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S.W. v. Towers Boat Club, Inc.

Supreme Court of Colorado, En Banc

December 23, 2013

S.W., a minor by and through his parents and next friends, David and Rhonda Wacker; David Wacker; and Rhonda Wacker, Petitioners,

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 11CA935.

Attorneys for Petitioners: Purvis Gray, LLP, John A. Purvis, Boulder, Colorado.

Attorneys for Respondent: Senter Goldfarb & Rice, L.L.C., Arthur J. Kutzer, Joel A. Palmer, Denver, Colorado.



¶ 1 We granted certiorari to consider an issue of first impression: whether, under

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Colorado's premises liability statute, section 13-21-115, C.R.S. (2013), the attractive nuisance doctrine applies only to trespassing children but not to licensees or invitees. We hold that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. We therefore reverse the judgment of the court of appeals because it erroneously held that the attractive nuisance doctrine only protects trespassing children. On remand, the trial court must consider the merits of S.W.'s attractive nuisance claim.

I. Facts and Procedural History

¶ 2 During the summer of 2008, S.W.— who was eleven years old at the time— attended a private party held by Respondent Towers Boat Club, Inc. (" Towers" ) as a guest of one of the boat club's member families. While S.W. and two other children were playing on a rented, inflatable bungee run,[1] a gust of wind hurled the structure somewhere between 15 and 75 feet into the air and between 100 and 200 yards across the property before it crashed back to earth. As a result of this incident, S.W. allegedly sustained traumatic brain injuries, numerous areas of brain hemorrhage, a fractured left leg, and multiple fractures of his right arm.

¶ 3 Petitioners S.W. and his parents, David and Rhonda Wacker (collectively " the Wackers" ), sued three entities: Towers, bungee run manufacturer Blaster Bouncer Jumping Castles, Inc. (" Blaster Bouncer" ), and landowner North Poudre Irrigation Company (" North Poudre" ). The Wackers then settled with Blaster Bouncer and North Poudre, leaving only Towers, which had rented the land from North Poudre and thus also qualified as a landowner under section 13-21-115(1). The Wackers brought three claims against Towers: (1) premises liability; (2) negligence; and (3) attractive nuisance.[2]

¶ 4 Towers moved for summary judgment. The trial court granted Towers' motion on the Wackers' claims of premises liability and negligence, finding that S.W. was a licensee and that Towers thus did not breach any duty owed to him; however, it denied summary judgment on the attractive nuisance claim. Towers then filed a motion for reconsideration, arguing that because S.W. was a licensee, he could not assert a claim for attractive nuisance. The trial court granted that motion, reasoning that " the attractive nuisance doctrine, as incorporated into [section] 13-21-115, applies only to trespassing children and not to ‘ licensees.’ "

¶ 5 The Wackers appealed, arguing that (1) child licensees could bring a claim for attractive nuisance at common law, and (2) precluding S.W. from raising an attractive nuisance claim on account of his licensee status violated his constitutional right to equal protection. The court of appeals affirmed the trial court's ruling. S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 2, __ P.3d __. After reviewing section 13-21-115, the court of appeals concluded that " the common law doctrine of attractive nuisance applies only to trespassing children." Id. at ¶ 27. The court of appeals also rejected the Wackers' equal protection argument, holding that " there is no constitutional infirmity in treating [a trespassing] child preferentially to ... a mere licensee." Id. at ¶ 42.

¶ 6 In a special concurrence, Judge Gabriel opined that the majority should not have addressed the constitutional issue. Id. at ¶ 45 (Gabriel, J., specially concurring). Judge Gabriel observed that " even under [the Wackers'] view of the attractive nuisance doctrine, the attraction must have enticed the child to enter the landowner's property."

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Id. at ¶ 48. He thus concluded that " even if the attractive nuisance doctrine could be read to apply to invitees, licensees, and trespassers alike, as a matter of law, [the Wackers] cannot prevail on their attractive nuisance claim." Id.

¶ 7 We granted certiorari to address an issue of first impression: whether, under the premises liability statute, section 13-21-115, the attractive nuisance doctrine and its protections are applicable only to trespassing children but not to children on premises as licensees or invitees.

II. Standard of Review

¶ 8 We review de novo the court of appeals' decision affirming the trial court's grant of summary judgment. Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 819 (Colo.2004). In this case, the propriety of the trial court's decision granting summary judgment turns on its interpretation of section 13-21-115, which we also review de novo. See Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004).

III. Analysis

¶ 9 This case turns on the interplay between Colorado's premises liability statute, section 13-21-115, and the common law doctrine of attractive nuisance. Section 13-21-115 provides a comprehensive scheme for determining a landowner's liability to persons injured on his land. Under the terms of the statute, persons on another's land are classified as either trespassers, licensees, or invitees.[3] The extent of a person's right to recover from the landowner hinges on that person's classification within this explicit trichotomy. See § 13-21-115(3). The statute ranks these classifications into a logical hierarchy, as it explicitly provides that " the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and ... the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover." § 13-21-115(3.5). The statute further provides that it " shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age." § 13-21-115(2). We thus begin our analysis by examining the attractive nuisance doctrine as it developed at common law.

A. The Common Law Doctrine of Attractive Nuisance

¶ 10 Because section 13-21-115 specifically incorporates the doctrine of attractive nuisance, our first step is to examine the precise contours of the doctrine as it developed at common law. Our survey reveals that, although the doctrine primarily featured cases involving child trespassers, its application did not turn on a child's classification within the trespasser-licensee-invitee trichotomy. Rather, the linchpin of the attractive nuisance doctrine was the intuitive concept that children, due to their youth and impulsive behavior, are instinctively drawn to certain objects and are thus prone to placing themselves in danger. For this reason, the doctrine imposed a duty on landowners to protect all children from certain attractions on their land, whether they entered the land through trespass or invitation. Therefore, all children— regardless of classification within the trichotomy— could bring a claim for attractive nuisance at common law.

¶ 11 The earliest articulation of the attractive nuisance doctrine in the United States appears in Sioux City & P.R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) (commonly dubbed the " Turntable Case" ). In that case, a six-year-old boy wandered

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onto a railroad company's property and injured his foot on a turntable.[4] Id. at 657-58. The U.S. Supreme Court, considering the boy's age, held that the railroad company could be found negligent, noting that " while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts." Id. at 661. Thus, although the Court recognized that the boy was a trespasser, that fact did not underpin its holding. Rather, the critical factor was that the boy, in being attracted to the turntable, behaved as children typically do. See id. at 660 (" The care and caution required of a child is according to his maturity and capacity only...." ).

¶ 12 At the turn of the century, the attractive nuisance doctrine made its way to Colorado. In Kopplekom v. Colorado Cement-Pipe Co., 16 Colo.App. 274, 275-76, 64 P. 1047, 1047-48 (1901), a child was crushed and killed while playing with a large piece of cement piping. The court of appeals, noting that the piping " was a temptation to children who had not arrived at years of discretion and judgment," reversed the trial court's dismissal of the plaintiff's complaint. Id. at 276, 64 P. at 1048. Applying the rationale from the Turntable Case, the court stated:

If an owner sees fit to keep on his premises something that is an attraction and allurement to the natural instincts of childhood, the law ... imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such as may be attracted thereby.

Id. at 278, 64 P. at 1048 (emphasis added); see also Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 470, 84 P. 813, 815-16 (1906) (quoting this language from Kopplekom ). Crucially, the court deemed this to be the rule of law even if the child was a trespasser; it did not suggest that a child's status as a trespasser was in any way a prerequisite for the attractive nuisance doctrine to apply. See Kopplekom, 16 Colo.App. at 278, 64 P. at 1048 (stating that " [i]f it be said that ... the piping was upon private premises, that the children were trespassers, and that they were not upon the land by invitation or consent," then the outcome would remain the same because " [c]hildren, wherever they go, must be expected to act upon childish instincts and impulses" ) (internal quotation marks omitted). This case makes plain that a landowner's duty to children at common law stemmed from the " attraction and allurement" of objects he maintained on his premises— whether a child was a trespasser was immaterial.

¶ 13 Nevertheless, the court of appeals determined that our precedent restricted attractive nuisance claims solely to child trespassers. S.W. ex rel. Wacker v. Towers Boat Club, Inc.,2012 COA 77, ¶ 27, __ P.3d __. We recognize that a narrow reading of isolated phrases from a trio of Colorado cases— each relied upon by the court of appeals— may give rise to this mistaken impression. See, e.g., Niernberg, by Niernberg v. Gavin, 123 Colo. 1, 3, 224 P.2d 215, 216 (1950) (" [T]he attractive-nuisance doctrine is only an exception to the general rule limiting the liability of landowners as to trespassers...." ); Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 146, 235 P. 373, 374 (1925), overruled in part byMile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) (" While [a landowner] owes a duty to one invited, and some attractive agencies may amount to an invitation to a child, ... such an agency must invite to trespass and not merely after trespass, and must be an unusual ...

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