Vigil v. Franklin

• Decision Date: 22 May 2003
• Citation: 81 P.3d 1084
• Docket Number: 01CA2172
• Parties: James P. VIGIL, as Conservator for James R. Vigil, Plaintiff-Appellant, v. William FRANKLIN, Gladys Franklin, and Will Franklin, Defendants-Appellees.
• Court: Colorado Court of Appeals

81 P.3d 1084

James P. VIGIL, as Conservator for James R. Vigil, Plaintiff-Appellant, v. William FRANKLIN, Gladys Franklin, and Will Franklin, Defendants-Appellees.

No. 01CA2172.

Colorado Court of Appeals, Div. IV.

May 22, 2003.

Certiorari Granted January 12, 2004.

Buchanan, Jurdem & Zulauf, P.C., Ross B.H. Buchanan, Denver, Colorado; Anderson, Hemmat & Levine, L.L.C., Jordan S. Levine, Denver, Colorado, for Plaintiff-Appellant.

Levy, Morse & Wheeler, P.C., Karen H. Wheeler, Brian J. Waters, Englewood, Colorado, for Defendants-Appellees.

Opinion by Judge DAILEY.

In this negligence action, plaintiff, James R. Vigil, appeals the summary judgment entered in favor of defendants, William Franklin, Gladys Franklin, and Will Franklin. We affirm.

Plaintiff, a 28-year-old, mildly retarded person, was obtaining job-training skills from an organization that defendants employed to clean up their property. After finishing work one day, the 5'11" plaintiff jumped up onto defendants' 4' high, aboveground pool, dove into the water, and hit his head on the bottom of the pool. He suffered a spinal injury that left him a quadriplegic.

Plaintiff filed the present action, alleging, as pertinent here, that defendants were liable under the premises liability statute, § 13-21-115, C.R.S.2002, because they unreasonably failed to warn him of the dangers of diving into their pool.

Defendants moved for summary judgment, asserting: (1) they owed no duty to warn because plaintiff was a trespasser on the property; (2) even if plaintiff were not a trespasser, they had no duty to warn him of an open and obvious danger associated with diving into shallow water; (3) even if the danger were not open and obvious, they complied with the premises liability statute by providing adequate warnings of the danger; and (4) in any event, they could not be held liable under comparative negligence principles because, as a matter of law, plaintiff's own recklessness made him more responsible than defendants for the injury.

In response to defendants' motion, plaintiff asserted: (1) a material issue of fact existed as to whether he was a trespasser, because he was a member of the work crew and some witnesses related that defendants had given crew members permission to use the pool; (2) the premises liability statute does not permit landowners to avoid liability for failing to warn of open and obvious dangers, and, even if it did, a material issue of fact existed as to whether the danger of diving into shallow, and perhaps murky, water was open and obvious; (3) a material issue of fact existed as to whether the number, size, and placement of defendants' signs on the pool provided plaintiff adequate warning of the danger; and (4) the relative responsibility of plaintiff and defendants for the accident was a question of fact for the jury to determine.

The trial court found the following facts undisputed:

1. At the time and on the date of the Plaintiff's injury, Defendants [ ] had not given consent or permission for the Plaintiff or anyone else he was with to enter their swimming pool.

2. There were some signs in place warning of the dangers of diving into the swimming pool.

3. 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 the Plaintiff was taller than that portion of the pool which was above ground.

4. The Plaintiff did not know the depth of the swimming pool when he dived in.

Based on these facts, "the briefs, the arguments, and the authorities cited by [defendants]," the trial court determined that defendants were entitled to judgment as a matter of law and accordingly entered summary judgment in their favor.

Because the trial court did not identify the precise grounds upon which it granted summary judgment, plaintiff on appeal challenges all of defendants' bases for requesting summary judgment.

I. Governing Law

We review de novo a trial court's order granting summary judgment. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo.2002).

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. See C.R.C.P. 56(c).

In assessing a summary judgment ruling, we view all facts in the light most favorable to the nonmoving party, see Redmond v. Chains, Inc., 996 P.2d 759, 762 (Colo.App. 2000), give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence, and resolve all doubts as to the existence of a material fact against the moving party. Schold v. Sawyer, 944 P.2d 683, 684 (Colo.App.1997).

Whether a fact is material depends, in part, upon the substantive legal basis for a claim. Weisbart v. Agri Tech, Inc., 22 P.3d 954, 956 (Colo.App.2001).

The premises liability statute "provides the exclusive remedy against a landowner for injuries sustained on the landowner's property." Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612, 613 (Colo.App. No. 02CA0637, Apr. 10, 2003).

Under that statute, a landowner's duty to others depends upon whether they qualify as invitees, licensees, or trespassers on the property. Section 13-21-115(2)-(3), C.R.S. 2002.

An invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested; a licensee is a person who enters or remains on the property, with the landowner's consent, for the person's own convenience or to advance his or her own interests; and a trespasser is a person who enters or remains on land without the landowner's consent. Section 13-21-115(5), C.R.S.2002.

"The highest standard of care is owed the `invitee,' a lesser is owed the `licensee,' and a yet lesser is owed the trespasser." Maes v. Lakeview Associates, Ltd., 892 P.2d 375, 377 (Colo.App.1994), aff'd, 907 P.2d 580 (Colo.1995).

As pertinent here, an invitee "may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he [or she] actually knew or should have known." Section 13-21-115(3)(c)(I), C.R.S.2002; see also Springer v. City & County of Denver, 13 P.3d 794, 804 (Colo.2000)(describing the elements of landowner liability to invitees in terms of (1) breach of a duty to use reasonable care to protect against a danger on the property, and (2) actual or constructive knowledge of the danger).

A landowner has a more limited duty to exercise reasonable care with respect to licensees. See § 13-21-115(3)(b)(I)-(II), C.R.S.2002 (licensee may recover only for injuries caused by a landowner's unreasonable failure to (1) exercise reasonable care with respect to dangers known to and created by the landowner or (2) warn of dangers known to, but not created by the landowner that are not ordinarily present on property).

"A trespasser may recover only for damages willfully or deliberately caused by the landowner." Section 13-21-115(3)(a), C.R.S 2002.

II. Plaintiff's Status as a Trespasser on the Property

Plaintiff contends that the trial court erred in granting summary judgment to the extent that it may have based its ruling on the conclusion defendants owed him no duty of reasonable care because, as a matter of law, he was a trespasser in their pool. We agree.

Here, there was evidence, albeit disputed, that, on the first day the crew arrived at defendants' property, defendants informed the crew's supervisors that crew members were welcome to use the pool after finishing their work. While no evidence was presented that defendants subsequently repeated this permission, there is also no evidence that defendants withdrew it.

Plaintiff was not a member of the original work crew assigned to defendants' property. However, we find no evidence expressly limiting defendants' permission, if any, to a specific group of crew members or to a particular day.

Viewing the evidence in the light most favorable to plaintiff, a reasonable trier of fact could find that, as a crew member, plaintiff had defendants' permission to use the pool. Therefore, summary judgment could not be based on a determination as a matter of law that plaintiff was a trespasser in the pool.

III. Open and Obvious Dangers

Next, plaintiff contends that the trial court erred in granting summary judgment to the extent that it based its ruling on the determination that defendants had no duty to warn him of open and obvious dangers. In this regard, plaintiff asserts that: (1) the open and obvious danger doctrine plays no role in assessing landowner liability under the premises liability statute; and (2) in any event, a material issue of fact exists whether the danger of diving into defendants' aboveground pool was so open and obvious that defendants had no duty to warn plaintiff of it. We disagree with each assertion.

A. Landowner Liability for Open and Obvious Dangers

Until 1971, landowner liability was determined under a common law premises liability scheme, whereby a landowner's duty to another on his or her property depended upon whether the other was an invitee, licensee, or trespasser on the property. In 1971, the supreme court held that landowner liability would no longer depend upon a person's status with respect to the property, but would be assessed for all persons injured on the property under general negligence principles. See Mile High Fence Co. v. Radovich, 175 Colo. 537, 543-48, 489 P.2d 308, 312-15 (1971); see also Pierson v. Black Canyon Aggregates, Inc., supra, 48 P.3d at 1218.

Under both the prior common law premises liability scheme and the general negligence scheme, landowners could avoid liability for injuries caused by open and obvious dangers. See Smith v. City & County of Denver, 726 P.2d 1125, 1127-28 (Colo.1986)(general negligence scheme); Webb...