*1 reversed, Scaffolding Duff, alleged folding and Waco are is based Charles construction, pro- includ- cause remanded for further duty to “administer” and the site, She ing inspecting ceedings. with due care.
maintains the trial court erred in conclud- archi-
ing duty that no exists. The such RULAND, JJ., NEY and concur. hand, tects, they argue on the duty no such decedent owed
and, did, they if immune even are liability
from in tort under the Workmen’s Compensation Act. Because we conclude that the architects are immune under Act, Compensation Workmen’s owed address issue of whether duty of plaintiff’s husband a care. (1986 8-48-102, Repl.Vol. Section C.R.S. Nelson BOCK and Patricia Lawless-Ave 3B) Act Compensation of the Workmen’s lar, Plaintiffs-Appellants, immunity liability for statu- provides from eligi- employers employees who are tory Compensation benefits.
ble for Workmen’s COMPANY, MALL WESTMINSTER employer Included within the definition of Defendant-Appellee. the owners of real who are work, employ- out for contracted No. 87CA1346. servants, ees, 8-48- agents. Section Appeals, Colorado Court of 3B). 102(2), (1986 Repl.Vol. Al- C.R.S. IV. Div. exemptions forth though there are statute, 8-48-102(3) (1986 Repl.Vol. May 1990. 3B), they inapplicable are Rehearing Denied June 1990. Faith architects’ contract with The Archi explicitly that: “The Church stated Oct. 1990. Certiorari Granted representative of the Owner tect shall phase during the and shall construction ... authority on behalf of the Own to act in the Con
er ... extent de language This tract Documents.” agency relationship an between scribes the owner. Victorio architects and Ironwood, IX, 713 Realty Group, Inc. (Colo.App.1985); Law Black’s (5th 1979) (term “rep Dictionary 1170 ed. interchangeable with resentative” “agent”). immune architects are 8-48-102(2). liability pursuant dismissing judgments Thomas negligence against claim plaintiff’s Duff, R. d/b/a and Charles E. Reck Architects, and liabili- her strict Reck/Duff Scaffolding are against ty claim Colorado neg- dismissing plaintiff’s affirmed. Those Scaffolding against ligence claims Colorado dismissing plaintiff’s Those are affirmed. Scaf- negligence claims Colorado *2 policy promotional for certain activi- organizations. and charitable
ties The trial found that to the activity directly is not related and that of the defendant’s use alternative plaintiffs have opinions. in which to forums voice Corp. v. Lloyd The trial court relied on Tanner, (1972) and Handen v. Colora- Springs, 186 Colo. do (1974) granting summary judgment appeal the Mall. This followed.
I.
Plaintiffs
the trial
contend
determining
court erred
Four
a
under the First and
Amendments
leaflets
teenth
a
owned mall.
within
affirm
the trial court’s conclusion but
grounds.
different
determination,
ap-
the trial court
In its
plied
Springs,
Handen v. Colorado
large shopping
that a
which held
commu-
equivalent
the functional
of a
was
purposes of a First
nity business block for
Union,
H.
American Civil
David
Liberties
ruling
analysis. The Handen
Miller, Denver,
Amendment
plaintiffs-appellants.
forth in
analysis
was based
Aab, Denver, Brown, Koralchik &
James
Logan
Food
Amalgamated
Employees
Park,
Drill,
Fingersh, Elizabeth
Overland
Plaza,
Valley
Kan.,
defendant-appellee.
Corp.
Lloyd
20 L.Ed.2d
However,
Tanner, supra.
subsequent to
by Judge
Opinion
PLANK.
Handen,
overruled
the U.S.
presented here is whether
The sole issue
Corp.
v. Na-
Lloyd
ruling Hudgens
Company may
Westminster Mall
defendant
Board, 424 U.S.
tional Labor Relations
constitutionally deny
plaintiffs access
leaf-
open-areas
order to distribute
Mall
thereby,
effect,
undermined
granted
The trial court
lets.
Hudgens
Handen
defendant,
judgment for the
and we affirm.
sufficiently
shopping centers were not
organiza-
are members of an
Plaintiffs
First
with state
to invoke
identified
“Pledge
as the
Resistance”
tion known
protection.
Amendment
govern-
advocates a cessation of U.S.
light
Hudgens
hold-
America.
ment
Central
no
ing, plaintiffs concede
requested permission
Plaintiffs
protected right under the First and Four-
a
peti-
to distribute leaflets and solicit
Mall
teenth Amendments to distribute
com-
Mall’s interior
private-
areas,
gather petition signatures in a
permission
but the Mall denied
mon
Therefore,
general
ly
owned
center.
upon
policy prohibiting
based
appropriate
in Handen
of leaflets and other solicitation.
tribution
presented
exceptions
Mall has
the issue
made
resolve
persuasive
II.
rule
and therefore
adopt it.
Plaintiffs next contend Colo.
Here,
the plaintiffs have not
10, requires
defendant
*3
any historical
that the drafters
evidence
of
plaintiffs
their
opportunity
the
to exercise
Const,
II,
Colo.
to
art.
10 intended
state a
§
sig-
gather
leaflets and
right for
speak,
one
citizen to
disagree.
natures. We
leaflets,
gather signatures
tribute
or
on
Const,
II,
10, provides:
Colo.
art.
§
Moreover,
property.
another’s
passed impairing
be
the
“No law shall
nothing
phrases
and
there
the words
every person
speech;
freedom of
shall be
Const,
II,
of Colo.
art.
10 which reveals
§
publish
or
speak,
free to
write
whatever
such an intent.
being
subject,
responsible
he
any
will on
reject
suggestion
that the
liberty;
and in all
all abuse
Const,
affirmation contained
Colo.
art.
prosecution
for libel the truth
suits
II,
every person
10 that
shall
free
be
to
§
evidence,
given in
may
thereof
and
”
write,
he
speak,
publish “whatever
or
will
direction of the
jury,
the
any subject
also means “wherever.”
the law and the fact.”
shall determine
reject plaintiffs’
We further
assertion
Bill
the federal and state
of
Both
right
one’s
that this court should balance
to
Rights
adopted
protect
to
citizen
were
the
speech against
property
free
the
interests
government.
by the
Peo
intrusion
view,
In our
and
of another.
this
Harris,
ple
balancing
only in
applicable
test is
those
constitutionally pro
instances
which a
exists, and
right
tected
of
132
In In re Canon
Colo.
where,
here,
as
the forum is
296
the
Legal
owned. See
v. NAACP
Cornelius
provision is more
Colorado Constitutional
Fund,
& Education
Defense
of
protective
inclusive and
the
of
the First
citizens than is
Amendment.
however,
holding,
that
the court stated that
the
agree
conclu
with
Const,
II,
acts
Colo.
art.
as a limita
jurisdictions
reached
courts in other
sion
power
of state
upon the
officials
right to distribute
that the extension of the
Thus,
government.
three
branches of
signatures
at malls is a
gather
requires governmental in
holding implicitly
judicial
legislative
and not a
one.
function
ap
the
volvement before
becomes
Mall,
Haven
v. Smith
See Shad Alliance
therefore,
plicable,
it does not extend
supra;
v. Allied Stores In
Batchelder
private proper
to
tern., Inc.,
445 N.E.2d
Mass.
ty-
Pennsylvania Socialist
Western
In
General
Workers Connecticut
Life
of states
Co., supra.
surance
Const,
to
art.
similar
Colo.
by plaintiffs' con-
persuaded
We are not
applicabili-
the issue of
addressed
that,
become
malls have
ty
speech provisions
tention
since
of freedom of
life, this
community
provi-
focal
of
have concluded
these
bring activities conducted
grant persons
should
sions do not
property within the
public
areas
referendum
distribute leaflets
scope of
10. Plain-
Colo.
signatures in malls. See Woodland v. Mi-
that,
growth
tiffs assert
of
Lobby, because
chigan
Mich.
Citizens’
areas, city
outlying
cen-
suburbs
Shad Alliance v.
N.W.2d 337
places for
Mall,
are no
effective
498 ters
N.Y.2d
Smith Haven
al-
exercise of free
N.E.2d
N.Y.S.2d
West-
though it
more difficult
distrib-
may be
Pennsylvania
ern
Socialist
Workers
Co.,
petition
ute leaflets and obtain
Insurance
Connecticut General Life
places,
still
public
there are
A.2d 1331
We find
512 Pa.
regulated
a mall is
exercise
such as
forums available
local, state,
many
ways by
and fed-
diverse
rights.
impact
eral
governments and that
affirmed.
judgment
space
requiring
mall
owners
gathering
signatures is not an un-
petition
DAVIDSON, J., concurs.
taking
property.
DUBOFSKY, J., specially concurs.
with that
DUBOFSKY, specially
Judge
The United
has
States
concurring.
held,
circumstances,
some
state
*4
Although I find the
of those
can be found on
the basis
similar state
courts which have extended
symbiotic relationship,
entanglement,
be-
protect certain
constitutional
government
private
tween the
and a
actor.
Wilmington Parking Authori-
Burton v.
Shop
Pruneyard
see Robins v.
persuasive,
715,
856,
ty,
81 S.Ct.
ter, unanimously the court ruled a state constitutional permit individuals requires mall owners to on mall did the mall owners’ not violate States Constitution. the United ruling, pointed out that