have some bearing on the question of liability, it was only as a factor and was not conclusive.

After the supreme court's holding in Mile High Fence, the General Assembly's adoption of the premises liability statute reinstated the common law classifications and established a standard of care applicable to each classification. The current premises liability statute, § 13-21-115, provides in pertinent part that an invitee may only recover from a landowner "damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known." Sections 13-21-115(2), (3)(c)(I), C.R.S.2006 (emphasis added). An "invitee" is a person "who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain." Section 13-21-115(5)(a), C.R.S.2006.

Our supreme court then held in Vigil v. Franklin, 103 P.3d 322 (Colo.2004), that the current premises liability statute abrogated the common law of landowner duties. In Vigil, an injured party sued the property owner after suffering serious injury by diving into an aboveground pool that was four feet deep. The property owner raised the obvious...