Reid v. Berkowitz, Court of Appeals No. 12CA0769
| Citation | 2013 COA 110 |
| Decision Date | 18 July 2013 |
| Docket Number | Court of Appeals No. 12CA0769 |
| Parties | Rodney Reid, Plaintiff-Appellee, v. Daniel Berkowitz, d/b/a Shimon Builders, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
City and County of Denver District Court No. 10CV3320
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Opinion by JUDGE CASEBOLT
¶1 In this premises liability action under section 13-21-115, C.R.S. 2012, defendant, Daniel Berkowitz, doing business as Shimon Builders, appeals the judgment entered against him following a jury verdict in favor of plaintiff, Rodney Reid. Defendant contends the trial court erred in ruling that plaintiff was a licensee; that defendant could not apportion fault to independent contractors under section 13-21-111.5, C.R.S. 2012; and that there was insufficient evidence of plaintiff’s comparative negligence to justify submitting that issue to the jury. We affirm in part, reverse in part, and remand.
¶2 On the evening of May 5, 2008, plaintiff, a construction worker, accompanied his friend, a painter, to a house that was being constructed by defendant in Denver. The house was eighty to ninety percent completed, and the painter was there to do touch-up painting. Plaintiff had himself performed some work on the construction project previously, but accompanied the painter that evening because the painter had offered to take him to a potential out-of-town job site the next day, and plaintiff planned to spend the night at the painter’s house. Between these two individuals, it was customary to provide assistance to each other without pay in performing construction work.
¶3 The painter asked plaintiff to find some shop lights to illuminate the area to be painted. The lights were located on the top floor of the three-story structure. When plaintiff proceeded up the stairs, he apparently encountered an obstruction on or near the top landing. He tripped and grabbed the handrail, which had been placed previously by other construction workers. Plaintiff testified that when he grabbed the handrail, it gave way, and he fell three stories to the floor below, sustaining significant injuries.
¶4 Before trial, defendant designated the two construction workers who had installed the handrail as nonparties at fault under section 13-21-111.5, contending that they had negligently failed to secure it. The court approved the designation, and plaintiff later amended his complaint to include the two coworkers as defendants. Because the two coworkers failed to answer the complaint, the court entered a default judgment and awarded plaintiff damages of over $1 million against them.
¶5 The parties stipulated that defendant was a landowner under section 13-21-115(1), C.R.S. 2012, but disagreed on plaintiff’s status. The trial court rejected defendant’s contention that plaintiff was a trespasser and ruled during trial that plaintiff was a licensee. The court found that plaintiff, defendant, and the painter were well acquainted with one another and had worked together many times in the past. All three testified that plaintiff was welcome on the construction site. The painter and plaintiff testified that defendant frequently allowed his workers to bring others to help them with their tasks and knew that the painter often worked with assistance after hours. There was no evidence presented that plaintiff was not permitted to be on the construction site.
¶6 Defendant submitted proposed jury instructions concerning apportionment of fault to the two coworkers, as well as an instruction concerning comparative negligence. The court ruled that, because a matter of safety at the construction job site was involved, defendant had a nondelegable duty to maintain the premises in a safe condition; therefore, it held that an apportionment of fault to the two coworkers would not be permissible.
¶7 The court also rejected defendant’s comparative negligence instruction because it concluded there was no evidence to support it. The court stated that the only evidence presented was that of plaintiff himself, who stated that he had tripped over some cables. The court stated that, by inference, the jury could decide plaintiff tripped over his own feet, but in this type of situation, tripping did not rise to the level of failing to exercise reasonable care.
¶8 Following trial, the jury awarded plaintiff $400,000 and the trial court entered judgment against defendant for that amount, adding interest. This appeal followed.
¶9 Defendant contends the trial court erred in determining that plaintiff was a licensee at the time of the incident. We disagree.
¶10 The trial court determines whether a plaintiff was an invitee, a licensee, or a trespasser at the time of the injury. § 13-21-115(4), C.R.S. 2012; Chapman v. Willey, 134 P.3d 568, 569 (Colo. App. 2006). We review the trial court’s determination as a mixed question of law and fact. Chapman, 134 P.3d at 569. We defer to the trial court’s credibility determinations and will disturb its findings of historical fact only if they are clearly erroneous and are not supported by the record. Id. We review de novo the trial court’s application of the governing statutory standards. Id.
¶11 The duty that a landowner owes to an individual on the property varies depending upon the status of the individual. § 13- 21-115(3), C.R.S. 2012; Corder v. Folds, 2012 COA 174, ¶10. As applicable here, the premises liability statute defines trespasser and licensee as follows:
§ 13-21-115(5)(b)-(c), C.R.S. 2012.
¶12 With respect to a licensee, a landowner is liable for injuries caused by the “failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew,” or the “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.” § 13-21-115(3)(b)(I)-(II), C.R.S. 2012. Concerning a trespasser, a landowner is liable only for injuries “willfully or deliberately caused by the landowner.” § 13-21-115(3)(a), C.R.S. 2012.
¶13 The term “consent” as used in the statute includes implied consent. Corder, ¶17. “Permission” is defined as conduct that justifies others in believing that the possessor of property is willing to have them enter if they wish to do so. Id. at ¶16. The question of whether the landowner gave implied consent or permission to a plaintiff through a course of conduct is a question of fact for the trial court. Id. at¶19.
¶14 Here, the trial court found that plaintiff was a licensee because he had an ongoing business relationship with defendant; he had worked on the construction site in question; it was customary for workers on the project to help each other, and defendant was aware of this custom; workers had flexibility as to how and when they could perform their work; and at the time of the accident, plaintiff was on the property helping the painter while waiting for a ride. Furthermore, defendant maintained an “open worksite,” meaning that it was acceptable for workers to bring additional help to the site to complete a task without defendant’s knowledge.
¶15 The trial court’s findings and conclusions are supported by the record. Defendant testified that plaintiff was welcome on the job site and, had defendant seen plaintiff on the site on the night of the accident, defendant would not have asked plaintiff to leave and would have “hung out” with plaintiff. Furthermore, defendant testified he knew that the painter and plaintiff were friends; that the painter would sometimes work at night; that the painter always brought others to help him with his work; and that plaintiff had helped the painter in the past.
¶16 There was also testimony that plaintiff had worked on defendant’s construction projects about twenty times since 2005. Plaintiff testified that he felt welcome on the property and that he had helped three different workers on the property: a welder, a plumber, and the painter. The painter testified defendant never directed him not to bring plaintiff to the site and that defendant had “no problem” if the painter brought others to the site to help him finish his work.
¶17 These facts and circumstances are sufficient to support the trial court’s findings and conclusion that plaintiff had permission or consent to be upon the premises. See Corder, ¶19. Accordingly, the trial court did not err in concluding that plaintiff was a licensee.
¶18 Relying upon the language in section 13-21-115(2), C.R.S. 2012, and in section 13-21-111.5, defendant contends that the trial court erred in refusing to instruct the jury that it could apportion liability and fault to the two coworkers. We agree that the court should have instructed the jury that it could apportion fault, but conclude that under the circumstances present here, a shifting of the liability would have been improper and, therefore, the error is harmless.
¶19 We review questions of law and statutory interpretation de novo. Progressive Cas. Ins. Co. v. Moore, 2012 COA 145, ¶8; McIntire v. Trammell Crow, Inc., 172 P.3d 977, 979 (Colo....
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