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Allerton v. Government Properties Income Trust, L.L.C.

United States District Court, D. Colorado

September 20, 2017

MICHAEL E. ALLERTON, Plaintiff,
v.
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.

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 and Brief in Support [#38][1] (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.

         I. Summary of the Case[2]

         This 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.

         At 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.

         While 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 Act (“CWCA”).

         II. Standard of Review

         The 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. Id.

         The 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).

         III. Analysis

         A. Colorado Premises Liability Act

         Under 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).

         Whether 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).

         Here, 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, ...


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