Rocky Mountain Planned Parenthood, Inc. v. Wagner

• Decision Date: 08 June 2020
• Docket Number: Supreme Court Case No. 19SC251
• Citation: 467 P.3d 287
• Parties: ROCKY MOUNTAIN PLANNED PARENTHOOD, INC., a/k/a Planned Parenthood of the Rocky Mountains, Inc., Petitioner/Cross-Respondent, and Planned Parenthood Federation of America, Inc., Cross-Respondent v. Samantha WAGNER; Ashley Stewart; A.S., a minor child acting through her mother and next best friend, Ashley Stewart; Mandy Davis; and Ammar Laskarwala, Respondents/Cross-Petitioners.
• Court: Colorado Supreme Court

467 P.3d 287

ROCKY MOUNTAIN PLANNED PARENTHOOD, INC., a/k/a Planned Parenthood of the Rocky Mountains, Inc., Petitioner/Cross-Respondent,andPlanned Parenthood Federation of America, Inc., Cross-Respondent

v.Samantha WAGNER; Ashley Stewart; A.S., a minor child acting through her mother and next best friend, Ashley Stewart; Mandy Davis; and Ammar Laskarwala, Respondents/Cross-Petitioners.

Supreme Court Case No. 19SC251

Supreme Court of Colorado.

June 8, 2020

Attorneys for Petitioner and Cross-Respondents: Taylor Anderson LLP, John M. Roche, Kevin S. Taylor, Denver, Colorado

Attorney for Respondents/Cross-Petitioners: McCormick & Murphy, P.C., Kirk R. McCormick, Colorado Springs, Colorado, Law Offices of Joseph J. Archuleta and Associates, P.C., Joseph Archuleta, Denver, Colorado, Wilcox Law Firm, LLC, Ronald L. Wilcox, Denver, Colorado

Attorneys for Amicus Curiae American Tort Reform Association: Childs McCune LLC, Jordan Lipp, Margrit Lent Parker, Denver, Colorado

Attorneys for Amicus Curiae Coloradans Protecting Patient Access: Caplan and Earnest LLC, Laura Wassmuth, Boulder, Colorado

Attorneys for Amici Curiae Colorado Civil Justice League and Denver Metro Chamber of Commerce: Brownstein Hyatt Farber Schreck, LLP, Julian R. Ellis, Jr., Denver, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Ruebel & Quillen, LLC, Jeffrey Clay Ruebel, Westminster, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, Law One, James Anderson, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case arises from the 2015 mass shooting at Planned Parenthood of the Rocky Mountains’ ("PPRM's") Colorado Springs facility, which left three people dead and nine seriously injured. Although the impact of this event on, and the importance of this case to, all of the parties now before us cannot be overstated, the questions that we must decide here are narrow. First, we must determine whether the plaintiffs have introduced sufficient evidence to establish a genuine issue of material fact as to whether Robert Dear's conduct as the shooter was the "predominant cause" of the plaintiffs’ injuries such that PPRM's conduct, even if it contributed to such injuries, could not be a substantial factor in causing them. Second, we must address whether the plaintiffs have established a genuine issue of material fact as to whether PPRM's parent organization, Planned Parenthood Federation of America ("PPFA"), owed them a duty of care.¹

¶2 With respect to the first question before us, we conclude, without expressing any opinion on the merits of this case, that the plaintiffs have presented sufficient evidence to establish a genuine issue of material fact as to whether Dear's conduct was the predominant cause of their injuries. Accordingly, we conclude that the division below correctly determined that summary judgment was inappropriate on this issue.

¶3 With regard to the second question, we conclude, as a matter of law, that the plaintiffs did not establish that PPFA owed them a legal duty. Accordingly, we conclude that the division correctly affirmed the entry of summary judgment for PPFA on this claim.

¶4 We therefore affirm the judgment of the division below.

I. Facts and Procedural History

¶5 During the summer of 2015, a group called the Center for Medical Progress, an anti-abortion organization, released a series of undercover videos purporting to show Planned Parenthood staff discussing methods of obtaining fetal organs and tissue for medical research and the financial compensation received therefrom. Soon after the release of these videos, which came to be known as the "baby body parts" videos, reproductive health facility staff members and state and local law enforcement officials reported a number of criminal or suspicious incidents targeting reproductive health facilities across the United States, including threats to blow up such facilities and threats of violence against individuals associated with them.

¶6 Dear apparently saw the above-described videos, and he determined to take action against PPRM because he was upset with that organization for performing abortions and "selling baby parts." Accordingly, on the morning of November 27, 2015, Dear went to the PPRM facility in Colorado Springs with eight guns of various sorts, propane tanks that he believed would explode if he shot at them, and a homemade ballistic vest. When Dear arrived at the PPRM facility, he began shooting people in its parking lot, killing one person and injuring two others. He then proceeded to enter the facility itself by shooting through the glass portion of the window to an entrance door. Once inside the building, Dear shot and killed another individual and injured several more before he engaged in a five-hour shootout with police who had arrived on the scene. In the course of this shootout, Dear killed one of the officers and wounded

five other officers. By the end of Dear's rampage, he had killed three people and shot and injured approximately nine others. He then surrendered to the police.

¶7 The plaintiffs are several individuals who were injured during the shooting and the survivors of one of the victims who was killed. They ultimately filed suit against both PPRM and PPFA.

¶8 As pertinent here, the plaintiffs asserted a claim against PPRM under the Colorado Premises Liability Act, section 13-21-115, C.R.S. (2019) ("CPLA"). In this claim, they alleged that they were invitees at the Colorado Springs facility and therefore PPRM had a duty to provide them with a safe and secure environment, "free from foreseeable risks and dangerous conditions on the premises of which [PPRM] knew or should have known." The plaintiffs further alleged that Dear's attack was foreseeable, given the "long history of violent direct attacks, killings and threats" against Planned Parenthood facilities.

¶9 The plaintiffs also asserted a claim against PPFA for negligence. In this claim, the plaintiffs alleged that PPFA had a duty to exercise reasonable care to provide for the safety and security of the individuals it invited, through its chapters and affiliates, to come to its facilities. The plaintiffs contended, among other things, that PPFA had negligently supervised PPRM by (1) not regularly inspecting the operations and security at PPRM's Colorado Springs facility; (2) not developing and implementing detailed and thorough guidelines and policies concerning safety requirements at facilities that provided abortions; (3) not communicating or requiring such safety measures; (4) not requiring PPRM to provide adequate warnings to the public; and (5) not properly instructing PPRM concerning proper security in light of the known threats.

¶10 Following discovery, both PPRM and PPFA filed motions for summary judgment. PPRM argued that it was entitled to summary judgment because, as a matter of law, it did not cause, nor should it have foreseen, the mass murderous assault committed by Dear. PPFA, in turn, argued that it was entitled to summary judgment because (1) the material facts belied a conclusion that it caused, or should have foreseen, Dear's mass murderous assault and (2) it owed no duty of care to the plaintiffs because it did not possess PPRM's Colorado Springs facility, it was not legally responsible for the conditions or activities conducted there, and it was not PPRM's alter ego.

¶11 The district court agreed with PPRM's assertion that, to the extent it had contributed to the plaintiffs’ injuries, "Dear's actions predominate by orders of magnitude on the issue of causation." The district court further opined that Dear's actions were unforeseeable because, among other things, no violent crime of any kind had ever occurred at PPRM's Colorado Springs facility, nor did PPRM have notice that any kind of violence was imminent there, much less the kind of violence that ultimately ensued. The district court thus entered summary judgment in PPRM's favor.

¶12 The district court likewise agreed with PPFA's contention that, as a matter of law, it owed no duty to the plaintiffs. In support of this ruling, the court concluded that the plaintiffs and PPFA were not in one of the recognized forms of "special relationships" that could give rise to a duty of care in a case like this. In addition, the court concluded, based on the summary judgment record before it, that PPRM was, "incontrovertibly, not the alter ego of PPFA." Thus, the district court granted summary judgment in favor of PPFA, as well.

¶13 The plaintiffs appealed and, in a published decision, a divided division of the court of appeals reversed the grant of summary judgment for PPRM but affirmed the judgment in PPFA's favor. Wagner v. Planned Parenthood Fed'n of Am., Inc. , 2019 COA 26, ––– P.3d ––––.

¶14 With respect to PPFA, the division unanimously upheld the district court's conclusion that, as a matter of law, PPFA owed no duty to the plaintiffs and that, therefore, it was entitled to summary judgment. Id. at ¶ 11 ; see also id. at ¶ 45 (Webb, J., concurring in part and dissenting in part).

¶15 With respect to PPRM, however, the division split. Id. at ¶ 12 ; see also id. at ¶ 45 (Webb, J., concurring in part and dissenting in part). The majority reversed the district court's order entering summary judgment for PPRM, agreeing with the plaintiffs that they had produced sufficient evidence to raise genuine issues of material fact as to whether PPRM (1) knew of reasonable security measures that would have prevented harm to the plaintiffs and (2) was sufficiently aware of the potential for criminal conduct at its facilities such that it could have prepared for the type of offenses committed by Dear. Id. at ¶ 12. The majority thus concluded that a factual dispute existed as to whether PPRM knew or should have known of the danger faced by invitees who had entered or who were attempting to enter its facility on the day of the...