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Lucero v. Ulvestad

Court of Appeals of Colorado, Fourth Division

July 16, 2015

Alicia Greene Lucero, Plaintiff-Appellant,
v.
Jerald Ulvestad, Defendant-Appellee.

Jefferson County District Court No. 12CV3580 Honorable Margie L. Enquist, Judge

Martens & Associates, P.C., Mark P. Martens, Denver, Colorado; Lathrop & Gage LLP, Angela L. Ekker, Denver, Colorado, for Plaintiff-Appellant

The Ross-Shannon Law Firm, P.C., Bradley Ross-Shannon, Mark J. Gauthier, Lakewood, Colorado, for Defendant-Appellee

OPINION

GRAHAM JUDGE

¶ 1 In this premises liability action, plaintiff, Alicia Greene Lucero (Lucero), appeals the judgment entered on a jury verdict in favor of defendant, Jerald Ulvestad (Ulvestad). Because we conclude that Ulvestad was not a landowner under the Colorado Premises Liability Act (CPLA or the Act), section 13-21-115, C.R.S. 2014, we affirm.

I. Background

¶ 2 This case arises from Lucero's unsupervised use of a steam room in a home purchased by Danny T. Landers, Sr. (Landers) from Ulvestad.

¶ 3 On September 10, 2009, Ulvestad entered into a bankless financing agreement, commonly known as an installment land contract, with Landers to sell real property located in Jefferson County. The property included a single-family home with a steam room. The contract provided Landers with immediate possession of the property, but record title would remain in Ulvestad's name until Landers paid the entire purchase price. Under the contract, Ulvestad executed a warranty deed in favor of Landers that would be held in escrow until the final payment was made. The contract required Landers to get approval from Ulvestad before making major alterations to the property; required Ulvestad to maintain an insurance policy on the property; and provided that Ulvestad's prior mortgage on the property remained in place.

¶ 4 The next day, Landers asked fifteen-year-old Lucero and her mother to help him move into the house. Landers gave Lucero permission to use the steam room. On the morning of September 12, 2009, Lucero entered the steam room unsupervised and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm.

¶ 5 Lucero sued Landers under the CPLA and for negligence. Landers failed to respond and the trial court entered a default judgment against him. Lucero then amended her complaint to add Ulvestad and assert the same claims against him. Ulvestad answered and denied any liability to Lucero.

¶ 6 Prior to trial, Ulvestad filed a motion for summary judgment arguing he did not owe Lucero a duty of care and that he was not a landowner as defined by the CPLA. The trial court disagreed, concluding that there existed a genuine issue of material fact regarding whether Ulvestad was "a person in possession of real property" and, therefore, a "landowner" under the CPLA. The court also concluded that a genuine issue of material fact existed as to whether Ulvestad was a landowner because "Lucero was injured on Property to which . . . Ulvestad was the record title holder, by a condition on the Property that he had installed." However, the court agreed that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. Lucero does not appeal this ruling.

¶ 7 A jury trial was held on the CPLA claim and for a determination of Lucero's damages. At the close of Lucero's case, Ulvestad moved for a directed verdict, again arguing he was not a landowner under the CPLA. The court denied the motion but later determined that as to Ulvestad, Lucero was a trespasser as defined by the CPLA because she had not received his permission to use the steam room. See § 13-21-115(4) ("In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee."). Accordingly, the court instructed the jury that Ulvestad had to have acted "willfully or deliberately" in causing Lucero's injuries to find in favor of Lucero. See § 13-21-115(3)(a) ("A trespasser may recover only for damages willfully or deliberately caused by the landowner."). The jury returned a verdict in favor of Ulvestad and against Lucero.

II. The Act

¶ 8 Lucero appeals the court's determination that she was a trespasser on the property at the time she was injured. We conclude that because Ulvestad was not a landowner under the CPLA, the trial court should have granted Ulvestad's motion for directed verdict. Therefore, Lucero was not harmed by the trespasser determination and we affirm the judgment against Lucero. See Blood v. Qwest Servs. Corp., 224 P.3d 301, 329 (Colo.App. 2009) ("[W]e can affirm on any ground supported by the record."); cf. C.R.C.P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").[1]

A. History

¶ 9 Until 1971, a landowner's duty of care was determined based on the common law classification of the injured party as a trespasser, licensee, or invitee. Vigil v. Franklin, 103 P.3d 322, 325 26 (Colo. 2004). In Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), the supreme court overruled these common law principles because it perceived that they had occasioned harsh rulings as a matter of law against plaintiffs. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo. 2002). The ...


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