2016 COA 114
Colo. Ct. App.2016Background
- Ellyn Rucker visited an unoccupied foreclosure house listed for sale by FNMA; Heter was the listing broker and had placed a "For Sale" yard sign with the listing agent's name/phone and a separate warning sign on the door.
- Ellyn and her daughter Kristin arrived without contacting Heter or FNMA; Kristin had previously been shown the house by a Heter realtor but Ellyn had not.
- Ellyn walked to the front doorstep and, while returning along a paved front pathway, stepped on an uneven section, fell, and was injured.
- Ellyn sued FNMA and Heter under Colorado's Premises Liability Act (PLA), arguing she was an invitee because the "For Sale" sign (and separately the paved pathway) constituted an express or implied invitation under § 13-21-115(5)(a).
- The trial court held Ellyn was a trespasser; after interlocutory certification and limited appellate review, the court of appeals addressed only the "For Sale" sign issue and affirmed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "For Sale" sign alone creates an implied invitation under PLA § 13-21-115(5)(a) | Rucker: the yard "For Sale" sign constituted an express or implied representation that the public was requested/expected to enter, making her an invitee | FNMA/Heter: a sign with agent name/phone is merely an invitation to call the agent, not to enter unaccompanied; no custom allowed unaccompanied entry | The court held a standalone "For Sale" sign does not create an implied invitation; Ellyn was a trespasser |
Key Cases Cited
- Wells v. Polland, 708 A.2d 34 (Md. Ct. Spec. App. 1998) (holding a simple "For Sale" sign does not imply public invitation to enter)
- Coddington v. Federal Nat'l Mortgage Ass'n, [citation=""] (excluded; unpublished) (relied on by trial court but not listed here because unpublished)
- Singleton v. Charlebois Constr. Co., 690 S.W.2d 845 (Mo. Ct. App. 1985) (distinguished: invited-entry finding tied to evidence of owner custom permitting unaccompanied visits)
- Holcomb v. Colonial Assocs., L.L.C., 597 S.E.2d 710 (N.C. 2004) (distinguished: owner custom and allowance of inspections supported visitor status)
- Legro v. Robinson, 369 P.3d 785 (Colo. App. 2015) (explaining PLA classification is mixed fact and law)
- Corder v. Folds, 292 P.3d 1177 (Colo. App. 2012) (statutory interpretation principles cited regarding PLA)
(Notes: the court relied on Wells and other authority applying an objective test and on evidence that the listing broker required appointments and accompaniment; cases holding invitee status required a custom or implied inducement to enter.)