United States District Court, D. Colorado
MICHAEL E. ALLERTON, Plaintiff,
GOVERNMENT PROPERTIES INCOME TRUST, L.L.C., a Delaware Limited Liability Company, and THE RMR GROUP, L.L.C., a Maryland Limited Liability Company, Defendants.
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion
for Summary Judgment Pursuant to Fed.R.Civ.P. 56 and Brief in
Support [#38] (the “Motion”). Plaintiff
filed a Response [#40], and Defendants filed a Reply [#41].
Pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR
40.1(c), the matter has been referred to this Court for all
purposes. See [#24]. The Court has reviewed the
Motion, the Response, the Reply, the attached exhibits,
entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#38] is DENIED.
Summary of the Case
case pertains to an alleged slip-and-fall. Plaintiff worked
as a security officer for Deco Security Services, Inc.
(“Deco”), and qualifies as an
“invitee” to the subject property.
Motion [#38] at 4. At all relevant times, Defendant
Government Properties was the owner of the property and
Defendant RMR was the property management company, and each
Defendant qualifies as a “landowner.”
Id. at 4-5. Defendant Government Properties entered
into a lease with the United States of America, which
included provisions regarding snow and ice removal from the
property. Lease [#40-11] at 4. Defendants entered
into a contract with a snow and ice removal company, SM
Sweeping, in order to carry out the terms of the lease.
Service Contract [#40-2]. SM Sweeping monitored
weather conditions and serviced the property on an as-needed
basis on weekends. Tr. of Masotti Depo. [#40-4] at
5; Tr. of Harmon Depo. [#40-3] at 6. The services
included application of a material called Ice Slicer, which
is applied to pavement in order to melt ice. Tr. of
Harmon Depo. [#40-3] at 4.
around 12:30 a.m. on Sunday, January 11, 2015, Plaintiff
slipped and fell on black ice while walking down the incline
of a concrete driveway during his patrol of the exterior of
the property. See Plaintiff's Responses to
Interrogatories [#40-5] at 2. An invoice shows that one
ton of Ice Slicer was applied on the premises on Saturday,
January 10, 2015. Invoice [#40-7] at 1. SM Sweeping
could not verify whether Ice Slicer was applied to the
driveway where the incident occurred. Tr. of Harmon
Depo. [#40-3] at 7. A fellow security guard testified
that he did not observe any snow removal or ice abatement
activities on the property between 6:00 p.m. on Saturday,
January 10, 2015, and 6:00 a.m. on Sunday, January 11, 2015,
nor was the gate arm permitting access to the driveway opened
during that shift. Tr. of Carr Depo. [#40-8] at 9.
the Complaint [#1] is unclear regarding the theory under
which Plaintiff's claim arises, the parties' briefing
demonstrates that Plaintiff is solely asserting his claim
pursuant to the Colorado Premises Liability Act
(“CPLA”). See generally Compl. [#1].
Defendants seek to dismiss Plaintiff's claim on the
grounds that: (1) Plaintiff has failed to present evidence
that Defendants knew or should have known of the alleged
danger associated with the driveway, and (2) Plaintiff's
claim is precluded by the Colorado Worker's Compensation
Standard of Review
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Pursuant to Fed.R.Civ.P. 56(c), summary judgment
shall be granted if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
An issue is genuine if the evidence is such that a reasonable
trier of fact could resolve the issue in favor of the
nonmoving party. Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). A fact is material if it might affect the
outcome of the case under the governing substantive law.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable trier of fact could find in his favor.
See Liberty Lobby, 477 U.S. at 248; Simms v.
Okla. ex rel. Dep't of Mental Health & Substance
Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The
nonmoving party must show the existence of a genuine dispute
of a material issue by going beyond the allegations in its
pleading and providing “specific facts showing there is
a genuine issue for trial.” Celotex, 477 U.S.
at 324. To satisfy its burden of providing specific facts,
the nonmoving party must tender affidavits or other competent
evidence. Concrete Works, Inc. v. City & County of
Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). However,
“[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007); Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1312 (10th Cir. 2009). Conclusory statements
based merely on conjecture, speculation, or subjective belief
are not competent summary judgment evidence. Bones v.
Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.
2004). The nonmoving party's evidence must be more than
“mere reargument of [his] case or a denial of an
opponent's allegation” or it will be disregarded.
See 10B Charles Alan Wright et al., Federal
Practice and Procedure § 2738 at 356 (3d ed. 1998).
Colorado Premises Liability Act
the CPLA, landowners owe certain duties to those who enter
onto the land depending on their status as a trespasser,
licensee, or invitee. Colo. Rev. Stat. §
13-21-115(1.5)(a). The parties appear to agree, for the
purposes of the Motion [#38], that Plaintiff qualifies as an
invitee and that the Defendants both qualify as landowners.
See Motion [#38] ¶¶ 1, 5;
Response [#40] at 1. An invitee “may recover
for damages caused by the landowner's unreasonable
failure to exercise reasonable care to protect against
dangers of which he actually knew or should have
known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I).
a landowner should have known of a particular danger
generally is a question of fact, not law. See Vigil v.
Franklin, 103 P.3d 322, 326 (Colo. 2004) (“Whether
an injured plaintiff is a trespasser, licensee, or invitee
must be decided by the court, but the ultimate issues of
liability and damages are questions of fact for a jury, or if
none, for the trial judge.”). However, a court may in
certain instances grant summary judgment where a danger is so
attenuated that no rational juror could find that a landowner
should have known about it. See, e.g., Casey v.
Christie Lodge Owners Ass'n, Inc., 923 P.2d 365, 367
(Colo.App. 1996) (holding that evidence that a storage door
was repaired - without evidence of prior accidents involving
the door, the reason for the repair, or that the repair
created a hazard - was insufficient to create a genuine issue
of material fact).
Defendants contend that Plaintiff's CPLA claim fails as a
matter of law because “the record is wholly devoid of
any evidence that Defendants had actual or constructive
knowledge that the subject driveway presented a danger prior
to Plaintiff's alleged slip-and-fall.”
Motion [#38] at 8. Plaintiff argues that “the
landlord obviously was aware of and recognized the potential
hazard and danger that would be presented to pedestrians from
the accumulation of snow or ice on the walkways, sidewalks,
and parking lots of the premises.” Response
[#41] at 4. As evidence of Defendants' general awareness
of the potential danger that may be caused by snow or ice
accumulation on the premises, Plaintiff points to the lease,