Tancrede v. Freund

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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