By Zachary A. Goldberg, Winzenburg, Leff, Purvis & Payne, LLP
How concerned should Colorado common interest communities be about civil liability arising from third-party criminal acts committed on the Common Elements?
Until recently, a common answer may have been something like: Not terribly concerned at all, especially in communities where individual owners share fractional, undivided interests in the Common Elements. Trailside Townhome Ass'n v. Acierno, 880 P.2d 1197 (Colo. 1994) is a seminal case on this issue, involving a townhome owner severely injured after diving into a community swimming pool. Colorado’s Premises Liability Statute focuses on whether the injured person was a “trespasser,” who enters the property without the owner’s consent; a “licensee,” who enters the property for his own interests with the owner’s consent, like a social guest; or an “invitee,” who enters the property to transact business with the owner’s consent or at the owner’s invitation, like a vendor. In Trailside, the Supreme Court of Colorado held that the owner was not considered a “licensee” for purposes of premises liability analysis, but that the Declaration was the source of the applicable Association standard of care. Unlike an owner who has a right to use common areas without Association consent by virtue of her ownership, trespassers, licensees, and invitees have no right to enter the property without landowner consent. The Court concluded that if an Association’s governing documents contain a standard of care as to owners, those provisions control. If not, courts will look to general principles of negligence.
Thus, the crux of premises liability concerns—at least relative to individual owners—has historically been linked to an association’s standard of care per the governing documents, if any, coupled with a standard negligence gap filler. Thus, even for planned communities, or others in which Common Elements are association-owned, common law negligence principles, as opposed to the Premises Liability Statute, are the source of a community association’s duty of care, at least to individual owners. But a recent, as-yet-unresolved, skirmish among Colorado courts and legislatures stemming from the 2019 mass shooting at the Rocky Mountain Planned Parenthood (RMPP) in Colorado Springs could signal a broader Association duty to owners and tenants, and proportionately broader liability risk, relative to third-party criminal acts.
Why, one might ask, would that tragedy perpetrated by a mass shooter with religio-political motives have any bearing on common interest communities’ duties of care and potential liability?
Like RMPP, a common interest community is considered a “landowner” for premises liability purposes and may now be a more prominent and frequent target for lawsuits stemming from shootings and other violent attacks. In Rocky Mountain Planned Parenthood, Inc. v. Wagner, 467 P.3d 287 (Colo. 2020)., the Supreme Court of Colorado granted certiorari to weigh in on whether individuals who cause mass casualties without regard to their own survival or capture are necessarily the predominant cause of harm to their victims, such that a landowner cannot be liable under the Premises Liability Statute. The Colorado Court of Appeals held, and the Supreme Court of Colorado affirmed, that a landowner can be held liable as a substantial factor in causing harm without considering whether a third-party criminal act was the cause of that harm.
In 2022, the Colorado State Senate introduced Colorado Senate Bill 22-115 which, if codified into law, would directly contravene the Wagner holdings on this issue, and a related one as to the foreseeability of third-party criminal conduct based upon whether the goods or services offered by a landowner are “controversial.”The Bill expressly states that the Wagner cases “are contrary to the stated purpose of the landowner liability statute to the extent that it does not create a legal climate that will promote private property rights and commercial enterprise and foster the availability and affordability of insurance.” In addition to an express declaration that the Wagner cases were improperly decided, the bill would redefine “landowner” under the Premises Liability Statute as “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.”
Nevertheless, and although Trailside is still “good law,” unless or until the legislature scales back the substantial landowner liability augmentation effect of the Wagner cases, community association Boards, managers, and insurers may be more exposed to lawsuits by victims, and potential related civil liability and costs, following violent criminal acts within the communities they serve. While community associations may provide services less controversial than Planned Parenthood services, entities offering “controversial” services and “noncontroversial” services alike are now susceptible to heightened potential liability in connection with third-party criminal acts committed on property they operate and control and, importantly, this issue will have important liability insurance coverage and cost implications.
Zachary A. Goldberg is an attorney with the law firm of Winzenburg, Leff, Purvis & Payne, LLP, headquartered in Littleton, Colorado. His practice includes counseling and advocating on behalf of Colorado common interest communities.
