United States District Court, D. Colorado
Brooke Jackson United States District Judge
move for relief from a previous order issued by this Court.
The motion is denied.
summarized in previous orders, this case involves a gas
explosion at a cabin owned by defendants John and Patricia
Sliemers that injured plaintiff Matthew Giblin. Mr. Giblin
was renting the Sliemers' cabin and attempted to relight
the pilot light on the cabin's water heater when propane
gas that had leaked into the air exploded. Mr. Sliemers had
installed a number of water heaters in the Sliemers'
rental units over the years without incident. However, Mr.
Sliemers is not a plumber. He installed the water heater in
question without the assistance of a plumber or other
professional, without a plumbing permit, and without reading
the manufacturer's instructions, which recommended the
installation of a gas detector.
Giblin has alleged a violation of the Colorado Premises
Liability Act (“CPLA”), C.R.S. 13-21-115, which
is Colorado's exclusive framework for landowners'
duties to individuals that occupy the land. Vigil v.
Franklin, 103 P.3d 322, 326 (Colo. 2004). It provides
that an “invitee, ” such as Mr. Giblin, may
recover by establishing: (1) that the landowner
“actually knew or should have known” of a danger
on the premises; and (2) that the landowner's action or
inaction constituted an unreasonable failure to exercise
reasonable care to protect the plaintiff from that danger.
Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d
565, 570 (Colo. 2008).
moved for a summary judgment dismissing the case. In an order
issued on November 24, 2015 the Court concluded that the
“danger” for purposes of the statutory test was a
gas leak in the cabin's propane piping system that caused
gas to pool in the basement and a risk of an explosion. ECF
No. 53 at 8. However, the Court found that Mr. Giblin had
failed to come forward with evidence sufficient to generate a
fact dispute as to whether defendants “actually knew or
should have known” of the danger, that is, that he had
actual or knowledge or constructive knowledge of the danger.
Id. at 8-12. For that reason the Court granted
defendants' motion and entered judgment in their favor on
November 25, 2015. ECF No. 54.
Giblin moved for reconsideration, which the Court granted in
part. Essentially, the Court concluded that its focus on the
Sliemers' failure to obtain a plumbing permit had been
too narrow. ECF No. 62 at 5. Now defendants, pursuant to Rule
60(b), ask the Court to reconsider the reconsideration.
pending motion is critical of the Court's comments
concerning “foreseeability, ” suggesting that I
applied a common law negligence concept that was preempted by
the premises liability statute. That misconstrues the order.
Referring to common law landlord liability cases in which
courts considered the foreseeability and likelihood of injury
in determining a landowner's liability, I wrote:
“While the Colorado Premises Liability Act erased this
common law inquiry, foreseeability remains inherent in the
determination of whether a landowner should have known that a
danger existed.” ECF No. 62 at 7. That, to me, is
simple common sense. If a danger was not foreseeable, then it
is hard for me to understand how one would conclude that the
landowner should have known that it existed.
statute did not render “foreseeability” a bad
word, nor did it establish that concepts relevant to common
law negligence necessarily are irrelevant when discussing a
landowner's duties to an invitee. Consider, for example,
Justice Martinez's discussion of “negligence per
se” in the Lombard case. He acknowledged that
“[t]he language of the premises liability statute makes
clear that a party may no longer bring a negligence per se
claim against a landowner to recover for damages
caused on the premises.” 187 P.3d at 574 (emphasis in
original). However, he continued, “in addressing the
premises liability statute, it is an entirely separate
question whether proof of the landowner's violation of a
statute intended for the plaintiff's protection is
evidence of the landowner's ‘unreasonable failure
to exercise reasonable care.'” Id.
Vigil, the only issue of law concerning a
landowner's duty is the classification of the plaintiff
as a trespasser, licensee, or invitee. 103 P.3d at 328. The
classification of Mr. Giblin as an “invitee” is
not disputed. Whether the landowner should have known of the
relevant danger, and if so, whether he unreasonably failed to
exercise reasonable care to protect the invitee from that
danger are questions of fact to be determined by the trier of
fact. Id. To defeat a motion for summary judgment
Mr. Giblin was obliged to come forward with sufficient
admissible evidence to create genuine and material issues
concerning what Mr. Sliemers should have known about the
danger of a gas leak in the cabin, and whether he took
reasonable steps to protect Mr. Giblin from that danger. I
remain convinced that he has done so.
reasons set forth above, plaintiffs motion for