Vigil v. Franklin

CourtSupreme Court of Colorado
Citation103 P.3d 322
Docket NumberNo. 03SC479.,03SC479.
PartiesJames P. VIGIL, as Conservator for James R. Vigil, Petitioner, v. William FRANKLIN, Gladys Franklin, and Will Franklin, Respondents.
Decision Date30 November 2004

103 P.3d 322

James P. VIGIL, as Conservator for James R. Vigil, Petitioner,
William FRANKLIN, Gladys Franklin, and Will Franklin, Respondents

No. 03SC479.

Supreme Court of Colorado, En Banc.

November 30, 2004.

103 P.3d 323
Buchanan, Jurdem & Cederberg, P.C., Ross B.H. Buchanan, Denver, for Petitioner

Levy, Morse & Wheeler, P.C., Karen H. Wheeler, Brian J. Waters, Englewood, for Respondents.

Holland & Hart, Susannah Pollvogt, Patricia Dean, Denver, Amicus Curiae for Colorado Trial Lawyers Association.

Campbell, Latiolais & Ruebel, P.C., Jeffrey Clay Ruebel, Denver, Amicus Curiae for Colorado Defense Lawyer's Association.

Snell & Wilmer, LLP, Lee Mickus, Denver, Amicus Curiae for Colorado Civil Justice League.

RICE, Justice.

Petitioner James Vigil seeks review of the court of appeals' decision that the trial court's grant of summary judgment was proper because the common law open and obvious danger doctrine survived enactment of Colorado's premises liability statute.1 We reverse.

Upon review, we find that the express, unambiguous language of the statute evidences the General Assembly's intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property. Accordingly, common law landowner duties do not survive its enactment. In addition, nothing in the plain language of the statute, either expressly or by clear implication, incorporates the common law defense of open and obvious dangers. Therefore, we hold that the common law open and obvious danger doctrine does not survive the enactment of Colorado's premises liability statute.

I. Facts and Proceedings Below

Vigil, 36-years-old and mildly retarded, filed a tort cause of action seeking damages

103 P.3d 324
for injuries he received in a tragic diving accident. Since the trial court granted summary judgment on the pleadings, no trial was held and much of the circumstances concerning the accident are disputed. Vigil alleges that on June 25, 1997, he dove into a four-feet-deep, above-ground pool on Respondents William, Gladys, and Will Franklins' ("the Franklins") property and sustained severe spinal injuries, rendering him a permanent quadriplegic. Vigil was on the Franklins' property as a laborer for the Arkansas Valley Community Center for Handicapped and for Retarded Persons, Inc. (the "Girch Center"), from which he received job training skills and work experience. The Franklins had contracted with the Girch Center for weed removal and other manual labor. On the morning of the accident, Vigil worked at another Girch Center jobsite repairing wood pallets. After a lunchtime altercation with another laborer, the Girch Center transferred Vigil to the Franklins' property for the afternoon

Vigil worked until about 2:30 p.m., when he and other Girch Center laborers began joking about whether anyone wanted to get thrown into the swimming pool. Then, as Vigil stated in his deposition: "[w]e were getting ready to clean up. And I had mentioned to the guys that, [w]ell, is anyone going to jump in the pool. And when I didn't hear nothing or no response, I said, [y]ou bunch of chickens. And since nobody was going to go, I was going." Vigil took off his shirt, shoes, and socks, removed his wallet, and ran towards the pool. He climbed up onto the narrow white metal rim of the pool, and crouched with his head lowered. According to Vigil, he "was attempting to dive in and come up on the other side right away" — to execute a racing-style dive. Instead, the top front of Vigil's head struck the bottom of the pool, fracturing his sixth and seventh cervical vertebra. Fellow Girch Center laborers pulled Vigil out of the pool and emergency medical assistance was requested.

The Franklins moved for summary judgment, arguing, inter alia, that they owed no duty of care to Vigil because diving into an above-ground pool was an open and obvious danger. With no analysis and without stating any specific grounds, the trial court granted their motion, finding, among other things, the following undisputed facts:

[1.] The existence of the swimming pool and the nature of its structure were obvious, that is, it was beyond doubt that the structure was a swimming pool, that some of the pool extended above ground level, and that ... [Vigil] was taller than that portion of the pool which was above ground.
[2.] Vigil did not know the depth of the swimming pool when he dived in.

Vigil appealed and the court of appeals affirmed. In a published opinion, Vigil v. Franklin, 81 P.3d 1084 (Colo.App.2003), the court of appeals held that the Franklins had no duty to warn Vigil of the open and obvious danger of diving into an above-ground swimming pool. Consequently, the court affirmed the grant of summary judgment.

Vigil sought review, and because of the importance of the issue raised, we exercised our discretion to hear his case.2

II. Legal Background

The issue in this case is whether common law defenses to landowner duties, such as the open and obvious danger doctrine, still exist, even after the passage of Colorado's comprehensive premises liability statute. In order to answer this question, a brief synopsis of the common law principles at issue as well as the premises liability statute is necessary. We turn first to common law principles of tort liability, including the concepts of landowner duties and defenses to duty.

A. Creation of Common Law Duties and Defenses

A tort may be defined as legally improper conduct that causes harm and imposes

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civil liability. E.g., Dan B. Dobbs, The Law of Torts § 1, at 1 (2000). Tort law largely finds its origin in the common law, though legislatures increasingly participate in determining what conduct constitutes a tort. Id. In cases involving negligent torts, a common law prima facie cause of action requires the proof of four elements: a plaintiff must show that first, the defendant owed a legal duty of care; second, the defendant breached that duty; third, the plaintiff was injured; and fourth, the defendant's breach caused that injury. E.g., Ryder v. Mitchell, 54 P.3d 885, 889 (Colo.2002). Of these, duty is the threshold element. Only if there is a legal duty to avoid unreasonably risky conduct does the issue of breach and then the other negligence elements arise

At common law, whether a defendant owes a duty to a plaintiff is a question of law to be determined by the court. E.g., Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 465 (Colo.2003). "`[T]he existence and scope of the duty'" essentially addresses "`whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection.'" Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987) (quoting Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980)).

A defendant always has the option at common law of arguing that he did not owe a duty to an injured plaintiff. Structurally, this argument is independent of and arises before other recognized negligent tort defenses such as contributory negligence and comparative fault. Where a defendant successfully argues no duty, there is no subsequent inquiry into negligence; considering additional defenses under the breach, causation, and damages elements is entirely unnecessary.

Here, the Franklins exercised their common law option to argue that they owed no duty of care to Vigil because the danger of diving into the above-ground swimming pool was so open and obvious as to discharge any legal duty. In so arguing, they relied primarily upon our decision in Smith v. City and County of Denver, 726 P.2d 1125 (Colo.1986). In Smith, we held that the Denver Board of Water Commissioners was under no duty to warn an injured plaintiff of the "inherent dangers" of diving from boulders into a naturally-flowing river "because the potential for danger was readily apparent." Id. at 1127-28 (referring to Burchinal v. Gregory, 41 Colo.App. 490, 492, 586 P.2d 1012, 1013-14 (1978)).3 To reach this conclusion, we borrowed principles from both strict liability and proximate cause. See Bookout v. Victor Comptometer Corp., 40 Colo.App. 417, 419, 576 P.2d 197, 198 (1978) ("[T]he potential for danger inherent in a BB gun is readily apparent and a warning for the obvious is not a requirement of the doctrine of products liability.") (cited in Burchinal, 41 Colo.App. at 492, 586 P.2d at 1013-14); Smith, 726 P.2d at 1127 ("Owners and occupiers of land ... are not insurers against every foreseeable accident which might occur.") (citing Webb v. Thomas, 133 Colo. 458, 463-64, 296 P.2d 1036, 1038-39 (1956); Burchinal, 41 Colo.App. at 491-92, 586 P.2d at 1013).4

B. Premises Liability

Since the alleged tort occurred on the Franklins' property, this is a tort "action against a landowner." See § 13-21-115(2).5 As such, we must consider Colorado's premises liability statute in determining whether the Franklins owed Vigil a legal duty.

Colorado premises liability law has changed dramatically over the last 35 years. Prior to 1971, a landowner's duty of care was determined by the status of the injured party — specifically, whether the plaintiff was a trespasser, licensee, or invitee. See Mile

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High Fence Co. v. Radovich, 175 Colo. 537, 541 n. 2, 489 P.2d 308, 311 (1971) (citing extensive case law); see generally 7 John W. Grund & J. Kent Miller, Colorado Personal Injury Practice — Torts and Insurance §§ 19.2-19.7 (2d ed.2000). Then, in Mile High Fence, we abandoned the common law classification scheme in favor of the traditional negligence concept, requiring landowners to meet a standard of reasonable care "in view of the ... foreseeability of injury to others." 175 Colo. at 548, 489 P.2d at 314. The General Assembly then sought to reinstate the status classifications in 1986 by enacting the premises liability statute, Ch. 109, sec. 1, § 13-21-115, 6A C.R.S. (1987), 1986 Colo. Sess. Laws 683, but that statute was held...

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