Maes v. Lakeview Associates, Ltd., No. 93CA1091

• Docket Nº: No. 93CA1091
• Citation: 892 P.2d 375
• Case Date: July 28, 1994
• Court: Court of Appeals of Colorado

Page 375

892 P.2d 375 Ann MAES and the Colorado Department of Social Services,
Plaintiffs-Appellants,
v.
LAKEVIEW ASSOCIATES, LTD., a Colorado limited partnership;
Bijou Management Company; and James Young,
Individually, Defendants-Appellees. No. 93CA1091. Colorado Court of Appeals,
Div. I. July 28, 1994.
Rehearing Denied Sept. 8, 1994.
Certiorari Granted April 10, 1995.

Page 376

J. Gregory Walta, P.C., Celeste L. Gerber, J. Gregory Walta, Colorado Springs, for plaintiffs-appellants.

Carla McCord Albers & Associates, Gregory R. Werner, Colorado Springs, for defendants-appellees.

Opinion by Judge ROY.

In this premises liability action, plaintiffs, Ann Maes and the Colorado Department of Social Services, appeal a judgment entered on a jury verdict in favor of defendants, Lakeview Associates, Ltd., Bijou Management Company, and James Young. Plaintiffs also appeal a post-trial order relating to costs of the record on appeal. We reverse the judgment and the post-trial order and remand for further proceedings.

Maes rented and lived in an apartment facility owned or managed by defendants. In 1991, she was injured when she slipped and fell on some ice in the apartment parking lot. She then commenced these proceedings urging that she was an "invitee" on the premises.

Defendants sought a pre-trial ruling establishing the status of Maes as a "licensee" at the time of the accident. The trial court, after a hearing and argument, concluded that Maes was a "licensee," and trial to a jury was conducted on that basis which resulted in a verdict for defendants.

I.

As a preliminary matter, contrary to defendants' argument, we conclude that plaintiffs adequately preserved the licensee-invitee issue for review. A party is not required to prepare and submit jury instructions which are in conflict with a pre-trial ruling or otherwise continuously object during trial to preserve a pre-trial ruling for appeal. See Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962).

II.

Plaintiffs contend that the trial court erred in its pre-trial ruling that Maes was a "licensee." We agree.

Page 377

In 1971, our supreme court abandoned the common law categories with respect to landowner liability. Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971).

In 1986, the General Assembly adopted a statute which reinstituted a category system. Colo.Sess.Laws 1986, ch. 109 at 683. This statute was declared unconstitutional in Gallegos v. Phipps, 779 P.2d 856 (Colo.1989) because it established a standard of care for a "licensee" that was higher than that for an "invitee."

In response to Gallegos, the General Assembly amended the law effective April 20, 1990, reordered the standards of care to comply with Gallegos, and stated that it was not reinstating the common law status categories abandoned in Radovich. See § 13-21-115(1.5), C.R.S. (1993 Cum.Supp.); Colo.Sess.Laws 1990, ch. 107 at 867.

The present statute establishes three standards of care depending on the relationship between the landowner and the person injured on the premises. Section 13-21-115, C.R.S. (1987 Repl.Vol. 6A). The highest standard of care is owed the "invitee," a lesser is owed the "licensee," and a yet lesser is owed the trespasser. We need only consider the standards for "invitee" and "licensee."

As relevant here, an "invitee" is one who enters or remains on the land of another to transact business in which the parties are mutually interested. Section 13-21-115(5)(c), C.R.S. (1993 Cum.Supp.). And, a person having such status is permitted to recover damages caused by the landowner's unreasonable failure to exercise reasonable care to...