2012 COA 174
Colo. Ct. App.2012Background
- Neighbor entered landowner's yard in Aug 2008 to return a borrowed propane tank; stairs on the deck collapsed injuring neighbor; landowner was not home.
- Neighbor sued under the Premises Liability Act alleging invitee/licensee status and landowner failed to exercise reasonable care.
- Trial court labeled neighbor a trespasser and granted summary judgment to landowner because no willful or deliberate injury.
- Court held that the Act's consent includes only express consent, rejecting implied consent.
- On appeal, court reverses summary judgment and remands for factual determination of implied consent and proper classification under the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does consent in the Act include implied consent? | Neighbor had implied consent due to key, friendship, and propane-tank loan. | Consent must be express; trespasser includes absence of consent, no implied consent. | Yes; consent includes implied consent; remand for facts. |
Key Cases Cited
- Mile High Fence Co. v. Radovichk, 175 Colo. 537 ((Colo. 1971)) (rejected common-law classifications in premises liability)
- Vigil v. Franklin, 103 P.3d 322 ((Colo. 2004)) (Act provides exclusive remedy against landowners)
- Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 ((Colo. App. 2003)) (statutory framework governs landowner liability)
- Grizzell v. Hortman Enterprises, Inc., 68 P.3d 551 ((Colo. App. 2003)) (classification affects duty of care)
- Chapman v. Willey, 134 P.3d 568 ((Colo. App. 2006)) (mixed question of fact and law in classification)
- In re Estate of Holmes, 821 P.2d 300 ((Colo. App. 1991)) (statutory interpretation precedent)