Does a Municipal Ordinance Override the Common Law in a Premises Liability Case?

Emma Andrade, Plaintiff-Appellant vs. Margaret Johnson, Defendant-Appellee, Court of Appeals No. 15CA1664, Court of Appeals of Colorado, Division V. (Oct. 6, 2016) is a district court case in Colorado Springs for damages she suffered when Andrade slipped and fell on a sidewalk adjacent to Johnson’s home. Andrade fractured her leg. Andrade claimed Johnson had a duty under the premises liability statute section 13-21-115, C.R.S. 2016 and common law negligence. The district court granted summary judgment in favor of the defendant on both claims.

The appeals court affirmed under the premises liability statute because it found no error in the district court’s judgment. Andrade alleged that Johnson was a “landowner” as defined in the statute yet presented no evidence to support that claim. According to the statute, the “landowner” owes a duty only to invitees, licensees, or trespassers to the property. Andrade conceded she was neither an invitee, licensee, nor a trespasser. That concession made the statute inapplicable. Therefore, there is no question of material fact. The summary judgment in favor of the defendant was correct.

The reversal was far more interesting. Andrade contended pursuant to section 3.4.103(B) of the Code, Johnson had a duty to notify the City Engineer about the damaged sidewalk, and that under section 3.4.103(D) of the Code, Johnson became civilly liable for Andrade’s injury.

We all know the drill for negligence: there must be a duty, breach, injuries caused by the breach, and damages.

First challenge to Andrade’s alleged liability is the “no duty” rule in the state of Colorado. The common law rule was that an owner of real property has no duty to people who claim injuries that happened on a public sidewalk on that property. However, in Colorado Springs, a municipal ordinance clearly states that the property owner has a duty to notify the City Engineer about damages to any public sidewalk on their property. Breach of that duty will cause the property owner to be civilly liable. To overcome the common law “no duty” rule, the ordinance must clearly express the legislative intent that this code is the basis for civil liability. The appeals court says it will interpret the statutory language with ordinary meanings of phrases, in context and will construe the words according to common usage.

The Code is very specific about who has a duty and who does not. In section B, the language is clear: “…it is the duty of every owner and occupant to notify the city engineer of any damage to a public sidewalk…” In section D, it says: “…the owner or occupant…shall be primarily liable in tort for an injury proximately caused by action or inaction…”

The appeals court agrees that the statute unambiguously imposes a duty on owners and occupants to notify the city engineer about any damage to a public sidewalk adjacent to their real property. The statute clearly expresses the legislature’s intent to impose a duty on the owners and occupants of real property within the city. When there is a breach, there will be civil liability in a tort action. Thus, the ordinance overrides the common law “no duty” rule.

So, the appeals court interpreted the statutory language with ordinary structure and meaning. Lo and behold, Johnson possibly did have a duty to notify the city engineer. Here is where the two parties disagree. Andrade said the sidewalk was damaged. Johnson said it was not. Which was true would determine whether Johnson had liability. This material fact was clearly in dispute. (The court also pointed out that a determination of proximate cause was not settled, either.)  So, the appeals court reversed summary judgment on the negligence claim and remanded it to the district court with further direction.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.