HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 049 - Order BCH Services Mot Summ JPage1 of1
COURT,DISTRICT COUNTY, COLORADOLARIMER (FT COLLINS)
Court Address:
201 LAPORTE AVENUE, SUITE 100, FORT COLLINS, CO, 80521
Plaintiff(s)CHRISTIAN HIGGINS
v.
Defendant(s)CITY OF FORT COLLINS et al.
COURT USE ONLY
Case Number:2023CV30276
Division:4C Courtroom:
Order:Defendant BCH Services, LLC's Motion to Summary Judgment
The motion/proposed order attached hereto: REVIEWED.
Under the amended deadlines for dispositive motions, this motion is not timely. Nor has Defendant stated any good cause for
this timely filing. Accordingly, the reply deadline for this motion is May 21, 2024, so as not to prejudice either the Plaintiff or
the Court.
Issue Date:4/26/2024
LAURIE KAZUE DEAN
District Court Judge
DATE FILED: April 26, 2024 11:23 AM
CASE NUMBER: 2023CV30276
DISTRICT COURT, LARIMER COUNTY,
COLORADO
Larimer County Justice Center
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521
____________________________________________
Plaintiff:
CHRISTIAN HIGGINS
v.
Defendants:
CITY OF FORT COLLINS;
C&L WATER SOLUTIONS, INC.;
SUNBELT RENTALS, INC.;
KODIAK FIELD SERVICES, LLC; and
BCH SERVICES, LLC
_____________________________________________
Attorneys for Defendant BCH Services, LLC
Attorney: Arthur J. Kutzer, #18878
Address: SGR, LLC
3900 East Mexico Avenue, Suite 700
Denver, CO 80210
Telephone: (303) 320-0509
Facsimile: (303) 320-0210
E-mail: akutzer@sgrllc.com
COURT USE ONLY
_____________________________
Case Number: 2023CV30276
Ctrm/Div: 4C
DEFENDANT BCH SERVICES, LLC’s
MOTION FOR SUMMARY JUDGMENT
Defendant, BCH SERVICES, LLC, by and through attorneys, SGR, LLC, submits its
C.R.C.P. 56 motion for summary judgment.
Although arguably, conferral is unnecessary on a motion for complete dismissal, conferral
on this motion was made with Plaintiff’s counsel and the relief requested is opposed.
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I. INTRODUCTION
In this premise liability suit, Plaintiff claims she fell from her bicycle while on the city
street in Ft. Collins. She alleges her rear tire contacted a hose placed across the roadway. The hose
allegedly is related to a City of Ft. Collins project where it contracted with C&L Water Solutions,
who subcontracted with Sunbelt Rentals and Kodiak to do the work on the project. BCH Services,
LLC, merely provides day laborers directed by the co-defendants. BCH Services had no role in
managing/supervising the project, nor any role in placing the hose across the roadway. No party
even suggests that BCH Services had any control over the project or area of the incident or had
any responsibility for seeking a permit or placing flagging for the hose to be across the road. There
is no evidence a BCH Services day laborer placed the hose across the road.
III. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate when there are no disputed genuine issues of material
fact. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988). A material fact is a fact
affecting the outcome of the litigation. Cooperative Fin. Ass’n, Inc. v. B & J Cattle Co., 937 P.2d
915, 917 (Colo. App. 1997). Whether there is a genuine issue regarding a material fact is a question
of law. Id.; Shultz v. Wells, 13 P.3d 846, 848 (Colo. App. 2000). To survive summary judgment, a
plaintiff must prove all the elements of a claim. Jarnagin v. Busby, Inc., 867 P.2d 63, 69 (Colo.
App. 1993). To avoid summary judgment related to a PLA claim, the plaintiff must present
competent and admissible evidence establishing each claim element. Camacho v. Mennonite Bd.
of Missions, 703 P.2d 598, 600 (Colo. App. 1985).
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When a moving party demonstrates an absence of evidence supporting the non-moving
party’s case, the burden shifts to the non-moving party to demonstrate a triable issue of material
fact. Reyher v. State Farm Mut. Auto Ins. Co., 171 P.3d 1262, 1265 (Colo. App. 2007). The non-
moving party must set forth specific facts demonstrating a genuine issue for trial. C.R.C.P. 56(e).
A genuine issue cannot be raised by arguments of counsel. Conrad v. Imatani, 724 P.2d 89, 93
(Colo. App. 1986).
B. Premises Liability Standard
Under the Premises Liability Act, C.R.S. § 13-21-115 (“PLA”), a “landowner” is defined
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.” These definitions are read in the disjunctive. See
Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002) (Pierson II) (landowner
definition directs alternative inquiries); see also Wark v. United States, 269 F.3d 1185 (10th Cir.
2001) (“landowner” includes three types of persons: agents, possessors, and parties legally
responsible for the condition of the property). The premises liability act sets forth when a
“landowner” may be held liable for the condition of or activities conducted on its property, Casey
v. Christie Lodge Owners Ass’n, 923 P.2d 365 (Colo. App. 1996), and provides the exclusive
remedy against a landowner for injuries sustained on the landowner’s property. Thornbury v. Allen,
991 P.2d 335 (Colo. App. 1999); see also Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459
(D.Colo.1997).
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V. ARGUMENT
A. BCH Services, LLC was not a landowner under the Premises Liability Act, C.R.S. §
13-21-115
Relief under the Premises Liability Act (“PLA”), found in C.R.S. § 13-21-115, is limited
to claims against “landowners”. C.R.S. § 13-21-115(1) defines a “landowner” as “an authorized
agent or a person in possession of real property and a person legally responsible for the condition
of the real property or for the activities conducted or circumstances existing on real property.”
Whether a defendant is in possession of real property hinges on the degree of control the defendant
extended over the premises. See, e.g., Wilson v. Marchiondo, 124 P.3d 837, 840 (Colo. Ct. App.
2005).
As a threshold matter, BCH Services, LLC was not a “landowner” under the PLA per the
ruling in Henderson v. Klean Janitorial Inc., 70 P.3d 612 (Colo. App. 2003). The legal analysis of
Henderson applies to this action. In Henderson, the plaintiff claimed he was injured when he
slipped and fell down a flight of stairs at his place of employment, a telephone call center in an
office building which his employer leased from the building owner. Id. at 613. As the plaintiff
descended the stairs, he slipped on water on the steps. Id. Thereafter, the plaintiff sued a contractor
who was hired by the property manager on behalf of the building owner to perform cleaning and
maintenance services at the building. Id. The plaintiff alleged that the defendant contractor was in
possession and control of the premises, permitted a dangerous permission to exist, and failed to
warn of the existence of the condition. Id. The defendant’s motion for summary judgment was
granted on two alternative bases: (1) that the defendant was not a landowner under the PLA, and
(2) as a matter of law, defendant did not breach the duty of care owed to the plaintiff.
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The court of appeals upheld the trial court’s decision to grant summary judgment. Id. The
Henderson court determined that the defendant contractor was not “sufficiently in control of the
property to be a ‘landowner’” under the first part of the statutory disjunctive analysis because,
under the terms of the undisputed contract, the property manager retained control over the
maintenance of the facility, including the manner and method of the defendant’s cleaning services.
Id. at 614. Similarly, the court agreed that the defendant’s maintenance services was not a sufficient
link to the purpose of the property for the defendant to be in possession of it. Id. Although the
court found that the defendant was a “landowner” under the second part of the analysis because it
was responsible for creating a condition or conducting an activity on the property that allegedly
resulted in injury to the plaintiff, that is not the situation here where BCH Services had no
responsibility for the project and did not place the hose across the road. In Henderson, the court
specifically noted that, “pursuant to its contractual obligation to clean the facility, the defendant
was responsible for conducting an activity on the property that allegedly resulted in injury to the
plaintiff. Id. It was undisputed that the plaintiff slipped and fell on water present on the stairs and
that the defendant had a contractual obligation to mop any spills of which it was aware. Id. It was
further undisputed that the defendant’s employee had received a call to clean up a spill on the
stairwell where the plaintiff fell. Unlike the facts in Henderson, only the co-defendants had
responsibility for the project including planning for permitting and flagging the roadway for their
plan to place the hose across the road. See Wark v. United States, 269 F.3d 1185 (10th Cir. 2001)
(defendant was not legally responsible for condition of road because it never contracted with record
owner to maintain road).
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Here, BCH was not a landowner because the City and its co-defendant contractors had
control of the work being done, control over the street as well as supervising all work done. Unlike
the maintenance contract in Henderson, BCH’s role was simply providing a temporary worker
who was solely to take directions and be supervised by those contractors doing the work.
Under Henderson, providing a day laborer to take direction from the co-defendants
contracted to work this project is not a sufficient link to find that BCH was in sufficient possession
or control of the City’s street to be considered a landowner under the PLA. There is no evidence
that a BCH employee had any role in placing the hose in the roadway. However, it is undisputed
that the location of the incident was owned by the City and had contracted with the co-defendants
to do the work at the site.
Secondly, like Wark, supra, BCH was not legally responsible for the condition of the street
because it never contracted to be responsible for any aspect of the project performed by co-
defendants.
Even if BCH was a landowner under the statute, arguendo, Plaintiff cannot establish the
elements of a PLA claim as to BCH, regardless of her status under the PLA because: (1) there is
no evidence that a BCH employee placed the hose; (2) there is no evidence that BCH failed to use
reasonable care related to dangers created by BCH that it actually knew about, nor that it failed to
use reasonable care to warn of a danger on the property that it did not create that is not normally
present on the property; and 3) there is no evidence that BCH unreasonably failed to exercise
reasonable care to protect against dangers of which it actually knew or should have known.
McIntire v. Trammell Crow, Inc., 172 P.3d 977, 980 (Colo. App. 2007) (summary judgment
entered where there was no evidence that the defendant’s agent actually knew or should have
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known about the dangerous condition); see also Casey v. Christie Lodge Owners Ass’n, Inc., 923
P.2d 365, 366 (Colo. App. 1996) (evidence of a repair by itself was insufficient to create a genuine
issue of material fact whether the plaintiff failed to correlate the repair to any evidence that the
defendant knew or should have known about the dangerous condition); Wright v. Vail Run Resort
Cmmty. Ass’n, 917 P.2d 364, 365 (Colo. App. 1996) (defendant was entitled to summary judgment
where the plaintiff failed to controvert the defendant’s lack of actual knowledge regarding a
dangerous condition).
B. Plaintiff Cannot Prove a Negligence Claim Against BCH
The Premises Liability Act (PLA), C.R.S. § 13-21-115, provides the exclusive remedy for
a plaintiff injured on real property. Vigil v. Franklin, 103 P.3d 322, 326 (Colo. 2004).
Consequently, to the extent that BCH were to be found a landowner, the Plaintiff’s negligence
claim would fail as a matter of law. Therefore, BCH Services, LLC should be dismissed.
Respectfully submitted,
SGR, LLC
By: /s/ Arthur J. Kutzer
Arthur J. Kutzer, #18878
Attorneys for Defendant
BCH Services, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of April, 2024, a true and correct copy of the
above and foregoing was electronically served via Colorado Courts E-Filing system to all counsel
of record.
/s/ Tammy Stephenson
Legal Secretary
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