Samantha Wagner; Ashley Stewart; A.S., a child acting through her mother and next best friend, Ashley Stewart; Mandy Davis; and Ammar Laskarwala, Plaintiffs-Appellants,
Planned Parenthood Federation of America, Inc.; and Rocky Mountain Planned Parenthood, Inc., a/k/a Planned Parenthood of the Rocky Mountains, Inc., Defendants-Appellees.
and County of Denver District Court No. 16CV31798 Honorable
Elizabeth A. Starrs, Judge
McCormick & Murphy, P.C., Kirk R. McCormick, Colorado
Springs, Colorado; Law Offices of Joseph J. Archuleta and
Associates, P.C., Joseph Archuleta, Denver, Colorado; Wilcox
Law Firm, LLC, Ronald L. Wilcox, Denver, Colorado, for
Anderson LLP, Kevin S. Taylor, Kyle Seedorf, John M. Roche,
Margaret L. Boehmer, Denver, Colorado; Spencer Fane, LLP,
Lisa K. Mayers, Denver, Colorado, for Defendants-Appellants
ROTHENBERG JUDGE [*]
1 Plaintiffs, Samantha Wagner; Ashley Stewart; A.S., a child
by and through her mother and next best friend Ashley
Stewart; Mandy Davis; and Ammar Laskarwala, appeal the trial
court's entry of summary judgment in favor of defendants,
Planned Parenthood Federation of America, Inc. (PPFA), and
Rocky Mountain Planned Parenthood, Inc., a/k/a Planned
Parenthood of the Rocky Mountains, Inc. (PPRM). We affirm the
summary judgment as to PPFA but reverse the summary judgment
as to PPRM and remand for further proceedings.
2 Plaintiffs are the victims or survivors of other victims
killed on the early afternoon of November 27, 2015, by Robert
Dear. Dear drove into the parking lot of the Colorado Springs
clinic operated by PPRM, a member of PPFA. His truck
contained four semi-automatic SKS rifles, two handguns, a
shotgun, a rifle, and several homemade explosive devices. As
Dear stepped out of his truck, he shot several people in the
parking lot, two of whom died.
3 Dear then carried his weapons to a glass door at the
building, fired a gun through it, and entered the clinic. He
wounded several more people inside, and when the police
arrived he engaged them in a lengthy gun battle, killing one
officer and wounding five others.
4 Plaintiffs' claim against PPRM asserted that they were
invitees under Colorado's Premises Liability Act (CPLA),
section 13-21-115, C.R.S. 2018. Plaintiffs also filed a
common law negligence claim against PPFA, asserting that PPFA
5 Following discovery, the trial court granted summary
judgment in favor of PPRM and PPFA on both claims. The court
determined as a matter of law that "the predominant
cause was plainly Robert Dear's actions, not the actions
or inactions of PPRM," and that "'a reasonably
thoughtful person' would not have predicted that a
deranged man would appear at PPRM seeking to commit a mass
murder." The trial court further concluded that
"PPFA had no common law duty to [p]laintiffs as a result
of any 'special relationship, '" that PPFA
merely exercised "discretion" over PPRM, and that
there was "no other potential basis for a duty of care
owed by PPFA to these [p]laintiffs."
Standard of Review
6 A summary judgment is reviewed de novo. McIntire
v. Trammell Crow, Inc., 172 P.3d 977, 980
(Colo.App. 2007). "Summary judgment is appropriate when
the pleadings, affidavits, depositions, or admissions
establish that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of
law." Id. at 979. Nevertheless, a court must
give the nonmoving party the benefit of all favorable
inferences that may reasonably be drawn from the undisputed
evidence and resolve all doubts in favor of the nonmoving
party. Cary v. United of Omaha Life Ins. Co., 68
P.3d 462, 465-66 (Colo. 2003).
Claims against PPFA
7 Plaintiffs contend the trial court erred in granting
summary judgment in favor of PPFA because there is a genuine
issue of material fact whether PPFA's control over PPRM
created a duty of care owed by PPFA to plaintiffs. We
8 To recover on a negligence claim, a plaintiff must
establish that the defendant owed the plaintiff a legal duty
of care, that the defendant breached that duty, that the
plaintiff was injured, and that the defendant's breach
caused that injury. N.M. ex rel. Lopez v. Trujillo,
2017 CO 79, ¶¶ 23-33. Whether a duty exists
requires the court to determine whether the plaintiff's
interest that has been infringed on by the defendant's
conduct is entitled to legal protection. See Metro. Gas
Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.
9 The Colorado Supreme Court has recognized a distinction
between claims based on a defendant's failure to act (or
nonfeasance) and claims based on a defendant's active
misconduct (or misfeasance). See Univ. of Denver v.
Whitlock, 744 P.2d 54, 57 (Colo. 1987) ("In
determining whether a defendant owes a duty to a particular
plaintiff, the law has long recognized a distinction between
action and a failure to act - 'that is to say, between
active misconduct working positive injury to others
[misfeasance] and passive inaction or a failure to take steps
to protect them from harm [nonfeasance].'" (quoting
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G.
Owen, Prosser & Keeton on the Law of Torts
§ 56, at 373 (5th ed. 1984))); see also
Trujillo, ¶ 28.
10 In nonfeasance cases, the existence of a duty is
recognized only in situations involving a limited group of
special relationships between parties. Whitlock, 744
P.2d at 58. These special relationships have included (1)
common carrier/passenger; (2) innkeeper/guest; (3) possessor
of land/invited entrant; (4) employer/employee; (5)
parent/child; and (6) hospital/patient. Id.
11 In this case, the trial court found that PPFA merely
exercised discretion and not control over PPRM, and that it
was not the owner or possessor of the land associated with
the PPRM clinic. There is record support for those findings.
Hence, the court did not err in concluding PPFA owed no duty
to plaintiffs and in granting PPFA's motion for summary
judgment against plaintiffs.
Claims against PPRM
12 Plaintiffs next contend the trial court erred in
concluding as a matter of law that Dear's actions were
"the predomina[nt] cause" of the injuries and
deaths, and in granting summary judgment to PPRM on that
basis. Plaintiffs maintain that they tendered sufficient
evidence to raise genuine issues of material fact whether (1)
reasonable security measures were known to PPRM that would
have prevented harm to the victims; and (2) PPRM was
sufficiently aware of the potential for criminal conduct
against its clinics to prepare for the type of offenses
committed by Dear. We agree.
13 The CPLA, section 13-21-115(2), sets the standard for the
possible liability of a "landowner" when someone is
injured on the landowner's property "by reason of
the condition of such property, or activities conducted or
circumstances existing on such property."
14 "The overriding purpose of the premises liability
statute is to clarify and to narrow private landowners'
liability to persons entering their land, based upon whether
the entrant is a trespasser, licensee, or invitee."
Pierson v. Black Canyon Aggregates, Inc., 48 P.3d
1215, 1219 (Colo. 2002); see Wycoff v. Grace Cmty. Church
of Assemblies of God, 251 P.3d 1260, 1266 (Colo.App.
2010); see also Lucero v. Ulvestad, 2015 COA 98,
¶¶ 11-12. The General Assembly indicated its intent
to completely occupy the field and supersede the existing law
in the area, such that the CPLA "leaves no room for
application of common law tort duties." Vigil v.
Franklin, 103 P.3d 322, 327-28 (Colo. 2004).
15 Courts determine as a matter of law whether the injured
person was a trespasser, a licensee, or an invitee. Two
theories are commonly used to establish invitee status. A
person can be an invitee if he or she is a member of the
public and a landowner has expressly or implicitly
represented that the public is expected to enter the
property. Wycoff, 251 P.3d at 1266-67; see also
Axelrod v. Cinemark Holdings, Inc., 65 F.Supp.3d 1093,
1097 (D. Colo. 2014). Another example would be where a sign
labeling a sidewalk as a "bicycle path"
communicates to the public that it may enter and use it as
such. Nelson v. United States, 20 F.Supp.3d 1108,
1136 (D. Colo. 2014), rev'd and remanded, 827
F.3d 927 (10th Cir. 2016).
16 In this case, it appears to be undisputed that the injured
parties were invitees and that PPRM is a landowner under the
17 Section 13-21-115(3)(c)(I) provides that 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
18 Plaintiffs also must prove their injuries were causally
related to PPRM's activity on the property.
Vanderbeek v. Vernon Corp., 50 P.3d 866, 827 n.4
(Colo. 2002); Jordan v. Panorama Orthopedics & Spine
Ctr., PC, 2013 COA 87, ¶ 37, aff'd,
2015 CO 24. "Causation is a question of fact for the
jury unless the facts are undisputed and reasonable minds
could draw but one inference from them." Reigel v.
SavaSeniorCare L.L.C., 292 P.3d 977, 985-96 (Colo.App.
2011). Whether the trial court applied the correct test for
causation is a legal question. Id. at 985.
19 The dispositive question in this appeal with respect to
PPRM is simply this: Is there a genuine dispute of fact
whether PPRM knew or should have known of the danger faced by
the invitees who had entered, or were attempting to enter,
its premises on November 27, 2015? See Axelrod, 65
F.Supp.3d at 1098. We conclude there is a factual dispute on
20 Axelrod is instructive because it involved
injuries that were inflicted on invitees at a movie theater
by an individual armed with numerous deadly weapons. There,
defendant Cinemark argued in its motion for summary judgment
that the court should decide that Cinemark neither knew nor
should have known of this danger because the danger was
unforeseeable as a matter of law. However, the federal
district court there recognized that whether a landowner
should have known of a particular danger generally is a
question of fact, not law. See Vigil, 103 P.3d at
326 ("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.").
21 The federal district court in Axelrod recognized,
as do we, that "a court could find a danger to be so
unprecedented and remote that, as a matter of law, no
rational juror could find that a landowner should have known
about it." 65 F.Supp.3d at 1098.
22 For example, in Lopez v. McDonald's Corp.,
238 Cal.Rptr. 436, 438 (Cal.Ct.App. 1987), a man walked into
a McDonald's restaurant in 1984 in San Ysidro,
California, armed with a rifle, a handgun, and a shotgun and
indiscriminately shot patrons and employees, ultimately
leaving twenty-one persons dead and eleven others injured.
Survivors and surviving family members sued McDonalds,
arguing that the restaurant was in a high-crime area, that it
had considered but ultimately declined to retain a private
security company, and that McDonalds should be liable on
theories of negligence and premises liability. Id.
23 McDonalds argued there - just as PPRM does in this case -
that, as a matter of law, the incident was so unlikely as to
fall outside the boundaries of a restaurant's general
duty to protect patrons from reasonably foreseeable criminal
acts and that its general duty to its patrons did not include
protection against a "once-in-a-lifetime" massacre.
Id. at 441. A district of the California Court of
Appeals agreed and affirmed the trial court's grant of
summary judgment, reasoning as follows:
[W]e conclude as a matter of law . . . the unforeseeability
of the unique, horrific San Ysidro event requires negligence
liability to be restricted here. First, as to the
foreseeability of harm to plaintiffs, the theft-related and
property crimes of the type shown by the history of its
[o]perations, or the general assaultive-type activity which
had occurred in the vicinity bear no relationship to
purposeful homicide or assassination. In other words, under
all the circumstances presented, the risk of a maniacal, mass
murderous assault is not a hazard the likelihood of which
makes McDonalds's conduct unreasonably dangerous. Rather,
the likelihood of this unprecedented murderous assault was so
remote and unexpected that, as a matter of law, the general
character of McDonald's nonfeasance did not facilitate
its happening. [The perpetrator's] deranged and
motiveless attack, apparently the worst mass killing by a
single assailant in recent American history, is so unlikely
to occur within the setting of modern life that a reasonably
prudent business enterprise would not consider its occurrence
in attempting to satisfy its general obligation to protect
business invitees from reasonably foreseeable criminal
Id. at 509-10 (footnotes omitted).
24 The federal district court in Axelrod had this to
I do not disagree at all with the holding in the
Lopez case. But what was "so unlikely to occur
within the setting of modern life" as to be
unforeseeable in 1984 was not necessarily so unlikely by
2012. Cinemark itself acknowledges in its reply brief some of
the grim history of mass shootings and killings that have
occurred in more recent times. . . . If one Googles
"mass shooting incidents" one finds dozens of lists
of the major incidents. . . . These incidents occurred in
schools, businesses, military ...