If you have been injured as a result of a slip and fall incident in Colorado, attempting to recover for your injuries can be daunting. You must locate the responsible landowner(s), establish that they owed you a legal duty, and be able to show how they breached their duty to you.
Unlike in motor vehicle collisions, where the responsible party’s fault can often be established based on the responding police officer’s observations and witness statements documented in the police report, showing that a landowner is liable to you for injuries sustained in a slip and fall can be significantly more difficult. For example, you might receive this initial reaction:
- You slipped and fell on snow and ice in Colorado, and think someone should have warned you?
- You found water on the floor in the produce aisle?
Overcoming such knee jerk reactions is often necessary to successfully recover damages from a slip and fall in Colorado.
Making the decision to hire a personal injury attorney can aid not only with legal issues such as identifying the landowner(s) and establishing their liability, but can also provide you with an advocate who will work on your behalf to overcome the obstacles faced by slip and fall claimants.
Who is a landowner?
The first obstacle that you may face in recovering for a slip and fall accident is simply identifying who is responsible. This is true both because of the complexities of modern property ownership and occupancy arrangements, particularly in commercial contexts, and also because of Colorado’s Premises Liability Act.
Colorado’s Premises Liability Act is the exclusive remedy by which an injured party can recover against a landowner. C.R.S. § 13-21-115(2). The Act defines a “landowner” as including, “without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” C.R.S. § 13-21-115(1).
This definition thus extends far beyond the logical definition of a landowner, to encompass tenants, property managers, snow removal companies and maintenance companies. Colorado courts have gone so far as to hold that a sheep grazing permit was enough for individuals to be “landowners” of land owned by the United States Forest Service and that a church holding a three day event at a ranch was a landowner, including of a pond located on the ranch property. Legro v. Robinson, 328 P.3d 238, 241 (Colo. App. 2012) Legro v. Robinson, 328 P.3d 238, 241 (Colo. App. 2012). Identification of the responsible landowner or landowners under the Colorado Premises Liability Act may be difficult because of this expansive definition. Failure to identify all responsible landowners may limit or prevent a claimant’s recovery. C.R.S. § 13-21-111.5(3)(b)
The definition of “landowner” has been further muddied by a recent Colorado Supreme Court decision, Jordan v. Panorama Orthopedics & Spine Center, P.C. 346 P.3d 1035, (Colo. 2015). In Jordan, the Court held that a medical clinic was not a landowner of an adjacent common area even though the common area was necessary for the medical clinic’s patients, the medical clinic’s name was on a sign outside, and the only other tenants at the property also provided services to the medical clinic’s patients. Id. at 1037. Thus, not only must an individual injured in a slip and fall accident identify the landowner of the property, but he or she must identify the specific entity or entities responsible for whatever sub-portion of the property the slip and fall occurred on.
Apart from Colorado’s Premises Liability Act, identification of specific landowners can also pose a very difficult obstacle to individuals who have been injured in slip and fall accidents in Colorado. In the context of commercial properties especially, landowners may well include the actual real property owner(s), the owner(s) of buildings or other improvements on the real property, tenants, subtenants, maintenance and snow removal companies, and entities temporarily engaging in activities on the property. This may well require review of property records, investigation of maintenance responsibilities, and even contacting potentially responsible entities. If a responsible entity is not identified within the two year statute of limitations applicable to slip and fall claims in Colorado, failure to identify that entity may not only bar a claim against that entity, but also allow other responsible entities to reduce their own exposure by blaming the previously unidentified landowner. C.R.S. § 13-80-102(1)(a).
Who may recover?
Recovering for injuries sustained in a slip and fall incident in Colorado requires not only identification of the landowner(s), but also establishing that the landowner(s) owed a duty to protect the injured party.
Colorado’s Premises Liability Act divides individuals injured in slip and fall incidents in to three classes, trespassers, invitees and licensees, and establishes different duties owed to each:
- trespassers may recover only for injuries “willfully or deliberately caused by the landowner;”
- licensees may recover only for injuries caused by a landowner’s unreasonable failure to protect against dangers either “created by the landowner of which the landowner actually knew” or “not ordinarily present on property of the type involved and of which the landowner actually knew;” and
- invitees may recover for injuries caused by a landowner’s unreasonable failure to “protect against dangers of which he actually knew or should have known.” C.R.S. § 13-21-115(3).
Thus, to recover trespassers must show that the landowner intentionally caused them harm, and invitees must show that the landowner actually knew of the danger. Determination of an injured person’s status is thus important because it controls whether he or she may recover for a given injury. Moreover, if a lawsuit is filed and a court determines on a motion to dismiss that the landowner(s) did not owe a legal duty, the injured individual may be forced to pay the landowner(s)’ attorney’s fees. C.R.S. § 13-17-201.
It is often unclear what class of claimant a person who has been injured in a slip and fall incident belongs to. In regard to licensees and trespassers, a licensee is a person who is present on the land for his or her own benefit, but with the landowner’s consent or permission. This includes social guests. A trespasser, by contrast, is a person who is on the land without the landowner’s consent. However, the line between these categories can blur, both because the definition of “consent” includes implied consent, and because whether consent has been granted is a question of fact that can depend on the day, time and purpose of entry. See, e.g., Reid v. Berkowitz, 315 P.3d 185, 189 (Colo. App. 2013). In one case, for example, the Colorado Court of Appeals came close to holding that a construction worker performing work at a jobsite was a trespasser on the basis that he was present after hours and helping another worker without remuneration, and held that he was a licensee only because the general contractor, unusually, permitted workers he hired to bring assistants without first seeking permission.
The distinction between a licensee and an invitee can also be difficult. An invitee is a person who is on the land to transact business with the landowner(s), or who is on the land in response to the landowner(s)’ express or implied representation that the public is requested, expected or intended to be on the land. As with the licensee/trespasser distinction, the invitee/licensee distinction can thus depend on the day, time and purpose of entry. For example, the Colorado Court of Appeals has held that an individual who entered a sandwich shop was a licensee, rather than an invitee, because she entered after hours when the store was not open for business [Grizzell v. Hartman Enterprises, Inc., 68 P.3d 551, 553-54 (Colo. App. 2003)].
Colorado courts have also held that volunteers, for example an individual helping to trim a tree at a temple, are licensees even where landowners clearly benefit from their services. Similarly, the Colorado Court of Appeals has held that a person invited on to U.S. Forest Service land to participate in a bicycle race was merely a licensee, not an invitee, because the U.S. Forest Service and holders of a grazing permit did not benefit from her presence. In this last matter, a lower court even ruled that the injured bicyclist was a trespasser on the basis of a statute denying licensee and invitee status to recreational users of land. [Legro v. Robinson, 369 P.3d 785, 791 (Colo. App. 2015); C.R.S. § 33-41-103.] Determination of the status of a party injured in a slip and fall incident in Colorado can thus be both an important and difficult inquiry.
A Colorado personal injury attorney can also identify other, less obvious concerns that may significantly impact an injured person’s right to recover for a slip and fall incident.
The Colorado Governmental Immunity Act, for example, identifies specific circumstances in which an injured party may recover from a governmental landowner. It also requires that a notice be submitted to the governmental landowner within 182 days of the slip and fall incident. Filing a lawsuit against a governmental entity without complying with the Colorado Governmental Immunity Act will result in the governmental landowner being entitled to recover its attorney’s fees against the injured party.
If the landowner is the federal government, the Federal Tort Claims Act may also govern the procedure under which recovery must be sought (see 28 U.S.C. § 2671 et seq.).
A skilled personal injury attorney will be able to identify these and other potential impediments to recovery by a person injured in a slip and fall incident in Colorado. Call us at 303-688-0944 to set up an assessment appointment.