Reid v. Berkowitz
2013 COA 110
Colo. Ct. App.2013Background
- On May 5, 2008, Rodney Reid (plaintiff), a construction worker, accompanied a painter to a nearly completed house being built by Daniel Berkowitz (defendant, doing business as Shimon Builders); Reid had previously worked on the project and was known to the crew.
- While ascending to the top floor to retrieve lights, Reid tripped near the top landing, grabbed a handrail that had been installed by two coworkers, the rail gave way, and he fell three stories, suffering serious injuries.
- Defendant designated the two coworkers as nonparties at fault under Colo. Rev. Stat. § 13-21-111.5; plaintiff amended to join them, they defaulted, and plaintiff later obtained a default judgment against them for over $1 million.
- At trial the court ruled Reid was a licensee (not a trespasser) and excluded instructions proposing apportionment of fault to the two coworkers (based on a asserted nondelegable duty) and a comparative negligence instruction for defendant. Jury returned $400,000 verdict against defendant.
- On appeal the court affirmed the licensee finding, held the trial court erred by refusing both the apportionment and comparative-negligence instructions, but found the apportionment error harmless because the landowner had a nondelegable duty making the coworkers' fault vicariously attributable to defendant; remanded for a new trial on liability limited to comparative-fault allocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plaintiff's status on premises (invitee/licensee/trespasser) | Reid was permitted on site by custom and past work; thus licensee | Argued Reid was a trespasser | Court: Reid was a licensee (trial court findings supported) |
| Jury apportionment to designated nonparty coworkers under § 13-21-115(2) and § 13-21-111.5 | Plaintiff joined coworkers as defendants; default judgment shows their fault | Defendant was entitled to jury instruction to apportion fault to coworkers | Court: Trial court erred by refusing instruction, but error harmless because of nondelegable duty imputing coworkers' fault to defendant |
| Effect of nondelegable duty on apportionment (vicarious liability for independent contractors) | Plaintiff: coworkers at fault but landowner retains liability; their fault can be considered but overall liability remains with landowner | Defendant: nondelegable duty shouldn't preclude apportionment and reduction of defendant's liability | Court: Nondelegable duty remains; jury must still allocate fault among defendants and nonparties, but the court aggregates fault of landowner and those for whom landowner is vicariously liable when entering judgment |
| Comparative negligence instruction for plaintiff | Plaintiff argued his conduct did not cause injuries; handrail failure was proximate cause | Defendant argued evidence supported comparative negligence (dark site, no flashlight, tripping over cords) | Court: Trial court erred in refusing instruction; sufficient evidence existed to submit comparative negligence to jury; remand for new trial on liability (not damages) |
Key Cases Cited
- Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000) (recognizes landowner nondelegable duty re: safety of structures during construction and retains vicarious liability for independent contractors)
- Union Pac. R.R. Co. v. Martin, 209 P.3d 185 (Colo. 2009) (discusses pro rata apportionment principle that tortfeasors pay only their share of fault)
- Kidwell v. K-Mart Corp., 942 P.2d 1280 (Colo. App. 1996) (nondelegable duty precludes delegating premises-safety obligation; negligence of independent contractor is imputed to landowner)
- Miller v. Byrne, 916 P.2d 566 (Colo. App. 1996) (procedural point that a plaintiff may join a designated nonparty at fault under apportionment statute)
- Lyons v. Nasby, 770 P.2d 1250 (Colo. 1989) (comparative negligence instruction required when competent evidence supports both parties being at fault)