Andrade v. Johnson

COLORADO COURT OF APPEALS 2016COA147

Court of Appeals No. 15CA1664
El Paso County District Court No. 14CV34327
Honorable Edward S. Colt, Judge

Emma Andrade,

Plaintiff-Appellant,

v.

Margaret Johnson,

Defendant-Appellee.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by CHIEF JUDGE LOEB
Nieto* and Casebolt*, JJ., concur

Announced October 6, 2016

Franklin D. Azar & Associates, P.C., Patric J. LeHouillier, Colorado Springs,
Colorado; Berniger, Berg & Diver, LLC, Michael A. Berniger, Colorado Springs,
Colorado, for Plaintiff-Appellant

Hunter & Associates, Christopher J. Metcalfe, 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. 2016.
¶1 In this personal injury action, plaintiff, Emma Andrade,

appeals the summary judgment in favor of defendant, Margaret

Johnson, on Andrade’s claim pursuant to the premises liability

statute, section 13-21-115, C.R.S. 2016 (the Act), and on her

common law negligence claim. We affirm the district court’s entry

of summary judgment for Johnson as to the premises liability

claim, although we do so for reasons different from those

articulated by the district court. Because we conclude that section

3.4.103(D) of the Colorado Springs City Code (the Code) expressly

imposes civil liability on an owner or occupant of property who fails

to comply with section 3.4.103 when such failure to comply is the

proximate cause of a third party’s injury, we reverse the summary

judgment for Johnson on Andrade’s common law negligence claim

and remand to the district court for further proceedings on that

claim.

I. Background Facts and Procedural History

¶2 Andrade was walking with her daughter on a public sidewalk

in Colorado Springs on her way to a birthday party at the house of

one of Johnson’s neighbors. Andrade used a walking cane to assist

herself with walking. As she was walking on the public sidewalk

1
adjacent to Johnson’s house, Andrade slipped and fell. She was

taken to a nearby hospital, where she underwent surgery to repair a

fracture in her leg.

¶3 Andrade filed a complaint seeking damages against Johnson

in district court, asserting a premises liability claim under the Act

and a common law negligence claim. Andrade alleged that an

“uneven sidewalk” caused her fall.1 To support her premises

liability claim, Andrade alleged that Johnson was a “landowner,” as

defined in section 13-21-115(1); that the uneven sidewalk adjacent

to Johnson’s home constituted a danger that Johnson was aware of

or reasonably should have been aware of; that Johnson failed to

exercise reasonable care to protect Andrade; and that Andrade was

injured as a result of her fall.

¶4 To support her common law negligence claim, Andrade’s

complaint alleged, in pertinent part, as follows:

13. Defendant had a duty to maintain the
sidewalk in front of her residence so that it
was safe for pedestrian use.

14. Defendant knew or reasonably should
have known that the uneven sidewalk in front

1 Later in the district court proceedings, Andrade claimed that she
fell when her walking cane became stuck in a hole in the sidewalk.

2
of her residence constituted a danger to
pedestrians.

15. The Defendant failed to exercise
reasonable care to protect the Plaintiff and
others against dangers of which the Defendant
was aware.

16. Plaintiff was injured as a result of
Defendant’s negligence. . . .

¶5 Johnson filed a motion for summary judgment, arguing that

because Andrade fell on a public sidewalk, Johnson was not a

“landowner” under section 13-21-115(1), and thus could not be

liable under the Act. Johnson also argued that under Colorado law,

landowners do not have a duty to those injured on public walkways,

and thus, as a matter of law, she was not liable for common law

negligence.

¶6 In Andrade’s response to Johnson’s motion for summary

judgment, she argued that section 3.4.103(B) of the Code2 required

Johnson to notify the City Engineer of the damage to the sidewalk

adjacent to her property, and her failure to do so was the proximate

2 Section 3.4.103(B) of the Colorado Springs City Code, titled
“Notice Of Damage To A Public Sidewalk” states: “It is the
responsibility of every owner and occupant of real property within
the City to notify the City Engineer of any damage to a public
sidewalk which abuts or is adjacent to that owner’s real property[.]”

3
cause of Andrade’s injuries. Andrade requested that the district

court deny Johnson’s summary judgment motion because there

were questions of material fact as to the issue of proximate cause,

specifically whether Johnson’s failure to report the sidewalk

damage to the City Engineer was an unreasonable risk to the health

and safety of the public, and whether Johnson knew or should have

known about the damage to the sidewalk.

¶7 In Johnson’s reply in support of her motion for summary

judgment, she asserted that Andrade had not presented any

arguments or evidence specifically refuting Johnson’s arguments in

support of her motion for summary judgment on both claims.

Johnson also asserted that Andrade’s argument regarding the Code

appeared to support a negligence per se claim, which Andrade had

not pleaded in her complaint. Thus, Johnson contended that the

negligence per se claim was not properly before the district court.

Johnson also argued that the sidewalk adjacent to her house was

not damaged, and that there was only a slight disparity in height

between two sections of the sidewalk that had occurred as a result

of normal settlement over a period of years.

4
¶8 The district court granted Johnson’s motion for summary

judgment in a short written order in which the court summarized

the parties’ arguments and then provided the following quote from

Burbach v. Canwest Inv., LLC, 224 P.3d 437, 442 (Colo. App. 2009):

In short, we perceive nothing in the language
of the premises liability statute which indicates
the General Assembly intended to abrogate the
no duty rule. Indeed, as noted, the statute
was intended to narrow, not expand,
landowner liability. We therefore decline Ms.
Burbach’s invitation for us to construe the
statute in a manner that would create the
anomalous result whereby one’s liability as to
property in which it does not have a legal
interest is expanded at the same time its
liability as to property in which it has a legal
interest is contracted. See Fis[c]hbach v.
Holzberlein, 215 P.3d 407, 409 (Colo. App.
2009) (a court will not adopt an interpretation
of a statute that leads to an illogical or absurd
result or that is at odds with the legislative
scheme).

Without any further analysis, the district court stated that it found

Burbach “to be well-reasoned, persuasive and controlling,” and it

granted Johnson’s motion for summary judgment.

¶9 Andrade now appeals the district court’s entry of summary

judgment in favor of Johnson.

II. Standard of Review

5
¶ 10 We review de novo a district court’s grant of a motion for

summary judgment. Burbach, 224 P.3d at 439. Summary

judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions, together with affidavits, if any,

establish that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law.

C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas Ass’n, 2016 CO

29, ¶ 8; Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714,

718 (Colo. 1987). When reviewing a district court’s grant of a

motion for summary judgment, we view the facts in the light most

favorable to the nonmoving party. Rocky Mountain Expl., Inc. v.

Davis Graham & Stubbs LLP, 2016 COA 33, ¶ 17. When, as a

matter of law and based on undisputed facts, the nonmoving party

cannot prevail, the movant is entitled to summary judgment.

Kaiser, 741 P.2d at 718.

¶ 11 However, summary judgment is a drastic remedy “and is not a

substitute for a trial of disputed facts.” Id. The court may not

grant summary judgment when there are disputed factual issues

that must be resolved in a trial, and all doubts regarding the

evidence must be resolved against the moving party. Id. The

6
moving party bears the burden of proving that there are no genuine

issues of material fact. Id. at 719. Once the moving party has met

that burden, the nonmoving party must demonstrate “by receivable

facts that a real, and not formal, controversy exists.” Id.

¶ 12 We also review de novo questions of statutory interpretation.

Burbach, 224 P.3d at 439.

III. Premises Liability Claim

¶ 13 We first address the district court’s summary judgment on

Andrade’s premises liability claim under the Act and, for the

reasons set forth below, discern no error in that judgment.

¶ 14 Andrade’s complaint alleged generally that Johnson was liable

under the Act because she failed to exercise reasonable care to

protect Andrade from the uneven sidewalk. Andrade’s complaint

alleged, without any factual support, that Johnson was a

“landowner” as that term is defined in section 13-21-115. However,

nowhere in her briefs on appeal does Andrade directly challenge or

contest the district court’s dismissal of her premises liability claim.

¶ 15 Johnson contends that the district court properly granted

summary judgment in her favor on Andrade’s premises liability

claim because, based on the undisputed fact that Andrade fell on a

7
public sidewalk, as a matter of law, Johnson is not a “landowner”

for purposes of the Act.

¶ 16 As pertinent here, the Act applies only if the party sought to be

held liable is a “landowner” as defined therein, see § 13-21-115(1);

see also Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 16; Jordan

v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, ¶ 11, aff’d,

2015 CO 24, and those who are injured on the property of another

are classified as either trespassers, invitees, or licensees, § 13-21-

115(1.5)(a).

¶ 17 Initially, we note that Andrade concedes in her opening brief

that she was not an invitee, licensee, or trespasser on Johnson’s

property “because she was walking on the sidewalk outside

[Johnson’s] home.” Because section 13-21-115(1.5)(a) of the Act

states that those who are injured on the property of another are

classified as either trespassers, invitees, or licensees, Andrade’s

concession on its face makes the Act inapplicable to her claim

under the facts of this case.

¶ 18 Even more pertinent, Andrade does not argue that Johnson is

a “landowner” for purposes of the Act and, thus, concedes that

element of her claim under the Act as well. These concessions

8
indicate, in our view, that Andrade does not contest the court’s

entry of summary judgment on her claim under the Act.

¶ 19 In any event, based on the undisputed facts in the record

before us, as a matter of law, Johnson is not a “landowner” under

the Act. The Act is inapplicable here because Johnson is not a

“landowner” of the public sidewalk adjacent to her property. See

§ 13-21-115(1); Larrieu, ¶ 26; Jordan, ¶ 24 (“[P]ossessory interest”

in a public sidewalk is “virtually indistinguishable from the interest

that any member of the public has to use the sidewalk.”); Burbach,

224 P.3d at 441-42. There is no record support for the proposition

that Johnson is a “landowner” under the Act.

¶ 20 To the extent Andrade contends that section 3.4.103(B) of the

Code provided Johnson with “landowner” status under the Act, that

contention is contrary to Colorado law. See § 13-21-115(1);

Burbach, 224 P.3d at 441. Because Andrade’s injury did not occur

on Johnson’s property, she “[has] no claim under the [premises

liability] statute.” Larrieu, ¶ 26.

¶ 21 Although the district court did not base its analysis of

Andrade’s claim under the Act on the “landowner” issue,

nevertheless, we conclude that the district court did not err by

9
granting summary judgment for Johnson on Andrade’s premises

liability claim. See Steamboat Springs Rental & Leasing, Inc. v. City

& Cty. of Denver, 15 P.3d 785, 786 (Colo. App. 2000) (“An appellate

court may affirm a correct judgment based on reasoning different

from that relied on by the trial court.”).

IV. Common Law Negligence Claim

¶ 22 Andrade also contends that the district court erred by entering

summary judgment for Johnson on her common law negligence

claim. Andrade argues that, pursuant to section 3.4.103(B) of the

Code, Johnson had a duty to notify the City Engineer about the

damaged sidewalk adjacent to her property, and that, pursuant to

section 3.4.103(D) of the Code, Johnson became civilly liable for

Andrade’s injury that occurred as a result of Johnson’s “inaction” in

failing to notify the City Engineer about the damaged sidewalk.

¶ 23 We conclude that the plain language of section 3.4.103(B)

unambiguously imposes a duty on owners and occupants of real

property to notify the City Engineer about any damage to the public

sidewalk abutting or adjacent to their real property. We also

conclude that, as pertinent here, section 3.4.103(D) expressly

imposes civil liability on owners or occupants of property who fail to

10
comply with their duty to notify in section 3.4.103(B) when their

failure to notify is the proximate cause of a third party’s injury.

However, disputed issues of fact remain as to whether the public

sidewalk was damaged and whether Johnson’s failure to report the

alleged damage was the proximate cause of Andrade’s injuries.

Therefore, we conclude that the district court erred by entering

summary judgment for Johnson on Andrade’s common law

negligence claim, and we reverse that aspect of the judgment and

remand to the district court for further proceedings on that claim.

¶ 24 As an initial matter, Johnson contends that, on appeal,

Andrade only repeats the negligence per se claim she made in

response to Johnson’s motion for summary judgment, and she

again notes that Andrade did not allege such a claim in her

complaint. Johnson contends that Andrade merely argued in

support of her common law negligence claim that “[Johnson] had a

duty to maintain the sidewalk in front of her residence so that it

was safe for pedestrian use,” and thus, Andrade’s arguments

regarding the Code in support of a purported negligence per se

claim are not properly before us.

11
¶ 25 We agree that Andrade did not expressly plead a negligence

per se claim in her complaint. However, in addition to the

allegation in Andrade’s complaint that “[Johnson] had a duty to

maintain the sidewalk in front of her residence so that it was safe

for pedestrian use,”3 her complaint also alleged that “[Johnson]

failed to exercise reasonable care to protect [Andrade] and others

against dangers of which [Johnson] was aware.” Given that

Andrade argues in support of her common law negligence claim

that, pursuant to section 3.4.103(B) of the Code, Johnson had a

duty to notify the City Engineer about the allegedly damaged

sidewalk and that she breached this duty, for purposes of our

analysis, we assume that this latter allegation in her complaint was

sufficient to encompass her common law negligence arguments

regarding the Code. Furthermore, Andrade’s arguments regarding

the effect of the Code formed the basis for her response to the

motion for summary judgment on her negligence claim. And, the

record shows that Johnson was fully aware of these arguments

because she anticipated them in her motion for summary judgment

3Andrade concedes in her briefs on appeal that Johnson did not
have a duty to maintain or repair the public sidewalk adjacent to
her property.

12
and then responded substantively to them in her reply brief in

support of that motion.

A. The Common Law No Duty Rule

¶ 26 Andrade’s contention requires us to analyze the contours of

the “no duty” rule and whether it applies here to bar her common

law negligence claim as a matter of law.

¶ 27 Under the “no duty” rule, which is firmly embedded in

Colorado’s jurisprudence, Bittle v. Brunetti, 750 P.2d 49, 51-52

(Colo. 1988), the supreme court and divisions of this court have

consistently held that an owner of real property has no duty to

persons who claim injury arising from the condition of an abutting

public sidewalk. The “no duty” rule is also the common law rule in

the majority of jurisdictions outside of Colorado. Id. at 52.

¶ 28 For example, several cases in Colorado have held that property

owners have no common law duty to remove naturally

accumulating snow and ice from the public sidewalks abutting their

property, and, therefore, the property owners have no common law

duty to third parties who are injured on the public sidewalks due to

snow and ice. See id. at 55; Burbach, 224 P.3d at 439-40; Easton v.

1738 P’ship, 854 P.2d 1362, 1364-65 (Colo. App. 1993). This “no

13
duty” rule is not strictly limited to situations involving snow and ice

on a public sidewalk, but also applies when a public sidewalk

adjoining an owner’s property is in need of maintenance or repairs.

See Foster v. Redd, 128 P.3d 316, 318 (Colo. App. 2005).

¶ 29 Courts applying the “no duty” rule have reasoned that, under

general tort law, an individual’s ownership, possession, and control

are relevant to the existence of a special relationship on which a

duty can be based. Bittle, 750 P.2d at 52-53. Thus, while several

Colorado cases have held that property owners can be held liable

for not taking reasonable measures to remove snow and ice from

their own property, see Palmer Park Gardens, Inc. v. Potter, 162

Colo. 178, 182-83, 425 P.2d 268, 271 (1967); King Soopers, Inc. v.

Mitchell, 140 Colo. 119, 124-25, 342 P.2d 1006, 1009 (1959), courts

are generally disinclined to find that a property owner owed a duty

to those injured on public property. See Bittle, 750 P.2d at 52-53.

Additionally, Colorado courts generally have been “unwilling to

impose liability for injuries caused by natural obstacles or

conditions.” Id. at 53.

¶ 30 However, as pertinent here, there is a critical exception to the

“no duty” rule. A municipal ordinance specifically providing that a

14
property owner will be civilly liable for its violation can serve to

establish the existence of a defendant’s “legally cognizable duty

owed to a plaintiff.” Easton, 854 P.2d at 1364. But ordinances

requiring property owners adjacent to a public sidewalk to maintain

or clear the sidewalk of snow and ice do not impose liability on the

property owners for a third party’s injury absent an express

imposition of such liability. See Burbach, 224 P.3d at 439; see also

Easton, 854 P.2d at 1364-65 (finding that a city ordinance stating

that property owners would be “jointly and severally liable” if they

failed to keep all public sidewalks abutting the premises of their

property clear of snow, ice, sleet, and hail — considered along with

another provision of the city code stating that property owners

would be fined for failing to keep the public sidewalks clear of snow

— did not manifest a specific expression of legislative intent that the

ordinance was to serve as a basis for civil liability). Therefore, to

overcome the general common law “no duty” rule, an ordinance

must clearly state that a property owner will be civilly liable for

violating the ordinance. See Woods v. Delgar Ltd., 226 P.3d 1178,

1183 (Colo. App. 2009).

15
B. Principles of Statutory Interpretation

¶ 31 Resolution of Andrade’s contention also requires us to

interpret provisions of the Code. When interpreting a city code, we

apply ordinary rules of statutory construction. Alpenhof, LLC v.

City of Ouray, 2013 COA 9, ¶ 10.

¶ 32 Our primary task when construing statutes is to ascertain and

give effect to the legislative body’s intent, Gagne v. Gagne, 2014

COA 127, ¶ 25, and we must refrain from rendering judgments that

are inconsistent with that intent. State v. Nieto, 993 P.2d 493, 500

(Colo. 2000). To determine a legislative body’s intent, we look first

to the plain language of the statute, giving words and phrases their

ordinary meanings. Id. We read the words and phrases in context

and construe them according to their common usages. Gagne,

¶ 25.

¶ 33 In addition, when we construe a statute, we should read and

consider the statute as a whole. Id. at ¶ 26. We also must

“interpret [the statute] in a manner giving consistent, harmonious,

and sensible effect to all of its parts.” Id. In doing so, we should

not interpret the statute so as to render any part of it meaningless,

absurd, or superfluous. Id.; see also People v. Rice, 2015 COA 168,

16
¶ 12. If the statutory language is clear and unambiguous, we look

no further. Gagne, ¶ 27.

¶ 34 “Moreover, as here, where the interaction of common law and

statutory law is at issue, we acknowledge and respect the

[legislative body’s] authority to modify or abrogate common law, but

can only recognize such changes when they are clearly expressed.”

Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). Statutes that

deviate from the common law “must be strictly construed, so that if

the legislature wishes to abrogate rights that would otherwise be

available under the common law, it must manifest its intent either

expressly or by clear implication.” Id. (quoting Vaughan v. McMinn,

945 P.2d 404, 408 (Colo. 1997)).

C. Analysis and Interpretation of the Relevant Provisions of the
Code

¶ 35 Andrade contends that the “no duty” rule is inapplicable here

because the Code expressly provides for civil liability under the

circumstances of this case. We agree.

¶ 36 We interpret the relevant provisions of the Code to determine

whether they reflect a clear, specific expression of legislative intent

that the Code is to serve as a basis for civil liability, thus making

17
the general common law “no duty” rule inapplicable. See id.; see

also Easton, 854 P.2d at 1364-65.

¶ 37 Section 3.4.103, titled “RESPONSIBILITY OF REAL PROPERTY

OWNERS AND OCCUPANTS,” is part of article 4 of the Code, titled

“SIDEWALKS,” and provides as follows:

A. Cleaning Sidewalks: Every owner and
occupant of real property within the City shall
keep the public sidewalks which abut or are
adjacent to their real property, or public
sidewalks located upon real property subject to
a public easement or right of way, in a clean
condition free from projections and
obstructions across the surface, debris, litter,
or dangerous conditions not involving the
structural integrity of the sidewalk.

B. Notice Of Damage To A Public Sidewalk: It
is the responsibility of every owner and
occupant of real property within the City to
notify the City Engineer of any damage to a
public sidewalk which abuts or is adjacent to
that owner’s real property, or public sidewalk
located upon the owner’s or occupant’s real
property subject to a public easement or right
of way.

C. Notice Of Damage To A Public Sidewalk;
Individual’s Or Entity’s Fault: It is the
responsibility of any individual or entity to
notify the City Engineer of any damage to a
public sidewalk which occurs or may occur as
a result of that individual’s or entity’s action or
inaction.

18
D. Civil Liability: The owner or occupant of the
real property or both and an individual or
entity whose action or inaction results in
damage to a public sidewalk, shall be primarily
liable in tort for any injury proximately caused
by failure to comply with this section.

¶ 38 Looking to the plain language of these provisions of the Code

and giving words and phrases their ordinary meanings, Nieto, 993

P.2d at 500, we first conclude that section 3.4.103(B)

unambiguously imposes a duty on owners and occupants of real

property to notify the City Engineer of any damage to a public

sidewalk which abuts or is adjacent to that owner’s or occupant’s

real property. Thus, if the public sidewalk adjacent to Johnson’s

real property was in fact damaged, she had a duty to notify the City

Engineer of the damage.

¶ 39 For the reasons set forth below, we also conclude that section

3.4.103(D) clearly imposes civil liability for any injury proximately

caused by a failure to comply with the other provisions of section

3.4.103, although that conclusion requires a more complex

analysis.

¶ 40 As noted, section 3.4.103(D) provides that “[t]he owner or

occupant of the real property or both and an individual or entity

19
whose action or inaction results in damage to a public sidewalk,

shall be primarily liable in tort for any injury proximately caused by

failure to comply with this section.” In conducting our de novo

interpretation of the Code, see Burbach, 224 P.3d at 439, we must

consider whether the phrase “whose action or inaction results in

damage to a public sidewalk” refers only to the words “an individual

or entity,” or whether that phrase also refers back to the words

“owner or occupant of the real property.”4 If we interpret the phrase

“whose action or inaction results in damage to a public sidewalk” to

refer back to “owner or occupant of the real property,” then section

3.4.103(D) would read, as applicable here: “The owner or occupant

of the real property . . . whose action or inaction results in damage

to a public sidewalk, shall be primarily liable in tort for any injury

proximately caused by failure to comply with this section.”

Conversely, if we interpret the phrase “whose action or inaction

results in damage to a public sidewalk” as only referring back to the

words “an individual or entity,” then section 3.4.103(D) would read,

4 Johnson does not respond to Andrade’s statutory interpretation
arguments in her answer brief, but instead simply cites cases about
the general common law “no duty” rule without analyzing whether
Colorado Springs intended to impose civil liability in section
3.4.103(D), thus making the “no duty” rule inapplicable here.

20
as applicable here: “The owner or occupant of the real property . . .

shall be primarily liable in tort for any injury proximately caused by

failure to comply with this section.” We conclude this second

interpretation is correct and is consistent with the clearly expressed

legislative intent of these Code provisions.

¶ 41 Considering the statutory framework as a whole and looking to

the plain language of the statute, Nieto, 993 P.2d at 500; Gagne,

¶ 25, we find it important that subsections (A) and (B) of section

3.4.103 impose duties on only owners and occupants of real

property. Thus, subsection (A) imposes a duty on owners and

occupants to keep the public sidewalks adjacent to their real

property in a clean condition free from obstructions across the

surface, debris, litter, or dangerous conditions not involving the

structural integrity of the sidewalk; subsection (B) imposes a duty

on owners and occupants to notify the City Engineer of any damage

to a public sidewalk adjacent to or abutting their real property. By

use of the word “any,” subsection (B) clearly imposes a duty to

notify regardless of whether the owners or occupants of the real

property damaged the public sidewalk themselves. Conversely,

section 3.4.103(C) imposes a duty on “any individual or entity to

21
notify the City Engineer of any damage to a public sidewalk which

occurs or may occur as a result of that individual’s or entity’s action

or inaction.” (Emphasis added.) Importantly, under subsection (C),

any such individuals or entities must notify the City Engineer only

if their action or inaction results in damage to the public sidewalk.

¶ 42 Thus, looking to the statutory framework and plain language

of the Code, section 3.4.103(C) is the only section that imposes a

duty on an individual or entity only when such individual’s or

entity’s action or inaction results in damage to a public sidewalk.

Thus, in context, the phrase “whose action or inaction results in

damage to a public sidewalk” in section 3.4.103(D) refers only to a

third party individual or entity, and not to an owner or occupant of

real property adjacent to a public sidewalk. See Nieto, 993 P.2d at

500; Gagne, ¶ 25.

¶ 43 Further, the phrase “individual or entity” does not, in our

view, include an “owner or occupant” of real property because such

an interpretation would render the words “owner or occupant of the

real property or both,” in section 3.4.103(D) meaningless and

superfluous. See Gagne, ¶ 26; see also Rice, ¶ 12 (stating that we

must interpret a statute in a manner giving consistent,

22
harmonious, and sensible effect to all of its parts, and in doing so,

we should not interpret the statute in a way that renders any part

of it meaningless, absurd, or superfluous). Owners and occupants

already have a duty to notify the City Engineer of damage under

subsection (B) regardless of who caused the damage to the

sidewalk.

¶ 44 Were we to interpret section 3.4.103(D) to read, “[t]he owner or

occupant of the real property or both . . . whose action or inaction

results in damage to a public sidewalk, shall be primarily liable in

tort for any injury proximately caused by failure to comply with this

section,” such an interpretation would negate any civil liability for

owners or occupants of real property who breach their notice duty

under section 3.4.103(B) but do not damage the public sidewalk

themselves; and it would also negate civil liability of owners or

occupants of real property who breach their duty in section

3.4.103(A) to keep the public sidewalk clear of debris. See Code §

3.4.103(A) (“Every owner and occupant of real property . . . shall

keep the public sidewalks which abut or are adjacent to their real

property . . . in a clean condition free from projections and

obstructions across the surface, debris, litter, or dangerous

23
conditions not involving the structural integrity of the sidewalk.”).

Such an interpretation would, in our view, be inconsistent with the

plain language of section 3.4.103(D), which imposes civil liability on

owners or occupants of real property for any injury proximately

caused by their failure to comply with the provisions of section

3.4.103.

¶ 45 We also find it instructive that in part 2 of article 4, titled

“SNOW REMOVAL,” section 3.4.202(A) and (B) states that owners of

real property have an affirmative obligation to remove snow and ice

from the sidewalk abutting or adjacent to their property within

certain time limits to protect public safety, and that “[v]iolation of

this duty shall constitute negligence per se and an unlawful act,

subjecting the violator to civil liability for any injury proximately

caused by the violation, civil liability for the costs of removal and

criminal prosecution.” This Code provision further illustrates the

City’s intent to craft a broad statutory framework that imposes civil

liability in certain instances on owners and occupants of real

property who breach duties imposed on them by the Code. Cf.

Burbach, 224 P.3d at 439; Easton, 854 P.2d at 1364-65.

24
¶ 46 In sum, based on our analysis of the plain language and

statutory framework of the Code, we conclude that the provisions of

section 3.4.103 are unambiguous and express a clear legislative

intent to impose civil liability when an owner or occupant of real

property fails to notify the City Engineer about any damage to the

public sidewalk adjacent to his or her real property, see Code

§ 3.4.103(B), and the owner’s or occupant’s failure to notify the City

Engineer about the damaged public sidewalk proximately causes

injury to a third party. Because we conclude that section

3.4.103(D) is unambiguous, we also conclude that the general

common law “no duty” rule is inapplicable here. See Vigil, 103 P.3d

at 327 (stating that deviations from the common law must be

clearly expressed); cf. Burbach, 224 P.3d at 439-40 (declining to

deviate from the “no duty” rule where the municipal code at issue

did not expressly impose civil liability for violation of its provisions).

Accordingly, the district court erroneously entered summary

judgment for Johnson on Andrade’s common law negligence claim

based on the court’s application of the “no duty” rule.

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D. Application

¶ 47 Although we interpret section 3.4.103(B) to impose a duty on

owners and occupants of real property to notify the City Engineer of

damage to an adjacent or abutting public sidewalk, and interpret

section 3.4.103(D) to impose civil liability on owners or occupants of

real property who breach this duty to notify when their breach is

the proximate cause of a third party’s injury, that does not mean

that Johnson is necessarily civilly liable for Andrade’s injuries. On

the record before us, there are genuine issues of material fact as to

whether the public sidewalk was in fact damaged and whether

Johnson’s failure to notify the City Engineer of the alleged damage

proximately caused Andrade’s injuries. See Kaiser, 741 P.2d at

718. The district court did not consider these issues in its

summary judgment order.

¶ 48 The record contains an affidavit from the Streets Manager of

Colorado Springs stating that the City had not received any

complaints from Johnson that the sidewalk adjacent to her property

was damaged. However, Johnson only had a duty pursuant to

section 3.4.103(B) to notify the City Engineer of damage to the

public sidewalk adjacent to her property if the sidewalk was

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actually damaged. Here, the parties dispute whether the sidewalk

was in fact damaged.

¶ 49 The record contains two different sets of photographs, one set

supplied by each party, of the sidewalk adjacent to Johnson’s

home. Each set of photographs depicts different parts of the

sidewalk and different areas of possible damage. Johnson contends

that there is no damage to the public sidewalk adjacent to her

house at all; but given the conflicting photographs and the parties’

dispute regarding whether or not the public sidewalk adjacent to

Johnson’s home was damaged, that is an issue that cannot be

resolved by summary judgment on this record. See id. (stating that

“summary judgment is a drastic remedy, and is not a substitute for

a trial of disputed facts”).

¶ 50 Similarly, the district court record does not contain any

evidence regarding the issue of proximate cause — specifically,

whether Johnson’s failure to notify the City Engineer of the alleged

damage to the public sidewalk adjacent to her property proximately

caused Andrade’s injuries. See id.; In re Estate of Heckman, 39 P.3d

1228, 1232 (Colo. App. 2001) (“Proximate cause is ordinarily a

question of fact for the jury and may be decided as a matter of law

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only when reasonable minds could draw but one inference from the

evidence.”). Therefore, the case must be remanded to the district

court for further proceedings on these issues.

V. Conclusion

¶ 51 With respect to that aspect of the summary judgment on

Andrade’s premises liability claim under the Act, the judgment is

affirmed. With respect to that aspect of the summary judgment on

Andrade’s common law negligence claim, the judgment is reversed.

The case is remanded to the district court with directions to

conduct further proceedings on Andrade’s common law negligence

claim because there are genuine issues of material fact as to

whether the public sidewalk was damaged and whether Johnson’s

failure to report the alleged damage to the City Engineer

proximately caused Andrade’s injuries.

¶ 52 Accordingly, the judgment is affirmed in part, reversed in part,

and the case is remanded to the district court with for further

proceedings consistent with this opinion.

JUDGE NIETO and JUDGE CASEBOLT concur.

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