Tancrede v. Freund , 401 P.3d 132 ( 2017 )

COLORADO COURT OF APPEALS 2017COA36
Court of Appeals No. 16CA0224
City and County of Denver District Court No. 14CV34778
Honorable Morris B. Hoffman, Judge
Faith Leah Tancrede,
Plaintiff-Appellant,
v.
Duane Freund and Denver East Machinery Company,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE TERRY
Furman and Kapelke*, JJ., concur
Announced March 23, 2017
The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Plaintiff-
Appellant
Howard Jensen & Dulaney LLC, William B. Dulaney, Colorado Springs,
Colorado, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Does the Premises Liability Act (PLA), section 13-21-115,
C.R.S. 2016, provide the sole legal remedy for a plaintiff involved in
an automobile collision with a defendant landowner on the
landowner’s private property? We conclude that the answer to this
question is “yes.” Plaintiff, Faith Leah Tancrede, who claims that
she was injured in the collision, was a trespasser on the land and
did not allege a willful or deliberate injury. We therefore affirm the
summary judgment entered in favor of the landowners, Denver East
Machinery Company (DEMC) and Duane Freund, owner and
president of DEMC.
I. Background
¶2 It is uncontested that defendants owned the private alley
where the collision occurred and that plaintiff was a trespasser on
that land. Plaintiff was a passenger in a car that was traveling
through the alley and collided with a DEMC truck driven by
Freund. A police accident report determined that Freund was at
fault and drove carelessly when rounding a corner of the DEMC
building without looking or slowing down.
¶3 Plaintiff asserted claims of negligence and negligence per se
against defendants. Defendants moved for summary judgment,
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arguing that because the collision occurred on their private
property, plaintiff was limited to asserting claims under the PLA.
The trial court agreed and granted the motion. But plaintiff was
permitted to amend her complaint to assert a claim under the PLA.
After plaintiff filed the amended complaint, defendants again moved
for summary judgment. The court determined that plaintiff was a
trespasser, and that because she had not alleged a willful or
deliberate injury, she was not entitled to relief. It once again
granted summary judgment.
II. The Premises Liability Act
¶4 Plaintiff contends that the PLA does not preclude her negligent
driving claim against defendants, and that the court erred in
entering the initial summary judgment against her. We disagree.
A. Standards of Review
¶5 We review a summary judgment de novo. CapitalValue
Advisors, LLC v. K2D, Inc., 2013 COA 125, ¶ 14. Summary
judgment is appropriate when the pleadings, affidavits, and other
supporting documents demonstrate that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. C.R.C.P. 56(c), (h); Gibbons v. Ludlow,
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2013 CO 49, ¶ 11. The nonmoving party is entitled to the benefit of
all favorable inferences that may reasonably be drawn from the
evidence, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Amos v.
Aspen Alps 123, LLC, 2012 CO 46, ¶ 13.
¶6 We also review the construction of a statute de novo. Lobato v.
Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). In
interpreting a statute, our primary goals are to discern and give
effect to the General Assembly’s intent. Krol v. CF & I Steel, 2013
COA 32, ¶ 15. We look first to the statutory language, giving the
words and phrases used therein their plain and ordinary meanings.
Id. We read the language in the dual contexts of the statute as a
whole and the comprehensive statutory scheme, giving consistent,
harmonious, and sensible effect to all of the statute’s language. Id.After doing this, if we determine that the statute is unambiguous,
we enforce it as written and do not resort to other rules of statutory
construction. Id.B. Discussion
¶7 The PLA limits the liability of landowners for injuries occurring
on their property. Under the statute, “[i]n any civil action brought
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against a landowner by a person who alleges injury occurring while
on the real property of another and by reason of . . . activities
conducted . . . on such property, the landowner shall be liable only
as provided in” section 13-21-115(3). § 13-21-115(2).
¶8 The PLA was intended to cover a broad range of activities
occurring on a landowner’s property, and the statute’s application
is not “restricted solely to activities and circumstances that are
directly or inherently related to the land.” Larrieu v. Best Buy
Stores, L.P., 2013 CO 38, ¶¶ 4, 26. The act compels us to inquire
whether (1) the injury occurred on the landowner’s property and (2)
the injury occurred by “reason of the property’s condition or as a
result of activities conducted or circumstances existing on the
property.” Id. at ¶ 4.
¶9 Because the PLA established “a comprehensive and exclusive
specification of the duties landowners owe to those injured on their
property,” it preempts common law tort claims against landowners
by specifying the duties owed to particular classes of injured
plaintiffs. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); see
also Reid v. Berkowitz, 2016 COA 28, ¶ 22 (PLA preempts
respondeat superior claims against landowner); Teneyck v. Roller
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Hockey Colo., Ltd., 10 P.3d 707, 708, 710 (Colo. App. 2000) (claim
for spectator injury resulting from errant hockey puck was governed
by PLA rather than common law “no duty” rule); cf. Traynom v.
Cinemark USA, Inc., 940 F. Supp. 2d 1339, 1358 (D. Colo. 2013)
(applying Colorado law and holding that PLA precluded claims of
negligent training and supervision filed against movie theater’s
owner).
¶ 10 Tort claims that are preempted by the PLA include claims of
negligence per se against landowners for damages occurring on the
landowners’ premises. Lombard v. Colo. Outdoor Educ. Ctr., Inc.,
187 P.3d 565, 574 (Colo. 2008).
¶ 11 The collision that allegedly injured plaintiff occurred on private
property owned by defendants. Their potential liability is governed
solely by the PLA if the “injury occurred by reason of the property’s
condition or as a result of activities conducted or circumstances
existing on the property.” Larrieu, ¶ 4. Freund’s affidavit shows
that he was moving the truck between two loading docks on
DEMC’s property. Plaintiff could not have been harmed by
defendants’ activities unless she was on their property, and her
injury occurred because of “activities conducted” on the property.
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She does not contest her status as a trespasser under the PLA, nor
does she contest the trial court’s determination that defendants did
not act willfully or deliberately. Given the undisputed facts, the
PLA preempts her common law claims of negligence and negligence
per se. See id.; Lombard, 187 P.3d at 574; Vigil, 103 P.3d at 328-
29.
¶ 12 Citing Union Pacific Railroad Co. v. Martin, 209 P.3d 185, 189
(Colo. 2009), plaintiff argues that the PLA is “limited to the
abrogation of common law doctrines affecting the duties of
landowners.” She contends that suing Freund directly and DEMC
vicariously as motor vehicle drivers does not implicate a landowner
duty, and so her negligence claims should stand. But plaintiff’s
argument contradicts the supreme court’s holding in Larrieu that
the PLA’s applicability is not restricted solely to activities directly
related to the land. See Larrieu, ¶ 4. Her claimed injury arose from
activities conducted on the property while she was present there,
and her claim is therefore barred. See id.¶ 13 Undaunted, plaintiff argues that Colorado’s statutory scheme
regulating motor vehicles, including the careless driving statute,
section 42-4-1402, C.R.S. 2016, provides an alternative avenue
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through which she can directly sue defendants as drivers for
negligence per se. It is true that specific statutory remedies may in
some cases provide a legal avenue for injured parties in addition to
the PLA. See Legro v. Robinson, 2012 COA 182, ¶¶ 22, 25 (holding
that the PLA did not abrogate a specific civil cause of action under
Colorado’s dog bite liability statute), aff’d, 2014 CO 40.
¶ 14 But the careless driving statute does not create a cause of
action against automobile drivers. Instead, it lays out the elements
of a misdemeanor traffic offense. See § 42-4-1402. Plaintiff
suggests that because a violation of the careless driving statute
constitutes negligence per se under existing precedent, her
negligence per se claim should stand. See Pyles-Knutzen v. Bd. of
Cty. Comm’rs, 781 P.2d 164, 169 (Colo. App. 1989). We disagree.
The PLA abrogated traditional tort claims by specifying the only
duties landowners owe to those injured on their property, see Vigil,
103 P.3d at 328-29, and among the claims precluded are negligence
per se claims, see Lombard, 187 P.3d at 574.
¶ 15 Because the collision arose out of activities conducted on
defendants’ property, we conclude that the PLA alone governed
plaintiff’s claims, and as the trial court ruled, plaintiff was a
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trespasser who could only recover if she could demonstrate that
defendants injured her willfully or deliberately. § 13-21-115(3)(a).
Because she made no such allegations, the court properly
dismissed her claims.
III. Attorney Fees
¶ 16 Defendants ask for an award of their attorney fees related to
this appeal. Because they have not stated any legal basis for their
fee request, we deny it. See C.A.R. 39.1.
IV. Conclusion
¶ 17 The judgment is affirmed.
JUDGE FURMAN and JUDGE KAPELKE concur.
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