Maes v. Lakeview Associates, Ltd.

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

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.

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.

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 protect against dangers of which he actually knew or should have known. Section 13-21-115(3)(c), C.R.S. (1993 Cum.Supp.).

A "licensee" is one who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent. Section 13-21-115(5)(b), C.R.S. (1993 Cum.Supp.). A "licensee" may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew. A licensee may also recover for the landowner's unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew. Section 13-21-115(3)(b), C.R.S. (1993 Cum.Supp.).

We conclude that Maes was an "invitee." Here, as in all landlord-tenant relationships, the "landowner" is in the business of renting property. The tenant is a customer of the landlord in a continuing business relationship that is mutually beneficial.

We reject defendants' contention that this relationship is only beneficial to the tenant, Maes. While the definition of "invitee" calls immediately to mind a retail store customer making a short visit to purchase merchandise or services, the definition is broad enough to include a tenant.

Prior to Radovich, and before the enactment of the statute, a tenant was an "invitee," or equivalent. Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967); Kopke v. AAA Warehouse Corp., 30 Colo.App. 470, 494 P.2d 1307 (1972) (applying "Connecticut" rule to the duty of a landlord over his tenant in removing natural accumulations of snow and ice); see also Annotation, Landlord's Liability to Tenant or Tenant's Invitees for Ice and Snow in Areas or Passageways Used in Common by Tenants, 49 A.L.R.3d 383 (1973). The fact that the General Assembly did not intend to reestablish the common law categories does not mandate a different result. The creation of newly defined categories merely requires that the relationship of landlord-tenant must be examined under the new definitions.

We are fortified in our conclusion by the legislative history. While the landlord-tenant relationship was not addressed in this context, the legislative hearings on the 1990 legislation demonstrate that the General Assembly intended the "invitee" status to apply in circumstances in which the "landowne...