Pierson v. Black Canyon Aggregates, Inc., 99CA1626.

• Decision Date: 21 December 2000
• Docket Number: No. 99CA1626.,99CA1626.
• Citation: 32 P.3d 567
• Parties: John W. PIERSON and Wanda L. Pierson, Plaintiffs-Appellants, v. BLACK CANYON AGGREGATES, INC., and Chauncey Luttrell, Defendants-Appellees.
• Court: Colorado Court of Appeals

32 P.3d 567

John W. PIERSON and Wanda L. Pierson, Plaintiffs-Appellants, v. BLACK CANYON AGGREGATES, INC., and Chauncey Luttrell, Defendants-Appellees.

No. 99CA1626.

Colorado Court of Appeals, Div. III.

December 21, 2000.

Certiorari Granted October 15, 2001.

Woodrow & Roushar, Frank J. Woodrow, Montrose, CO, for Plaintiffs-Appellants.

Younge & Hockensmith, P.C., Earl G. Rhodes, David M. Dodero, Grand Junction, CO, for Defendants-Appellees.

Opinion by Judge KAPELKE.

Plaintiffs, John W. Pierson and Wanda L. Pierson, appeal from the summary judgment dismissing their complaint against defendants, Black Canyon Aggregates, Inc. (Black Canyon) and Chauncey Luttrell. We affirm.

According to plaintiffs' complaint, John Pierson was seriously injured when he drove off a seventeen-foot cliff into a gravel pit. The gravel pit allegedly was located in the middle of a designated county road.

The gravel pit was operated by Black Canyon, a company owned by Luttrell. Black Canyon had contracted with Montrose County to crush gravel at various locations, including the gravel pit where John Pierson was injured. Montrose County, in turn, leased the gravel pit from a third party.

The lease gave the county the exclusive right to mine, excavate, and stockpile gravel on the property. In addition, the lease required the county to maintain all fences on the property and authorized it to place gates at any point on the property. The lease specified that the right of ingress and egress to the property was to be on "dedicated public right-of-way designated as 57.50 Road" and that the county had the right to fence the right-of-way or place cattle guards at any point.

The agreement between the county and Black Canyon primarily concerned the quantity and quality of the gravel to be mined. It did not transfer possession of the property to Black Canyon, but allowed Black Canyon to enter the property to perform the work required under the contract. The county retained the right to enter the property to remedy any unsafe conditions, and Black Canyon was obligated to reimburse the county for all reasonable costs incurred by it in undertaking such remediation. Pursuant to an addendum to the contract, the county also retained the right to determine the depth and approximate location of the excavation.

In their complaint against defendants, plaintiffs sought damages based on theories of: (1) negligence in creating a dangerous condition; (2) breach of a contract between Black Canyon and the county requiring Black Canyon to obtain liability insurance and to name the county as an additional insured; (3) negligence relating to Luttrell's failure to name the county as an additional insured under the insurance policy; and (4) loss of consortium. Plaintiffs did not name the county as a defendant in this action.

Defendants filed a motion for summary judgment, asserting that the premises liability statute, § 13-21-115, C.R.S.2000, controlled the determination of liability. Defendants argued that, because the county was in "possession" of the gravel pit pursuant to its lease with the property owners, Black Canyon was not a "landowner," and thus it could not be liable for plaintiffs' injuries. Defendants also argued that plaintiffs were not third party beneficiaries under the agreement between Black Canyon and the county. Accordingly, Defendants asserted that they were entitled to judgment as a matter of law on the breach of contract claim and the negligence claim for failure to name the county as an insured.

In response, plaintiffs acknowledged that the premises liability statute was controlling, but asserted that Black Canyon was a "landowner" within the meaning of the statute, based on its possession of the property pursuant to the agreement. Plaintiffs also argued that they were third party beneficiaries under the agreement between Black Canyon and the county regarding the purchase of liability insurance, and that Luttrell had been negligent in failing to purchase insurance naming the county as an additional insured.

The trial court found that, for purposes of the premises liability statute, the county was the landowner, not Black Canyon. Therefore, it granted defendant's motion as to plaintiffs' claims under the premises liability statute.

As to plaintiffs' breach of contract claim, the trial court found that, given the express terms of the agreement between Black Canyon and the county and the surrounding circumstances, plaintiffs had standing as third party beneficiaries to pursue that claim against Black Canyon. However, the court determined that plaintiffs' negligence claim for failure to name the county as an additional insured under the insurance policy should be dismissed, because plaintiffs' sole remedy was under the breach of contract claim. The court declined to dismiss the loss of consortium claim, concluding that Wanda Pierson, like her husband, was a third party beneficiary under the agreement.

Defendants later filed another motion for summary judgment on plaintiffs' remaining claims, Defendants asserted that, even if the county had been named as an additional insured under the insurance policy, because the county was immune from liability under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2000, and had not waived its immunity by resolution, under the terms of the policy there would have been no insurance coverage for plaintiffs' injuries.

The trial court agreed with defendants' argument and entered a summary judgment of dismissal. This appeal followed.

I.

Plaintiffs first contend that the trial court erred in determining that Black Canyon was not a "landowner" for purposes of the premises liability statute. We disagree.

Summary judgment is appropriate when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo.1992).

The premises liability statute, § 13-21-115, determines when a "landowner" may be held liable for conditions of, or for activities conducted on, the property. Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365 (Colo.App.1996). The statute provides the exclusive remedy against a landowner for injuries occurring on the landowner's property. See Thornbury v. Allen, 991 P.2d 335 (Colo.App.1999); see also Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459 (D.Colo.1997).

A "landowner" is defined under the premises liability statute as including, "without limitation, an authorized agent or 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." Section 13-21-115(1), C.R.S.2000.

Here, pursuant to its lease with the owners of the gravel pit, the county obtained exclusive possession of the gravel pit for purposes of mining, excavating, and...