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Davis v. Comcast Corp.

United States District Court, D. Colorado

July 5, 2018

COMCAST CORPORATION f/k/a Comcast Holdings Corporation d/b/a Xfinity, and SEFNCO COMMUNICATIONS, INC., Defendants.


          Michael E. Hegarty, United States Magistrate Judge.

         Defendant 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 Negligence Claim.


         Ms. 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.

         On 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. Davis alleges:

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.

         On 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.


         “To 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.

         Plausibility 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.


         I hold 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.

         To 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 ...

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