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
[Copyrighted Material Omitted]
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.
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
III. 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, 397 P.3d 370. 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. 1980).
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, 411 P.3d 949. 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, 872 n.4
(Colo. 2002); Jordan v. Panorama Orthopedics & Spine
Ctr., PC, 2013 COA 87, ¶ 37, 350 P.3d 863,
aff'd, 2015 CO 24, 346 P.3d 1036.
"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.,
193 Cal.App.3d 495, 238 Cal.Rptr. 436, 438 (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.
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
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 non-feasance 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 ...