Mountain Planned Parenthood, Inc. v. Wagner , 2020 CO 51 ( 2020 )

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ADVANCE SHEET HEADNOTE
June 8, 2020
2020 CO 51
No. 19SC251, Rocky Mountain Planned Parenthood, Inc. v. Wagner—Premises
Liability Act—Predominant Cause—Duty.
In this case arising from the 2015 mass shooting at a Planned Parenthood
facility in Colorado Springs, the supreme court must decide two narrow questions.
First, the court must determine whether the plaintiffs have introduced sufficient
evidence to establish a genuine issue of material fact as to whether the shooter’s
conduct was the “predominant cause” of the plaintiffs’ injuries such that the
facility’s conduct, even if it contributed to such injuries, could not be a substantial
factor in causing them. Second, the court must address whether the plaintiffs have
established a genuine issue of material fact as to whether the facility’s parent
organization owed them a duty of care.
As to the first question, the court concludes, without expressing any opinion
on the merits of this case, that the plaintiffs have presented sufficient evidence to
establish a genuine issue of material fact as to whether the shooter’s conduct was
the predominant cause of their injuries. Accordingly, the court concludes that the
division below correctly determined that summary judgment was inappropriate
on this issue.
As to the second question, the court concludes, as a matter of law, that the
plaintiffs did not establish that the facility’s parent organization owed them a legal
duty. Accordingly, the court concludes that the division correctly affirmed the
entry of summary judgment for the parent organization on this claim.
The court therefore affirms the judgment of the division below.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 51
Supreme Court Case No. 19SC251
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA2304
Petitioner/Cross-Respondent:
Rocky Mountain Planned Parenthood, Inc., a/k/a Planned Parenthood of the
Rocky Mountains, Inc.,
and
Cross-Respondent:
Planned Parenthood Federation of America, Inc.
v.
Respondents/Cross-Petitioners:
Samantha Wagner; Ashley Stewart; A.S., a minor child acting through her
mother and next best friend, Ashley Stewart; Mandy Davis; and Ammar
Laskarwala.
Judgment Affirmed
en banc
June 8, 2020
Attorneys for Petitioner and Cross-Respondents:
Taylor Anderson LLP
John M. Roche
Kevin S. Taylor
Denver, Colorado
Attorney for Respondents/Cross-Petitioners:
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
Attorneys for Amicus Curiae American Tort Reform Association:
Childs McCune LLC
Jordan Lipp
Margrit Lent Parker
Denver, Colorado
Attorneys for Amicus Curiae Coloradans Protecting Patient Access:
Caplan and Earnest LLC
Laura Wassmuth
Boulder, Colorado
Attorneys for Amici Curiae Colorado Civil Justice League and Denver Metro
Chamber of Commerce:
Brownstein Hyatt Farber Schreck, LLP
Julian R. Ellis, Jr.
Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers Association:
Ruebel & Quillen, LLC
Jeffrey Clay Ruebel
Westminster, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Wilcox & Ogden, P.C.
Ralph Ogden
Denver, Colorado
2
Law One
James Anderson
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE HART dissents in part, and JUSTICE MÁRQUEZ and JUSTICE
BOATRIGHT join in the partial dissent.
3
¶1 This case arises from the 2015 mass shooting at Planned Parenthood of the
Rocky Mountains’ (“PPRM’s”) Colorado Springs facility, which left three people
dead and nine seriously injured. Although the impact of this event on, and the
importance of this case to, all of the parties now before us cannot be overstated,
the questions that we must decide here are narrow. First, we must determine
whether the plaintiffs have introduced sufficient evidence to establish a genuine
issue of material fact as to whether Robert Dear’s conduct as the shooter was the
“predominant cause” of the plaintiffs’ injuries such that PPRM’s conduct, even if
it contributed to such injuries, could not be a substantial factor in causing them.
Second, we must address whether the plaintiffs have established a genuine issue
of material fact as to whether PPRM’s parent organization, Planned Parenthood
Federation of America (“PPFA”), owed them a duty of care.1
1 Specifically, we granted certiorari to review the following issues:
1. Whether an individual who acts to cause mass casualties and
without regard to his own survival or capture is necessarily the
predominant cause of harm to the victims of his attack, such that a
landowner cannot be liable under the Colorado Premises Liability
Act, section 13-21-115, C.R.S. (2019), for a failure to implement
security measures that the Plaintiffs allege may have prevent[ed]
the harm.
2. Whether the court of appeals erred in concluding that Planned
Parenthood Federation of America, Inc. did not owe a duty of care
to Rocky Mountain Planned Parenthood, Inc.’s invitees.
4
¶2 With respect to the first question before us, we conclude, without expressing
any opinion on the merits of this case, that the plaintiffs have presented sufficient
evidence to establish a genuine issue of material fact as to whether Dear’s conduct
was the predominant cause of their injuries. Accordingly, we conclude that the
division below correctly determined that summary judgment was inappropriate
on this issue.
¶3 With regard to the second question, we conclude, as a matter of law, that
the plaintiffs did not establish that PPFA owed them a legal duty. Accordingly,
we conclude that the division correctly affirmed the entry of summary judgment
for PPFA on this claim.
¶4 We therefore affirm the judgment of the division below.
I. Facts and Procedural History
¶5 During the summer of 2015, a group called the Center for Medical Progress,
an anti-abortion organization, released a series of undercover videos purporting
to show Planned Parenthood staff discussing methods of obtaining fetal organs
and tissue for medical research and the financial compensation received
3. Whether the court of appeals erred in upholding the trial court’s
finding of fact based on support in the record for its finding rather
than determining whether genuine issues of material fact exist.
5
therefrom. Soon after the release of these videos, which came to be known as the
“baby body parts” videos, reproductive health facility staff members and state and
local law enforcement officials reported a number of criminal or suspicious
incidents targeting reproductive health facilities across the United States,
including threats to blow up such facilities and threats of violence against
individuals associated with them.
¶6 Dear apparently saw the above-described videos, and he determined to take
action against PPRM because he was upset with that organization for performing
abortions and “selling baby parts.” Accordingly, on the morning of November 27,
2015, Dear went to the PPRM facility in Colorado Springs with eight guns of
various sorts, propane tanks that he believed would explode if he shot at them,
and a homemade ballistic vest. When Dear arrived at the PPRM facility, he began
shooting people in its parking lot, killing one person and injuring two others. He
then proceeded to enter the facility itself by shooting through the glass portion of
the window to an entrance door. Once inside the building, Dear shot and killed
another individual and injured several more before he engaged in a five-hour
shootout with police who had arrived on the scene. In the course of this shootout,
Dear killed one of the officers and wounded five other officers. By the end of
Dear’s rampage, he had killed three people and shot and injured approximately
nine others. He then surrendered to the police.
6
¶7 The plaintiffs are several individuals who were injured during the shooting
and the survivors of one of the victims who was killed. They ultimately filed suit
against both PPRM and PPFA.
¶8 As pertinent here, the plaintiffs asserted a claim against PPRM under the
Colorado Premises Liability Act, section 13-21-115, C.R.S. (2019) (“CPLA”). In this
claim, they alleged that they were invitees at the Colorado Springs facility and
therefore PPRM had a duty to provide them with a safe and secure environment,
“free from foreseeable risks and dangerous conditions on the premises of which
[PPRM] knew or should have known.” The plaintiffs further alleged that Dear’s
attack was foreseeable, given the “long history of violent direct attacks, killings
and threats” against Planned Parenthood facilities.
¶9 The plaintiffs also asserted a claim against PPFA for negligence. In this
claim, the plaintiffs alleged that PPFA had a duty to exercise reasonable care to
provide for the safety and security of the individuals it invited, through its
chapters and affiliates, to come to its facilities. The plaintiffs contended, among
other things, that PPFA had negligently supervised PPRM by (1) not regularly
inspecting the operations and security at PPRM’s Colorado Springs facility; (2) not
developing and implementing detailed and thorough guidelines and policies
concerning safety requirements at facilities that provided abortions; (3) not
communicating or requiring such safety measures; (4) not requiring PPRM to
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provide adequate warnings to the public; and (5) not properly instructing PPRM
concerning proper security in light of the known threats.
¶10 Following discovery, both PPRM and PPFA filed motions for summary
judgment. PPRM argued that it was entitled to summary judgment because, as a
matter of law, it did not cause, nor should it have foreseen, the mass murderous
assault committed by Dear. PPFA, in turn, argued that it was entitled to summary
judgment because (1) the material facts belied a conclusion that it caused, or
should have foreseen, Dear’s mass murderous assault and (2) it owed no duty of
care to the plaintiffs because it did not possess PPRM’s Colorado Springs facility,
it was not legally responsible for the conditions or activities conducted there, and
it was not PPRM’s alter ego.
¶11 The district court agreed with PPRM’s assertion that, to the extent it had
contributed to the plaintiffs’ injuries, “Dear’s actions predominate by orders of
magnitude on the issue of causation.” The district court further opined that Dear’s
actions were unforeseeable because, among other things, no violent crime of any
kind had ever occurred at PPRM’s Colorado Springs facility, nor did PPRM have
notice that any kind of violence was imminent there, much less the kind of violence
that ultimately ensued. The district court thus entered summary judgment in
PPRM’s favor.
8
¶12 The district court likewise agreed with PPFA’s contention that, as a matter
of law, it owed no duty to the plaintiffs. In support of this ruling, the court
concluded that the plaintiffs and PPFA were not in one of the recognized forms of
“special relationships” that could give rise to a duty of care in a case like this. In
addition, the court concluded, based on the summary judgment record before it,
that PPRM was, “incontrovertibly, not the alter ego of PPFA.” Thus, the district
court granted summary judgment in favor of PPFA, as well.
¶13 The plaintiffs appealed and, in a published decision, a divided division of
the court of appeals reversed the grant of summary judgment for PPRM but
affirmed the judgment in PPFA’s favor. Wagner v. Planned Parenthood Fed’n of Am.,
Inc., 2019 COA 26, __ P.3d __.
¶14 With respect to PPFA, the division unanimously upheld the district court’s
conclusion that, as a matter of law, PPFA owed no duty to the plaintiffs and that,
therefore, it was entitled to summary judgment. Id. at ¶ 11; see also id. at ¶ 45
(Webb, J., concurring in part and dissenting in part).
¶15 With respect to PPRM, however, the division split. Id. at ¶ 12; see also id. at
¶ 45 (Webb, J., concurring in part and dissenting in part). The majority reversed
the district court’s order entering summary judgment for PPRM, agreeing with the
plaintiffs that they had produced sufficient evidence to raise genuine issues of
material fact as to whether PPRM (1) knew of reasonable security measures that
9
would have prevented harm to the plaintiffs and (2) was sufficiently aware of the
potential for criminal conduct at its facilities such that it could have prepared for
the type of offenses committed by Dear. Id. at ¶ 12. The majority thus concluded
that a factual dispute existed as to whether PPRM knew or should have known of
the danger faced by invitees who had entered or who were attempting to enter its
facility on the day of the shootings. Id. at ¶ 19.
¶16 Judge Webb dissented from this portion of the division’s opinion. Id. at
¶¶ 45–74 (Webb, J., concurring in part and dissenting in part). In Judge Webb’s
view, as a matter of law, a mass shooting involving the types of weapons and
improvised bombs that Dear had employed “had such a predominant effect that
it prevented PPRM’s conduct from becoming a substantial factor” in causing the
plaintiffs’ injuries. Id. at ¶ 65. Because Judge Webb would have so ruled as to the
issue of causation, he did not address the question of foreseeability, which he
viewed as forming the basis for the majority’s decision to reverse the summary
judgment in PPRM’s favor. Id. at ¶ 47.
¶17 PPRM petitioned for certiorari, and the plaintiffs cross-petitioned with
regard to the grant of summary judgment in favor of PPFA. We granted both
petitions.
10
II. Analysis
¶18 We begin by setting forth the applicable legal standards governing our
review of orders granting summary judgment. We then proceed to discuss the
law applicable to the plaintiffs’ claims against PPRM, and applying those
principles here, we conclude that a genuine issue of material fact exists as to
whether Dear was the predominant cause of the plaintiffs’ injuries. Finally, we
turn to the law applicable to the plaintiffs’ claims against PPFA, and applying that
law to the facts before us, we conclude, as a matter of law, that PPFA owed no
duty to the plaintiffs.
A. Applicable Legal Standard
¶19 We review an order granting summary judgment de novo. Dep’t of
Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 15, 441 P.3d 1012, 1016. Summary
judgment is only proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” C.R.C.P. 56(c); accord Agilent Techs., Inc.,
¶ 15, 441 P.3d at 1016.
¶20 In considering whether summary judgment is appropriate, a court grants
the nonmoving party the benefit of all favorable inferences that may reasonably
be drawn from the undisputed facts and resolves all doubts against the moving
11
party. Agilent Techs., Inc., ¶ 15, 441 P.3d at 1016. In responding to a properly
supported summary judgment motion, however, the nonmoving party may not
rest on mere allegations or demands in its pleadings but rather must provide
specific facts demonstrating a genuine issue for trial. Id.
¶21 Summary judgment is a drastic remedy, and it should only be granted when
it is clear that the applicable legal standards have been met. Westin Operator, LLC v.
Groh, 2015 CO 25, ¶ 21, 347 P.3d 606, 611.
B. Claims Against PPRM
¶22 PPRM asserts that there are no genuine issues of material fact in this case
and that the district court therefore properly granted summary judgment in
PPRM’s favor. We are not persuaded.
¶23 The CPLA provides the basis for liability of a landowner when a person is
injured while on the landowner’s real property “by reason of the condition of such
property, or activities conducted or circumstances existing on such property.”
§ 13-21-115(2). In enacting the CPLA, the General Assembly sought “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). The statute’s language thus
“evidences the General Assembly’s intent to establish a comprehensive and
12
exclusive specification of the duties landowners owe to those injured on their
property.” Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004).
¶24 Whether an injured plaintiff should be classified as a trespasser, a licensee,
or an invitee is a question of law to be decided by the court. Id. at 326. An “invitee”
is “a person who enters or remains on the land of another to transact business in
which the parties are mutually interested or who enters or remains on such land
in response to the landowner’s express or implied representation that the public is
requested, expected, or intended to enter or remain.” § 13-21-115(5)(a). The
parties do not dispute that the plaintiffs (or those whose interests they represent)
were invitees. Nor do the parties dispute that PPRM is a “landowner” under the
CPLA. § 13-21-115(1) (defining “landowner” for purposes of the CPLA 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”).
¶25 Under the CPLA, subject to an exception not applicable here, “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.” § 13-21-115(3)(c)(I).
¶26 We do not appear to have considered whether the term “caused” within the
meaning of the CPLA should be defined as it is in common law tort cases. The
13
parties here, however, have proceeded on the assumption that common law tort
principles apply to define the term “caused” as that term is used in the CPLA, and
we perceive no basis to proceed otherwise, particularly given that we see nothing
in the text of the CPLA to suggest that the legislature intended a different meaning
of that term (in contrast to the legislature’s clearly expressed intent to circumscribe
landowners’ duties to those injured on their property). Accordingly, we will apply
common law tort principles to construe the concept of causation here.
¶27 Although case law from this and other jurisdictions has occasionally used
different terminology (and sometimes interchanged the applicable terminology),
it appears well settled that to establish causation, a plaintiff must show, in
substance, that the defendant’s actions or inactions were both what we will call the
“cause in fact” and the “legal” or “proximate cause” of the plaintiff’s injury. See
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser &
Keeton on the Law of Torts § 42, at 272–73 (5th ed. 1984) (noting that once it has been
established that the defendant’s conduct has in fact been one of the causes of the
plaintiff’s injury, there remains the question of whether the defendant should be
legally responsible for that injury, and stating that “legal cause” or, perhaps,
“responsible cause” would be a more appropriate term than what had often been
referred to as “proximate cause”); see also Build It & They Will Drink, Inc. v. Strauch,
253 P.3d 302, 306 (Colo. 2011) (discussing proximate causation); N. Colo. Med. Ctr.,
14
Inc. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996) (quoting
with approval the discussion of causation in fact in Smith v. State Comp. Ins. Fund,
749 P.2d 462, 464 (Colo. App. 1987), but referring to that discussion as concerning
proximate causation); Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 985 (Colo. App.
2011) (quoting N. Colo. Med. Ctr., 914 P.2d at 908, as reciting the test for causation
in fact and noting that legal causation is a separate aspect of the ultimate causation
inquiry).
¶28 With respect to what we would now term causation in fact, we have stated:
The test for causation is the “but for” test—whether, but for the
alleged negligence, the harm would not have occurred. The
requirement of “but for” causation is satisfied if the negligent conduct
in a “natural and continued sequence, unbroken by any efficient,
intervening cause, produce[s] the result complained of, and without
which the result would not have occurred.”
....
Also, for a plaintiff to prevail on causation, it is necessary to show that
the negligence was a “substantial factor” in producing the harm.
....
“Some other event which is a contributing factor in producing the
harm may have such a predominant effect in bringing it about as to
make the effect of the actor’s negligence insignificant and, therefore,
to prevent it from being a substantial factor. So too, although no one
of the contributing factors may have such a predominant effect, their
combined effect may, as it were, so dilute the effects of the actor’s
negligence as to prevent it from being a substantial factor.”
15
N. Colo. Med. Ctr., 914 P.2d at 908 (alteration in original; quoting Smith, 749 P.2d at
464); see also Nowlan v. Cinemark Holdings, Inc., No. 12-CV-02517-RBJ-MEH,
2016 WL 4092468, at *2 (D. Colo. June 24, 2016) (noting that a plaintiff must prove
that the alleged tortious conduct constitutes a “substantial factor” in producing
the injury and that one factor may have such a predominant effect in causing the
harm that it renders the effect of another factor insignificant and prevents it from
being a substantial factor).
¶29 Causation in fact is typically a question for the jury, unless the undisputed
facts would allow reasonable minds to draw just one inference from them. See
Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 719 (Colo. 1987); Reigel,
292 P.3d at 985–86.
¶30 “Legal” or what is sometimes called “proximate” causation, in turn,
depends largely on the question of the foreseeability of harm. See Strauch, 253 P.3d
at 306 (noting that “the concept of foreseeability is central to establishing
proximate cause” and that foreseeability acts “as a guidepost to delineate the
extent to which a defendant may be held legally responsible for a plaintiff’s
injury”). The existence of proximate or legal causation is also a question of fact for
the jury at trial. Id.; accord Westin Operator, ¶ 33, n.5, 347 P.3d at 614 n.5.
¶31 The narrow question before us is whether PPRM has shown that, as a matter
of law, Dear was the predominant cause of the plaintiffs’ losses such that no
16
reasonable jury could reach a different conclusion. On the evidence in the
summary judgment record before us, we cannot say that PPRM has met this
difficult standard.
¶32 Here, the plaintiffs introduced substantial evidence showing that PPRM
knew for many years that there was a risk of violence against its facilities. In fact,
PPRM warned all new physicians that “there is an inherent risk associated with
working [at PPRM],” and it provided them with training on how to protect
themselves. PPRM even offered to provide all of these physicians with
custom-fitted bulletproof vests, free of charge.
¶33 The plaintiffs also presented evidence tending to demonstrate that PPRM
knew that the level of threats of violence and criminal activity directed against
Planned Parenthood facilities increased exponentially in the aftermath of the
release of the inflammatory “baby body parts” videos. In fact, after the videos
were released, the Medical Director of PPRM personally reported the level of
increased threats and more invasive actions to both the president and chief
executive officer and the chief operating officer of PPRM, as well as to the
president and chief executive officer of PPFA.
¶34 In addition to the foregoing, the plaintiffs presented evidence that, despite
this awareness, PPRM did not take adequate precautions at the Colorado Springs
facility. For example, the plaintiffs offered evidence to show that although PPRM
17
had hired an armed security guard, that guard was on duty only three days per
week and only for about four hours each day (until 11:00 a.m. or 12:00 noon),
despite the fact that the facility remained open (and doctors were performing
abortions there) after the guard had ended his shift. Indeed, the guard had been
at work on the day of the shooting but left at 11:00 a.m., shortly before Dear started
his shooting rampage at approximately 11:35 a.m. Similarly, the plaintiffs offered
evidence that PPRM did not erect a perimeter fence around the Colorado Springs
facility, although it had done so at its Denver location, and it did not replace its
tempered glass entry door with a steel or otherwise bullet-resistant door, which
allowed Dear to shoot through the door to gain entry and continue his rampage.
¶35 Finally, the plaintiffs presented a lengthy and detailed affidavit from Lance
Foster, an expert in premises security. In his affidavit, Mr. Foster opined, in
pertinent part, that (1) the lack of security at the PPRM Colorado Springs facility
made it a more likely target and placed it at a much higher risk for an event like
that which ensued; (2) fencing would likely have prevented Dear from gaining
entry onto the facility’s property in the first place; (3) had the security guard been
on duty, the shootings would likely have been prevented; and (4) had steel doors
been installed and electronic lock down measures been employed, Dear would not
likely have been able to enter the clinic itself. Based on the foregoing, Mr. Foster
18
opined that the shootings at issue “were reasonably preventable and the injurious
effects could have been mitigated.”
¶36 In light of this evidence, and cognizant of the settled principle that summary
judgment is a drastic remedy, see Westin Operator, ¶ 21, 347 P.3d at 611, we
conclude that on the evidence presented in the summary judgment record here, a
reasonable juror could find that Dear was not the predominant cause of the
plaintiffs’ injuries and that therefore PPRM’s action or inaction was a substantial
factor in causing those injuries. Accordingly, we further conclude that PPRM was
not entitled to the entry of summary judgment in this case.
¶37 In so concluding, we acknowledge but are not persuaded by the other mass
shooting cases on which PPRM relies. In Nowlan, 2016 WL 4092468, at *3, a case
arising out of the Aurora theater shooting, the court concluded that even if the
theater owners’ failure to provide certain security measures “contributed in some
way to [plaintiffs’] injuries and deaths, . . . [the shooter’s] premeditated and
intentional actions were the predominant cause of plaintiffs’ losses.” The court
thus determined that “a reasonable jury could not plausibly find that [the theater
owners’] actions or inactions were a substantial factor in causing this tragedy” and
therefore, “as a matter of law, defendants’ conduct was not a proximate cause of
plaintiffs’ injuries.” Id. Similarly, in Castaldo v. Stone, 192 F. Supp. 2d 1124, 1171
(D. Colo. 2001), a case arising out of the mass shooting at Columbine High School,
19
the court concluded that the perpetrators’ actions “were the predominant, if not
sole, cause of Plaintiffs’ injuries. . . . As a matter of law, Plaintiffs have failed to
allege that the individual School Defendants’ conduct was a legal cause of
Plaintiffs’ injuries.” And in Lopez v. McDonald’s Corp., 238 Cal. Rptr. 436, 445 (Cal.
Ct. App. 1987), a case arising out of a mass shooting at a McDonald’s restaurant,
the court concluded that “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.”
¶38 These cases involved random and extreme acts of violence committed,
without warning or foreseeable motive. The present case, in contrast, involved a
similar act of extreme violence, but this act was committed at a facility that had
long been the subject of known threats of such violence, making the likelihood of
an event like that which occurred less remote and arguably more foreseeable.
Indeed, PPRM had taken some measures to protect against the known and
escalating threats of violence at its facilities, although the plaintiffs introduced
evidence to show that these measures were insufficient and that other reasonable
measures could have prevented the plaintiffs’ injuries and deaths. On these facts,
we cannot preclude, as a matter of law, the possibility that a reasonable jury could
find PPRM’s allegedly insufficient security measures to have been a substantial
factor in causing the plaintiffs’ injuries, even given the magnitude of Dear’s
20
premeditated efforts to cause mass casualties without regard for his own survival
or capture.
¶39 We hasten to say that in ruling as we do, we offer no view as to the merits
of the plaintiffs’ claims. Nor should our opinion be read to suggest either (1) that
different rules apply to what may be deemed “politically neutral” sites, on the one
hand, and potentially “incendiary” sites such as a women’s health clinic, on the
other, or (2) that given the risk that a mass shooting could happen virtually
anywhere, potential targets—even those that are sadly sometimes attractive to the
deranged or sadistic, or those with sociopathic notions of political motivation—
must build fortresses to protect against any possible risk. To the contrary, our
ruling is limited to the specific facts of this case, based on the summary judgment
record before us. And we do not intend to suggest that summary judgment is
never appropriate in a case such as this, although we are likewise unwilling to say,
as PPRM and some of its amici suggest, that summary judgment is required in
virtually every case involving a mass shooting because the shooter’s actions will
almost always be the predominant cause of the victims’ injuries. We say no more
than that, on the summary judgment record here, we do not believe that a court
can properly decide the predominant cause issue as a matter of law.
¶40 For these reasons, we conclude that the division correctly concluded that the
district court erred in granting summary judgment in PPRM’s favor here.
21
C. Claims Against PPFA
¶41 On cross-petition, the plaintiffs contend that the division erred in
concluding, as a matter of law, that PPFA owed no duty of care to PPRM’s invitees.
Again, we are not persuaded.
¶42 As an initial matter, we acknowledge the plaintiffs’ assertion that the
division applied the wrong legal standard in addressing PPFA’s motion for
summary judgment. In stating that the record supported the district court’s
finding that PPFA owed no duty to the plaintiffs, the division appeared to be
reviewing the issue as if it were reviewing a factual finding (as opposed to a
summary judgment ruling). Wagner, ¶ 11. To the extent that the division did so,
we conclude that it erred. Nonetheless, as noted above, an appellate court reviews
a grant of summary judgment de novo, and applying the correct standard, we
conclude that the division reached the right result.
¶43 In N.M. ex. rel. Lopez v. Trujillo, 2017 CO 79, ¶ 25, 397 P.3d 370, 374, we
explained that in deciding whether a defendant owed a duty of care to a plaintiff,
we have recognized a distinction between claims based on a defendant’s failure to
act (i.e., nonfeasance) and claims based on a defendant’s active misconduct (i.e.,
misfeasance). As pertinent here, we observed that in a nonfeasance case, the
existence of a duty has been recognized primarily in cases involving a limited
group of special relationships between the parties. Id. at ¶ 26, 397 P.3d at 374;
22
accord Univ. of Denver v. Whitlock, 744 P.2d 54, 58 (Colo. 1987). We noted that these
types of relationships are “of such a character that social policy justifies the
imposition of a duty to act.” N.M., ¶ 26, 397 P.3d at 374. We thus opined, “A duty
to act might arise, for example, in a situation in which two parties are in a
relationship of dependence or mutual dependence.” Id.
¶44 To date, we have recognized only the following special relationships:
(1) common carrier/passenger; (2) innkeeper/guest; (3) possessor of land/invited
entrant; (4) employer/employee; (5) parent/child; and (6) hospital/patient. Id. at
¶ 27, 397 P.3d at 374. Absent such a special relationship, we have generally
declined to impose a duty of care in cases involving a defendant’s nonfeasance. Id.
at ¶ 28, 397 P.3d at 374.
¶45 Here, the plaintiffs assert, among other things, that as the national parent
organization of PPRM, PPFA exercised extensive actual and apparent authority to
control PPRM’s activities, “including those security measures undertaken for the
protection of third parties like the Invitees,” and that such authority gave rise to a
duty of care. The plaintiffs further argue that PPFA issued mandates requiring
PPRM to abide by certain PPFA-imposed criteria for affiliation and that PPFA had
the authority to revoke accreditation if PPRM failed to comply with such
standards. And the plaintiffs contend that PPFA had established a national
23
security team to assist affiliates with security measures. According to the
plaintiffs, each of these facts gave rise to a duty of care.
¶46 Notwithstanding the plaintiffs’ assertion to the contrary, we construe the
plaintiffs’ allegations as assertions of nonfeasance, not misfeasance, because each
of those allegations concern what PPFA allegedly did not do to ensure that PPRM
followed PPFA’s purported security mandates. Indeed, the plaintiffs’ complaint
makes this even more clear because, as noted above, the plaintiffs alleged that
PPFA had negligently supervised PPRM by (1) not regularly inspecting the
operations and security at PPRM’s Colorado Springs facility; (2) not developing
and implementing detailed and thorough guidelines and policies concerning
safety requirements at facilities that provided abortions; (3) not communicating or
requiring such safety measures; (4) not requiring PPRM to provide adequate
warnings to the public; and (5) not properly instructing PPRM concerning proper
security in light of the known threats. Allegations as to what a defendant did not
do are indisputably allegations of nonfeasance. Accordingly, to defeat PPFA’s
summary judgment motion, the plaintiffs were required to produce sufficient
evidence to establish a genuine issue of material fact as to whether PPFA was in a
special relationship with the plaintiffs. We agree with the division that they have
not done so.
24
¶47 As an initial matter, we note that it is unclear to us whether the plaintiffs are
asserting a theory of liability based on an alleged principal-agent relationship
between PPFA and PPRM. At times, the plaintiffs appear to suggest the existence
of such a relationship, and they further seem to suggest that such a relationship
shows that PPFA controlled PPRM’s actions and, in turn, that PPFA therefore had
a special relationship with the plaintiffs. The plaintiffs have not established either
a special relationship between themselves and PPFA or PPFA’s control over
PPRM.
¶48 The plaintiffs assert that “PPRM’s clinics would not have been authorized
to operate as such without PPFA’s blessing of their security programs,” yet they
presented no evidence to support such a contention. To the contrary, at best, the
plaintiffs’ evidence established no more than that PPFA provided “resources and
recommendations” to its local affiliates, including resources and
recommendations as to suggested security measures, as well as grants requested
by affiliates to support their efforts to undertake security improvement projects.
The evidence demonstrated, however, that the affiliates were not obligated to
follow PPFA’s recommendations.
¶49 PPFA’s foregoing activities are readily distinguishable from the controlling
entities’ activities in Grenier v. Commissioner of Transportation, 51 A.3d 367 (Conn.
25
2012), and Brown v. Delta Tau Delta, 118 A.3d 789 (Me. 2015), on which the plaintiffs
rely.
¶50 In Grenier, 51 A.3d at 373–74, the estate of a fraternity pledge sued the
national fraternity, among others, after the pledge died in a car accident on the
way back from a mandatory, fraternity-sponsored event. The estate argued, as
pertinent here, that the national fraternity had exerted sufficient control over the
local chapter such that it owed the pledge a duty of care. Id. at 376. The court
ultimately concluded that the estate had presented sufficient evidence to create a
genuine issue of material fact on this issue. Id. at 389. Specifically, the estate had
introduced evidence to show that the national fraternity (1) financially supported
the local chapter by owning and funding improvements to the local chapter’s
fraternity house; (2) promulgated regulations prohibiting the very activities that
led to the pledge’s death; and (3) “maintained supervisory authority over” the
local chapter, including retaining the ability to review the chapter’s policies and
revoke its charter if it failed to follow the national fraternity’s risk management
policies. Id. at 389.
¶51 Likewise, in Brown, 118 A.3d at 790–91, the plaintiff was sexually assaulted
at a fraternity party and sued the national fraternity, asserting a claim under
Maine’s premises liability law. The court ultimately concluded that the plaintiff
had presented sufficient evidence to demonstrate that, as a matter of law, the
26
national fraternity had both the authority to control its local affiliates and actual
control over them. Id. at 794. In support of this conclusion, the court noted that
the national fraternity (1) provided the local chapter with an alumni adviser who
was responsible for ensuring the chapter’s compliance with the national
organization’s rules and guidelines; (2) had a “chapter consultant” visit each
chapter at least once per semester to meet with the local leadership and alumni
advisers and to report rule violations to the national fraternity, which would then
investigate the infractions and sanction the chapter as necessary; and (3) required
that all incidents of misconduct be reported to the national office and contemplated
disciplinary measures, after affording due process rights to members charged with
infractions. Id. at 794–95. Based on this evidence, the court concluded, “Through
its comprehensive articles and clearly defined power structure, [the national
fraternity] expressly reaches into the day-to-day affairs of its local chapters and
creates a close, mutually beneficial relationship with its individual members.” Id.
at 795.
¶52 We perceive no similar evidence of such control by PPFA here. PPFA did
not own PPRM’s Colorado Springs facility. It did not impose extensive mandatory
regulations akin to those that the national fraternities imposed on the local
chapters in Grenier and Brown. It did not directly supervise or oversee PPRM’s
operations or facilities. And the evidence did not establish the same level of reach
27
into PPRM’s day-to-day affairs that the national fraternities asserted in Grenier and
Brown. To the contrary, in our view, this case presents facts more akin to those
presented in Whitlock, 744 P.2d at 60–62.
¶53 In Whitlock, a student became a quadriplegic as a result of an accident on a
trampoline that was located outside a fraternity house at the University of Denver.
Id. at 55. The student sued the university for negligence, and a division of the court
of appeals subsequently concluded that the university had owed the student a
duty of care either to remove the trampoline from the fraternity’s premises or to
supervise its use. Id. at 56. We granted certiorari and reversed, concluding that,
as a matter of law, the university did not owe such a duty. Id. at 62. In support of
this determination, we observed that (1) the university did not generally attempt
to impose regulations or restrictions on its students’ private recreational pursuits
and the students did not look to the university to ensure the safety of their
recreational choices; (2) other than once advising the fraternity to remove the
trampoline while it was not in use, the university never attempted to assert control
over trampoline use by the fraternity members; and (3) although the university
owned the fraternity house, had the right to inspect the building, and restricted
the building’s use by prohibiting students from using it for “unlawful or immoral
conduct,” the university’s reservation of these limited rights was “generally not
sufficient control to give rise to liability . . . for tort injuries.” Id. at 60–62. As in
28
Whitlock, we conclude that the plaintiffs have presented no evidence to support a
finding of sufficient control over PPRM to establish that PPFA owed them a duty
of care here.
¶54 Finally, we are unpersuaded by the plaintiffs’ apparent, but undeveloped,
argument that PPFA, through its affirmative acts, undertook a duty to prevent the
harm that the plaintiffs suffered in this case. To prove that PPFA assumed such a
duty, the plaintiffs were required to show that PPFA voluntarily undertook to
provide security to them and either (1) PPFA’s failure to exercise reasonable care
in performing this assumed duty increased the risk of harm to the plaintiffs or
(2) the plaintiffs suffered harm because they relied on PPFA to provide that
promised security. See Jefferson Cty. Sch. Dist. R-1 v. Justus, 725 P.2d 767, 770 (Colo.
1986); DeCaire v. Pub. Serv. Co., 479 P.2d 964, 966–67 (Colo. 1971). The plaintiffs,
however, have not presented any evidence that PPFA undertook any duty to them.
Accordingly, they likewise did not establish that in exercising any assumed
obligation, PPFA failed to exercise reasonable care or increased the risk of harm to
them. And the plaintiffs have presented no evidence to support an allegation that
they were relying on PPFA to provide security services to them at PPRM’s
Colorado Springs facility.
29
¶55 For these reasons, we conclude, as a matter of law, that PPFA did not owe
the plaintiffs a duty of care and that therefore, the division correctly affirmed the
district court’s grant of summary judgment in PPFA’s favor.
III. Conclusion
¶56 For the foregoing reasons, we conclude that the plaintiffs have presented
sufficient evidence to create genuine issues of material fact as to whether Dear was
the predominant cause of their injuries or whether PPRM’s conduct or inaction
was a substantial factor in causing those injuries. Accordingly, without expressing
any opinion on the merits of the plaintiffs’ claims against PPRM, we conclude that
the division correctly reversed the district court’s grant of summary judgment in
PPRM’s favor.
¶57 We further conclude, however, that, as a matter of law, PPFA owed no duty
to the plaintiffs. Accordingly, the division correctly affirmed the district court’s
grant of summary judgment in PPFA’s favor.
¶58 We therefore affirm the judgment of the division below and remand this
case for further proceedings consistent with this opinion.
JUSTICE HART dissents in part, and JUSTICE MÁRQUEZ and JUSTICE
BOATRIGHT join in the partial dissent.
30
JUSTICE HART, dissenting in part.
¶59 Colorado has had the unfortunate distinction of playing host to some of the
most notorious mass shootings in our nation’s history. In the wake of these
shootings—including the 1999 Columbine High School massacre and the 2012
Aurora theater attack—questions arose as to whether, under the Colorado
Premises Liability Act, section 13-21-115, C.R.S (2019) (“CPLA”), shooting victims
could seek recovery from the owners of the real property on which the shootings
were perpetrated. More specifically, these cases turned on the narrow question of
whether a mass shooter’s conduct was the “predominant cause” of the shooting
victims’ injuries such that the landowner’s failure to implement certain security
measures, even if it contributed to such injuries in a technical sense, could not be
deemed a “substantial factor” in causing them. See Castaldo v. Stone,
192 F .Supp. 2d 1124, 1170–71 (D. Colo. 2001) (evaluating F.R.C.P. 12(b)(6) motion
respecting the Columbine shooting); Nowlan v. Cinemark Holdings, Inc., 2016 WL
4092468, at *2–3 (D. Colo. June 24, 2016) (discussing F.R.C.P. 56 motion regarding
the Aurora shooting).
¶60 In this case, we attend to the aftermath of the 2015 attack on Rocky Mountain
Planned Parenthood (“PPRM”) committed by Robert Lewis Dear. And yet again,
the question presented by this mass shooting case is a narrow one—did PPRM
show that, “as a matter of law, Dear was the predominant cause of the plaintiffs’
1
losses such that no reasonable jury could reach a different conclusion”? Maj. op.
¶ 31. To this question, the majority today answers in the negative. In doing so,
the majority begins by misstating settled Colorado law on causation. As a result,
the majority makes “proximate cause” a determination solely of the foreseeability
of a particular event—in this case a mass shooting—occurring at a particular
location. The dangerous consequence of this move is to subject a landowner to
liability for the irrational actions of a mass murderer, who has no concern about
detection or death. And, while the majority asserts that its approach does not turn
on the politically controversial nature of the landowner’s business, I fear that in
fact the majority is creating the equivalent of a heckler’s veto—if a business owner
receives threats of violence because of the nature of his business, the business
owner will be subject to a risk of liability that could render his business
uninsurable or require impossibly expensive fortifications.
¶61 Accordingly, I respectfully dissent in part.
I. Applicable Law
¶62 I agree with the majority’s conclusion that the CPLA incorporates common
law tort principles of causation in providing 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.”
Id. at ¶ 26; see also § 13-21-115(3)(c)(I) (emphasis added).
2
¶63 I also agree that the causation analysis in Colorado consists of two prongs:
(1) actual cause (or “but-for” causation), and (2) proximate cause (or “legal”
causation). Maj. op. ¶ 27. But because I believe that the majority’s elaboration of
these two prongs is incorrect, I set out what I view as the correct analysis here.
¶64 Actual cause is evaluated according to the “but-for” test—“whether, but for
the alleged negligence, the harm would not have occurred.” N. Colo. Med. Ctr.,
Inc. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996) (quoting
Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987)). By contrast,
proximate cause requires a showing that the plaintiff’s injuries were foreseeable
and that the defendant’s negligence “was a ‘substantial factor’ in producing the
harm.” Id. (quoting Smith, 749 P.2d at 464).
¶65 The summary judgment action now before us turns on proximate
cause—and specifically on whether the plaintiffs raised a genuine issue of material
fact as to whether PPRM’s alleged negligence was a “substantial factor” in
producing the plaintiffs’ shooting injuries. In this context, the word “substantial”
means
that the defendant’s conduct has such an effect in producing the harm
as to lead [a] reasonable [person] to regard it as a cause, using that
word in the popular sense, in which there always lurks the idea of
responsibility, rather than in the so-called “philosophic sense,” which
includes every one of the great number of events without which any
happening would not have occurred.
3
Restatement (Second) of Torts § 431 cmt. a (Am. Law Inst. 1965). “[I]t is not
enough that the harm would not have occurred had the actor not been negligent.”
Id.
¶66 Actual cause and proximate cause are effectively counterbalancing
concepts. Engaging in “but-for” analysis by itself poses the risk of a defendant’s
exposure to virtually unlimited liability for otherwise remote or insubstantial
circumstances. Almost anything existing in time and space is an actual cause—but
for a defendant’s grandmother’s birth, for instance, the defendant’s tortious
conduct would never have happened. Proximate cause works in the exact
opposite way—by asking whether the defendant’s conduct was a “substantial
factor” in the plaintiff’s injuries, the law provides an intuitive “safety valve”
relieving the defendant of liability even if his conduct (or his grandmother’s birth,
in the absurd case) is an actual cause of harm. See, e.g., CSX Transp., Inc. v. McBride,
564 U.S. 685, 692 (2011) (“The term ‘proximate cause’ is shorthand for a concept:
Injuries have countless causes, and not all should give rise to legal liability.”
(emphasis removed)). Put differently, proximate cause is ultimately a question
based in policy judgments and common sense: Given the circumstances, is it fair
to hold the defendant responsible for the results of his conduct? And in this light,
it becomes clear that proximate cause is a fundamentally liability-limiting
4
principle.1 Indeed, we have said that “Colorado’s proximate cause rule is intended
to ensure that casual and unsubstantial causes do not become actionable.” N. Colo.
Med. Ctr., 914 P.2d at 908.
¶67 One means by which a defendant’s conduct may be found insubstantial is
if, in the case of multiple concurrent causes, one of the causes has “such a
1 It bears mentioning that the CPLA itself is also liability limiting as compared to
the common law it displaced. When the General Assembly enacted the CPLA, it
expressed a number of important policy purposes to be served by the CPLA.
Relevant here, the legislature specified that one purpose of this newly codified
legislative scheme was “to create a legal climate which will promote private
property rights and commercial enterprise and will foster the availability and
affordability of insurance.” § 13-21-115(1.5)(d). Further, the legislature indicated
that another purpose of the CPLA was “to protect landowners from liability in
some circumstances when they were not protected at common law.”
§ 13-21-115(1.5)(e); see Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219
(Colo. 2002) (“The overriding purpose of the premises liability statute is to clarify
and to narrow private landowners’ liability to persons entering their land . . . .”
(emphasis added)); see also Vigil v. Franklin, 103 P.3d 322, 332 (Colo. 2004) (Kourlis,
J., dissenting) (“The purpose of the modern premises liability statute is clear and
unequivocal: namely, to promote private property rights and protect landowners
from liability in some circumstances when they were not protected at common
law. A fortiori, the statute narrows the landowner’s exposure to liability.”
(internal citations and quotations omitted)); John G. Salmon, Fifteen Years of
Colorado Legislative Tort Reform: Where Are We Now?, Colo. Lawyer, Feb. 2001, at *5
(explaining the history of the CPLA as a response to the need to protect
landowners from the high volume of personal injury claims and the problem that
certain risks were becoming uninsurable).
5
predominant effect in bringing [the harm] about as to make the effect of the actor’s
negligence insignificant and, therefore, to prevent it from being a substantial
factor.” Smith, 749 P.2d at 464 (quoting Restatement (Second) of Torts § 433 cmt.
on clause (a) (Am. Law Inst. 1965)). Put another way, where “several events may
have brought about the harm to [the] plaintiff, and an event other than the
defendant’s negligence appears predominant, the alleged negligence cannot be
considered a substantial factor.” Hook v. Lakeside Park Co., 351 P.2d 261, 265 (Colo.
1960).
¶68 “While proximate cause is typically a question of fact reserved to the jury,
the Court may conclude, as a matter of law, that such a predominant cause exists,
and that there can be no other substantial factors.” Nowlan, 2016 WL 4092468, at
*2. And a finding that one cause was “predominant” precludes the defendant’s
alleged negligence from becoming the legal cause of the plaintiff’s injury. Smith,
749 P.2d at 464.
II. Analysis
¶69 The majority begins its legal analysis with a misstatement of the above legal
standards. The majority describes actual cause as the locus of our requirement that
a defendant’s actions be a “substantial factor” in causing harm to a plaintiff. Maj.
op. ¶ 28. Perhaps the majority intends to change Colorado law. If so, it should
explain why. If not, then the majority incorrectly (or at least incompletely) states
6
that “‘[l]egal’ or what is sometimes called ‘proximate’ causation, in turn, depends
largely on the question of the foreseeability of harm.” Id. at ¶ 30. In fact, it is
proximate cause that requires a showing that the defendant’s negligence “was a
‘substantial factor’ in producing the harm.” N. Colo. Med. Ctr., 914 P.2d at 908
(quoting Smith, 749 P.2d at 464); see also Ekberg v. Greene, 588 P.2d 375, 377 (Colo.
1978) (“Where the circumstances make it likely that defendant’s negligence will
result in injuries to others and where this negligence is a substantial factor in
causing the injuries sustained, the requirement of proximate causation is
satisfied.”).
¶70 The majority’s resulting focus almost exclusively on foreseeability leads to
its analysis, which I believe is also incomplete and ultimately incorrect. Here, the
majority insists that the plaintiffs in fact put forth sufficient evidence to create a
genuine issue of material fact as to whether PPRM’s actions were a substantial
factor in the plaintiffs’ injuries. But when we examine the evidence that the
majority points to, it falls into two categories: evidence of foreseeability and
evidence about negligence.
¶71 In the first category is evidence that tended to show that (1) PPRM had
notice of the potential for violence and criminal activity directed against its
facilities, and (2) PPRM knew that the threats of violence against it had worsened
7
dramatically after the release of the controversial “baby body parts” videos that
ultimately motivated Dear to commit the shooting. Maj op. ¶¶ 32–33.
¶72 In the second category is a catalog of the precautions that PPRM could have
taken, but did not take, as well as an expert opinion that, had PPRM taken some
of these precautions, the harm caused by Dear’s attack would have been mitigated
or prevented. Id. at ¶¶ 34–35.
¶73 The majority’s analysis misses the fact that, even assuming PPRM’s failure
to implement additional security measures on or around its facilities was
negligent, such negligence “does not create liability on the part of a defendant
unless that negligence is a proximate cause of the plaintiff’s injury.” City of
Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981). And by considering only
evidence of foreseeability and evidence suggesting negligence, the majority has
not completed the proximate cause analysis required when there are multiple
potential causes of the complained-of harm.
¶74 The proximate cause analysis requires a consideration of whether the
actions of PPRM, as a landowner, can be said to be a “substantial factor” in causing
a mass shooting on its property. I would conclude that they cannot, and that, as
every other court to consider the question under the CPLA has concluded, the
premeditated and intentional actions of a mass shooter are the “predominant”
cause of the injuries he inflicts such that any negligence on the part of a property
8
owner simply is not a “substantial factor” in causing those injuries. See Nowlan,
2016 WL 4092468, at *3 (concluding that even if the Aurora theater owners’ failure
to provide certain security measures “contributed in some way to the [plaintiffs’]
injuries and deaths, . . . [James Eagan Holmes’s] premeditated and intentional
actions were the predominant cause of plaintiffs’ losses”); Castaldo, 192 F. Supp. 2d
at 1171 (concluding that the actions of Dylan Klebold and Eric Harris at Columbine
“were the predominant, if not sole, cause of Plaintiffs’ injuries”).
¶75 I would reach this conclusion because, as Judge Webb eloquently put it in
his partial dissent, any “extra security measures pale in comparison to the conduct
of actors bent on inflicting mass casualties who do not employ a rational
cost/benefit calculus. And for this reason, weighing what security measures a
landowner might adopt to protect against [mass shooters] is not bounded by
reasonableness.” Wagner v. Planned Parenthood Fed’n of Am., 2019 COA 26, ¶ 68,
__ P.3d __ (Webb, J., dissenting). This, it seems to me, is precisely the type of
circumstance in which one cause of the plaintiffs’ injuries—a mass shooter, not
concerned about detection or death and intent upon causing as much damage as
possible in the time he has—is the predominant cause such that any negligence by
PPRM could not be a substantial factor in causing those injuries.
¶76 I believe we must acknowledge that the advent of the modern mass shooting
like that committed at PPRM’s facilities truly tests the boundaries of the proximate
9
cause inquiry (and, indeed, of premises liability law). On one hand, we expect all
public-facing businesses—including women’s health clinics—to incur the costs of
security measures that are reasonably proportionate to the potential risk of harm
to their patients. But, because mass shooters are not animated by reason or
cost/benefit analysis, it is irrational to ask businesses—or jurors—to engage in the
cost/benefit analysis of determining what sorts of preventative measures are
sufficient to prevent or mitigate the harm caused by a shooter’s senseless acts of
violence.
¶77 I am also extremely troubled that, in concluding that summary judgment
would be inappropriate, the majority distinguishes Dear’s attack on PPRM’s
facilities from other mass shootings in Colorado’s long history of such attacks
because this mass shooting “was committed at a facility that had long been the
subject of known threats of such violence,” maj. op. at ¶ 38, meaning that the
possibility of an attack like Dear’s could have been foreseeable to PPRM.
¶78 I fully grant that “‘the concept of foreseeability is central to establishing
proximate cause’ and that foreseeability acts ‘as a guidepost to delineate the extent
to which a defendant may be held legally responsible for a plaintiff’s injury.’” Id.
at ¶ 30 (quoting Build It & They Will Drink, Inc. v. Strauch, 253 P.3d 302, 306 (Colo.
2001)). And unfortunately, Planned Parenthood has suffered a “long history of
violent direct attacks, killings and threats” against its various facilities. Id. at ¶ 8.
10
But the reason for such threats, largely unacknowledged by the majority, is the
well-known fact that PPRM provides abortions—a service fraught with political
controversy and heated cultural divide. While the majority asserts that its analysis
does not turn on whether a mass shooter’s attack is on a politically controversial
business, I fear that the consequence of the court’s approach is that certain
businesses and activities will face entirely different risks of liability than others
will.
¶79 It bears emphasizing that our proximate cause analysis has never, and
should not now, turn on how controversial the goods or services offered by a
landowner are. But the majority’s approach creates a perverse incentive: Knowing
that women’s health clinics are more threat-prone than other public-facing
businesses, and that such clinics may be found liable for their failure to mitigate
or prevent mass shootings, abortion opponents can increase the frequency and
severity of their threats of violence in order to force women’s health clinics to
fortify their facilities to extreme levels. This, in turn, makes women’s health clinics
both prohibitively expensive to operate and virtually impossible to insure. And
in clearly specifying that its purposes in enacting the CPLA were to “promote
private property rights,” “foster the availability and affordability of insurance,”
and “protect landowners from liability” even more stringently than at common
law, the legislature did not desire the potentially liability-expanding outcome the
11
majority now portends. § 13-21-115(1.5)(d), (e). Indeed, by shifting the risk posed
by mass shooters to landowners and increasing the potential for liability, the
majority’s approach will have the opposite effect.
¶80 Moreover, this risk is not one that will be faced only by women’s health
clinics that provide abortion services. After today’s decision, antisemitic fanatics
can impose additional costs on synagogues, and White supremacists can inflict the
same on Black churches or businesses. Threats of violence often precede acts of
violence in these locations, as they did at PPRM.
¶81 I fear that the consequences of today’s decision will be felt well beyond this
litigation. The majority’s analysis, by focusing so exclusively on foreseeability,
significantly changes our proximate cause jurisprudence. In doing so, it ties the
liability of the landowner to the nature of its business and ignores the reality that
the overwhelming—the predominant—cause of harm to victims of mass shootings
is the maniacal determination of the shooter himself.
¶82 For the foregoing reasons, with respect to the PPRM-specific issue in this
case, I respectfully dissent.
I am authorized to state that JUSTICE MÁRQUEZ and JUSTICE BOATRIGHT join
in this partial dissent.
12