More Homeowner Liability, Please

February 2005

Many homeowners have undoubtedly heard the story of a homeowner being sued by a burglar for injuries the burglar sustained while breaking into the owner’s house. Beware; the Colorado Supreme Court recently decided a case dishing out another helping of homeowner liability.

The landowners contracted with the Center for weed removal and other manual labor which was performed by the workers from the Center. Upon the completion of their work, the workers joked about throwing someone into the four foot aboveground pool located on the property. The plaintiff decided that because no one else was going to jump into the pool, he would do so. He climbed up the ladder to the top of the pool and attempted to execute a racing style dive by diving head first into the pool and “attempting to come up on the other side right away.” Unfortunately, his head struck the bottom of the pool, fracturing his sixth and seventh cervical vertebra and rendering him a permanent quadriplegic.

At trial, the landowner successfully argued that they did not owe a duty of care to the construction worker, because diving into an aboveground pool was an open and obvious danger. The trial court granted the landowner’s motion for summary judgment and the Colorado Court of Appeals affirmed the lower court’s decision noting that it was highly unlikely that the legislature had intended to remove the common law defenses to a landowner’s duty of care by passing Colorado’s comprehensive premises liability statute. The Colorado Court of Appeals ruled that the landowner had no duty to warn Vigil of the danger of diving into the pool, because of the longstanding common law rule that a landowner could avoid liability for injures caused by such dangers based on the rationale that where the potential for danger is readily apparent, a warning of the obviousness is unnecessary.

Vigil appealed the case to the Colorado Supreme Court, which determined that the Colorado Court of Appeals had wrongly concluded that the comprehensive premises liability statute did not preempt the common law’s open and obvious danger doctrine. In its holding, the Colorado Supreme Court stated that Colorado’s General Assembly intended to establish an exclusive specification of the duties landowners owe to individuals injured on their property in its comprehensive premises liability statute and therefore the common law landowner duties did not survive the statute’s enactment. The Colorado Supreme Court specifically held that the common law open and obvious danger doctrine did not survive the enactment of Colorado’s comprehensive premises liability statute.

In the wake of this decision, the Colorado legislature has introduced Senate Bill 57 that will clarify that the common law doctrine of open and obvious danger continues to apply as a defense for land owners and overturning the Colorado Supreme Court’s decision. The Senate Judiciary Committee gave initial approval of the bill on February 2, 2005.

However, as it stands right now and until the Supreme Court’s decision is overturned, Colorado landowners may argue only that they did not owe a duty of care to an injured plaintiff pursuant to the defenses contained in Colorado’s comprehensive premises liability statute and landowners may likely be liable for “open and obvious” dangers on their property.

This legal update is for informational purposes only as a service to clients and other friends, is not a complete summary of the rules relating to the subject matter discussed above, and is neither to be construed as legal advice nor intended as basis for decisions in specific situations. For more information about this subject matter or other recent developments, please contact the attorneys in our Real Estate practice group or any other attorney in our firm with whom you normally consult by calling (303) 825-4200.