How Common Law Defenses for Landowner Duty Apply in Colorado Premises Liability Cases


This premises liability case reached the Colorado Supreme Court. A claim was brought against William and Gladys Franklin, who were homeowners with a swimming pool where a severe injury occurred. James Vigil, who is mildly mentally retarded, was working at the home as a laborer as part of a program for the Arkansas Valley Handicapped Community Center. Vigil decided to dive into Franklin’s above-ground pool, which was only four-foot-deep. When he dove, Vigil’s head hit the bottom of the pool, causing significant spinal damage. The defendant motioned for a summary judgment claiming that they have no duty of care since diving head-first into four-feet of water would be considered an “open and obvious” danger, a defense under common law.

The court granted the summary judgment based on the common law defense as follows:

  • The depth of the water in the pool was clearly obvious
  • It was an above-ground pool; therefore, Vigil would have noticed that his height exceeded the depth of the pool when he approached it
  • The defendants had no duty to warn under the open and obvious defense

The tort transpired on the defendant’s property, thus is an action brought “against a landowner”. The Colorado Premises Liability Act (CPLA) defines a landowner as an official agent or individual in control of property that has a legal responsibility for the property’s condition, or for the activity occurring or circumstances that exist. Common law, which existed prior to CPLA implementation, allowed a defense that the plaintiff was not owed a duty of care—which the court decides. If defendants prove that no duty existed, the action is baseless and any other questions regarding negligence are not necessary. The CPLA uses a different test in determining if a duty existed.

The statute categorizes the injured party as being a trespasser, invitee, or licensee, each is afforded protections and may recover for certain damages. This classification is the court’s responsibility to decide, then a jury or judge will decide the claims of negligence, damages etc. The appeals court accepted the common law defense claimed by the defendant. In doing so, they accepted that common law defenses may preempt the CPLA.

Subsection (2) of the CPLA shows the intention of the General Assembly to exclusively decide on landowner duties owed to those upon their property. It states that civil claims against landowners for injuries are dictated by the Act. Subsection (3) clearly outlined the duty of landowners and did not allow for applying common law duties. Several Colorado Court of Appeals rulings concluded that the CPLA is the exclusive means for guidance in landowner liability actions.

Colorado law allows for those injured due to dangerous conditions on the property of a landowner to possibly be entitled to financial compensation. The first step in the process is to contact the personal injury attorneys and the Law Firm of Jeremy Rosenthal at (303) 825-2223 for a complimentary case review. You may have a limited amount of time in order to file a claim; therefore, contact us today.