Wagner v. Planned Parenthood Federation of America, Inc.

          City 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 Plaintiffs-Appellants

          Taylor 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

          OPINION

          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.

         I. Background

         ¶ 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 controlled PPRM.

         ¶ 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."

         II. 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).

         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 disagree.

         ¶ 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. 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.

         IV. 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.

         A. Applicable Law

         ¶ 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 CPLA.

         ¶ 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 known."

         ¶ 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.

         B. Application

         ¶ 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 that issue.

         ¶ 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 conduct.

Id. at 509-10 (footnotes omitted).

         ¶ 24 The federal district court in Axelrod had this to say:

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 ...