County District Court No. 14CV34327 Honorable Edward S. Colt,
Franklin D. Azar & Associates, P.C., Patric J.
LeHouillier, Colorado Springs, Colorado; Berniger, Berg &
Diver, LLC, Michael A. Berniger, Colorado Springs, Colorado,
& Associates, Christopher J. Metcalfe, Denver, Colorado,
for Defendant- Appellee
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.
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
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. 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
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
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).
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.
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; 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. 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 ...