Lombard v. Colorado Outdoor Educ. Ctr., Inc.

• Decision Date: 18 August 2011
• Docket Number: No. 09CA2704.,09CA2704.
• 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 Place; and Sanborn Western Camps, Inc., a Colorado nonprofit corporation, d/b/a The Nature Place, Defendants–Appellees.
• Court: Colorado Court of Appeals

266 P.3d 412

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 Place; and Sanborn Western Camps, Inc., a Colorado nonprofit corporation, d/b/a The Nature Place, Defendants–Appellees.

No. 09CA2704.

Colorado Court of Appeals, Div. III.

Aug. 18, 2011.

James M. Croshal, Pueblo, Colorado; Mickey W. Smith, Pueblo, Colorado, for Plaintiff–Appellant Turene Lombard.

Ritsema & Lyon, P.C., Paul D. Feld, Denver, Colorado, for Plaintiff–Appellant Pueblo School District # 60.

Taylor | Anderson LLP, John M. Roche, Kevin S. Taylor, Jared E. Berg, Denver, Colorado, for Defendants–Appellees.Opinion by Judge ROY.

Plaintiffs, Turene Lombard (invitee) and Pueblo School District # 60 (school district), appeal from the judgment entered on a jury verdict and the order awarding costs in favor of defendants, Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners), in this action under section 13–21–115, C.R.S.2010 (premises liability act). We affirm the judgment, and affirm the order awarding costs in part and vacate it in part.

In February 2000 at the request of school district, invitee, a teacher employed by the district, attended an overnight training session which was held at a conference facility and resort owned and operated by owners. The resort had, among others buildings, eleven fourplex buildings, each unit of which had a main floor sleeping area, kitchenette, bathroom, and loft. Access to the loft was gained by a wooden ladder, with no handrails, that was fixed to the wall at the top and to the floor a distance from the wall at the bottom. In her unit, invitee climbed the ladder to the loft, which was equipped with a mattress, to read. She was injured when she fell descending the ladder.

Because invitee was within her scope of employment, she applied for and received substantial workers' compensation benefits. Invitee and school district brought a joint action against owners under the premises liability act.

Owners filed, and the trial court granted, a motion for summary judgment on the ground that there was no evidence that they knew or should have known of a dangerous condition on their property. Invitee appealed, and a division of this court affirmed. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 179 P.3d 16 (Colo.App.2007). On certiorari review, our supreme court reversed and remanded for trial. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo.2008) ( Lombard ).

At trial, invitee presented evidence of the fall and the injuries she sustained. Through expert testimony, she presented evidence that the applicable building code required a code-compliant staircase for access to an upper floor habitable space, and that the acceptance of a ladder as an alternative design was not permitted by the building code because a ladder is not as safe as a staircase. She argued that owners knew or should have known the ladder was dangerous because it allegedly violated the building code.

Owners presented evidence that (1) they had no actual notice that the ladder constituted a dangerous condition; (2) the plans for the unit depicting the ladder access to the loft were approved by the county building department, which administered the building code; (3) the county building department issued a certificate of occupancy following the completion of construction; and (4) they had never received reports of any incidents involving, or injuries resulting from, the use of the ladders in the twenty-four years since the construction of the first units. In addition, there was conflicting evidence from which owners argued that invitee was negligent in her use of the ladder, and that her negligence was the cause of her injuries.

Following a seven-day trial, a jury returned a verdict for owners and responded to interrogatories on the verdict form as follows:

Question No. 1: Did the [plaintiffs] have injuries, damages and losses?

Answer No. 1: Yes

Question No. 2: Did [owners] ... actually know about a danger on their property or using reasonable care should have known about it?

Answer No. 2: No

Question No. 3: Did the [owners] fail to use reasonable care to protect against the danger on their property?

Answer No. 3: No

Question No. 4: Was the [owners'] failure a cause of the [invitee's] injuries, damages or losses.

Answer No. 4: No

(Emphasis added.)

Owners sought costs jointly and severally against invitee and school district, which the trial court awarded. This appeal followed.

At the outset, we note that there was no dispute that invitee was a business invitee within the meaning of the premises liability statute and that she suffered injuries. Invitee's arguments focus on the jury's negative response to the second interrogatory. These arguments assert error with respect to (1) the instructions given or refused; (2) the trial court's refusal to admit into evidence plans for units constructed after the unit in question, which characterized the loft as “storage”; (3) the trial court's refusal to allow invitee to call a third expert witness on the building code; and (4) the trial court's failure to instruct the jury that an owner's duties under the premises liability act are not delegable.

I. Premises Liability Act and Negligence Per Se

Because this case involves the relationship, if any, between the premises liability act and the common law doctrine of negligence per se, we deem it appropriate to begin with a discussion of that relationship after our supreme court's decision in Lombard.

Negligence is the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury. Lawson v. Safeway, Inc., 878 P.2d 127, 130 (Colo.App.1994); Woolsey v. Holiday Health Clubs & Fitness Centers, Inc., 820 P.2d 1201, 1204 (Colo.App.1991). A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages. Redden v. SCI Colorado Funeral Services, Inc., 38 P.3d 75, 80 (Colo.2001); Miller v. Byrne, 916 P.2d 566, 577 (Colo.App.1995).

Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care. Lombard, 187 P.3d at 573. A plaintiff may recover under a negligence per se theory if he or she can establish that the defendant violated the statutory standard of care, that the statutory standard of care was intended to protect against the injuries sustained, and that the violation was the proximate cause of the injuries sustained. Id. Negligence per se, therefore, serves to conclusively establish the defendant's breach of a legally cognizable duty owed to the plaintiff. Id.

Section 13–21–115(3)(c)(I), C.R.S.2010, establishes a standard of care owed by a property owner to an invitee: “an invitee may recover for 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.” (Emphasis added.)

Lombard was decided in a summary judgment context. In that context, owners were required to show that there was no genuine issue as to any material fact, and that they were entitled to judgment as a matter of law. C.R.C.P. 56(c). Invitee, therefore was tasked to show through affidavits and other materials that there was a genuine issue as to a material fact and did so by producing evidence sufficient to raise negligence per se.

In discussing negligence per se in the premises liability act context, our supreme court stated in pertinent part:

The language of the premises liability statute makes clear that a party may no longer bring a negligence per se claim against a landowner to recover for damages caused on the premises. The premises liability statute is broad reaching in its scope....

[In Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004), we concluded that the premises liability statute's] “express, unambiguous language ... evidences the General Assembly's intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property.” 103 P.3d at 328. We noted that “the General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area.” Id. As such, we concluded that “the plain language preempts prior common law theories of liability, and establishes the statute as the sole codification of landowner duties in tort.” Id. Thus, it would be entirely inconsistent with the plain language of the statute and the holdings of this court to bypass the [premises liability] statute and allow for the imposition of liability on the basis of a negligence per se claim. Consequently, we conclude that a plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence.

However, in addressing the premises liability statute, it is an entirely separate question whether proof of the landowner's violation of a statute intended for the plaintiff's protection is evidence of the landowner's “unreasonable failure to exercise reasonable care.” .... Consequently, although the premises liability statute has abrogated certain common law claims and defenses in the premises liability context, we do not find that the General Assembly has clearly expressed its intent to abrogate the common law principle that the violation of a statute is evidence of a failure to exercise due care. See Vigil, 103 P.3d at 327 ....

In the absence of guiding legislative intent to the contrary, we conclude that the General Assembly did not intend to preclude a party from arguing that certain statutes and ordinances are relevant to...