2019 COA 26
Colo. Ct. App.2019Background
- On November 27, 2015, Robert Dear entered the Colorado Springs Planned Parenthood clinic operated by Rocky Mountain Planned Parenthood, Inc. (PPRM) armed with multiple firearms and explosive devices, killed two people in the parking lot, then entered the clinic and wounded others; a police officer was also killed in the ensuing gun battle.
- Plaintiffs (victims and survivors) sued PPRM under the Colorado Premises Liability Act (CPLA) alleging PPRM, as landowner, failed to exercise reasonable care to protect invitees from foreseeable criminal danger; they sued Planned Parenthood Federation of America (PPFA) in common law negligence alleging control over PPRM.
- The trial court granted summary judgment for both defendants, concluding (1) Dear’s actions were the predominant cause of the injuries, so PPRM’s alleged negligence was not a substantial factor; and (2) PPFA did not owe plaintiffs a duty as a matter of law.
- The Court of Appeals affirmed summary judgment as to PPFA (no special relationship/control to impose a duty), but reversed as to PPRM, finding genuine factual disputes about foreseeability and causation precluding summary judgment.
- Plaintiffs presented evidence (FBI warning, prior threats, PPRM security practices and warnings, part-time guard who left before attack, an expert report identifying possible security measures) suggesting the risk of an active-shooter incident at such clinics was known or should have been known to PPRM.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PPFA owed plaintiffs a duty via control over PPRM | PPFA exercised control over affiliates and thus owed a duty | PPFA only had discretionary/organizational influence and was not possessor/owner | Court: Affirmed summary judgment for PPFA — no duty established |
| Whether PPRM’s failure to adopt security was causally related to injuries under CPLA | PPRM knew or should have known risk (FBI warnings, threats, security gaps); expert says measures could have prevented/mitigated harm | Dear’s planned, premeditated assault was so predominant that PPRM’s contribution was insignificant as a matter of law | Court: Reversed summary judgment for PPRM — factual disputes on foreseeability and substantial-factor causation require a jury |
| Whether a mass shooter’s actions can be treated as a "predominant cause" removing legal causation | Plaintiffs: focus should be on PPRM’s acts/omissions, not the assailant alone; substantial-factor test applies | PPRM: attacker’s intentional acts were qualitatively different and thus predominant, justifying summary judgment | Court: Majority — disputed facts on foreseeability and causation preclude resolving predominance as a matter of law; dissent — attacker was predominant cause and would affirm |
| Standard for resolving foreseeability/causation on summary judgment in premises liability involving third-party criminal acts | Plaintiffs: foreseeability and whether negligence was a substantial factor are typically jury questions | PPRM: some events (mass shooter) may be so extraordinary that foreseeability and legal causation can be decided as a matter of law | Court: Applied CPLA and precedent; concluded foreseeability and proximate-cause issues here present genuine disputes of material fact for the factfinder |
Key Cases Cited
- McIntire v. Trammell Crow, Inc., 172 P.3d 977 (Colo. App. 2007) (standard of review for summary judgment)
- Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (foreseeability in premises liability; what a reasonably thoughtful person should account for)
- Hook v. Lakeside Park Co., 351 P.2d 261 (Colo. 1960) (identifying predominant causes that can preclude liability)
- Smith v. State Comp. Ins. Fund, 749 P.2d 462 (Colo. App. 1987) (predominant cause analysis may be resolved as a matter of law in certain multi-cause cases)
- Axelrod v. Cinemark Holdings, Inc., 65 F. Supp. 3d 1093 (D. Colo. 2014) (denying summary judgment where multiple mass-shooting incidents made foreseeability a factual question)
- Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216 (D. Colo. 2015) (court found a mass shooter’s premeditated acts could be the predominant cause)
- Build It & They Will Drink, Inc. v. Strauch, 253 P.3d 302 (Colo. 2011) (landowner may be liable for injuries from third-party criminal acts if foreseeable)
- Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2012) (where unrelated events contribute, plaintiff must show defendant’s negligence was a substantial factor)