Baja v. Lancaster Manor

24CA1289 Baja v Lancaster Manor 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1289
City and County of Denver District Court No. 23CV31729
Honorable Jon J. Olafson, Judge

Allison Baja,

Plaintiff-Appellant,

v.

Lancaster Manor, LLC,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

The Fields Group LLC, Jerry Douglas Fields, Conifer, Colorado; Strickland and
Kendall, LLC, William Strickland, Montgomery, Alabama, for Plaintiff-Appellant

Montgomery|Amatuzio, Christopher R. Reeves, Zachary Gardner, Denver,
Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Plaintiff, Allison Baja, appeals the district court’s entry of

partial summary judgment in favor of defendant, Lancaster Manor,

LLC, on Baja’s negligent infliction of emotional distress claim. We

affirm.

I. Background

¶2 Baja leased an apartment from Lancaster. One day after

notifying Lancaster of a mouse infestation in the apartment, Baja

texted Lancaster’s property manager to “officially” report “a pretty

extensive mice problem.”

¶3 Baja sued Lancaster for breach of contract, negligent infliction

of emotional distress, and breach of the implied warranty of

habitability because Lancaster allegedly did not address the mouse

infestation within a reasonable time.

¶4 Lancaster filed a motion for partial summary judgment on

Baja’s negligent infliction of emotional distress claim and another

claim that is not the subject of this appeal. In her response to the

motion, Baja cited, among other exhibits, text messages between

her and an agent of Lancaster; the transcript of her own deposition;

and portions of the deposition transcript of Martin Duman, a

principal of Lancaster. (We do not consider the portions of the

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Duman deposition transcript or the medical records Baja cited in

the response because those documents do not appear in the record.

See In re Marriage of McSoud, 131 P.3d 1208, 1211, 1223 (Colo.

App. 2006).) Baja did not tender an affidavit or expert report to

support the response.

¶5 The court granted summary judgment to Lancaster on Baja’s

negligent infliction of emotional distress claim.

¶6 Baja proceeded to trial on her breach of the implied warranty

of habitability claim. (She voluntarily dismissed her breach of

contract claim before trial.) The jury found in Baja’s favor and

awarded her $10,000 in damages against Lancaster. (The judgment

entered on that claim is not an issue in this appeal.) After Baja

prevailed at trial on her implied warranty of habitability claim, she

appealed the court’s grant of summary judgment to Lancaster on

her negligent infliction of emotional distress claim.

II. Analysis

A. Standard of Review

¶7 “We review a grant of summary judgment de novo.” Norton v.

Ruebel, 2024 COA 108, ¶ 48, 562 P.3d 96, 105. “Summary

judgment is appropriate when ‘there is no genuine issue as to any

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material fact and . . . the moving party is entitled to a judgment as

a matter of law.’” Thomas v. Childhelp, Inc., 2024 COA 16, ¶ 13,

548 P.3d 1152, 1155 (quoting C.R.C.P. 56(c)). “The moving party

has the burden of establishing the lack of a triable factual issue,

and all doubts as to the existence of such an issue must be resolved

against the moving party.” Id. (quoting Churchey v. Adolph Coors

Co., 759 P.2d 1336, 1340 (Colo. 1988)). When “summary judgment

is sought regarding an issue on which the moving party would not

bear the burden of persuasion at trial, the moving party can meet

its initial burden of production by showing that there is an absence

of evidence in the record to support the nonmoving party’s case.”

D.R. Horton, Inc.–Denver v. D & S Landscaping, LLC, 215 P.3d 1163,

1166-67 (Colo. App. 2008).

¶8 “Once the moving party has met [its] initial burden of

production, the burden shifts to the nonmoving party to establish

that there is a triable issue of fact.” Cont’l Air Lines, Inc. v. Keenan,

731 P.2d 708, 713 (Colo. 1987). “The nonmoving party may not rely

on ‘mere allegations or denials’ of the moving party’s pleadings but

must identify specific facts, through affidavits or otherwise, that

show there is a genuine triable issue sufficient to allow a reasonable

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jury to return a verdict in its favor.” City & Cnty. of Denver v.

Monaghan Farms, Inc., 2023 COA 60, ¶ 21, 536 P.3d 825, 829

(quoting A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy, 93 P.3d

598, 603 (Colo. App. 2004)). “If the nonmoving party cannot muster

sufficient evidence to make out a triable issue of fact on [her] claim,

a trial would be useless and the moving party is entitled to

summary judgment as a matter of law.” Cont’l Air Lines, 731 P.2d

at 713.

¶9 “To avoid summary judgment, the evidence presented in

opposition to such a motion must . . . be sufficient to demonstrate

that a reasonable jury could return a verdict for the [nonmoving]

party.” Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo. 2007).

“Mere conclusory statements are not sufficient to raise genuine

factual issues.” Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d

849, 858 (Colo. App. 2007); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986) (The moving party is entitled to summary

judgment if the nonmoving party “fails to make a showing sufficient

to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.”).

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B. Baja Failed to Establish a Triable Issue as to Whether
Lancaster Created an Unreasonable Risk of Physical Harm

¶ 10 To establish a negligent infliction of emotional distress claim,

a plaintiff must show that the defendant’s
negligence created an unreasonable risk of
physical harm and caused the plaintiff to be
put in fear for [her] own safety, that this fear
had physical consequences or resulted in long-
continued emotional disturbance, and that the
plaintiff’s fear was the cause of the damages
sought.

Draper v. DeFrenchi-Gordineer, 282 P.3d 489, 496-97 (Colo. App.

2011). Thus, a claim for negligent infliction of emotional distress

fails if the plaintiff cannot establish the “unreasonable risk of

physical harm” element. Id.; see also Slovek v. Bd. of Cnty.

Comm’rs, 697 P.2d 781, 783 (Colo. App. 1984) (holding that the

plaintiff was not entitled to damages for emotional distress because

he did not allege he was “subjected to an unreasonable risk of

bodily harm because of the negligence of another,” even though he

could “recover damages for annoyance and discomfort” under his

other claims), aff’d, 723 P.2d 1309 (Colo. 1986).

¶ 11 Like the court, we focus on whether Baja “set forth specific

facts showing that there [was] a genuine issue for trial,” C.R.C.P.

56(e) — whether Lancaster’s alleged negligence created “an

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unreasonable risk of physical harm,” Draper, 282 P.3d at 496. (For

purposes of this analysis, we presume, but do not decide, that

Lancaster was negligent.)

¶ 12 In support of her argument that there was a triable factual

issue as to whether the mouse infestation resulted in an

unreasonable risk of physical harm, Baja pointed to

• the “numerous express correspondence” in which she

informed Lancaster’s agent that “she was in fear for her

own health and safety”;

• other correspondence “wherein [Baja] convey[ed] the

severity of the infestation and her concerns,” which

Lancaster’s agent “expressly affirm[ed],” and in which the

agent agreed “with her concerns and the severity of the

problem”;

• Baja’s deposition testimony, “wherein [she] testified that

the ‘toxicity level of the feces especially in the quantities

that were in [her] personal space’ was so severe as to

implicate ‘severe’ health concerns”;

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• the principals of Lancaster’s acknowledgment that “the

infestation needed to be remedied immediately as it

affected [Baja]’s health and safety”; and

• Lancaster’s retention of a cleaning service “whose duties

involved removing ‘everything that was considered a

health risk to [Baja] and [her] pet and discard[ing]

belongings the[y] deemed too badly damaged or too toxic

to be salvageable.”

¶ 13 In its order granting Lancaster’s summary judgment motion,

the court found that “the unreasonableness of the risks associated

with mice in a residential dwelling [wa]s not . . . readily evident.” It

noted there was “no evidence, outside of [Baja]’s own testimony,

that th[e] type of mouse, th[e] infestation, and the circumstances

surrounding the alleged infestation created an unreasonable risk of

physical harm.” The court added that, “[w]ith only reliance

upon . . . lay and conclusory statements about the alleged severity

of the infestation,” Baja failed to demonstrate that the mouse

infestation “created an unreasonable risk of physical harm.” The

court concluded that, “[b]ecause [Baja] [wa]s unable to demonstrate

record evidence that an unreasonable risk of physical harm was

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created by defendant’s negligence, summary judgment [wa]s

appropriate.”

¶ 14 Baja’s appeal hinges on the distinction between a risk of

physical harm and an unreasonable risk of physical harm, which

the supreme court analyzed in City & County of Denver v. Dennis,

2018 CO 37, ¶ 23, 418 P.3d 489, 497. In that case, the court

interpreted “unreasonable risk” in the context of determining the

existence of a “dangerous condition” for purposes of the Colorado

Governmental Immunity Act (the CGIA). Id. at ¶ 23, 418 P.3d at

497 (quoting § 24-10-103(1.3), C.R.S. 2024). Section

24-10-103(1.3) of the CGIA, defines a “dangerous condition,” in

relevant part, as one that “constitutes an unreasonable risk to the

health or safety of the public.”

¶ 15 The court explained that, while a risk is “the chance of injury,

damage, or loss,” Dennis, ¶ 23, 418 P.3d at 497 (quoting Black’s

Law Dictionary 1524 (10th ed. 2014)), an unreasonable risk is “a

chance of injury, damage, or loss which exceed[s] the bounds of

reason,” id. (emphases added). The court concluded that a

deteriorated road without “potholes or sinkholes” or “features which

would force a driver to make an emergency maneuver, or any other

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road characteristics such as a raised pavement lip that could

damage a vehicle and lead to an accident” was not “unreasonably

risky.” Id. at ¶ 26, 418 P.3d at 498; see Galef v. Univ. of Colo., 2022

COA 91, ¶¶ 42, 47, 520 P.3d 184, 193 (holding that the presence of

imperceptibly wet, slippery stairs in a public building poses an

unreasonable risk to the health and safety of the public, unlike the

risk of a “mere ‘tripping hazard’” such as “an uneven sidewalk”

(quoting Maphis v. City of Boulder, 2022 CO 10, ¶ 24, 504 P.3d 287,

292)).

¶ 16 Applying Dennis’s definition of “unreasonable risk,” Baja

needed to set forth specific facts showing there was a genuine issue

regarding whether the risk of physical harm resulting from mice in

the apartment “exceeded the bounds of reason.” Dennis, ¶ 23, 418

P.3d at 497.

¶ 17 None of the evidence that Baja provided in support of the

response, however, established a triable issue on the unreasonable

risk of physical harm element of her negligent infliction of emotional

distress claim. In Baja’s deposition transcript, she testified that she

looked “into [the] kind of safety issues” associated with a mouse

infestation, and, “in what [she] recognize[d] as probably a limited

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access of looking at things online, the toxicity level of the feces

especially in the quantities that were in [her] personal space [were]

so severe and those health implications [were] so severe” that she

began “wrestl[ing] with [a] frantic fear of how to try to salvage [her]

belongings . . . coupled with [an] understanding” that “trying to take

things out” of the apartment would disrupt the mice’s “nests and

potentially mice would scatter into other parts” of the apartment.

¶ 18 In her opening brief, Baja argues that the evidence of her

exposure to mouse feces; the property damage resulting from

“nesting, urine, and feces;” her “sleepless nights and general terror;”

her displacement from the apartment; and her decision to seek

therapy “show[] that a jury could find whether [Baja] was subjected

to an unreasonable risk of bodily harm.”

¶ 19 In support of this argument, Baja cites Lingo v. Pryer, No.

16CV30895, 2017 WL 7071693 (Colo. Dist. Ct., Adams Cnty. Feb.

7, 2017) (unpublished order). (Baja does not refer to a specific

court filing in Lingo, but our review of Lingo’s docket suggests that

she relies on the February 7 order in that case.)

¶ 20 Lingo does not support Baja’s argument. First, district court

orders do not bind us. See Sidman v. Sidman, 2016 COA 44, ¶ 10,

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411 P.3d 167, 169. Second, the facts in Lingo were materially

different from those in this case. In Lingo, the court denied the

defendant motorcyclist’s motion for summary judgment on the

plaintiff truck driver’s negligent infliction of emotional distress claim

based on its determination that a motorcyclist’s effort to “sneak

around” another vehicle in a one-lane construction zone presents

an unreasonable risk of physical harm. 2017 WL 7071693, at *1.

¶ 21 In contrast, Baja failed to set forth specific facts showing that

the mouse infestation created a risk of physical harm, much less an

unreasonable risk. Baja’s deposition testimony that the infestation

caused her to experience “tremendous property damage,” “sleepless

nights[,] and general terror”; to vacate the apartment; and to seek

therapy fell short of establishing that a reasonable jury could find

that Lancaster’s alleged negligence resulted in an unreasonable risk

of physical harm. See Andersen, 160 P.3d at 239.

¶ 22 Moreover, Baja does not persuade us with her argument

premised on section 38-12-505(4)(i), C.R.S. 2024, which establishes

a rebuttable presumption that “[a]n infestation of rodents” at

residential premises materially interferes with a tenant’s life, health,

or safety for purposes of warranty of habitability claims. Baja does

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not point to any authority indicating that we can engraft language

from the warranty of habitability statute onto a negligence claim. In

any event, the statute does not say that a rodent infestation creates

an unreasonable risk of physical harm or that a plaintiff who proves

a warranty of habitability claim based on such an infestation is

automatically entitled to damages for negligent infliction of

emotional distress. Thus, claims for breach of the warranty of

habitability and negligent infliction of emotional distress rest on

different elements.

¶ 23 For these reasons, we conclude that, even after granting Baja

the benefit of all favorable inferences that a jury may reasonably

draw from the undisputed facts and resolving all doubts against

Lancaster, see Norton, ¶ 50, 562 P.3d at 106, Baja nonetheless

failed to set forth specific facts showing the existence of a genuine

triable issue on her negligent infliction of emotional distress

claim — specifically, that the presence of mice in the apartment

created a risk of physical harm that “exceeded the bounds of

reason,” Dennis, ¶ 23, 418 P.3d at 497.

¶ 24 In light of our conclusion, we need not address Baja’s

argument that the toxicity of rodents is “well within the lay

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competence of a juror,” and, therefore, she could prove an

unreasonable risk of physical harm without expert testimony.

III. Disposition

¶ 25 The judgment is affirmed.

JUDGE PAWAR and JUDGE HAWTHORNE concur.

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