Andrade v. Johnson

COLORADO COURT OF APPEALS 2016COA147
Court of Appeals No. 15CA1664
El Paso County District Court No. 14CV34327
Honorable Edward S. Colt, Judge
Emma Andrade,
Plaintiff-Appellant,
v.
Margaret Johnson,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by CHIEF JUDGE LOEB
Nieto* and Casebolt*, JJ., concur
Announced October 6, 2016
Franklin D. Azar & Associates, P.C., Patric J. LeHouillier, Colorado Springs,
Colorado; Berniger, Berg & Diver, LLC, Michael A. Berniger, Colorado Springs,
Colorado, for Plaintiff-Appellant
Hunter & Associates, Christopher J. Metcalfe, Denver, Colorado, for Defendant-
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this personal injury action, plaintiff, Emma Andrade,
appeals the summary judgment in favor of defendant, Margaret
Johnson, on Andrade’s claim pursuant to the premises liability
statute, section 13-21-115, C.R.S. 2016 (the Act), and on her
common law negligence claim. We affirm the district court’s entry
of summary judgment for Johnson as to the premises liability
claim, although we do so for reasons different from those
articulated by the district court. Because we conclude that section
3.4.103(D) of the Colorado Springs City Code (the Code) expressly
imposes civil liability on an owner or occupant of property who fails
to comply with section 3.4.103 when such failure to comply is the
proximate cause of a third party’s injury, we reverse the summary
judgment for Johnson on Andrade’s common law negligence claim
and remand to the district court for further proceedings on that
claim.
I. Background Facts and Procedural History
¶2 Andrade was walking with her daughter on a public sidewalk
in Colorado Springs on her way to a birthday party at the house of
one of Johnson’s neighbors. Andrade used a walking cane to assist
herself with walking. As she was walking on the public sidewalk
1
adjacent to Johnson’s house, Andrade slipped and fell. She was
taken to a nearby hospital, where she underwent surgery to repair a
fracture in her leg.
¶3 Andrade filed a complaint seeking damages against Johnson
in district court, asserting a premises liability claim under the Act
and a common law negligence claim. Andrade alleged that an
“uneven sidewalk” caused her fall.1 To support her premises
liability claim, Andrade alleged that Johnson was a “landowner,” as
defined in section 13-21-115(1); that the uneven sidewalk adjacent
to Johnson’s home constituted a danger that Johnson was aware of
or reasonably should have been aware of; that Johnson failed to
exercise reasonable care to protect Andrade; and that Andrade was
injured as a result of her fall.
¶4 To support her common law negligence claim, Andrade’s
complaint alleged, in pertinent part, as follows:
13. Defendant had a duty to maintain the
sidewalk in front of her residence so that it
was safe for pedestrian use.
14. Defendant knew or reasonably should
have known that the uneven sidewalk in front
1 Later in the district court proceedings, Andrade claimed that she
fell when her walking cane became stuck in a hole in the sidewalk.
2
of her residence constituted a danger to
pedestrians.
15. The Defendant failed to exercise
reasonable care to protect the Plaintiff and
others against dangers of which the Defendant
was aware.
16. Plaintiff was injured as a result of
Defendant’s negligence. . . .
¶5 Johnson filed a motion for summary judgment, arguing that
because Andrade fell on a public sidewalk, Johnson was not a
“landowner” under section 13-21-115(1), and thus could not be
liable under the Act. Johnson also argued that under Colorado law,
landowners do not have a duty to those injured on public walkways,
and thus, as a matter of law, she was not liable for common law
negligence.
¶6 In Andrade’s response to Johnson’s motion for summary
judgment, she argued that section 3.4.103(B) of the Code2 required
Johnson to notify the City Engineer of the damage to the sidewalk
adjacent to her property, and her failure to do so was the proximate
2 Section 3.4.103(B) of the Colorado Springs City Code, titled
“Notice Of Damage To A Public Sidewalk” states: “It is the
responsibility of every owner and occupant of real property within
the City to notify the City Engineer of any damage to a public
sidewalk which abuts or is adjacent to that owner’s real property[.]”
3
cause of Andrade’s injuries. Andrade requested that the district
court deny Johnson’s summary judgment motion because there
were questions of material fact as to the issue of proximate cause,
specifically whether Johnson’s failure to report the sidewalk
damage to the City Engineer was an unreasonable risk to the health
and safety of the public, and whether Johnson knew or should have
known about the damage to the sidewalk.
¶7 In Johnson’s reply in support of her motion for summary
judgment, she asserted that Andrade had not presented any
arguments or evidence specifically refuting Johnson’s arguments in
support of her motion for summary judgment on both claims.
Johnson also asserted that Andrade’s argument regarding the Code
appeared to support a negligence per se claim, which Andrade had
not pleaded in her complaint. Thus, Johnson contended that the
negligence per se claim was not properly before the district court.
Johnson also argued that the sidewalk adjacent to her house was
not damaged, and that there was only a slight disparity in height
between two sections of the sidewalk that had occurred as a result
of normal settlement over a period of years.
4
¶8 The district court granted Johnson’s motion for summary
judgment in a short written order in which the court summarized
the parties’ arguments and then provided the following quote from
Burbach v. Canwest Inv., LLC, 224 P.3d 437, 442 (Colo. App. 2009):
In short, we perceive nothing in the language
of the premises liability statute which indicates
the General Assembly intended to abrogate the
no duty rule. Indeed, as noted, the statute
was intended to narrow, not expand,
landowner liability. We therefore decline Ms.
Burbach’s invitation for us to construe the
statute in a manner that would create the
anomalous result whereby one’s liability as to
property in which it does not have a legal
interest is expanded at the same time its
liability as to property in which it has a legal
interest is contracted. See Fis[c]hbach v.
Holzberlein, 215 P.3d 407, 409 (Colo. App.
2009) (a court will not adopt an interpretation
of a statute that leads to an illogical or absurd
result or that is at odds with the legislative
scheme).
Without any further analysis, the district court stated that it found
Burbach “to be well-reasoned, persuasive and controlling,” and it
granted Johnson’s motion for summary judgment.
¶9 Andrade now appeals the district court’s entry of summary
judgment in favor of Johnson.
II. Standard of Review
5
¶ 10 We review de novo a district court’s grant of a motion for
summary judgment. Burbach, 224 P.3d at 439. Summary
judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions, together with affidavits, if any,
establish that there is no genuine issue of material fact, and that
the moving party is entitled to judgment as a matter of law.
C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas Ass’n, 2016 CO
29, ¶ 8; Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714,
718 (Colo. 1987). When reviewing a district court’s grant of a
motion for summary judgment, we view the facts in the light most
favorable to the nonmoving party. Rocky Mountain Expl., Inc. v.
Davis Graham & Stubbs LLP, 2016 COA 33, ¶ 17. When, as a
matter of law and based on undisputed facts, the nonmoving party
cannot prevail, the movant is entitled to summary judgment.
Kaiser, 741 P.2d at 718.
¶ 11 However, summary judgment is a drastic remedy “and is not a
substitute for a trial of disputed facts.” Id. The court may not
grant summary judgment when there are disputed factual issues
that must be resolved in a trial, and all doubts regarding the
evidence must be resolved against the moving party. Id. The
6
 moving party bears the burden of proving that there are no genuine
issues of material fact. Id. at 719. Once the moving party has met
that burden, the nonmoving party must demonstrate “by receivable
facts that a real, and not formal, controversy exists.” Id.
¶ 12 We also review de novo questions of statutory interpretation.
Burbach, 224 P.3d at 439.
III. Premises Liability Claim
¶ 13 We first address the district court’s summary judgment on
Andrade’s premises liability claim under the Act and, for the
reasons set forth below, discern no error in that judgment.
¶ 14 Andrade’s complaint alleged generally that Johnson was liable
under the Act because she failed to exercise reasonable care to
protect Andrade from the uneven sidewalk. Andrade’s complaint
alleged, without any factual support, that Johnson was a
“landowner” as that term is defined in section 13-21-115. However,
nowhere in her briefs on appeal does Andrade directly challenge or
contest the district court’s dismissal of her premises liability claim.
¶ 15 Johnson contends that the district court properly granted
summary judgment in her favor on Andrade’s premises liability
claim because, based on the undisputed fact that Andrade fell on a
7
public sidewalk, as a matter of law, Johnson is not a “landowner”
for purposes of the Act.
¶ 16 As pertinent here, the Act applies only if the party sought to be
held liable is a “landowner” as defined therein, see § 13-21-115(1);
see also Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 16; Jordan
v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, ¶ 11, aff’d,
2015 CO 24, and those who are injured on the property of another
are classified as either trespassers, invitees, or licensees, § 13-21-
115(1.5)(a).
¶ 17 Initially, we note that Andrade concedes in her opening brief
that she was not an invitee, licensee, or trespasser on Johnson’s
property “because she was walking on the sidewalk outside
[Johnson’s] home.” Because section 13-21-115(1.5)(a) of the Act
states that those who are injured on the property of another are
classified as either trespassers, invitees, or licensees, Andrade’s
concession on its face makes the Act inapplicable to her claim
under the facts of this case.
¶ 18 Even more pertinent, Andrade does not argue that Johnson is
a “landowner” for purposes of the Act and, thus, concedes that
element of her claim under the Act as well. These concessions
8
indicate, in our view, that Andrade does not contest the court’s
entry of summary judgment on her claim under the Act.
¶ 19 In any event, based on the undisputed facts in the record
before us, as a matter of law, Johnson is not a “landowner” under
the Act. The Act is inapplicable here because Johnson is not a
“landowner” of the public sidewalk adjacent to her property. See
§ 13-21-115(1); Larrieu, ¶ 26; Jordan, ¶ 24 (“[P]ossessory interest”
in a public sidewalk is “virtually indistinguishable from the interest
that any member of the public has to use the sidewalk.”); Burbach,
224 P.3d at 441-42. There is no record support for the proposition
that Johnson is a “landowner” under the Act.
¶ 20 To the extent Andrade contends that section 3.4.103(B) of the
Code provided Johnson with “landowner” status under the Act, that
contention is contrary to Colorado law. See § 13-21-115(1);
Burbach, 224 P.3d at 441. Because Andrade’s injury did not occur
on Johnson’s property, she “[has] no claim under the [premises
liability] statute.” Larrieu, ¶ 26.
¶ 21 Although the district court did not base its analysis of
Andrade’s claim under the Act on the “landowner” issue,
nevertheless, we conclude that the district court did not err by
9
granting summary judgment for Johnson on Andrade’s premises
liability claim. See Steamboat Springs Rental & Leasing, Inc. v. City
& Cty. of Denver, 15 P.3d 785, 786 (Colo. App. 2000) (“An appellate
court may affirm a correct judgment based on reasoning different
from that relied on by the trial court.”).
IV. Common Law Negligence Claim
¶ 22 Andrade also contends that the district court erred by entering
summary judgment for Johnson on her common law negligence
claim. Andrade argues that, pursuant to section 3.4.103(B) of the
Code, Johnson had a duty to notify the City Engineer about the
damaged sidewalk adjacent to her property, and that, pursuant to
section 3.4.103(D) of the Code, Johnson became civilly liable for
Andrade’s injury that occurred as a result of Johnson’s “inaction” in
failing to notify the City Engineer about the damaged sidewalk.
¶ 23 We conclude that the plain language of section 3.4.103(B)
unambiguously imposes a duty on owners and occupants of real
property to notify the City Engineer about any damage to the public
sidewalk abutting or adjacent to their real property. We also
conclude that, as pertinent here, section 3.4.103(D) expressly
imposes civil liability on owners or occupants of property who fail to
10
comply with their duty to notify in section 3.4.103(B) when their
failure to notify is the proximate cause of a third party’s injury.
However, disputed issues of fact remain as to whether the public
sidewalk was damaged and whether Johnson’s failure to report the
alleged damage was the proximate cause of Andrade’s injuries.
Therefore, we conclude that the district court erred by entering
summary judgment for Johnson on Andrade’s common law
negligence claim, and we reverse that aspect of the judgment and
remand to the district court for further proceedings on that claim.
¶ 24 As an initial matter, Johnson contends that, on appeal,
Andrade only repeats the negligence per se claim she made in
response to Johnson’s motion for summary judgment, and she
again notes that Andrade did not allege such a claim in her
complaint. Johnson contends that Andrade merely argued in
support of her common law negligence claim that “[Johnson] had a
duty to maintain the sidewalk in front of her residence so that it
was safe for pedestrian use,” and thus, Andrade’s arguments
regarding the Code in support of a purported negligence per se
claim are not properly before us.
11
¶ 25 We agree that Andrade did not expressly plead a negligence
per se claim in her complaint. However, in addition to the
allegation in Andrade’s complaint that “[Johnson] had a duty to
maintain the sidewalk in front of her residence so that it was safe
for pedestrian use,”3 her complaint also alleged that “[Johnson]
failed to exercise reasonable care to protect [Andrade] and others
against dangers of which [Johnson] was aware.” Given that
Andrade argues in support of her common law negligence claim
that, pursuant to section 3.4.103(B) of the Code, Johnson had a
duty to notify the City Engineer about the allegedly damaged
sidewalk and that she breached this duty, for purposes of our
analysis, we assume that this latter allegation in her complaint was
sufficient to encompass her common law negligence arguments
regarding the Code. Furthermore, Andrade’s arguments regarding
the effect of the Code formed the basis for her response to the
motion for summary judgment on her negligence claim. And, the
record shows that Johnson was fully aware of these arguments
because she anticipated them in her motion for summary judgment
3Andrade concedes in her briefs on appeal that Johnson did not
have a duty to maintain or repair the public sidewalk adjacent to
her property.
12
and then responded substantively to them in her reply brief in
support of that motion.
A. The Common Law No Duty Rule
¶ 26 Andrade’s contention requires us to analyze the contours of
the “no duty” rule and whether it applies here to bar her common
law negligence claim as a matter of law.
¶ 27 Under the “no duty” rule, which is firmly embedded in
Colorado’s jurisprudence, Bittle v. Brunetti, 750 P.2d 49, 51-52
(Colo. 1988), the supreme court and divisions of this court have
consistently held that an owner of real property has no duty to
persons who claim injury arising from the condition of an abutting
public sidewalk. The “no duty” rule is also the common law rule in
the majority of jurisdictions outside of Colorado. Id. at 52.
¶ 28 For example, several cases in Colorado have held that property
owners have no common law duty to remove naturally
accumulating snow and ice from the public sidewalks abutting their
property, and, therefore, the property owners have no common law
duty to third parties who are injured on the public sidewalks due to
snow and ice. See id. at 55; Burbach, 224 P.3d at 439-40; Easton v.
1738 P’ship, 854 P.2d 1362, 1364-65 (Colo. App. 1993). This “no
13
duty” rule is not strictly limited to situations involving snow and ice
on a public sidewalk, but also applies when a public sidewalk
adjoining an owner’s property is in need of maintenance or repairs.
See Foster v. Redd, 128 P.3d 316, 318 (Colo. App. 2005).
¶ 29 Courts applying the “no duty” rule have reasoned that, under
general tort law, an individual’s ownership, possession, and control
are relevant to the existence of a special relationship on which a
duty can be based. Bittle, 750 P.2d at 52-53. Thus, while several
Colorado cases have held that property owners can be held liable
for not taking reasonable measures to remove snow and ice from
their own property, see Palmer Park Gardens, Inc. v. Potter, 162
Colo. 178, 182-83, 425 P.2d 268, 271 (1967); King Soopers, Inc. v.
Mitchell, 140 Colo. 119, 124-25, 342 P.2d 1006, 1009 (1959), courts
are generally disinclined to find that a property owner owed a duty
to those injured on public property. See Bittle, 750 P.2d at 52-53.
Additionally, Colorado courts generally have been “unwilling to
impose liability for injuries caused by natural obstacles or
conditions.” Id. at 53.
¶ 30 However, as pertinent here, there is a critical exception to the
“no duty” rule. A municipal ordinance specifically providing that a
14
property owner will be civilly liable for its violation can serve to
establish the existence of a defendant’s “legally cognizable duty
owed to a plaintiff.” Easton, 854 P.2d at 1364. But ordinances
requiring property owners adjacent to a public sidewalk to maintain
or clear the sidewalk of snow and ice do not impose liability on the
property owners for a third party’s injury absent an express
imposition of such liability. See Burbach, 224 P.3d at 439; see also
Easton, 854 P.2d at 1364-65 (finding that a city ordinance stating
that property owners would be “jointly and severally liable” if they
failed to keep all public sidewalks abutting the premises of their
property clear of snow, ice, sleet, and hail — considered along with
another provision of the city code stating that property owners
would be fined for failing to keep the public sidewalks clear of snow
— did not manifest a specific expression of legislative intent that the
ordinance was to serve as a basis for civil liability). Therefore, to
overcome the general common law “no duty” rule, an ordinance
must clearly state that a property owner will be civilly liable for
violating the ordinance. See Woods v. Delgar Ltd., 226 P.3d 1178,
1183 (Colo. App. 2009).
15
B. Principles of Statutory Interpretation
¶ 31 Resolution of Andrade’s contention also requires us to
interpret provisions of the Code. When interpreting a city code, we
apply ordinary rules of statutory construction. Alpenhof, LLC v.
City of Ouray, 2013 COA 9, ¶ 10.
¶ 32 Our primary task when construing statutes is to ascertain and
give effect to the legislative body’s intent, Gagne v. Gagne, 2014
COA 127, ¶ 25, and we must refrain from rendering judgments that
are inconsistent with that intent. State v. Nieto, 993 P.2d 493, 500
(Colo. 2000). To determine a legislative body’s intent, we look first
to the plain language of the statute, giving words and phrases their
ordinary meanings. Id. We read the words and phrases in context
and construe them according to their common usages. Gagne,
¶ 25.
¶ 33 In addition, when we construe a statute, we should read and
consider the statute as a whole. Id. at ¶ 26. We also must
“interpret [the statute] in a manner giving consistent, harmonious,
and sensible effect to all of its parts.” Id. In doing so, we should
not interpret the statute so as to render any part of it meaningless,
absurd, or superfluous. Id.; see also People v. Rice, 2015 COA 168,
16
¶ 12. If the statutory language is clear and unambiguous, we look
no further. Gagne, ¶ 27.
¶ 34 “Moreover, as here, where the interaction of common law and
statutory law is at issue, we acknowledge and respect the
[legislative body’s] authority to modify or abrogate common law, but
can only recognize such changes when they are clearly expressed.”
Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). Statutes that
deviate from the common law “must be strictly construed, so that if
the legislature wishes to abrogate rights that would otherwise be
available under the common law, it must manifest its intent either
expressly or by clear implication.” Id. (quoting Vaughan v. McMinn,
945 P.2d 404, 408 (Colo. 1997)).
C. Analysis and Interpretation of the Relevant Provisions of the
Code
¶ 35 Andrade contends that the “no duty” rule is inapplicable here
because the Code expressly provides for civil liability under the
circumstances of this case. We agree.
¶ 36 We interpret the relevant provisions of the Code to determine
whether they reflect a clear, specific expression of legislative intent
that the Code is to serve as a basis for civil liability, thus making
17
the general common law “no duty” rule inapplicable. See id.; see
also Easton, 854 P.2d at 1364-65.
¶ 37 Section 3.4.103, titled “RESPONSIBILITY OF REAL PROPERTY
OWNERS AND OCCUPANTS,” is part of article 4 of the Code, titled
“SIDEWALKS,” and provides as follows:
A. Cleaning Sidewalks: Every owner and
occupant of real property within the City shall
keep the public sidewalks which abut or are
adjacent to their real property, or public
sidewalks located upon real property subject to
a public easement or right of way, in a clean
condition free from projections and
obstructions across the surface, debris, litter,
or dangerous conditions not involving the
structural integrity of the sidewalk.
B. Notice Of Damage To A Public Sidewalk: It
is the responsibility of every owner and
occupant of real property within the City to
notify the City Engineer of any damage to a
public sidewalk which abuts or is adjacent to
that owner’s real property, or public sidewalk
located upon the owner’s or occupant’s real
property subject to a public easement or right
of way.
C. Notice Of Damage To A Public Sidewalk;
Individual’s Or Entity’s Fault: It is the
responsibility of any individual or entity to
notify the City Engineer of any damage to a
public sidewalk which occurs or may occur as
a result of that individual’s or entity’s action or
inaction.
18
D. Civil Liability: The owner or occupant of the
real property or both and an individual or
entity whose action or inaction results in
damage to a public sidewalk, shall be primarily
liable in tort for any injury proximately caused
by failure to comply with this section.
¶ 38 Looking to the plain language of these provisions of the Code
and giving words and phrases their ordinary meanings, Nieto, 993
P.2d at 500, we first conclude that section 3.4.103(B)
unambiguously imposes a duty on owners and occupants of real
property to notify the City Engineer of any damage to a public
sidewalk which abuts or is adjacent to that owner’s or occupant’s
real property. Thus, if the public sidewalk adjacent to Johnson’s
real property was in fact damaged, she had a duty to notify the City
Engineer of the damage.
¶ 39 For the reasons set forth below, we also conclude that section
3.4.103(D) clearly imposes civil liability for any injury proximately
caused by a failure to comply with the other provisions of section
3.4.103, although that conclusion requires a more complex
analysis.
¶ 40 As noted, section 3.4.103(D) provides that “[t]he owner or
occupant of the real property or both and an individual or entity
19
whose action or inaction results in damage to a public sidewalk,
shall be primarily liable in tort for any injury proximately caused by
failure to comply with this section.” In conducting our de novo
interpretation of the Code, see Burbach, 224 P.3d at 439, we must
consider whether the phrase “whose action or inaction results in
damage to a public sidewalk” refers only to the words “an individual
or entity,” or whether that phrase also refers back to the words
“owner or occupant of the real property.”4 If we interpret the phrase
“whose action or inaction results in damage to a public sidewalk” to
refer back to “owner or occupant of the real property,” then section
3.4.103(D) would read, as applicable here: “The owner or occupant
of the real property . . . whose action or inaction results in damage
to a public sidewalk, shall be primarily liable in tort for any injury
proximately caused by failure to comply with this section.”
Conversely, if we interpret the phrase “whose action or inaction
results in damage to a public sidewalk” as only referring back to the
words “an individual or entity,” then section 3.4.103(D) would read,
4 Johnson does not respond to Andrade’s statutory interpretation
arguments in her answer brief, but instead simply cites cases about
the general common law “no duty” rule without analyzing whether
Colorado Springs intended to impose civil liability in section
3.4.103(D), thus making the “no duty” rule inapplicable here.
20
as applicable here: “The owner or occupant of the real property . . .
shall be primarily liable in tort for any injury proximately caused by
failure to comply with this section.” We conclude this second
interpretation is correct and is consistent with the clearly expressed
legislative intent of these Code provisions.
¶ 41 Considering the statutory framework as a whole and looking to
the plain language of the statute, Nieto, 993 P.2d at 500; Gagne,
¶ 25, we find it important that subsections (A) and (B) of section
3.4.103 impose duties on only owners and occupants of real
property. Thus, subsection (A) imposes a duty on owners and
occupants to keep the public sidewalks adjacent to their real
property in a clean condition free from obstructions across the
surface, debris, litter, or dangerous conditions not involving the
structural integrity of the sidewalk; subsection (B) imposes a duty
on owners and occupants to notify the City Engineer of any damage
to a public sidewalk adjacent to or abutting their real property. By
use of the word “any,” subsection (B) clearly imposes a duty to
notify regardless of whether the owners or occupants of the real
property damaged the public sidewalk themselves. Conversely,
section 3.4.103(C) imposes a duty on “any individual or entity to
21
notify the City Engineer of any damage to a public sidewalk which
occurs or may occur as a result of that individual’s or entity’s action
or inaction.” (Emphasis added.) Importantly, under subsection (C),
any such individuals or entities must notify the City Engineer only
if their action or inaction results in damage to the public sidewalk.
¶ 42 Thus, looking to the statutory framework and plain language
of the Code, section 3.4.103(C) is the only section that imposes a
duty on an individual or entity only when such individual’s or
entity’s action or inaction results in damage to a public sidewalk.
Thus, in context, the phrase “whose action or inaction results in
damage to a public sidewalk” in section 3.4.103(D) refers only to a
third party individual or entity, and not to an owner or occupant of
real property adjacent to a public sidewalk. See Nieto, 993 P.2d at
500; Gagne, ¶ 25.
¶ 43 Further, the phrase “individual or entity” does not, in our
view, include an “owner or occupant” of real property because such
an interpretation would render the words “owner or occupant of the
real property or both,” in section 3.4.103(D) meaningless and
superfluous. See Gagne, ¶ 26; see also Rice, ¶ 12 (stating that we
must interpret a statute in a manner giving consistent,
22
harmonious, and sensible effect to all of its parts, and in doing so,
we should not interpret the statute in a way that renders any part
of it meaningless, absurd, or superfluous). Owners and occupants
already have a duty to notify the City Engineer of damage under
subsection (B) regardless of who caused the damage to the
sidewalk.
¶ 44 Were we to interpret section 3.4.103(D) to read, “[t]he owner or
occupant of the real property or both . . . whose action or inaction
results in damage to a public sidewalk, shall be primarily liable in
tort for any injury proximately caused by failure to comply with this
section,” such an interpretation would negate any civil liability for
owners or occupants of real property who breach their notice duty
under section 3.4.103(B) but do not damage the public sidewalk
themselves; and it would also negate civil liability of owners or
occupants of real property who breach their duty in section
3.4.103(A) to keep the public sidewalk clear of debris. See Code §
3.4.103(A) (“Every owner and occupant of real property . . . shall
keep the public sidewalks which abut or are adjacent to their real
property . . . in a clean condition free from projections and
obstructions across the surface, debris, litter, or dangerous
23
conditions not involving the structural integrity of the sidewalk.”).
Such an interpretation would, in our view, be inconsistent with the
plain language of section 3.4.103(D), which imposes civil liability on
owners or occupants of real property for any injury proximately
caused by their failure to comply with the provisions of section
3.4.103.
¶ 45 We also find it instructive that in part 2 of article 4, titled
“SNOW REMOVAL,” section 3.4.202(A) and (B) states that owners of
real property have an affirmative obligation to remove snow and ice
from the sidewalk abutting or adjacent to their property within
certain time limits to protect public safety, and that “[v]iolation of
this duty shall constitute negligence per se and an unlawful act,
subjecting the violator to civil liability for any injury proximately
caused by the violation, civil liability for the costs of removal and
criminal prosecution.” This Code provision further illustrates the
City’s intent to craft a broad statutory framework that imposes civil
liability in certain instances on owners and occupants of real
property who breach duties imposed on them by the Code. Cf.
Burbach, 224 P.3d at 439; Easton, 854 P.2d at 1364-65.
24
¶ 46 In sum, based on our analysis of the plain language and
statutory framework of the Code, we conclude that the provisions of
section 3.4.103 are unambiguous and express a clear legislative
intent to impose civil liability when an owner or occupant of real
property fails to notify the City Engineer about any damage to the
public sidewalk adjacent to his or her real property, see Code
§ 3.4.103(B), and the owner’s or occupant’s failure to notify the City
Engineer about the damaged public sidewalk proximately causes
injury to a third party. Because we conclude that section
3.4.103(D) is unambiguous, we also conclude that the general
common law “no duty” rule is inapplicable here. See Vigil, 103 P.3d
at 327 (stating that deviations from the common law must be
clearly expressed); cf. Burbach, 224 P.3d at 439-40 (declining to
deviate from the “no duty” rule where the municipal code at issue
did not expressly impose civil liability for violation of its provisions).
Accordingly, the district court erroneously entered summary
judgment for Johnson on Andrade’s common law negligence claim
based on the court’s application of the “no duty” rule.
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D. Application
¶ 47 Although we interpret section 3.4.103(B) to impose a duty on
owners and occupants of real property to notify the City Engineer of
damage to an adjacent or abutting public sidewalk, and interpret
section 3.4.103(D) to impose civil liability on owners or occupants of
real property who breach this duty to notify when their breach is
the proximate cause of a third party’s injury, that does not mean
that Johnson is necessarily civilly liable for Andrade’s injuries. On
the record before us, there are genuine issues of material fact as to
whether the public sidewalk was in fact damaged and whether
Johnson’s failure to notify the City Engineer of the alleged damage
proximately caused Andrade’s injuries. See Kaiser, 741 P.2d at
718. The district court did not consider these issues in its
summary judgment order.
¶ 48 The record contains an affidavit from the Streets Manager of
Colorado Springs stating that the City had not received any
complaints from Johnson that the sidewalk adjacent to her property
was damaged. However, Johnson only had a duty pursuant to
section 3.4.103(B) to notify the City Engineer of damage to the
public sidewalk adjacent to her property if the sidewalk was
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actually damaged. Here, the parties dispute whether the sidewalk
was in fact damaged.
¶ 49 The record contains two different sets of photographs, one set
supplied by each party, of the sidewalk adjacent to Johnson’s
home. Each set of photographs depicts different parts of the
sidewalk and different areas of possible damage. Johnson contends
that there is no damage to the public sidewalk adjacent to her
house at all; but given the conflicting photographs and the parties’
dispute regarding whether or not the public sidewalk adjacent to
Johnson’s home was damaged, that is an issue that cannot be
resolved by summary judgment on this record. See id. (stating that
“summary judgment is a drastic remedy, and is not a substitute for
a trial of disputed facts”).
¶ 50 Similarly, the district court record does not contain any
evidence regarding the issue of proximate cause — specifically,
whether Johnson’s failure to notify the City Engineer of the alleged
damage to the public sidewalk adjacent to her property proximately
caused Andrade’s injuries. See id.; In re Estate of Heckman, 39 P.3d
1228, 1232 (Colo. App. 2001) (“Proximate cause is ordinarily a
question of fact for the jury and may be decided as a matter of law
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only when reasonable minds could draw but one inference from the
evidence.”). Therefore, the case must be remanded to the district
court for further proceedings on these issues.
V. Conclusion
¶ 51 With respect to that aspect of the summary judgment on
Andrade’s premises liability claim under the Act, the judgment is
affirmed. With respect to that aspect of the summary judgment on
Andrade’s common law negligence claim, the judgment is reversed.
The case is remanded to the district court with directions to
conduct further proceedings on Andrade’s common law negligence
claim because there are genuine issues of material fact as to
whether the public sidewalk was damaged and whether Johnson’s
failure to report the alleged damage to the City Engineer
proximately caused Andrade’s injuries.
¶ 52 Accordingly, the judgment is affirmed in part, reversed in part,
and the case is remanded to the district court with for further
proceedings consistent with this opinion.
JUDGE NIETO and JUDGE CASEBOLT concur.
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