Andrade v. Johnson

409 P.3d 582

Emma ANDRADE, Plaintiff–Appellant,

v.Margaret JOHNSON, Defendant–Appellee.

Court of Appeals No. 15CA1664

Colorado Court of Appeals, Div. V.

Announced October 6, 2016

Franklin D. Azar & Associates, P.C., Patric J. LeHouillier, Colorado Springs, Colorado; Berniger, Berg & Diver, LLC, Michael A. Berniger, Colorado Springs, Colorado, for Plaintiff–Appellant

Hunter & Associates, Christopher J. Metcalfe, Denver, Colorado, for Defendant–Appellee

Opinion by CHIEF JUDGE LOEB

¶ 1 In this personal injury action, plaintiff, Emma Andrade, appeals the summary judgment in favor of defendant, Margaret Johnson, on Andrade's claim pursuant to the premises liability statute, section 13–21–115, C.R.S. 2016 (the Act), and on her common law negligence claim. We affirm the district court's entry of summary judgment for Johnson as to the premises liability claim, although we do so for reasons different from those articulated by the district court. Because we conclude that section 3.4.103(D) of the Colorado Springs City Code (the Code) expressly imposes civil liability on an owner or occupant of property who fails to comply with section 3.4.103 when such failure to comply is the proximate cause of a third party's injury, we reverse the summary judgment for Johnson on Andrade's common law negligence claim and remand to the district court for further proceedings on that claim.

I. Background Facts and Procedural History

¶ 2 Andrade was walking with her daughter on a public sidewalk in Colorado Springs on her way to a birthday party at the house of one of Johnson's neighbors. Andrade used a walking cane to assist herself with walking. As she was walking on the public sidewalk adjacent to Johnson's house, Andrade slipped and fell. She was taken to a nearby hospital, where she underwent surgery to repair a fracture in her leg.

¶ 3 Andrade filed a complaint seeking damages against Johnson in district court, asserting a premises liability claim under the Act and a common law negligence claim. Andrade alleged that an "uneven sidewalk" caused her fall.¹ To support her premises liability claim, Andrade alleged that Johnson was a "landowner," as defined in section 13–21–115(1) ; that the uneven sidewalk adjacent to Johnson's home constituted a danger that Johnson was aware of or reasonably should have been aware of; that Johnson failed to exercise reasonable care to protect Andrade; and that Andrade was injured as a result of her fall.

¶ 4 To support her common law negligence claim, Andrade's complaint alleged, in pertinent part, as follows:

13. Defendant had a duty to maintain the sidewalk in front of her residence so that it was safe for pedestrian use.

14. Defendant knew or reasonably should have known that the uneven sidewalk in front of her residence constituted a danger to pedestrians.

15. The Defendant failed to exercise reasonable care to protect the Plaintiff and others against dangers of which the Defendant was aware.

16. Plaintiff was injured as a result of Defendant's negligence....

¶ 5 Johnson filed a motion for summary judgment, arguing that because Andrade fell on a public sidewalk, Johnson was not a "landowner" under section 13–21–115(1), and thus could not be liable under the Act. Johnson also argued that under Colorado law, landowners do not have a duty to those injured on public walkways, and thus, as a matter of law, she was not liable for common law negligence.

¶ 6 In Andrade's response to Johnson's motion for summary judgment, she argued that section 3.4.103(B) of the Code² required Johnson to notify the City Engineer of the damage to the sidewalk adjacent to her property, and her failure to do so was the proximate cause of Andrade's injuries. Andrade requested that the district court deny Johnson's summary judgment motion because there were questions of material fact as to the issue of proximate cause, specifically whether Johnson's failure to report the sidewalk damage to the City Engineer was an unreasonable risk to the health and safety of the public, and whether Johnson knew or should have known about the damage to the sidewalk.

¶ 7 In Johnson's reply in support of her motion for summary judgment, she asserted that Andrade had not presented any arguments or evidence specifically refuting Johnson's arguments in support of her motion for summary judgment on both claims. Johnson also asserted that Andrade's argument regarding the Code appeared to support a negligence per se claim, which Andrade had not pleaded in her complaint. Thus, Johnson contended that the negligence per se claim was not properly before the district court. Johnson also argued that the sidewalk adjacent to her house was not damaged, and that there was only a slight disparity in height between two sections of the sidewalk that had occurred as a result of normal settlement over a period of years.

¶ 8 The district court granted Johnson's motion for summary judgment in a short written order in which the court summarized the parties' arguments and then provided the following quote from Burbach v. Canwest Inv., LLC , 224 P.3d 437, 442 (Colo. App. 2009) :

In short, we perceive nothing in the language of the premises liability statute which indicates the General Assembly intended to abrogate the no duty rule. Indeed, as noted, the statute was intended to narrow, not expand, landowner liability. We therefore decline Ms. Burbach's invitation for us to construe the statute in a manner that would create the anomalous result whereby one's liability as to property in which it does not have a legal interest is expanded at the same time its liability as to property in which it has a legal interest is contracted. See Fis[c]hbach v. Holzberlein , 215 P.3d 407, 409 (Colo. App. 2009) (a court will not adopt an interpretation of a statute that leads to an illogical or absurd result or that is at odds with the legislative scheme).

Without any further analysis, the district court stated that it found Burbach "to be well-reasoned, persuasive and controlling," and it granted Johnson's motion for summary judgment.

¶ 9 Andrade now appeals the district court's entry of summary judgment in favor of Johnson.

II. Standard of Review

¶ 10 We review de novo a district court's grant of a motion for summary judgment. Burbach , 224 P.3d at 439. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, establish that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; City of Longmont v. Colo. Oil & Gas Ass'n , 2016 CO 29, ¶ 8, 369 P.3d 573 ; Kaiser Found. Health Plan of Colo. v. Sharp , 741 P.2d 714, 718 (Colo. 1987). When reviewing a district court's grant of a motion for summary judgment, we view the facts in the light most favorable to the nonmoving party. Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP , 2016 COA 33, ¶ 17, ––– P.3d ––––. When, as a matter of law and based on undisputed facts, the nonmoving party cannot prevail, the movant is entitled to summary judgment. Kaiser , 741 P.2d at 718.

¶ 11 However, summary judgment is a drastic remedy "and is not a substitute for a trial of disputed facts." Id. The court may not grant summary judgment when there are disputed factual issues that must be resolved in a trial, and all doubts regarding the evidence must be resolved against the moving party. Id. The moving party bears the burden of proving that there are no genuine issues of material fact. Id. at 719. Once the moving party has met that burden, the nonmoving party must demonstrate "by receivable facts that a real, and not formal, controversy exists." Id.

¶ 12 We also review de novo questions of statutory interpretation. Burbach , 224 P.3d at 439.

III. Premises Liability Claim

¶ 13 We first address the district court's summary judgment on Andrade's premises liability claim under the Act and, for the reasons set forth below, discern no error in that judgment.

¶ 14 Andrade's complaint alleged generally that Johnson was liable under the Act because she failed to exercise reasonable care to protect Andrade from the uneven sidewalk. Andrade's complaint alleged, without any factual support, that Johnson was a "landowner" as that term is defined in section 13–21–115. However, nowhere in her briefs on appeal does Andrade directly challenge or contest the district court's dismissal of her premises liability claim.

¶ 15 Johnson contends that the district court properly granted summary judgment in her favor on Andrade's premises liability claim because, based on the undisputed fact that Andrade fell on a public sidewalk, as a matter of law, Johnson is not a "landowner" for purposes of the Act.

¶ 16 As pertinent here, the Act applies only if the party sought to be held liable is a "landowner" as defined therein, see § 13–21–115(1) ; see also Larrieu v. Best Buy Stores, L.P. , 2013 CO 38, ¶ 16, 303 P.3d 558 ; Jordan v. Panorama Orthopedics & Spine Ctr., PC , 2013 COA 87, ¶ 11, 350 P.3d 863, aff'd , 2015 CO 24, 346 P.3d 1035, and those who are injured on the property of another are classified as either trespassers, invitees, or licensees, § 13–21–115(1.5)(a).

¶ 17 Initially, we note that Andrade concedes in her opening brief that she was not an invitee, licensee, or trespasser on Johnson's property "because she was walking on the sidewalk outside [Johnson's] home." Because section 13–21–115(1.5)(a) of the Act states that those who are injured on the property of another are classified as either trespassers, invitees, or licensees, Andrade's concession on its face makes the Act inapplicable to her claim under the facts of this case.

¶ 18 Even more pertinent, Andrade does not argue that Johnson is a "landowner" for purposes of the Act and, thus, concedes that element of her claim under the Act as well. These concessions indicate, in our view, that Andrade does not contest the court's entry of summary judgment on her claim under the Act.

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