Lucero v. Ulvestad

• Decision Date: 16 July 2015
• Docket Number: Court of Appeals No. 14CA0395
• Citation: 411 P.3d 949
• Parties: Alicia Greene LUCERO, Plaintiff–Appellant, v. Jerald ULVESTAD, Defendant–Appellee.
• Court: Colorado Court of Appeals

411 P.3d 949

Alicia Greene LUCERO, Plaintiff–Appellant,

v.Jerald ULVESTAD, Defendant–Appellee.

Court of Appeals No. 14CA0395

Colorado Court of Appeals, Div. IV.

Announced July 16, 2015

Martens & Associates, P.C., Mark P. Martens, Denver, Colorado; Lathrop & Gage LLP, Angela L. Ekker, Denver, Colorado, for Plaintiff–Appellant.

The Ross–Shannon Law Firm, P.C., Bradley Ross–Shannon, Mark J. Gauthier, Lakewood, Colorado, for Defendant–Appellee.

Opinion by JUDGE GRAHAM

¶ 1 In this premises liability action, plaintiff, Alicia Greene Lucero (Lucero), appeals the judgment entered on a jury verdict in favor of defendant, Jerald Ulvestad (Ulvestad). Because we conclude that Ulvestad was not a landowner under the Colorado Premises Liability Act (CPLA or the Act), section 13–21–115, C.R.S.2014, we affirm.

I. Background

¶ 2 This case arises from Lucero's unsupervised use of a steam room in a home purchased by Danny T. Landers, Sr. (Landers) from Ulvestad.

¶ 3 On September 10, 2009, Ulvestad entered into a bankless financing agreement, commonly known as an installment land contract, with Landers to sell real property located in Jefferson County. The property included a single-family home with a steam room. The contract provided Landers with immediate possession of the property, but record title would remain in Ulvestad's name until Landers paid the entire purchase price. Under the contract, Ulvestad executed a warranty deed in favor of Landers that would be held in escrow until the final payment was made. The contract required Landers to get approval from Ulvestad before making major alterations to the property; required Ulvestad to maintain an insurance policy on the property; and provided that Ulvestad's prior mortgage on the property remained in place.

¶ 4 The next day, Landers asked fifteen-year-old Lucero and her mother to help him move into the house. Landers gave Lucero permission to use the steam room. On the morning of September 12, 2009, Lucero entered the steam room unsupervised and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm.

¶ 5 Lucero sued Landers under the CPLA and for negligence. Landers failed to respond and the trial court entered a default judgment against him. Lucero then amended her complaint to add Ulvestad and assert the same claims against him. Ulvestad answered and denied any liability to Lucero.

¶ 6 Prior to trial, Ulvestad filed a motion for summary judgment arguing he did not owe Lucero a duty of care and that he was not a landowner as defined by the CPLA. The trial court disagreed, concluding that there existed a genuine issue of material fact regarding whether Ulvestad was "a person in possession of real property" and, therefore, a "landowner" under the CPLA. The court also concluded that a genuine issue of material fact existed as to whether Ulvestad was a landowner because "Lucero was injured on Property to which ... Ulvestad was the record title holder, by a condition on the Property that he had installed." However, the court agreed that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. Lucero does not appeal this ruling.

¶ 7 A jury trial was held on the CPLA claim and for a determination of Lucero's damages. At the close of Lucero's case, Ulvestad moved for a directed verdict, again arguing he was not a landowner under the CPLA. The court denied the motion but later determined that as to Ulvestad, Lucero was a trespasser as defined by the CPLA because she had not received his permission to use the steam room. See § 13–21–115(4) ("In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee."). Accordingly, the court instructed the jury that Ulvestad had to have acted "willfully or deliberately" in causing Lucero's injuries to find in favor of Lucero. See § 13–21–115(3)(a) ("A trespasser may recover only for damages willfully or deliberately caused by the landowner."). The jury returned a verdict in favor of Ulvestad and against Lucero.

II. The Act

¶ 8 Lucero appeals the court's determination that she was a trespasser on the property at the time she was injured. We conclude that because Ulvestad was not a landowner under the CPLA, the trial court should have granted Ulvestad's motion for directed verdict. Therefore, Lucero was not harmed by the trespasser determination and we affirm the judgment against Lucero. See Blood v. Qwest Servs. Corp., 224 P.3d 301, 329 (Colo.App.2009) ("[W]e can affirm on any ground supported by the record."); cf. C.R.C.P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").¹

A. History

¶ 9 Until 1971, a landowner's duty of care was determined based on the common law classification of the injured party as a trespasser, licensee, or invitee. Vigil v. Franklin, 103 P.3d 322, 325–26 (Colo.2004). In Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), the supreme court overruled these common law principles because it perceived that they had occasioned harsh rulings as a matter of law against plaintiffs. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo.2002). The court instead applied general negligence law, and considered in its analysis the status of the plaintiff's entry onto the land. Id.

¶ 10 The General Assembly enacted the CPLA in 1986, reinstating the requirement to determine the status of an injured party as an invitee, licensee, or trespasser to determine a landowner's duty. See Vigil, 103 P.3d at 326. When the supreme court held that statute unconstitutional, see Gallegos v. Phipps, 779 P.2d 856, 862–63 (Colo. 1989), the General Assembly amended it to address the court's equal protection concerns, but retained the status classifications. Vigil, 103 P.3d at 326. The CPLA specifically notes that

[t]he general assembly recognizes that by amending this section it is not reinstating the common law status categories as they existed immediately prior to Mile [High] Fence v. Radovich , 175 Colo. 537, 489 P.2d 308 (1971) but that its purpose is to protect 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 [this Act].

§ 13–21–115(1.5)(e), C.R.S.2014; see Lakeview Assocs., Ltd. v. Maes, 907 P.2d 580, 583 (Colo.1995).

¶ 11 Thus, "[t]he overriding purpose of the premises liability statute is to clarify and to narrow private landowners' liability to persons entering their land, based upon" the entrant's status as defined in the statute. Pierson, 48 P.3d at 1219 ; see Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1266 (Colo.App.2010) (premises liability act intended to "protect landowners").

¶ 12 Further, the General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area, such that the CPLA "leaves no room for application of common law tort duties." Vigil, 103 P.3d at 328 ("[T]he plain language preempts prior common law theories of liability, and establishes the statute as the sole codification of landowner duties in tort.").

B. Who is a Landowner Under the CPLA

¶ 13 "For the 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). "Thus, the [C]PLA focuses on duties owed by a landowner in his or her legal capacity as a landowner; that is, someone who is legally responsible for the condition of the property, or for the activities conducted or circumstances existing on the property." Jordan v. Panorama Orthopedics & Spine Ctr., P.C., 2015 CO 24, ¶ 19, 346 P.3d 1035 ( Jordan II ).

¶ 14 "With respect to the first statutory definition, [the supreme court] held in Pierson that a person ‘in possession of’ land is one who occupies the land with intent to control it, although not necessarily to the exclusion of all others." Id. at ¶ 23. "Logically, a person ‘in possession of’ real property is presumed to be responsible for the conditions, activities, or circumstances on that property." Id. "However, through the second statutory definition, the General Assembly also conferred landowner status [up]on persons who are otherwise legally responsible for the conditions, activities, or circumstances on the property—even though such persons are not in possession of the property." Id. (emphasis added). This definition "places prospective liability with those who are legally responsible for the conditions, activities, or circumstances on the property." Id. A party's legal responsibility for the condition of a property may be determined by contract. See id. at ¶¶ 34–37 (tenant was not legally responsible for the condition of the sidewalk where the plaintiff fell because the lease between tenant and landlord assigned responsibility for ordinary maintenance and upkeep of the common areas to the landlord).

¶ 15 As a result, "the statutory definition of ‘landowner’ does not automatically make the holder of the title to the property a ‘landowner’ for purposes of determining premises liability under the statute." Perez v. Grovert, 962 P.2d 996, 999 (Colo.App.1998) ; cf. Nordin v. Madden, 148 P.3d 218, 220 (Colo.App.2006) (discussing when a landlord retains enough control over the premises to be considered a landowner under the CPLA).

C. Installment Land Contracts and the CPLA

¶ 16 "Installment land contracts were common instruments of financing at one time." Sleeping Indian Ranch, Inc. v. West Ridge Grp., LLC, 119 P.3d 1062, 1068 (Colo.2005). "Thinking of an installment land contract as a secured financing arrangement makes...