2016 COA 114
Colo. Ct. App.2016Background
- Ellyn Rucker visited an unoccupied, foreclosed house owned by FNMA where a listing broker (Heter) had placed a “For Sale” sign showing the realtor’s name and phone number; a separate warning sign on the door was not legible from the street.
- Ellyn and her daughter Kristin parked in the driveway without notifying FNMA/Heter or requesting permission; Kristin had previously been shown the house by a Heter realtor, Ellyn had not.
- Ellyn walked across the yard, approached the front door, and on returning along the paved path tripped on an uneven portion of the sidewalk, suffering injuries.
- Ellyn sued FNMA and Heter under Colorado’s Premises Liability Act (PLA), claiming she was an invitee because the “For Sale” sign (and other circumstances) constituted an implied invitation to enter the property.
- The trial court held Ellyn was a trespasser; after interlocutory certification and limited review, the Colorado Court of Appeals affirmed, limited to the “For Sale” sign issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a standalone “For Sale” sign creates an implied representation that the public is requested, expected, or intended to enter under § 13-21-115(5)(a) | Rucker: The sign impliedly invited prospective buyers to enter, making her an invitee | FNMA/Heter: A sign with only agent name/phone merely invites contact, not unaccompanied entry; no custom existed allowing free entry | Held: No — a bare “For Sale” sign does not, by itself, create an implied invitation; Rucker was a trespasser |
Key Cases Cited
- Wells v. Polland, 708 A.2d 34 (Md. Ct. Spec. App. 1998) (holding a simple "For Sale" sign with agent contact does not imply permission to enter unaccompanied)
- Singleton v. Charlebois Constr. Co., 690 S.W.2d 845 (Mo. Ct. App. 1985) (distinguishable where evidence of owner’s custom allowing unaccompanied inspections supported invitee finding)
- Holcomb v. Colonial Assocs., L.L.C., 597 S.E.2d 710 (N.C. 2004) (lawful-visitor status found where owner allowed buyers and agents to inspect property, establishing a custom)
- Crown Cork & Seal Co. v. Kane, 131 A.2d 470 (Md. 1957) (describing objective factors for implied invitation, including custom and apparent holding out of premises for public use)