SW v. Towers Boat Club, Inc., No. 11CA0935.

Docket NºNo. 11CA0935.
Citation318 P.3d 38
Case DateApril 26, 2012
CourtCourt of Appeals of Colorado

318 P.3d 38

SW, a minor by and through his parents and next friends, David and Rhonda WACKER; David Wacker; and Rhonda Wacker, Plaintiffs–Appellants,
v.
TOWERS BOAT CLUB, INC., Defendant–Appellee.

No. 11CA0935.

Colorado Court of Appeals,
Div.
III.

April 26, 2012.



Purvis Gray, LLP, John Purvis, Boulder, Colorado, for Plaintiffs–Appellants.

Senter Goldfarb & Rice, L.L.C., Arthur Kutzer, Joel Palmer, Denver, Colorado, for Defendant–Appellee.


Opinion by Judge TERRY.

¶ 1 As an issue of first impression, we address whether, under the premises liability statute, section 13–21–115, C.R.S.2011, a child licensee may assert a claim based on the attractive nuisance doctrine. We conclude that a child licensee may not maintain such a claim.

¶ 2 Plaintiffs, SW, David Wacker, and Rhonda Wacker, appeal the trial court's summary judgment in favor of defendant, Towers Boat Club, Inc. (landowner). We affirm.

I. Background

¶ 3 On August 2, 2008, SW, then eleven years old, attended a social gathering at Poudre

[318 P.3d 39]

Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs eventually settled the claims that they asserted against other defendants.

¶ 4 Plaintiffs asserted two claims against landowner, one for negligence and the other under Colorado's premises liability statute, section 13–21–115. Landowner moved for summary judgment. The trial court granted the motion as to plaintiffs' negligence and premises liability claims. However, the court construed the complaint to include a claim for attractive nuisance, and denied summary judgment as to that claim.

¶ 5 Landowner moved for reconsideration, arguing that the attractive nuisance doctrine was inapplicable to SW. The court agreed and dismissed plaintiffs' attractive nuisance claim. Plaintiffs appeal only the trial court's dismissal of the attractive nuisance claim.

II. Standard of Review

¶ 6 We review de novo an order granting a motion for summary judgment. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo.2002). Summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. The nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts, and all doubts are resolved against the moving party. A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.2005).

III. Discussion

¶ 7 We are not persuaded by plaintiffs' contention that the trial court erred in granting landowner's motion for summary judgment.

¶ 8 Section 13–21–115(3), C.R.S.2011, classifies entrants upon the land of another as trespassers, licensees, or invitees. As relevant here, that subsection outlines the respective duties that a landowner owes to each class, as follows:

(3)(a) A trespasser may recover only for damages willfully or deliberately caused by the landowner.

(b) A licensee may recover only for damages caused:

(I) By the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or

(II) By 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.

(c)(I) ... [A]n invitee may recover for 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.

§ 13–21–115(3).


¶ 9 The trial court ruled that SW was a licensee, and plaintiffs do not contest that ruling on appeal. Instead, they argue that the trial court erred in ruling that, because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance. Plaintiffs contend this ruling contravenes the supreme court's holding in Gallegos v. Phipps, 779 P.2d 856, 859 (Colo.1989). We disagree.

A. Attractive Nuisance Doctrine

¶ 10 Plaintiffs argue that no Colorado appellate decision expressly holds that the attractive nuisance doctrine is limited to trespassing children. They contend that the Colorado decisions addressing attractive nuisance all involve factual scenarios in which a child was trespassing, and thus the issue of whether the doctrine can apply to licensees such as SW has not previously been decided. They further contend that, although SW has been determined to be a licensee, he should be able to invoke the attractive nuisance doctrine.

¶ 11 We disagree that existing Colorado decisions, when construed together with the premises liability statute, leave any doubt about the application of the attractive nuisance doctrine, and conclude the doctrine

[318 P.3d 40]

unequivocally applies only to children enticed by an attractive nuisance to trespass on another's property. Thus, the doctrine cannot be applied to SW.

1. History of Attractive Nuisance Doctrine in Colorado

¶ 12 The attractive nuisance doctrine developed to provide legal relief to certain trespassing children who otherwise would be barred from recovery because of Colorado's rule that a landowner owes no duty to make or keep premises safe for a trespasser. See Hayko v. Colorado & Utah Coal Co., 77 Colo. 143, 147, 235 P. 373, 374 (1925), overruled in part by Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), superseded by§ 13–21–115as noted in Gallegos, 779 P.2d at 861;see also John W. Grund & J. Kent Miller, 7 Colo. Prac., Personal Injury Practice—Torts and Insurance § 19.5, at 314–15 (2d ed. 2000).

¶ 13 The doctrine has since been modified, both by ensuing case law and by statute. Because the history of attractive nuisance doctrine is tied to the general history of premises liability law in Colorado, we briefly summarize the unique history of Colorado premises liability law.

¶ 14 The supreme court described some of that history in Gallegos, as follows:

Until 1971, the law in Colorado governing landowner[s'] liability followed the common law's emphasis on whether the injured party was an invitee, licensee, or trespasser. See [Mile High Fence, 175 Colo. at 541, 489 P.2d at 311]; Husser v. School Dist. No. 11, 159 Colo. 590, 593, 413 P.2d 906, 908 (1966). Under the common law, the landowner's liability depended exclusively upon the injured party's status. For example, a landowner had no duty to make or keep his premises safe for a trespasser. Staley v. Security Athletic Ass'n, 152 Colo. 19, 21, 380 P.2d 53, 54 (1963). If, however, the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled [ by Mile High Fence, 175 Colo. 537, 489 P.2d 308]. An even higher standard was owed if the person was an invitee; where an invitee was upon the owner's land, the owner had a duty to have the land in a reasonably safe condition and to warn of concealed defects that might have been discovered in the exercise of reasonable care. Id. at 278, 25 P.2d at 720.

In 1971, Colorado's common-law scheme governing landowner's liability was abolished by [ Mile High Fence], 175 Colo. 537, 489 P.2d 308. In [that case], the court held that the classification of one who is upon the property of another as invitee, licensee, or trespasser was no longer dispositive of the landowner's liability or the degree of care owed by the landowner. 175 Colo. at 548, 489 P.2d at 314. Rather, the relevant inquiry was whether the landowner, in the management of the property, acted as a reasonable person in view of the probability or foreseeability of injuries to others. Id. A person's status as an invitee, licensee, or trespasser might have some bearing on the issue of liability, but it was only one factor among many to be considered in making the determination. 175 Colo. at 548, 489 P.2d at 314–15.

Mile High Fence remained in effect until May 16, 1986, when the General Assembly enacted [the first version of] section 13–21–115 ..., for the explicit purpose of resurrecting the common-law classification scheme laid to rest by [Mile High Fence ]. Under the statute, categories analogous to trespasser, licensee, and invitee were established.... According to the legislators who sponsored House Bill 1205, which later became section 13–21–115, the common-law categories were reestablished because the reasonable person standard created by Mile High Fence led to unpredictable and inequitable results. Of particular concern to legislators was the perception that under Mile High Fence, the responsibility for a trespasser's injuries was unfairly shifted from the trespasser to the landowner. Section 13–21–115 was, as one legislator put it, designed so that “responsibility falls upon the trespasser.”

Gallegos, 779 P.2d at 860–61 (footnotes omitted).


[318 P.3d 41]

¶ 15 In Gallegos, the supreme court concluded that the then-current version of section 13–21–115 was unconstitutional because it created an “inverted hierarchy” of duties, with a higher duty owed to licensees than to invitees. Applying the rational basis test for constitutional scrutiny, the court concluded that this statutory scheme was contrary to well-established common law principles, lacked a rational basis, and was unconstitutional. Id. at 862–63.

¶ 16 After Gallegos was announced, the General Assembly amended section 13–21–115. As pertinent to our historical analysis, that amended section states:

(1.5) The general assembly hereby finds and declares:

(a) That the provisions of this section were enacted in 1986 to promote a state policy of responsibility by both landowners and those upon the land as well as to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee;

(b) That...

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3 practice notes
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...equal protection. The court of appeals affirmed the trial court's ruling. S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 2, 318 P.3d 38. After reviewing section 13–21–115, the court of appeals concluded that “the common law doctrine of attractive nuisance applies only to tres......
  • Lafond v. Sweeney, Supreme Court Case No. 12SC205
    • United States
    • Colorado Supreme Court of Colorado
    • January 20, 2015
    ...46 Accordingly, we affirm the judgment of the court of appeals.--------Notes:1 We granted certiorari in LaFond v. Sweeney, 2012 COA 27, 318 P.3d 38, to review the following issues:1. Whether the court of appeals' holding that a contingent fee earned by an attorney who previously represented......
  • Clem v. Schultz, Civil Action No. 19-cv-03570-REB-KLM
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • April 2, 2021
    ...and briefing was completed on January 4, 2021. The case was subsequently dismissed. 3. In S.W. ex rel Wacker v. Towers Boat Club, Inc., 318 P.3d 38, 42 (Colo. App. 2012), the Colorado Court of Appeals held that a trespass is required in order for the attractive nuisance doctrine to apply. T......
3 cases
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...equal protection. The court of appeals affirmed the trial court's ruling. S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 2, 318 P.3d 38. After reviewing section 13–21–115, the court of appeals concluded that “the common law doctrine of attractive nuisance applies only to tres......
  • Lafond v. Sweeney, Supreme Court Case No. 12SC205
    • United States
    • Colorado Supreme Court of Colorado
    • January 20, 2015
    ...46 Accordingly, we affirm the judgment of the court of appeals.--------Notes:1 We granted certiorari in LaFond v. Sweeney, 2012 COA 27, 318 P.3d 38, to review the following issues:1. Whether the court of appeals' holding that a contingent fee earned by an attorney who previously represented......
  • Clem v. Schultz, Civil Action No. 19-cv-03570-REB-KLM
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • April 2, 2021
    ...and briefing was completed on January 4, 2021. The case was subsequently dismissed. 3. In S.W. ex rel Wacker v. Towers Boat Club, Inc., 318 P.3d 38, 42 (Colo. App. 2012), the Colorado Court of Appeals held that a trespass is required in order for the attractive nuisance doctrine to apply. T......

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