*1 Janke, People reliance on v. endanger- Defendant’s reckless that defendant’s conclude (Colo.App.1986), misplaced. be vacated. conviction must ment Janke, here, sentencing unlike court conclude, con- we need not Because so surmised, evidence, any supporting without that argument alternative defendant’s sider raped victims. the defendant had other charge on that instruction trial court’s re- particular identify a victim failed to judgment are vacated as The and sentence verdict. quire a unanimous degree for first assault- to the convictions endanger- and reckless indifference extreme Sentencing VIII. respects, In all other ment. are and sentence affirmed. Finally, contends defendant his consti sentencing the trial court violated considering process tutional to due MARQUEZ Judge Judge and allegation of a uncharged unproven concur. CARPARELLI disagree.
prior assault. We sought prosecutor sentencing, At testimony alleged victim
present the involving de- prior cases
one of two assault objected, stating that Defendant
fendant. had for insufficient cases been dismissed objection overruled the The court
evidence. testimony. and allowed the WILSON, minor; Wilson, Nancy Jason sentencing largely un A court is friend; plaintiff's and next Nan mother may consid as the evidence it constrained Wilson, individually; cy and Patrick sentencing phase criminal during the er Wilson, individually, Plaintiffs-Appel Vensor, People v. proceedings. lants, 1240, (Colo.App.03CA1983, WL 170753 v. 2005). 27, range is as to both broad Jan.
the information considered relevant MARCHIONDO, Pat Patrick Albert a/k/a a sen of such information. quality While Street, rick Marchiondo 3132 Scranton materially untrue not be based tence LLC, LLC, Avenue 3132 Scranton a/k/a evidence, may, in sentencing court evaluat suspended limited Colorado the charac ing the nature of the offense and Defendant-Appellee. company, offender, consider conduct ter of No. 03CA1263. charged, never con the offender was charges were but later for which filed duct Appeals, Colorado Court plea agreement, part dismissed Div. IV. the offender even conduct for which acquitted. People charged subsequently 7, April 2005. Neuman, 369, 372 v. Rehearing Denied June Here, presented defen evidence was Dec. Denied Certiorari sentencing At conduct. dant’s alleged victim of the assault hearing, her defen assailant identified
described Notwithstanding de her
dant as assailant. allocution, no there is denial his
fendant’s suggesting record
evidence prosecution
testimony presented by the Thus, we
materially untrue. considering this err in
trial court did not New
testimony sentencing. People Vensor,
man, supra. supra; People v. *2 Babich,
Law Firm of William William Ba- bich, Denver, Colorado, Plaintiffs-Appel- for lants.
Harris, Karstaedt, Jamison, Powers, PC, & Gregory, A. Peter Salg, A. Heather Celenda Wagenknecht, Colorado, M. Englewood, for Defendant-Appellee.
GRAHAM, J. Plaintiffs, Wilson, Nancy Wilson, Patrick (the son, victim) and their Jason Wilson ap- peal summary judgment in favor of de- fendant, (land- Albert Patrick Marchiondo lord). We affirm.
The victim was bitten Rottweiler playing backyard of the resi- (tenants). Rusty Sandy dence of Walters Tenants owned the kept it at their residence, they leased from landlord. provided The lease that the were to be occupied by used and tenants exclusive- ly, prohibited but animals on the leased premises without the written consent of land- lord. Landlord retained under the lease and obligated was also repair maintenance and that was not a result of tenants’ misuse.
According deposition testimony tenant, one verbally agree statute. tenants We agreed to allow trial court. they informed landlord residence their place Dog” they would a “Beware outset, premis At the up sign put the fence. She sign on 13-21-115, C.R.S.2004, es they did not large because recovery in an plaintiffs’ means of *3 yard. in After ten- anyone their back
want Franklin, against Vigil v. action in, dog the moved landlord observed ants premises lia 103 inspect premises, and he came to the when promote was a state bility statute enacted “to put the in room tenants to a closed asked policy responsibility by of landowners both property. to painters came work on the when upon and those the land as well as to assure neighbors’ complaints of the response to injured ability party of an to recover slamming dog’s growling, barking, and trespasser, correlated with his status as a is fence, agreed to the against the landlord also licensee, invitee.” 13-21- or Section area completion secondary inner fenced 115(1.5)(a). Additionally, purpose a of stated dog. Although dis- the landlord to restrict “protect from the statute is to landowners putes and that he was these facts testified they liability in some when circumstances in resi- aware that the was tenants’ not protected not common law and were the had until he informed that dence the instances will be define when victim, accept these attacked the we must in manner with imposed the most consistent purposes summary judgment. of facts for policies set forth” in statute. Section the 13-21-115(1.5)(e), C.R.S.2004. complaint against a Plaintiffs filed against land- The statute addresses actions tenants, alleging negligence, and theories Here, it is undisputed that owners. liability, conspiracy. and civil Default strict property on which owner tenants, and against was entered injured. A “landowner” is de- victim was granted summary judgment the trial court “person pos- limitation without as a fined landlord, concluding landlord was favor property person legally a session of real he knowl- at fault because had no not property responsible for the of real condition dog’s appeal vicious edge of the nature. This activities or circum- or for the conducted followed. existing on real stances Section 13-21-115(1), C.R.S.2004. Summary Judgment I. Standard any against “In civil action a landowner if Summary judgment only appropriate is occurring alleges injury person a who pleadings supporting documents ... the land- property real of another genuine that there issue is no demonstrate only provided liable shall be as owner any fact and that the for trial as to material (3) 13- of this section.” Section subsection judgment as a moving party is entitled to (3) 21-115(2), de- C.R.S.2004. Subsection law. The burden is matter of C.R.C.P. 56. duty care owes a landowner fines moving party that no to establish on premis- the landowner’s exists, any of fact doubts genuine issue party’s as a tres- depending on the es against the regard must be resolved licensee, highest passer, de moving party. We review these issues being an invitee. Sec- duty of care owed to Workshop, Inc. v. Aspen Wilderness novo. 13-21-115(3), tion C.R.S.2004. Bd., 1251, Conservation 901 Colo. Water has not Another division of this court Martin, (Colo.1995); v. 100 P.3d 1256 Bedard appears intent of that “it ed 584, (Colo.App.2004). 591 referring statutory portion definition ‘legally the condi Liability
II. Premises
activities on
property
the real
or for
tion of
incorpo
court’s
well have been
challenge
Plaintiffs
the trial
gov
law
principles
no actu
the common
that because landlord had
rate
conclusion
nature,
responsibility.’”
v.
‘legal
Perez
he
erned such
al
vicious
996,
Grovert,
962 P.2d
999
duty
the victim no
of care under
owed
argue
the notion that the statute
Plaintiffs
that evidence
with
Consistent
law
of action
landlord made an oral
outside of
all common
causes
subsumes
landowner,
to' allow the
to be on the
against
other divisions of this
the lease
premises,
right
his
to in
plaintiff may
recover
and also retained
have held that
court
maintenance,
spection
perform
some
provided
under
against
landowner
possession or con
any
law indicate that he retained
and not under
common
However,
See,
Hyland
trol over the
the reser
theory.
e.g., Anderson v.
Hills
Dist.,
right
vation of the
and the
119 P.3d
Park & Recreation
04CA0105,
repairs
generally
of maintenance and
not a
(Colo.App. No.
Dec.
WL 3015808
im
2004);
support
sufficient attribute of control to
v. Master Klean Janit
Henderson
orial,
(Colo.App.2003); position
of tort
on the lessor for
Allen,
injuries
(Colo.App.
parties.
Thombury
the tenant
third
Univ.
*4
(Colo.
Whitlock,
1999). Recently,
Supreme
Denver v.
sive Further, although verbally agreed injured on their owe to those kept premises, to allow the to be on the Franklin, supra, at Vigil v. 331. there was no evidence landlord and ten- agreed pos-
ants
that landlord would retain
property
session or control of the
or of the
A.
conclude,
animal. We therefore
as a matter
liability
Applying
premises
stat
law,
expressly
of
that where landlord did not
exclusively,
initially
ute
control,
longer
per-
undertake
he was no
“a
duty
landlord did not owe the victim a
of care
possession”
property.
son in
of the real
leasing
after
the residence to tenants because Thus,
duty
landlord owed no
of care to the
possession”
in
longer
“person
he was no
a
of
subsequent
leasing
space
victim
to his
to
property
injury
the real
where the
occurred
Grovert, supra.
tenants. See Perez v.
legally responsible
not
for
and was
otherwise
dog.
presence
the control or
of the
Absent
B.
contrary,
an
a tenant
is
lease,
entering
Prior
into the
how
possession
prem
to the
of the
entitled
leased
ever,
“person
possession”
landlord was a
in
ises
the exclusion of the landlord.
See
property.
of the real
Landlord’s
Comm’rs,
County
Sundheim v. Bd.
of
duty
depends
therefore
on the
of care he
(Colo.App.1995),aff'd,
pra. supra, 70 615. “ ‘[ijnvitee’ undisputed person facts reveal landlord and An means who enters into a tenants entered residential lease which or remains on the land of another to transact specified, premises “The in parties mutually demised shall be business which the are by occupied used and the Lessee exclusive- interested or who enters or remains on such ly.” right response Landlord retained a of express land to the landowner’s approve painting implied representation and the public is placement signs. obligated requested, expected, Tenants were or intended to enter or 13-21-115(5)(a), good repair at their remain.” Section C.R.S. “ expense, person but landlord was ‘Licensee’ means a who en- major repair maintenance and that was not a ters or remains on the land of another for the result of tenants’ misuse. licensee’s own convenience or to advance his lease, entering amounted to an interests, prior to to the landowner’s pursuant own dangers failure to warn of not includes a “unreasonable consent. ‘Licensee’ permission or 21—115(5)(b), by landowner which are not ordi created guest.” Section social 13 — type in narily present property who of the trespasser A C.R.S.2004. actually the landowner or remains volved and which enters 13-21-115(3)(b)(II), 13-21- consent. Section C.R.S. landowner without knew.” Section 115(5)(c), care, duty Applying C.R.S.2004. we con that landlord would be liable for the clude argue that the victim was Plaintiffs knew, actually attack if he Associates, Ltd. v. citing Lakeview lease, danger entering into the Maes, The court presented. Wright, supra, 917 P.2d at that a tenant Lakeview concluded (the liability of a landowner to a licensee in the common areas leased 21—115(3)(b) under is to be limited to 13 — an invitee of the defendant property was possesses situations in which the landowner purposes landlord for dangerous an active awareness of the condi court did not address but the tion). While a guest of the tenant. mutually interested tenant is a Prior to the tenants contend that kept transaction with the landlord agreed business to allow the to be *5 Lakeview, lease, supra, the placement virtue of the see premises on the and to the guest of the cannot be said of a social same Dog” signs. Landlord was also “Beware tenant, especially the leasehold is a when dog’s informed of the breed the time Nevertheless, argue plaintiffs residence. leasing. invitees of the
that the tenants are because that landlord was Plaintiffs further assert landlord, given implied the the landlord has dog people not interact with told that the did expects, requests, that he representation go family should not outside the and landlord to enter guests social of the tenants intends backyard dog was there. into the when persuaded. premises. are not See We reveals, however, that landlord The record Ass’n, Cmty. Wright v. Vail Run Resort signing after this information received (Colo.App.1996). lease, event, any this evidence was the victim en There is no evidence that part plaintiffs’ response not submitted as premises to transact with tered the business summary judgment. to the motion for landlord, landlord ex nor is there evidence Likewise, other evidence demonstrates impliedly represented that the vic pressly or that landlord became aware tim, request public, was as member against the fence on and slammed barked ed, expected, or intended to enter or remain. in, occasion, only moved after tenants 21—115(5)(a). undisputed § It is 13 — in a placed be that he asked that victim was on the social painters came to the resi- room when closed with guest play of tenants to a tree house dence. Wright, tenants’ children. division facts, upon these we find no indica- Based guest the social this court held that observed landlord tion with re owner was a licensee condominium dog biting aware of the or otherwise became community association that spect to the demonstrating anyone, attacking anyone, or plaintiff was maintained the area where propensities. proof There is no any vicious holding with injured. This is consistent into contact with the that landlord came 21—115(5)(b), provides that a so 13 — leasing, or observed the with prior Here, the victim was guest cial is a licensee. any frequency thereafter. re guest a social of tenants. We therefore ject plaintiffs’ argument that the victim was Viewing light in the most favor- these facts that the victim was a and conclude no that there is plaintiffs, able to we conclude respect licensee with fact as to whether genuine issue of material
Landlord, therefore, had actual to the would be liable conduct, signed he allegedly vicious nature before if landlord’s victim as licensee therefore, prem- the animal or vacate the Summary judgment, either remove lease. Birx, ises. Sandoval appropriate. Cf. statute Because the Here, however, remedy plaintiffs dispute under which plaintiffs did not the exclusive recover, plaintiffs’ that, lease, we need not address executing before landlord had liability. theories of verbally agreed other to allow tenants to any Rottweiler and landlord did not reserve The is affirmed. agree power agreement. I to rescind that, majority viewing the rec- even Judge Judge ROY concurs and WEBB plaintiffs, ord a manner most favorable specially concurs. at the time of this oral Judge specially concurring. WEBB any neither knew nor had reason to know of dog’s allegedly propensities. vicious majority’s concurring in the decision While affirm, separately I I write because be- agree- Accordingly, virtue of this verbal applying of “landowner” lieve the definition ment, person legally “a landlord ceased to be 13-21-115(1), C.R.S.2004, §in to a landlord responsible” dog, as a circumstance power prohibit animals who reserves the property,” “existing on real before he had requires explanation. further any reason to be concerned over risks that dog might pose parties to third This, legally definition includes “a Therefore, too, I conclude that of real for the condition summary judgment properly entered or circum- or for the activities conducted favor of landlord. existing seg- stances real ments of the definition are to be read in the
disjunctive applied separately. *6 Janitorial,
Henderson v. Master Klean
Here, prohibited the lease animals on the
demised without written consent of view, my provision such a would usually jury question precluding raise a sum- Colorado, PEOPLE of State of mary judgment Lia- based on Premises Plaintiff-Appellee, Act, bility' jury because a reasonable could thereby conclude that such a landlord re- tained sufficient control to be “a le- PRIETO, Defendant-Appellant. Victor gally responsible” damages by caused No. 02CA2093. animal, keeping an con-
tenant’s would activity stitute an conducted or a circum- Appeals, Colorado Court of “existing stance on real Cf. Division IV. Henderson, supra (janitorial service could be Liability April sued under Premises Act based on legal responsibility for condition of stairs on Certiorari Denied Dec. injured). slipped which invitee and was depend
Such a landlord’s would legal care,
appropriate standard of as determined relationship injured party between the Henderson, supra.
and the landlord. See question require
The standard of would care
inquiry into the landlord’s con- animal,
cerning long so as the landlord power require
retained the that the tenant