Trailside Townhome Ass'n, Inc. v. Acierno
880 P.2d 1197
Colo.
1994
Check Treatment

*1 H97 appeals and remand the case court of opin- proceedings consistent with this

further

ion.9 TOWNHOME ASSOCIA-

TRAILSIDE

TION, INC., a Condominium Association Colorado,

doing business in

Management, a Homeowners Associa- Petitioners,

tion,

v. ACIERNO, Respondent.

Cindy

No. 93SC412. Colorado,

Supreme Court

En Banc.

Sept. finding McCroskey argued was bound the AU’s appeal, that the Board 9. On purport regulate care. Since we reverse the the standard of Medical Practice Act did not adoption appeals standard of care is record-keeping and hold that the until the the manner fact, (1991), necessary 12-36-117(l)(cc), the court it will be in 1989. an ultimate 5B C.R.S. McCroskey's argument appeals on McCroskey, slip op. to address at 2. The court of however, issue, remand. because it held did not reach this *2 Lambdin, Morse, Levy & Stuart D. Scott Landry, Englewood, petitioners. P. for Hendrick, Denver, respon- Karen V. dent. Opinion

Justice LOHR delivered the Court. presents concerning

This ease an issue of care owed a townhome owners association ato townhome owner in maintain ing in located a common complex. area within the townhome Inc., Acierno v. Trailside Townhome Ass'n (Colo.App.1993), 862 P.2d 975 the Colorado Appeals Court reversed the trial court’s entry summary judgment in favor of the negligence brought by defendants in a action Acierno, Cindy an owner of one of the town- homes, against Trailside Townhome Associa (“Trailside”) tion, Inc. Hughes Manage (“Hughes”), company ment hired swimming pool. Trailside to maintain the The action was on an incident in which injuries Acierno suffered diving result of into pool. agree shallow water in the We summary judgment must be re disagree versed but appeals’ with the court of analysis concerning legal appli standard cable to determine Trailside’s of care. part, part, We therefore affirm in reverse and remand with directions.

I. At the time of the incident that resulted litigation, this Acierno was the owner of a Filing townhome Trailside No. 5 Subdivi- (the complex”) sion “townhome located in County, Jefferson Colorado. On June 1990, Acierno sustained severe head and injuries neck when she dived into a swim- ming pool located in a common area of the townhome and struck bottom. County Acierno filed suit in Jefferson Dis- seeking trict compensatory puni- Court Trailside, damages against tive incorpo- rated association whose members consisted of owners of complex, lots Hughes, company hired provide maintenance services for the com- mon areas complex. within the townhome alleged She that both negli- defendants were gent failing to maintain the water level of H99 this claim. appropriate trial on essential element of her swimming pool at an level 56(e). See C.R.C.P. rope failing to a divider to- install and for pool from the end of separate shallow appealed, Acierno and the court of negli- Acierno claimed deep end. judgment. Pro- reversed the trial court’s *3 caused her unknow- the defendants gence of ceeding premise from that into that was too shallow ingly to dive water condominium, complex is a and that there- injuries.1 incur and fore the owners of the individual lots are in owners undivided interests the common summary judg- moved for The defendants common, 38-33-102, § as in see tenants ment, granted that the trial court mo- (1982), appeals the court of held 16A C.R.S. defendants, the ruling In for the trial tion. apply it was section 13-21-115 that error to that was court found liability. “By to landowner its determine part of the common owned as terms,” court, applies said the “the statute that areas of townhome only ‘brought against civil to actions a land- agent authorized Hughes was Trailside’s alleges person injury who occur- owner management. ’” property The purpose ring property while on the another. real 13-21-115, applied then 6A court section Acierno, (quoting § 862 P.2d at 977 13-21- (1987 Supp.), & 1993 the Colorado C.R.S. (1987)). 115(2), 6A C.R.S. “Since liability statute. Pursuant to landowners of the common areas in a condominium com- statute, it held that both defendants that plex is vested in the individual unit owners “landowners,”2 and determined that were common, necessarily in that tenants it follows Ap- fit the definition of “licensee.”3 Acierno injuries plaintiffs here cannot be to have said by a plying the standard of care owed land- using property occurred while she was ‘the ” licensee,4 granted owner to a the trial Accordingly, another.’ Id. the court summary judgment in of the favor defen- appeals that was concluded section 13-21-115 dants, finding that had pre- the defendants applicable that the had not trial court denying they “actually affidavits that sented applied legal therefore an incorrect standard dangerous and that resolving knew” of condition sum- the defendants’ motion for specific mary judgment. summary Acierno had failed to set forth facts It reversed the showing genuine judgment there remanded the for rein- was a issue for ease interests, pursuant permis- to the landowner's 1. Acierno also asserted a strict claim facility. a hazardous sion or "Licensee” includes a based on maintenance of consent. social guest. trial court this claim on the mo- dismissed (c)“Invitee” person propriety or means a who enters tion of the defendants. The to transact not at certiorari remains on the land another dismissal is issue on review. parties mutually which the are business in interested who enters or remains on such or trial court its 2. The determination express response or land in to the landowner's upon § both defendants landowners 13-21- were implied public representation that the is re- 115(1), provides pertinent part: which quested, expected, or re- or intended to enter section, purposes For the includes, of this "landowner” main. limitation, without an authorized (1993 13-21-115(5), Supp.). § 6A C.R.S. person possession proper- agent of real or person legally responsible ty and a for the 21—115(3)(b) prescribes 4.§ 13— property real for the condition of or activities a licensee: landowner to existing conducted or circumstances on real property. (b) damages may only recover licensee 13-21-115(1), (1987). § 6A C.R.S. caused: (I) By unreasonable failure the landowner's an entrant on land falls 3. Under respect with to dan- exercise reasonable care trespasser, in one of three classifications: licen- gers the landowner which created see, provides: invitee. The or knew; actually or landowner (II) By failure landowner’s unreasonable used in this section: As (a) dangers "Trespasser" person to warn not created the land- who enters means ordinarily present on not on the owner which are or remains land of another without property type which the involved and consent. landowner’s (b) actually person knew. who enters or landowner "Licensee" means a (1993 (em- 13-21-115(3)(b), Supp.) 6A C.R.S. of another for licen- remains land added). phasis advance see's own convenience or to his own plaintiffs complaint. recognized governed by so statement statute. See specify Act, doing, it not the standard to be Ownership did Condominium 38-33-101 any determining -113, trial court in applied Supp.). 16A C.R.S. & 1993 duty of care owed Trailside and very “[T]he definition of a condominium re to Acierno. quires the existence of an undivided interest Cherry in common elements.” Hills Resort granted following certiorari on the set We Hills, (Colo. Cherry Dev. v. 790 P.2d of issues: 1990); 38-33-102, accord the court of erred Whether (1982); Assoc., Valley see Pleet v. Greene concluding the association in this involved (1988) (the Pa.Super. 538 A.2d so, case was a condominium association. If definition of condominium makes clear that what of care did the association owe *4 ownership unless in interest the common ele to its members under the facts of this owners, ments is vested in unit pro the the case?[5] ject condominium); is not a Country see also complex conclude that the We townhome is Village Meyers, Greens One Owner’s Ass’n v. not a condominium and that a remand is (1981) 609, Ga.App. 158 281 S.E.2d 346 necessary to determine the care owed (where development name did not include the by Trailside to Acierno.6 “condominium,” developer’s word decla placed ration title to common II. association, project comply did not with con appeals The court of determined that the dominium act and was therefore not a condo premises liability apply not does “ minium). ... ‘Thus if the common ele injured party where the is a co-owner of the by ments were owned an association in which property upon injured. which she was The member, project each unit owner was a appeals court of assumed that the townhome Pleet, would not be a condominium’.” complex where Acierno resided is a condo- at (quoting A.2d a comment to the Uni pointed minium. It out that a condominium Act, 1-103, § form Condominiums 7 U.L.A. by is ownership characterized individual (1980)).8 together ownership each unit with common of the common elements.7 It then concluded Nothing in the documentation submit that complex because the townhome is a ted in connection with the defendants’ motion condominium, Acierno awas co-owner of the summary judgment for contains the word areas, including swimming pool. suggests “condominium” or otherwise an in holding

The court of erred tent to ownership. create condominium that complex is a condomini common areas of the complex townhome are um. ownership by Condominium in Colorado is not co-owned the individual members. granted 5. We also separate any certiorari on an additional common elements. The estate of premise issue based on the complex that the townhome space condominium of an owner individual air ais condominium. Because we deter- ownership unit and his common of such com- not, mine that it is we do not reach the addition- appurtenant mon elements as are to his indi- al issue. space vidual air unit the terms of the re- inseparable any pe- corded declaration are suggestion presented 6. proceeding No is in this ownership pre- riod of condominium that is any any duty that difference exists between scribed the recorded declaration.... any care owed duty Trailside to Acierno and such added.) (Emphasis by Hughes agent. purposes as its For of this certiorari review we assume that there is Ownership 8.The Colorado Common Interest no such distinction. Act, -319, (1993 §§ 38-33.3-101 to 16A C.R.S. 38-33-102, (1982), § part Supp.), adopted provides that “[a] Act, Ownership pertinent Condominium reads in community common interest is not a condomini- part: um unless the undivided interests in the common ownership property Condominium of real is elements are vested in the unit owners.” 38- recognized in this [S]uch state.... 33.3-103(a). act, however, applicable That is not separate shall he deemed to consist estate in present case because the events at issue space an individual air unit multi-unit preceded adoption act. property together with an undivided interest in Rather, wholly trespasser, with his status as a are owned is correlated these areas licensee, 13-21-115(1.5)(a), copies This is made clear or invitee.” 6A Trailside. (1993 Supp.). litigation the Declaration of plat portions C.R.S. to which Conditions, Covenants, judge and Restrictions applies, the statute has the author- “Declaration”) (the Filing No. 5 ity plaintiff to “determine whether the is a licensee, invitee, defendants in submitted trespasser, a or an accor- summary judgment. The motion for dance with the definitions set forth in subsec- IV, (5) in Article section Declaration states tion of this section.” 6A to the common area of the town- that title Supp.). The trial court held C.R.S. conveyed by home will be the devel- was a “licensee” Aciemo under the basic conveyance “prior to the oper to Trailside of that term10 because she was on definition addition, I, lot.” In Article section the first property [Trail- “with consent of “common area” of the Declaration defines side],” “she was at the property including the real as “all of for her own convenience or to advance her improvements [Trailside] thereto owned pursuant own interests the landowner’s enjoyment common use and for the permission or consent.” The trial court held Thus, Trailside, non-profit cor- Owners.” had not breached the defendants poration, clearly intended owner of the is standard of care owed to a licensee and *5 court, common areas. The trial without dis- granted summary judgment in fa- therefore cussion, for recognized this its order sum- vor of the defendants. Accordingly, the court of mary judgment. hand, appeals, The court of on the other analysis appeals’ co-ownership was incor- liability held that the landowner statute was generally Amy DeLaplace, L. rect.9 See inapplicable, conclu erroneous Definitions, 11 Background and The Colo. the owner of an undi sion Acierno was (1982) Lawyer (distinguishing 2741-42 elements, in vided interest in the common ownership condominiums from other forms Acierno, cluding swimming pool. the such as townhomes with homeowners associ- reject appeals’ at the court of P.2d 977. We ations). analysis premise the because of erroneous the manner of determin- We next address proceeds from which it but also conclude that ing any duty the existence and nature trial failed to take full account of Hughes to Aeier- care owed Trailside and relationship Trailside and Acier- between in the townhome no as the owner of lot liability applying no in the landowner statute complex. treating and her as licensee. III. corporation nonprofit Trailside is a whose members are owners of lots the townhome applied district court the landowner The incorporated by liability complex. owed Trailside was determine developer purposes including creation of and to Aciemo. The entity delegate assign provisions “an to which to relevant of the current Colorado powers maintaining administering landowner statute were enacted areas_” Declaration, p. promote 1990 and reflect an intent “to a state are “owned policy responsibility [Trailside] both landowners The common areas enjoyment as as to assure for the common use and of the and those the land well Declaration, I, ability injured party to Art. sec. 3. Each that the of an recover Owners.” judgment appeals' hardly surprising. summary 9. The court of error is of their motion alleged complaint complex Aciemo in her that the town- was not created un- that the townhome complex home is a condominium. The defen- Ownership Act and incor- der the Condominium allegation. dants admitted this The record is porates legal relationships inconsistent with con- replete development as a with references ownership. dominium caption condominium. The of this case in the court, court of and in this as derived categories of entrants on land— 10. The three parties, perpetuated has from the briefs of the licensee, trespasser, and invitee—are defined in however, clear, misdesignation. It is from this 13-21-115(5), quoted supra at note 3. documents submitted the defendants in analysis characterizing Aciemo right to use of recre- as lot has the owner of a —first “licensee,” applying and then the landowner may delegate the own- ational facilities liability statute to determine the nature of enjoyment to the Common Area “right er’s agent Trailside and its designated persons. to certain and facilities” IV, 1(e), Hughes. Declaration, 2. The Decla- Art. therefore, complex

ration, creates relation- The determinations of the nature and ex- on the one hand the owners ships between by property tent of duties of care owed own- pur- A on the other. central and Trailside associations, er whether condominium associ- was to create pose creation of Trailside associations, ations or townhome to owners of maintenance of common areas a means for development, property within a and the con- of the lot owners. for the benefit determinations, sequences flowing from such difficult, complex far reach- are have liability statute de The landowner ing consequences. generally See Eric T. by landowners to third lineates duties owed Theory Freyfogle, Comprehensive Con- under circum persons enter on the land who Liability, dominium Tort 39 Univ. of Florida persons to be cate stances that cause those (1987). resolving L.Rev. 877 issues of this licensees, gorized trespassers, or invitees. kind, adopted ap- various courts have Supp.). emerges proaches, and no consensus from application terms have no definitions of those the eases.12 relationship between Trailside and the to the owners, continuing have a We conclude that to the extent that in that the owners provisions operative association consent to documents independent of creating the common areas reason of and the asso make use of prescribe townhome com ciation of lots duties association licensees, plex, trespassers, and invi and are whereas townhome owners consistent *6 public policy, provisions in the absence of with tees have no to enter those control. County 6A C.R.S. See School District R-1 v. consent. See Jefferson Justus, (Colo.1986)(dis 767, “trespasser,” Supp.), defining “licen 725 P.2d 769-72 see,” “invitee,” cussing imposed by solely quoted and full at n. 3 duties law reason, supra.11 relationship parties, For this we conclude basis of the between the inapposite relationship statute is and the of the landowner assumed duties to accept negligence). operative and do not the trial court’s mode of claims of These docu- upon bylaws ed 11. Characterization of entrants land as to those included in association and licensees, statutes). trespassers, or invitees is based on the state Another has observed that an existence and nature of landowner consent to may imposed by association undertake duties not entry. entry purpose as well as the 13— by agreement common law with the unit owners. 21-115(5), (1993 Supp.). Heil, Heil, Golee,Inc., Schoondyke v. Smart & 89 640, 802, 804-05, Ill.App.3d 44 Ill.Dec. 411 12. Some cases have held that homeowners asso- 1168, (1980) (condominium N.E.2d 1170-71 as duty ciations have the same to owners with re- duty sociation assumed a of snow removal not spect to common areas as a landowner owes to a imposed by by agreement common law reason of E.g., Village tenant. T. v. Green Owners Frances contained in condominium declaration asso Ass'n, 490, 456, Cal.Rptr. 229 723 P.2d 42 Cal.3d bylaws). suggested ciation Yet another has (1986) (condominium 573 association owed same applicability principles of common law con duty provide adequate security to unit owner to cerning possessors duties of of land to determine protect against measures for common areas to duty posses of a condominium association as by criminal acts would be owed a landowner Associates, tenant); Moody Cawdrey sor of a line a to a v. & 6 sewer common area to a unit 355, 708, (1986) (same); Haw.App. person 721 P.2d 713 owner as a outside of the land. Smith v. Assoc., Hemispheres Condominium, (Pa. see v. King’s Condominium Inc. Grant 640 A.2d 1276 Corbin, 1074, (Fla.App.1978) 357 So.2d 1076 1994). by comprehensive, This list is no means (duty owed condominium association to unit variety approaches but is of illustrative of to analyzed duty by analogy owners to owed development of standards of homeowner associa tenants). to landlords One court has held that tion duties to unit owners in courts across the the duties of associations to owners are to be Rohan, generally land. See 6 Patrick J. Real bylaws. determined the association's Wescott 7A.06[l][a], [b], 10.04[1] Estate Transactions (1992). Manag- v. Burtonwood Manor Ass’nBd. Condo. ers, 555, (duties (Mo.App.1987) 743 S.W.2d 558 of condominium association to unit owners limit-

1203 University duty giving upon a to the actor.’” v. establish rise Denver ments could (Colo.1987) Whitlock, 54, (quot 744 57 P.2d obligations as well as create contractual tort Smith, 1127). Homes, ing See, 726 P.2d at This list is not Cosmopolitan obligations. e.g., (Colo. permits exhaustive and consideration of “oth Weller, 1041, v. 663 P.2d 1043-44 Inc. may er factors relevant become 1983); Service, Repair Metropolitan Gas individual, competing public (Colo. Kulik, 313, P.2d 317-18 Inc. v. 621 implicated social interests the facts of each 1980). duty may care law Whitlock, case.” 744 P.2d at 57. “The stan as a of the association’s control arise result dard of care met in that must be order to including swimming over common areas satisfy duty thereby a recognized avoid analogous duty to the pool situation owed —a is care in light breach that of reasonable See, e.g., a to a tenant. Van landlord Cowan, apparent v. risk.” Casebolt 829 Perkins, 567, & v. 129 Colo. 569- Schaack Co. (Colo.1992). P.2d 356 (1954) (stating that a P.2d property persuaded control of foregoing gen- landlord who retains We are that the principles appropriate provide is eral an the use of all tenants under a frame- and benefit within the relevant work which consider- duty keep care to exercise reasonable to determining condition).13 ations existence in a safe Addition those areas any to scope duty owed (2d) Acier- ally, Restatement Torts and not in the no defined townhome docu- (1965) provides theory under which a tort weighed. mentation can be identified and may negligently per action arise when one us, however, The documentation before does undertaking forms an to render services ei permit fully not informed determination of gratuitously ther or for consideration. See duties, nature of Trailside’s that of Justus, P.2d at 770. agent Hughes, respect its to Acierno with to duty that the To the extent issue maintenance of the where analysis cannot be of the docu resolved injured. Only Acierno was selected pages of alone, general that our ments we conclude presented the Declaration were negligence principles provide proper sup summary judg- motion for defendants’ determining plementary basis for the exis suggest pages ment. The submitted that the scope any tence and Trail- description rights owners and side townhome owners. determi obligations respect of Trailside with person nation of has a act whether fully the common are more described *7 acting injury or refrain from to avoid to documents, pages. in the omitted Other question E.g., is a of for a others law court. incorporation by- the such as articles of 373, (Colo. Halsted, Trailside, Peterson v. 829 P.2d 379 may of relevant laws be as well. 1992); Denver, Wescott, City County at generally Smith v. & See S.W.2d 558. of (Colo.1986). therefore, permit to necessary, 726 P.2d remand is the Such weighty district court to delineate the nature and policy involves consid determination duty care to extent of Trailside’s of Acierno to consider requiring erations a court a num Justus, permit any necessary to further determi- ber of factors. 725 P.2d at different of nations of issues of breach the Among factors are 769. those ‘“the risk damages. involved, foreseeability and the likelihood of injury weighed against utility the social of IV. conduct, magnitude the actor’s the injury harm, against judgment of guarding burden or We affirm the Colorado placing Appeals as it the consequences and the the burden Court insofar reverses Second, given relationship Id. the be 13. At two theories have been offered to use it. least lessee, imposition tween the the lessee has a the of tort on a lessor lessor promise. arising agreement repair prior special rely upon to to reason to the Id. See out of an Justus, Moreover, actually policy undertaking repairs. PageW. at 770. See Kee also 725 P.2d al., responsibility place et Keeton on the considerations "the for harm ton Prosser and Law Torts First, (5th 1984) ("Prosser”). party by disrepair upon at caused best able to ed. it, area, injuries, likely prevent to at because lessor retained control of the bear most expressed willingness responsible maintaining where the lessor it least he has to as remains responsibility.” at benefit of sume Prosser 444. safe condition for the those who by the district ment of the The Declaration fur- summary judgment entered Owners.” provides court, ease to the court ther that title to the common area and we remand this conveyed complex of the townhome will be to the district court to be returned developer negligence to the Association. Declara- claim and for reinstatement IV, tion, Art. 3. proceedings consistent with the for further opinion. expressed in this views grants The Declaration each of a owner lot ability delegate “right enjoy- to ROVIRA, specially concurs: Chief Justice ment to the Common Area and facilities” to persons pursuant By-Laws. majority certain to the concludes that the townhome Declaration, IV, 1(c), Art. complex is not a condominium because the do not the com- individual lot owners co-own Although right to use of the common areas mon areas of the townhome as re- townhome, granted by owning is virtue of statutory of a quired under the definition 1(c) III, Article section the Declaration 38-33-102, in section condominium set forth grants right suspend the Association the (1982). agree I with conclu- right an owner’s to use of the recreational majori- initially agree I sion. with the such, facilities. As to use these 13-21-115, ty’s that section 6A conclusion may away period be taken for a certain (1993 Supp.) inapplicable. is I write C.R.S. of time and under certain circumstances. separately express my however to concern specifies Article III of the Declaration fur- may this conclusion be inaccurate de- relating ther information to the common ar- pending upon the contents of the Declaration However, complex. eas of the because this Covenants, Conditions, and Restrictions incomplete, section is it cannot be deter- (the “Declaration”), Filing for Trailside No. 5 impact may mined what this have by-laws and rules of the Association which majority’s conclusion that section 13-21-115 are not before us. apply. does not appears to The Declaration be document It is obvious that further information con- however, length, only pages of nineteen cerning relationship between the Associa- one, two, pages four and nineteen were sub- tion and the lot owners exists within the copy mitted to the trial court. Neither was a missing documents. It is also certain that by-laws or rules the Association imposed contractually upon duties the own- such, ability filed with the court. As (i.e. rules, through by-laws ers or declara- precise make a determination as to the rela- tions) by may the Association increase the tionship between the Association and the lot base owed to the lot owners speculative owners is at best. Association. Contrary majority’s outright rejec- However, incomplete because the record is 13-21-115, open tion of section I would leave Declaration, by-laws as to the and other rules possibility that the Colorado landowner Association, *8 inappropriate it is for this may apply depending statute court to certainty determine with absolute wording missing documents. the Association to the majority bases its conclusion owners. finding continuing that “the owners have a Therefore, I would remand to the trial right independent of association consent to court with directions to determine the make use of the reason of owed to Acierno under the standard set forth of lots in the townhome com- majority opinion, in the leaving open the licensees, plex, trespassers, whereas and invi- possibility that the Colorado landowner liabil- tees have no enter absence of ity may apply. Maj. Op. consent.” at 1202. recognized by I, majority,

As Article clearly

section 3 of the Declaration states

that the common areas are “owned [the enjoy-

Association] the common use and