Lombard v. Colorado Outdoor Educ. Center

• Decision Date: 30 June 2008
• Docket Number: No. 07SC166.,07SC166.
• Parties: Turene LOMBARD and Pueblo School District # 60, Petitioners v. COLORADO OUTDOOR EDUCATION CENTER, INC, a Colorado Non-Profit Corporation, and Sanborn Western Camps, Inc., a Colorado Non-Profit Corporation, d/b/a The Nature Place, Respondents.
• Court: Colorado Supreme Court

187 P.3d 565

Turene LOMBARD and Pueblo School District # 60, Petitioners v. COLORADO OUTDOOR EDUCATION CENTER, INC, a Colorado Non-Profit Corporation, and Sanborn Western Camps, Inc., a Colorado Non-Profit Corporation, d/b/a The Nature Place, Respondents.

No. 07SC166.

Supreme Court of Colorado, En Banc.

June 30, 2008.

James M. Croshal, Mickey W. Smith, Pueblo, Colorado, Attorneys for Petitioner Turene Lombard.

Jeffrey C. Fleischner, Greenwood Village, Colorado, Attorney for Petitioner Pueblo School District # 60.

Diane Vaksdal Smith, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, Colorado, Attorney for Respondent.

Mac Hester, Bachus & Schanker, LLC, Fort Collins, Colorado, Attorney for Amicus Curiae Colorado Trial Lawyers Association.

Jeffrey Clay Reubel, Maureen A. Sweeney, Campbell, Latiolais & Ruebel, P.C., Denver, Colorado, Attorney for Amicus Curiae Colorado Defense Lawyers Association.

Justice MARTINEZ delivered the Opinion of the Court.

Petitioners Turene Lombard and the Pueblo School District # 60 appeal the judgment of the court of appeals in Lombard v. Colorado Outdoor Education Center, Inc., 179 P.3d 16 (Colo.App.2007), which affirmed the trial court's grant of summary judgment for Respondents Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (d/b/a The Nature Place) (collectively "Sanborn"). After falling from a ladder in one of Sanborn's lodging units and suffering injuries, Lombard brought suit under Colorado's premises liability statute, section 13-21-115, C.R.S. (2007). The statute allows an invitee to recover for damages caused by a landowner's "unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known." § 13-21-115(3)(c)(I). Lombard alleged that the ladder was a danger about which Sanborn knew or should have known because the ladder violated a provision of the Teller County building code. The trial court and the court of appeals disagreed, finding that a violation of the building code was insufficient to establish that Sanborn knew or should have known of a danger. The court of appeals reasoned that the premises liability statute abrogated the common law doctrine of negligence per se and that consequently, the statute could not be satisfied by a showing of constructive notice of the requirements imposed by a statute, ordinance, code, or regulation.

We find that the court of appeals erred in affirming the trial court's grant of summary judgment because Lombard presented sufficient evidence to overcome Sanborn's summary judgment motion. In so holding, we conclude that the premises liability statute allows the plaintiff to recover for damages if (1) the landowner "actually knew or should have known" of a danger on the premises and (2) his action or inaction constituted an "unreasonable failure to exercise reasonable care" to protect the plaintiff from that danger. § 13-21-115(3)(c)(I). With respect to the first element, we hold that the statute's requirement that the landowner "knew or should have known" of the danger can be satisfied by either actual or constructive knowledge. Here, Lombard presented sufficient evidence to overcome summary judgment on the issue of knowledge because, as the builder of the lodging unit, Sanborn had actual or constructive knowledge of the violation of a building code provision that was intended to ensure the safety of those on the premises, such as Lombard. Regarding the second element, we hold that the plaintiff may overcome summary judgment on the issue of the landowner's "unreasonable failure to exercise reasonable care" by demonstrating that the landowner violated a statute or ordinance that was intended to protect the plaintiff from the type of injury she suffered. See § 13-21-115(3)(c)(I). Here, Lombard presented evidence, sufficient to overcome summary judgment, that Sanborn violated a building code provision that was intended to protect the health and safety of the public. Accordingly, we reverse the judgment of the court of appeals.

I. Facts and Procedural History

Lombard, a teacher in Pueblo School District # 60, attended an overnight training session at The Nature Place, a conference facility and resort in Teller County, owned and operated by Sanborn. Lombard spent the night in Unit 25, which was described as a studio or apartment and had a main floor with a kitchenette, bathroom, and sleeping area, and a second floor "loft" containing a mattress and space for reading. The loft was connected to the main floor by a ladder that was nearly vertical and did not have handrails. Descending the ladder after reading in the loft, Lombard missed a step, slipped, fell to the ground, and suffered an injury.

Sanborn constructed Unit 25 between 1981 and 1983, in conjunction with a convention center and other lodging units. Sanborn's then president, Roger Sanborn, acted as the general contractor, although he was not a licensed general contractor. Sanborn's employee, a maintenance man, acted as the project's subcontractor. Roger Sanborn obtained and signed the building permits for the project. Each permit stated that Sanborn agreed to construct the buildings in compliance with the Teller County building code. The building code required that any access from the ground floor to a loft be by way of a staircase. Consequently, the use of a ladder to access the sleeping loft in Unit 25 was in violation of the building code. In spite of this violation, the building department issued a certificate of occupancy for Unit 25 upon its completion.

Lombard brought suit against Sanborn in February 2002, asserting a claim for violation of the premises liability statute. Having paid Lombard's medical bills and lost wages, Pueblo School District # 60 joined as a plaintiff. Following discovery, both sides moved for summary judgment. In its motion, Sanborn contended that it did not know, nor should it have known, that the ladder was a dangerous condition. Sanborn submitted an affidavit from an employee stating that during the seventeen years between the construction of Unit 25 and Lombard's fall, hundreds of guests had stayed in the unit without any reported incident. Further, the same ladders had been used in another forty-four units for the fifteen to twenty years prior to Lombard's incident without any reports of injury. Furthermore, Sanborn stated that the unit had received a certificate of occupancy by the building department. Thus, Sanborn contended that it had reason to believe the ladders were safe for use by guests.

Lombard countered with affidavits from engineering and architectural experts asserting that the ladder from which Lombard fell was in violation of the Teller County building code that was in effect at the time the unit was built. The experts contended that a certificate of occupancy does not excuse a violation of the building code. Thus, Lombard argued that Sanborn knew or should have known that there was a dangerous condition because the ladder was in violation of the building code and Sanborn was responsible for the construction of Unit 25.

The trial court granted Sanborn's summary judgment motion and denied Lombard's motion, holding that Lombard failed to present evidence that Sanborn knew or should have known of the alleged dangerous condition. On appeal, the court of appeals focused on whether the violation of a building code provision satisfies the "knew or should have known" requirement. The court of appeals described the issue as follows:

[W]hether 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 [the premises liability statute] 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 [the premises liability statute]?

The court of appeals concluded that it was improper to equate "knew or should have known" with constructive notice because the premises liability statute abrogated the common law doctrine of negligence per se. Thus, the court of appeals held that evidence of the building code violation was insufficient to prove that Sanborn knew or should have known of a dangerous condition. Further, the court of appeals held that Roger Sanborn's signature on the building permits below the agreement to construct in compliance with the building code did not evidence that Sanborn knew or should have known of a danger. Accordingly, the court of appeals affirmed the grant of Sanborn's motion for summary judgment.

We granted certiorari to consider Sanborn's motion for summary judgment and the court of appeals' holding that the premises liability statute abrogated the common law doctrine of negligence per se.¹

II. The Premises Liability Statute

Our review of an order granting or denying a motion for summary judgment is de novo. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608, 611 (Colo.1998). Summary judgment is appropriate when the pleadings and supporting documents clearly demonstrate that no issues of material fact exist and the moving party is entitled to judgment as a matter of law. Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 819 (Colo.2004). Courts grant the nonmoving party all favorable inferences that may be drawn from uncontested facts, and resolve any doubt as to whether a triable issue of material fact exists against the moving party. Id.; Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 298 (Colo. 2003).

To properly review the grant of summary judgment in the case before us, we are called upon to interpret Colorado's premises liability statute, section 13-21-115. In construing statutes, our primary duty is to give effect to the intent of the General Assembly. Vigil v....