Blackwell v. Gautier

23CA0773 Blackwell v Gautier 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0773
City and County of Denver District Court No. 19CV25
Honorable Jill Dorancy, Judge
Honorable Sarah Wallace, Judge

Brian B. Blackwell,

Plaintiff-Appellant,

v.

Grace E. Gautier,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Law Offices of Wesley W. Hoyt, Wesley W. Hoyt, Englewood, Colorado, for
Plaintiff-Appellant

Dylan G. Lewis, Madison, Wisconsin, for Defendant-Appellee
¶1 After plaintiff, Brian B. Blackwell, fell on the icy sidewalk in

front of the home of defendant, Grace E. Gautier, he sued her,

claiming injuries under the Colorado Premises Liability Act (PLA).

The jury returned a verdict in favor of Gautier.

¶2 On appeal, Blackwell contends that the trial court erred by

rejecting his tendered jury instruction concerning a landowner’s

duty to trespassers under the PLA. We disagree and therefore

affirm.

I. Legal and Factual Background

¶3 The PLA limits the liability of landowners for injuries that

occur on their property. Tancrede v. Freund, 2017 COA 36, ¶ 7.

Under the statute, a landowner’s duty of care, and therefore her

potential liability, depends on the plaintiff’s status as a trespasser,

licensee, or invitee. § 13-21-115(3)-(4), C.R.S. 2024.

• A trespasser may recover only for damages willfully or

deliberately caused by the landowner. § 13-21-115(4)(a).

• A licensee may recover only for damages caused by the

landowner’s unreasonable failure to (1) exercise

reasonable care with respect to dangers created by the

landowner of which the landowner actually knew or

1
(2) warn of dangers not created by the landowner that are

not ordinarily present on property of the type involved

and of which the landowner actually knew. § 13-21-

115(4)(b).

• An invitee may typically recover for damages caused by

the landowner’s unreasonable failure to exercise

reasonable care to protect against dangers of which the

landowner actually knew or should have known.

§ 13-21-115(4)(c).

See Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2015 CO 24,

¶ 18.

¶4 Blackwell’s operative complaint alleged that on a winter

evening in 2017, he “slipped and fell on black ice” on the sidewalk

in front of Gautier’s home. He asserted that many years earlier, as

part of a renovation project, Gautier had added a steeper driveway,

which increased the slope at the intersection of the sidewalk. As a

result, melted snow accumulated and then froze on the portion of

the sidewalk that intersected with the driveway. The complaint

identified the “black ice” as the “danger” or “hazard” that caused

Blackwell’s injuries.

2
¶5 The parties agreed that Gautier was a landowner under the

PLA, but they disputed Blackwell’s status. Blackwell argued he was

an invitee, while Gautier said he was a licensee. As required under

the PLA, the trial court resolved the dispute pretrial, concluding

that, as a matter of law, Blackwell was a licensee — a point that

Blackwell had by then conceded.

¶6 At trial, Blackwell’s lawyer asserted during the opening

statement that Gautier knew the snow on that portion of the

sidewalk was likely to freeze and “create a hazard” for pedestrians,

yet she failed to take reasonable steps to prevent the dangerous

condition by, for example, applying “ice melt” to the sidewalk. In

contrast, Gautier testified that her general practice was to shovel

snow and apply ice melt on the sidewalk as soon as necessary,

denying any knowledge of ice forming on the sidewalk on the

evening that Blackwell fell. On cross-examination, she agreed with

defense counsel that she had acted “deliberately” in “seeking to add

the driveway to [her] garage in 1988.”

¶7 Based on Gautier’s testimony about the 1988 renovation,

Blackwell’s counsel tendered a jury instruction concerning a

landowner’s liability to a trespasser, on the theory that Gautier had

3
admitted that her “deliberate” conduct in constructing the driveway

led to Blackwell’s injuries. The instruction provided that Gautier

would be liable if the jury found that “(1) [Blackwell] had injuries,

damages or losses; (2) [Gautier] acted ‘deliberately’; and

(3) [Gautier’s] ‘deliberate conduct’ was a cause of the plaintiff’s

injuries, damages or losses.” The court refused to give the

instruction because it had already ruled that Blackwell was a

licensee and “[t]here [was] no evidence presented . . . that Ms.

Gautier willfully or deliberately caused . . . someone to be hurt.”

¶8 The jury determined that Blackwell had injuries but found

that Gautier had not acted unreasonably with respect to a danger

on the property. The trial court entered judgment in favor of

Gautier.

II. Trespasser Instruction

¶9 Blackwell contends that the trial court erred by rejecting his

tendered trespasser instruction. We disagree.

A. Standard of Review

¶ 10 The court must correctly instruct the jury on the law. Reid v.

Berkowitz, 2013 COA 110M, ¶ 51. A party is entitled to a jury

instruction if it is consistent with existing law and supported by

4
sufficient competent evidence. Vititoe v. Rocky Mountain Pavement

Maint., Inc., 2015 COA 82, ¶ 75.

¶ 11 We review de novo whether jury instructions accurately

informed the jury of the governing law. Day v. Johnson, 255 P.3d

1064, 1067 (Colo. 2011). But because trial courts have broad

discretion to fashion the form and style of instructions, we review

for an abuse of discretion a trial court’s decision not to give a

particular instruction. Suydam v. LFI Fort Pierce, Inc., 2020 COA

144M, ¶ 10. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. Id.

B. Discussion

¶ 12 Section 13-21-115(5) states that “circumstances under which

a licensee may recover include all of the circumstances under which

a trespasser could recover and . . . the circumstances under which

an invitee may recover include all of the circumstances under which

a trespasser or a licensee could recover.” According to Blackwell,

that provision requires the trial court to give a trespasser

instruction in every PLA case, regardless of the injured person’s

status under the statute. And, he argues, the trespasser

5
instruction would have made a difference here because he could

have more easily proved Gautier’s liability under that standard:

unlike the licensee standard, which requires proof that the

landowner acted unreasonably with respect to a danger that she

knew about, the trespasser standard allows recovery even if the

landowner was unaware of the danger, as long as she acted

deliberately.

¶ 13 We see a number of problems with that argument. To point

out an obvious one, we are unsure how a landowner could

deliberately cause a person’s injuries by way of a dangerous

condition of which the landowner was unaware.

¶ 14 This leads to a second, related flaw in the argument — it is

harder, not easier, to prove a landowner’s liability to a trespasser

than to a licensee. See § 13-21-115(2)(c)(I) (“The purpose of

amending this section . . . was to . . . impos[e] on landowners a

higher standard of care with respect to an invitee than a licensee

and a higher standard of care with respect to a licensee than a

trespasser . . . .”). Under the common law, a landowner had no

duty to make or keep her premises safe for a trespasser. See Staley

v. Sec. Athletic Ass’n, 380 P.2d 53, 54 (Colo. 1963), overruled in part

6
by Mile High Fence Co. v. Radovich, 489 P.2d 308 (Colo. 1971),

superseded by statute, Ch. 109, sec. 1, § 13-21-115, 1986 Colo.

Sess. Laws 683. But in Mile High Fence, the Colorado Supreme

Court introduced a new framework for landowner liability that

focused not on the status of the injured person but on the

reasonableness of the landowner’s conduct in light of the

foreseeability of injuries to others. 489 P.2d at 314. When the

legislature enacted the PLA, it reestablished the common law

classifications so that responsibility for a trespasser’s injuries “falls

upon the trespasser,” not the landowner. Gallegos v. Phipps, 779

P.2d 856, 861 (Colo. 1989) (quoting Hearings on H.B. 1205 before

the H. Comm. on Agric., Livestock, and Nat. Res., 55th Gen.

Assemb., 2d Reg. Sess. (Feb. 5, 1986)). Thus, under section

13-21-115(4)(a), a landowner is not liable to a trespasser “unless

the landowner has willfully or deliberately caused the [trespasser’s]

injury.” Id. at 862.

¶ 15 Still, we need not delve too deeply into Blackwell’s

interpretation of section 13-21-115(5) because even if a plaintiff

with a higher status might sometimes be entitled to a trespasser

instruction — an issue we do not resolve — here, there was no

7
evidence to support one. And a trial court does not abuse its

discretion by rejecting a tendered jury instruction lacking

evidentiary support. Suydam, ¶ 11.

¶ 16 From the outset of the case, Blackwell has claimed that he fell

and sustained injuries because of black ice on the sidewalk, or,

reading the record as generously as possible, because of black ice

on a steeper-than-average sidewalk. Therefore, contrary to

Blackwell’s argument on appeal, it was not enough to show that

thirty years before the incident, Gautier deliberately designed a

driveway that increased the grade of the sidewalk. To be liable

under a trespasser standard, Gautier had to deliberately —

meaning intentionally, see Merriam-Webster Dictionary,

https://perma.cc/Y2MU-SF3Y (defining “deliberately” as an action

performed “with full awareness of what one is doing: in a way that

is intended or planned”) — injure Blackwell; just creating a

condition that, if coupled with another condition (of which she was

unaware), might have caused a person to fall, possibly resulting in

injuries, didn’t meet that standard. See Tancrede, ¶ 15 (A

trespasser can recover under the PLA only if he can demonstrate

that the landowner “injured [him] willfully or deliberately.”). The

8
point is, to be liable, Gautier had to intentionally injure or harm

Blackwell.

¶ 17 There was not a scintilla of evidence that Gautier intentionally

injured Blackwell. See Suydam, ¶ 11 (“[T]here must be more than a

mere scintilla of evidence to support an instruction.”) (citation

omitted). Indeed, the jury found that she did not even negligently

injure him.

¶ 18 Accordingly, we conclude that the trial court did not err by

declining to give the tendered trespasser instruction.

III. Disposition

¶ 19 The judgment is affirmed.

JUDGE YUN and JUDGE KUHN concur.

9