County District Court No. 10CV306. Honorable Frederick W.
Chapleau, LLC, Joseph D. Bloch, Trenton J. Ongert, Denver,
Colorado, for Plaintiffs-Appellants.
Latiolais, and Averbach, LLC, Michael O. Frazier, Phillip M.
Khalife, Denver, Colorado, for Defendants-Appellees.
by JUDGE HAWTHORNE. Taubman and J. Jones, JJ., concur.
[¶1] In this interlocutory appeal,
plaintiffs, Renee Legro and Stephen Legro, appeal from the
district court's order (1) determining as a matter of law
that Ms. Legro was a trespasser as to defendants, Samuel
Robinson and Cheri Robinson, under Colorado's Premises
Liability Act (PLA), § 13-21-115, C.R.S. 2015; and (2)
concluding that the working dog exemption in Colorado's
dog bite statute, § 13-21-124, C.R.S. 2015, insulates
the Robinsons from strict liability.
[¶2] We conclude that the district court
erred in determining that (1) as to the Robinsons, Ms. Legro
was a trespasser under the PLA; and (2) the Robinsons'
grazing permit creates a property interest sufficient to
satisfy the dog bite statute's working dog exemption.
Accordingly, we reverse the district court's order and
remand the case for further proceedings.
Facts and Procedural History
[¶3] The underlying facts in this case are
set forth in Legro v. Robinson, 328 P.3d 238, 2012
COA 182 ( Legro I ), and Robinson v. Legro,
325 P.3d 1053');">325 P.3d 1053, 2014 CO 40 ( Legro II ). As relevant
here, the Robinsons are sheep ranchers who hold a " Term
Grazing Permit" issued by the United States Forest
Service that allows them to graze a certain number of sheep
on federal land within the White River National Forest in
Eagle County (the subject land). Ms. Legro sustained serious
injuries when two of the Robinsons' predator control
dogs, Tiny and Pastor, attacked her on a road located on the
subject land while she was participating in a bike race
sponsored by the Vail Recreation District. Both the Robinsons
and the district were authorized, by permit, to access the
road where Ms. Legro sustained her injuries.
[¶4] The Legros sued, asserting claims of
negligence, negligence per se, loss of consortium, and strict
liability under the dog bite statute.
[¶5] The Robinsons moved for summary
judgment, arguing that the PLA preempts the Legros'
common law claims, and that they are not subject to strict
liability under the dog bite statute because of the working
dog exemption in section 13-21-124(5)(f). The district court
granted the motion. It ruled that the Robinsons were "
landowners" under the PLA, and thus the PLA preempts the
Legros' common law claims. The court dismissed the
Legros' strict liability claim. The court concluded that
the working dog exemption in the dog bite statute applies
because a " lessee" of land qualifies for the
exemption, and the exemption's requirements are satisfied
because the Robinsons owned the dogs and the dogs were
working as predator control dogs when they attacked Ms.
[¶6] The Legros appealed. A division of this
court in Legro I affirmed the district court's
judgment that the Robinsons were landowners under the PLA,
but it concluded that the court erred in holding that the
working dog exemption defeated the Legros' strict
liability claim. Legro I, ¶ ¶ 18, 38. The
division construed the exemption to apply where a predator
control dog was working on (1) the dog owner's property
or (2) property controlled by the dog owner. Id. at
[¶7] The supreme court granted certiorari to
consider whether the division in Legro I correctly
interpreted the working dog exemption's phrase " on
the property of or under the control of the dog's
owner." Legro II, ¶ 9. Contrary to the
Legro I division's interpretation, the supreme
court in Legro II interpreted this phrase as
concerning the control of the dog, not the property. The
supreme court held that the working dog exemption insulates a
dog owner from strict liability if a person is bitten by a
working dog while (1) on the property of the dog owner or (2)
the dog is working under the control of the dog owner on
either public or private property. Id. at ¶
¶ 22, 23.
[¶8] The supreme court noted that the
district court had not applied the correct test, and that the
district court's analysis was based on its faulty premise
that the Robinsons had leased the subject land. Id.
at ¶ 24. The court affirmed the Legro I
division's judgment and remanded the case to the district
court for further proceedings, including reconsidering the
working dog exemption's applicability in light of its
interpretation of the exemption's phrase " on the
property of or under the control of the dog's
owner." Id. It also noted that on remand the
Legros could assert a claim under the PLA if they were able
to satisfy the standard for a motion to amend their
[¶9] On remand, the Legros moved to amend
their complaint to add a claim for relief under the PLA. The
district court granted the motion.
[¶10] In a C.R.C.P. 56(h) motion, the
Robinsons asked the court to determine the duty of care they
owed Ms. Legro under the PLA. They argued that the Colorado
Recreational Use Statute (CRUS), § § 33-41-101 to
-106, C.R.S. 2015, applies, so Ms. Legro was a
trespasser. Alternatively, they argued that Ms.
Legro was neither an invitee nor a licensee under the PLA.
They further argued that if Ms. Legro was an invitee under
the PLA, then she was an agricultural invitee. In their
response to the motion, the Legros argued only that the CRUS
did not apply and that Ms. Legro was an invitee under the
[¶11] Later, the Robinsons filed a "
trial brief" with the district court, which discussed,
among other things, the sheep grazing permit, case law, and
the working dog exemption. In the brief, they informed the
court that after trial they would request a finding that
their sheep grazing permit satisfies the working dog
exemption's " property of . . . the dog's
owner" requirement relating to the Legros' strict
[¶12] The district court issued a written
order ruling on the Robinsons' Rule 56(h) motion. It
concluded that the CRUS did not apply to this case, and it
determined that, as to the Robinsons, Ms. Legro was a
trespasser under the PLA. In the same order, although neither
party had requested that it do so before trial, the court
ruled that the working dog exemption in the dog bite statute
bars the Legros' strict liability claim because the
Robinsons' grazing permit creates a sufficient property
interest to satisfy the exemption.
[¶13] The Legros filed, and the district
court granted, a motion for interlocutory appeal pursuant to
C.A.R. 4.2. The Legros then petitioned this court for
interlocutory appeal pursuant to that rule. We granted the
petition as to the following issues:
1. Whether the district court correctly determined that Ms.
Legro was a trespasser under the PLA, and thus the duty of
care owed to her by the Robinsons was the reasonable care to
protect against damages willfully or deliberately caused by
2. Whether the district court correctly determined that the
Robinsons' grazing permit conferred a sufficient property
interest to constitute " the property of . . . the
dog's owner" such that the working dog exemption
applies to bar the Legros' statutory dog bite claim.
Ms. Legro's Status Under the PLA
[¶14] The Legros contend that the district
court erred by ruling that Ms. Legro was a trespasser, rather
than an invitee, under the PLA at the time of the attack. The
division in Legro I concluded that the Robinsons
were landowners under the PLA, and therefore, we focus on Ms.
Legro's status as to the subject land. Because we
conclude that, as to the Robinsons, Ms. Legro was not a
trespasser, but a licensee, we reverse the district
Standard of Review
[¶15] The district court determines under
the PLA whether a plaintiff was an invitee, licensee, or
trespasser at the time of injury. Reid v. Berkowitz,
2013 COA 110M, ¶ 10, 315 P.3d 185. We review the
court's determination as a mixed factual and legal
question. Id. We defer to the court's
credibility determinations, and will disturb its findings of
historical fact only if they are clearly erroneous and not
supported by the record. Id. But we review de novo
the court's application of the historical facts to the
governing legal standards. Id.
[¶16] Under Rule 56(h), a district court may
enter an order deciding a legal question " [i]f there is
no genuine issue of any material fact necessary for the
determination of the question of law." We review legal
questions decided under Rule 56(h) de novo. Goodman
Assocs., LLC v. Winter Quarters, LLC, 2012 COA 96,
¶ 20, 292 P.3d 1060.
[¶17] We first address a matter of issue
preservation. On appeal, Ms. Legro asserts for the first time
that the record contains evidence that the Robinsons took
overt acts from which it can be inferred they invited her and
other bicyclists to enter on the property. However, as the
Robinsons correctly point out, Ms. Legro did not raise this
argument before the district court. In fact, she argued the
opposite: that there is no evidence of any affirmative act.
So, we do not address Ms. Legro's " invitation"
argument. SeeEstate of Stevenson v. Hollywood
Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 ...