Woods v. Delgar Ltd., No. 08CA1288.

• Decision Date: 23 July 2009
• Docket Number: No. 08CA1288.
• Citation: 226 P.3d 1178
• Parties: Michael WOODS and Jeane Woods, Plaintiffs-Appellants, v. DELGAR LTD., d/b/a Acqua Pazza, Defendant-Appellee.
• Court: Colorado Court of Appeals

226 P.3d 1178

Michael WOODS and Jeane Woods, Plaintiffs-Appellants, v. DELGAR LTD., d/b/a Acqua Pazza, Defendant-Appellee.

No. 08CA1288.

Colorado Court of Appeals, Div. VI.

July 23, 2009.

Cohen Horner, LLP, Mark S. Cohen, Susan Morath Horner, Boulder, Colorado, for Plaintiffs-Appellants.

The Ross-Shannon Law Firm, P.C., Bradley Ross-Shannon, Mark J. Gauthier, Lakewood, Colorado, for Defendant-Appellee.

Opinion by Judge CARPARELLI.

In this personal injury action, we affirm the district court's summary judgment in favor of defendant, Delgar Ltd., on the negligence claim filed by plaintiffs, Michael and Jeane Woods.

Mr. Woods suffered permanent injury to his head and spine after falling on a patch of ice on a public sidewalk adjacent to a restaurant. Delgar (lessee) operated the restaurant in space it leased from the building owner, Vail Lizard, LLC. There is evidence that the ice formed after water dripped from an awning and froze on the sidewalk. Plaintiffs filed suit against the building owner and the lessee, asserting claims of negligence, public nuisance, loss of consortium, and premises liability under section 13-21-115, C.R.S.2008. The district court entered summary judgment in favor of lessee on plaintiffs' negligence claim.

I. The Issue

This case presents an issue of first impression in Colorado: whether a lessee owed a duty of reasonable care to the plaintiffs when snow naturally fell on an awning attached outside the leased premises and melted, resulting in water dripping onto the sidewalk and freezing.

II. Proceedings in the District Court

The owner settled with plaintiffs, and lessee then moved for summary judgment. It argued that the premises liability statute, if it were applicable, would provide plaintiffs' exclusive remedy, but that, because the statute only applied to landowners and lessee was not a landowner, all claims should be dismissed.

Plaintiffs withdrew their premises liability claim, but argued that their negligence claim should not be dismissed because, under common law and municipal ordinance, lessee owed a duty to the public to prevent the unnatural accumulation of hazardous ice on public sidewalks that abutted the property it leased.

The district court granted summary judgment. Relying on Bittle v. Brunetti, 750 P.2d 49 (Colo.1988); Kanter v. City & County of Denver, 153 Colo. 389, 386 P.2d 349 (1963); Brame v. Schroeder, 532 P.2d 763 (Colo.App.1974) (not published pursuant to C.A.R. 35(f)); and Key v. Lerner Shops of Colorado, Inc., 472 P.2d 752, 753 (Colo.App.1970) (not published pursuant to C.A.R. 35(f)), it concluded that defendant engaged in no affirmative act related to the hazardous condition, and, therefore, owed no duty to plaintiffs.

III. Standard of Review

Summary judgment is a drastic remedy that is only appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489, 491 (Colo.App.2008); see C.R.C.P. 56(c). We review de novo a trial court's entry of summary judgment. Arthur v. City & County of Denver, 198 P.3d 1285, 1286 (Colo.App.2008).

IV. Negligence

To establish a prima facie claim of negligence, a plaintiff must show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and causation (i.e., that the defendant's breach caused the plaintiff's injury). Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997). The existence of a legal duty of care is a question of law for the trial court. Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980) (Kulik).

Where the law imposes no duty on a defendant to act for the plaintiff's benefit, a negligence claim must fail. Safehouse Progressive Alliance for Nonviolence, Inc. v. Qwest Corp., 174 P.3d 821, 830 (Colo.App.2007).

A. Duty of Care

In Bittle, 750 P.2d at 52, the court explained that whether a defendant owes a duty to the plaintiff is a question of law and requires consideration of a variety of factors. See also Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986); Jefferson County School Dist. R-1 v. Justus, 725 P.2d 767, 769 (Colo.1986). The defendant's ownership, possession, and control of the injury-causing circumstances or instrumentality are relevant to determining whether a duty was owed. See, e.g., Univ. of Denver v. Whitlock, 744 P.2d 54, 62 (Colo.1987) (lessor that had only limited control over lessee's use of premises did not have duty to assure safe conditions).

Although municipalities have the primary duty to keep sidewalks in a reasonably safe condition for pedestrians, owners and occupants of property abutting sidewalks do not have the right to create obstructions or hazards on the sidewalks. W.T. Grant Co. v. Casady, 117 Colo. 405, 411, 188 P.2d 881, 884 (1948); Belcaro Realty Inv. Co. v. Norton, 103 Colo. 485, 489, 87 P.2d 1114, 1116 (1939).

In Huguley v. Trolinger, 169 Colo. 1, 6, 452 P.2d 1006, 1008 (1969), the defendants placed gravel on a driveway adjacent to a sidewalk, and, with the defendants' knowledge, cars driving on the gravel caused some of it to be thrown onto the sidewalk. Citing Sill v. Lewis, 140 Colo. 436, 344 P.2d 972 (1959), the supreme court concluded that, to the extent that the gravel on the sidewalk constituted a hazardous condition and caused injury to a pedestrian, the defendants could be held liable. Huguley, 169 Colo. at 6, 452 P.2d at 1008. The court cited with approval Restatement (Second) of Torts section 350 as setting forth the duty of the defendant. That section reads as follows:

A possessor of land over which there is a public highway is subject to liability for physical harm caused to travelers thereon by a failure to exercise reasonable care in creating or maintaining in reasonably safe condition any structure or other artificial condition created or maintained in the highway by him or for his sole benefit subsequent to its dedication.

At least three states have ruled that the owner or occupant of adjacent property may be liable to a pedestrian when it constructs or maintains a canopy in such a manner that it creates "an artificial discharge and accumulation of water upon the sidewalk, which, when frozen, makes the use of the sidewalk dangerous." Strandness v. Montgomery Ward, 199 N.W.2d 690, 691 (N.D.1972); see also Tyrrell v. Investment Assocs., Inc., 16 Ohio App.3d 47, 474 N.E.2d 621, 624 (1984); Bennett v. McGoldrick-Sanderson Co., 15 Wash.2d 130, 129 P.2d 795, 798 (1942). Consideration of whether the defendant constructed or maintained the canopy so as to create a hazard is consistent with the Restatement section 350 consideration of whether the possessor of land created or maintained a structure in the public highway for the possessor's sole benefit.

In MacDonald v. Adamian, 294 Mass. 187, 200 N.E. 888, 890-91 (1936), the court considered whether the plaintiff had presented evidence that the roof and gutters of the building were under the control of the property owner. In that context, it stated, "The tenant commonly would not be liable[,] in the absence of agreement[,] for accumulation of snow and ice arising from a defective spout or gutter. ... [T] he lease was not in evidence and its terms are not recited. Whether the landlord retained control of the roof and gutters was a question of fact upon all the evidence." MacDonald, 200 N.E. at 891.

Similarly, in Bennett, 129 P.2d at 798, the Supreme Court of Washington held that a lessee has a duty when it creates or contributes to a dangerous condition, occupies and controls the entire building, has been given the right to alter or repair the premises, or has covenanted with the landlord to fulfill the landlord's duty of care with regard to adjacent sidewalks.

In their argument to the district court and in their appellate brief, plaintiffs refer to Key, 472 P.2d at 753, to support their arguments that a landowner may not construct or maintain its premises in a manner that permits water to be discharged onto the sidewalk, and that the question of negligent construction or maintenance is a question of fact for the jury to determine. Because Key was not selected for publication, it is not precedent.¹ To the extent that plaintiffs argue that its rationale should be applied here, we are not persuaded. Here, the defendant is a lessee, not a landowner, and plaintiffs presented no evidence that lessee constructed the awning, had any control over whether the awning remained affixed to the building, or was responsible for its maintenance. Nor did plaintiffs present evidence that the hazard resulted from negligent maintenance of the awning.

B. Snow on Sidewalks

By definition, naturally accumulated snow and ice on sidewalks result from natural, not human causes. Accordingly, in Colorado, the owner or occupant of premises abutting a public sidewalk does not have a common law duty to pedestrians to keep the public sidewalks abutting its property clear of naturally accumulated snow and ice. Bittle, 750 P.2d at 51-52; W.T. Grant Co. v. Casady, 117 Colo. 405, 412, 188 P.2d 881, 884 (1948).

However, there are no Colorado cases that address whether and when such a duty exists where an accumulation of snow and ice is not naturally occurring. See Bittle, 750 P.2d at 51 n. 2 (collecting cases); Kanter v. City & County of Denver, 153 Colo. 389, 391-92, 386 P.2d 349, 350 (1963); Easton v. 1738 Partnership, 854 P.2d 1362, 1366 (Colo.App.1993). In addition, there are no cases that explicitly address the liability of a lessee for hazardous ice or snow on a public sidewalk adjacent to the leasehold.

In Kanter, the supreme court held that a landowner had no liability because there was no evidence from which it could be concluded that he had engaged in any affirmative act that resulted in the formation of the ice on the sidewalk. Kanter, 153 Colo. at 391, 386 P.2d at 350. Although the issue we decide here was not presented in Bittl...