United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
SEFNCO Communications, Inc. seeks dismissal of Plaintiff
Clarice Davis' negligence cause of action. According to
SEFNCO, Ms. Davis' premises liability claim preempts her
negligence claim. I agree. Importantly, Ms. Davis did not
plead her claims in the alternative based on whether SEFNCO
is a “landowner” under the Colorado Premises
Liability Act (“PLA”). Accordingly, I grant
SEFNCO's Partial Motion to Dismiss Plaintiff's
Davis alleges that, on March 8, 2016, she tripped over a long
cord on the common walkway at the Quail Run Condominiums
while she was taking out her trash. Compl. ¶ 11, ECF No.
3. This caused her to fall and sustain serious injuries.
Id. Ms. Davis alleges that Defendants owned,
operated, and managed the Quail Run Condominiums.
Id. ¶ 7.
March 5, 2018, Ms. Davis filed suit against Defendants in
Colorado state court. Id. Ms. Davis asserts claims
for negligence and premises liability. Id.
¶¶ 13-25. In support of her negligence claim, Ms.
Defendants were negligent by and through their agents and
employees, in that they did not maintain their premises in a
reasonably safe manner and failed to keep the premises free
of hazardous and dangerous conditions of which they knew or
should have known existed, including the long cable which
caused the Plaintiff to trip.
Id. ¶ 14. SEFNCO removed the case to this Court
on March 27, 2018. Notice of Removal, ECF No.1.
April 3, 2018, SEFNCO filed the present Partial Motion to
Dismiss, ECF No. 14. SEFNCO contends the PLA preempts Ms.
Davis' negligence claim, as the PLA provides the
exclusive remedy for breaches of landowner duties.
Id. In response, Ms. Davis argues it would be
premature to dismiss her negligence claim, because she pleads
her claims in the alternative and I (or a jury) have not yet
decided whether SEFNCO is a landowner under the PLA. Resp. to
Partial Mot. to Dismiss 3-11, ECF No. 20. According to Ms.
Davis, “[w]hether a defendant qualifies as a
‘landowner' under the PLA is a threshold question,
as it determines whether [the statute],
or the common law defines
SEFNCO's duty to third persons . . . .”
Id. at 4. In its reply brief, SEFNCO asserts Ms.
Davis does not plead her claims in the alternative-i.e., she
does not allege facts supporting a finding that SEFNCO owed
her a duty apart from that owed generally by landowners.
Reply in Supp. of Partial Mot. to Dismiss 3-4, ECF No. 21.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
that Ms. Davis fails to plead facts supporting an independent
and alternative claim for negligence. It is well established
that the PLA preempts common law claims alleging a breach of
landowner duties. See Colo. Rev. Stat. §
13-21-115(2) (West 2018) (“In any civil action brought
against a landowner by a person who alleges injury occurring
while on the real property of another and by reason of the
condition of such property, or activities conducted or
circumstances existing on such property, the landowner
shall be liable only as provided in subsection (3)
of this section.” (emphasis added)); Vigil v.
Franklin, 103 P.3d 322, 329 (Colo. 2004) (“[O]ur
analysis of the premises liability statute convinces us that
the General Assembly clearly and manifestly expressed its
intent, through the plain language of the statute, to
abrogate the common law of landowner duties.”). Indeed,
the parties agree that the PLA preempts negligence claims
against landowners. Partial Mot. to Dismiss 3, ECF No. 14;
Resp. to Partial Mot. to Dismiss 4, ECF No. 20.
avoid dismissal on preemption grounds, Ms. Davis asserts she
pleads her claims in the alternative. Resp. to Partial Mot.
to Dismiss 8. However, even assuming Ms. Davis may
permissibly plead alternative claims for negligence and
premises liability, Ms. Davis does not do ...