Kritzer v. Qwest Corp.

2025 COA 54

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 23CA2197
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 29, 2025

2025COA54

No. 23CA2197, Kritzer v. Qwest Corp. — Parks and Wildlife — Colorado Recreational Use Statute — Owners of Recreational Areas — Limitation on Landowner’s Liability — Invites or Permits

In this civil case, plaintiffs appeal a district court’s grant of

summary judgment based on the Colorado Recreational Use Statute

(CRUS), sections 33-41-101 to -106, C.R.S. 2024. In granting

summary judgment, the district court applied CRUS and

determined that the defendant-landowner was shielded from

liability for injuries one of the two plaintiffs sustained while

bicycling over a sidewalk panel that the defendant-landowner

purportedly had an obligation to maintain.

As relevant to this appeal, CRUS grants land “[o]wner[s],” as

broadly defined in section 33-41-102(3), C.R.S. 2024, immunity

from liability for injuries incurred on their land when such owners “either directly or indirectly invite[] or permit[], without charge, any

person to use such property for recreational purposes,” § 33-41-

103(1), C.R.S. 2024.

A division of the court of appeals, as a matter of first

impression, considers what “invites or permits” means under CRUS.

Because the division concludes that the district court erred in its

determination that the defendant “invited” or “permitted”

recreational use of the land at issue, the division reverses the

judgment and remands the case for further proceedings. COLORADO COURT OF APPEALS 2025COA54

Court of Appeals No. 23CA2197 Arapahoe County District Court No. 17CV32950 Honorable Elizabeth Beebe Volz, Judge

Stuart Kritzer and Janet Kritzer,

Plaintiffs-Appellants,

v.

Qwest Corporation,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur

Announced May 29, 2025

Leventhal Puga Braley P.C., Jim Leventhal, Julia T. Thompson, Nathaniel E. Deakins, Bruce L. Braley, Denver, Colorado, for Plaintiffs-Appellants

Hall & Evans, LLC, Benton J. Barton, Theresa A. Vogel, Ethan E. Zweig, Denver, Colorado, for Defendant-Appellee

Burg Simpson Eldredge Hersh & Jardine, P.C., D. Dean Batchelder, Englewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association ¶1 Plaintiffs, Stuart and Janet Kritzer (collectively, the Kritzers),

appeal the district court’s grant of summary judgment in favor of

defendant, Qwest Corporation. In granting summary judgment, the

district court applied the Colorado Recreational Use Statute (CRUS),

sections 33-41-101 to -106, C.R.S. 2024, and determined that

Qwest was shielded from liability for injuries Stuart Kritzer

sustained while bicycling over a sidewalk panel that Qwest

¶2 As relevant to this appeal, CRUS grants a land “[o]wner,” as

defined in section 33-41-102(3), C.R.S. 2024, immunity from

liability for injuries incurred on their land when such owner “either

directly or indirectly invites or permits, without charge, any person

to use such property for recreational purposes,” § 33-41-103(1),

C.R.S. 2024.

¶3 We address, as a matter of first impression, what “invites or

permits” means under CRUS. Because we conclude that the

district court erred in its determination that Qwest “invited” or

“permitted” recreational use of the land at issue, we reverse the

judgment and remand the case for further proceedings.

1 I. Background

A. The Kritzers’ Claims Against Qwest

¶4 In 2009, the Colorado Department of Transportation (CDOT)

issued a utility facility permit to Qwest to “[b]ore and install fiber

and two handholds in Cherry Hills Village” after the Cherry Creek

School District hired Qwest to install fiber optic internet service to

support numerous schools in the district. The utility permit stated,

“[Qwest] agrees to own and maintain the installation permitted

herein. The facility shall be kept in an adequate state of repair and

maintained in such a manner as to cause the least interference with

the normal operation and maintenance of the highway.” According

to Qwest’s inspector for the project, the installation was completed

in 2010.

¶5 In 2016, Stuart Kritzer was seriously injured while riding his

bike in Cherry Hills Village. In 2017, the Kritzers filed suit against

Qwest and the City of Cherry Hills Village. According to the

Kritzers’ complaint, Stuart Kritzer was riding his bike on a sidewalk

next to South University Boulevard when he rode over a sidewalk

panel that was in a state of disrepair. Because of the degraded

2 condition of the sidewalk panel, he was “ejected over the handle

bars of his bicycle and onto the pavement.”

¶6 The City of Cherry Hills Village settled with the Kritzers.

¶7 The Kritzers’ allegations against Qwest stem from the utility

facility permit that CDOT issued to Qwest regarding the parcel on

which the accident occurred. According to the Kritzers, under the

terms of the permit, “Qwest had a continuing obligation to repair

any damage to any highway facilities, including but not limited to

the sidewalk panel.” The Kritzers further alleged that the sidewalk

disrepair resulted from Qwest’s failure to properly backfill and

compact the soil and that, at the time of Stuart Kritzer’s accident,

Qwest “knew or should have known that the sidewalk was in a state

of disrepair.” The Kritzers asserted four claims for relief against

Qwest, including premises liability under the Colorado Premises

Liability Act (PLA), negligence, and loss of consortium.

B. First Grant of Summary Judgment

¶8 After the Kritzers brought suit, Qwest filed two motions for

summary judgment. In its first motion, Qwest argued, in relevant

part, that the statute of repose in the Construction Defect Action

Reform Act (CDARA), section 13-80-104(1)(a), C.R.S. 2024, barred

3 the Kritzers’ claims against it. In response, the Kritzers argued, in

part, that the statute of repose didn’t apply to Qwest because Qwest

was in “actual possession or control” of the utility and sidewalk

panel at the time of Stuart Kritzer’s accident.

¶9 Before the district court could rule on Qwest’s first motion,

Qwest filed an alternative second motion for summary judgment. In

the second motion, Qwest argued that it was shielded from liability

because it was an owner of land that qualified for immunity under

CRUS. The Kritzers responded that CRUS didn’t bar their claims

because Qwest wasn’t an owner of land under CRUS, and, in any

event, Qwest didn’t invite or permit — as those terms should be

understood under CRUS — anyone to use the sidewalk panel for

recreational purposes. The Kritzers further argued that, even if

Qwest could benefit from CRUS, that statute’s exemption for willful

or malicious conduct applied.

¶ 10 Soon after the Kritzers filed their response to Qwest’s second

motion for summary judgment, the district court issued an order

granting Qwest’s first motion for summary judgment. The court

granted the first motion based on the application of the statute of

repose under CDARA.

4 ¶ 11 The Kritzers appealed and a division of this court reversed the

district court’s order as it related to Qwest and remanded the case

for further proceedings. Kritzer v. Qwest Corp., (Colo. App. No.

20CA0025, Oct. 7, 2021) (not published pursuant to C.A.R. 35(e))

(Kritzer I).

C. Disposition of Qwest’s Second Motion for Summary Judgment

¶ 12 After the case was remanded to the district court, Qwest filed a

reply in support of its second motion for summary judgment.

Without addressing any of the issues remanded by this court in

Kritzer I, the district court granted Qwest’s second motion for

summary judgment. In its order, the district court stated, “[T]he

Court concludes that where [the Kritzers] assert that Qwest is a

‘landowner’ under the PLA, such designation permits Qwest to

invoke the limitation on liability for an owner of property pursuant

to CRUS.” The court then concluded that Qwest was an “owner”

under CRUS and that “[w]hether or not Qwest affirmatively

permitted bicycling on the sidewalk or whether or not Qwest had

the authority to preclude bicyclists from using the sidewalk does

not negate application of the statute.” The court also concluded

5 that no disputed facts existed that could support a finding that the

willful or malicious conduct exemption to CRUS applied.

¶ 13 Following the court’s grant of Qwest’s second motion for

summary judgment, the Kritzers filed a C.R.C.P. 59 motion for

postjudgment relief. The district court denied the motion.

¶ 14 The Kritzers now appeal the district court’s order granting

Qwest’s second motion for summary judgment.

II. Issues on Appeal

¶ 15 On appeal, the Kritzers contend that the district court erred

because (1) Qwest can’t benefit from CRUS because it isn’t an

“owner of land” under CRUS and it didn’t have the authority to, and

therefore couldn’t, directly or indirectly invite or permit Stuart

Kritzer to use the sidewalk panel; (2) the CDOT permit imposed an

independent legal duty on Qwest to maintain and repair the

sidewalk panel, and this duty isn’t extinguished by CRUS; and

(3) even if Qwest could benefit from CRUS, the willful or malicious

exception to CRUS applies.

¶ 16 We first address the Kritzers’ contention that Qwest didn’t

have the authority to invite or permit Stuart Kritzer to use the land.

Because we agree with the Kritzers on this issue, we conclude that

6 the district court erred in determining that CRUS shields Qwest

from liability. Because that conclusion alone necessitates reversal

of the district court’s order for summary judgment, we don’t reach

the Kritzers’ remaining claims.

III. Whether CRUS Shields Qwest from Liability

A. Relevant Provisions of CRUS and Its Relationship to the PLA

¶ 17 The purpose of CRUS “is to encourage owners of land to make

land and water areas available for recreational purposes.” § 33-41-

101. It does so by extending liability protection to owners of land

who permit or invite members of the public to freely use their land

for recreational purposes. Id.

¶ 18 To begin, CRUS defines an “owner” of land quite broadly.

Under CRUS an owner of land includes one who has a fee interest;

is a tenant, lessee, or occupant; or possesses “any other interest” in

the land at issue. § 33-41-102(3)(a)-(c).

¶ 19 In turn, “an owner of land who either directly or indirectly

invites or permits, without charge, any person to use such property

for recreational purposes does not thereby . . . [a]ssume

responsibility or incur liability for any injury to person or property

7 or for the death of any person caused by an act or omission of such

person.” § 33-41-103(1)(c); cf. § 33-41-104(1)(a), C.R.S. 2024

(CRUS doesn’t protect an owner of land from liability “[f]or willful or

malicious failure to guard or warn against a known dangerous

condition.”).

¶ 20 But if an owner of land “is not entitled to protection under

[CRUS], his liability depends on the status of users of his property.”

Nelson v. United States, 827 F.3d 927, 930 (10th Cir. 2016). The

PLA allows for an injured party to recover against a landowner

based upon the injured party’s status as a trespasser, licensee, or

invitee. § 13-21-115(2)(a), (4)(a)-(c), C.R.S. 2024. Of these statuses,

a landowner owes an invitee “the highest duty of care.” Nelson, 827

F.3d at 931.

¶ 21 Thus, determining whether a defendant is protected by CRUS

involves two steps: (1) determining whether the defendant is an

“owner” of land under section 33-41-102(3); and, if the defendant is

an owner of land, (2) determining whether the defendant “invite[d]

or permit[ted], without charge,” anyone to use the land at issue for

recreational purposes under section 33-41-103(1). Accordingly, for

Qwest to be entitled to immunity under CRUS, Qwest must satisfy

8 both conditions; in contrast, Qwest isn’t entitled to summary

judgment on immunity under CRUS if either condition isn’t

satisfied as a matter of law.

B. Standard of Review and Preservation

¶ 22 We review a district court’s grant of summary judgment de

novo and apply the same standard as the district court. S. Cross

Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 11.

Summary judgment is appropriate only “when no genuine issue of

material fact exists and the moving party is entitled to judgment as

a matter of law.” Id. at ¶ 12. The “burden of establishing the

nonexistence of a genuine issue of material fact” is on the party

moving for summary judgment. Univ. of Denver v. Doe, 2024 CO

27, ¶ 8. But “[t]he party opposing summary judgment . . . is

entitled to the benefit of all favorable inferences that may

reasonably be drawn from the facts.” Id.

¶ 23 Qwest contends that several of the arguments the Kritzers

advance on appeal are unpreserved because they didn’t make the

identical argument to the district court. Examples Qwest identifies

include the Kritzers’ arguments about the ambiguity of CRUS,

specific contentions regarding the nature of Qwest’s interest in the

9 land at issue, and their effort to distinguish an Oregon Supreme

Court case — McCormick v. State, 466 P.3d 10 (Or. 2020) —

interpreting Oregon’s recreational immunity statute. We conclude,

however, that the Kritzers properly preserved the issues that we

address in this opinion. In the district court, the Kritzers asserted

that Qwest wasn’t an owner of land under CRUS and that Qwest

didn’t directly or indirectly invite or permit Stuart Kritzer to use the

sidewalk panel because Qwest had no right to exclude him from the

land. And the district court had an opportunity to rule on these

arguments. See Dill v. Rembrandt Grp., Inc., 2020 COA 69, ¶ 24

(“To preserve an issue for appeal, all that is necessary is that the

issue ‘be brought to the attention of the trial court and that the

court be given an opportunity to rule on it.’” (quoting Berra v.

Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010))).

¶ 24 We review issues of statutory interpretation de novo. See Colo.

State Bd. of Educ. v. Brannberg, 2023 CO 11, ¶ 15. And when

construing a statute, we strive “to give effect to the General

Assembly’s intent by according words and phrases their plain and

ordinary meanings.” State Farm Mut. Auto. Ins. Co. v. Fisher, 2018

CO 39, ¶ 12. If “statutory language is unambiguous, our work is

10 complete, and we need not resort to other tools of statutory

interpretation.” Miller v. Amos, 2024 CO 11, ¶ 12. “If the statute is

ambiguous, however, then we may consider ‘the legislature’s intent,

the circumstances surrounding the statute’s adoption, and the

possible consequences of different interpretations to determine the

statute’s proper construction.’” Educ. reEnvisioned BOCES v. Colo.

Springs Sch. Dist. 11, 2024 CO 29, ¶ 33 (quoting Elder v. Williams,

2020 CO 88, ¶ 18). “A statute is ambiguous when it is reasonably

susceptible of multiple interpretations.” Elder, ¶ 18.

C. Analysis

¶ 25 As noted before, to be able to invoke CRUS as a shield on

summary judgment, Qwest must establish both that it is an owner

of land, § 33-41-102(3), and that it invited or permitted the use of

that land for recreational purposes, § 33-41-103(1). We address the

latter contention first, and because it’s dispositive we don’t reach

the merits of the former contention.

1. Whether Qwest Invited or Permitted Recreational Use of the Sidewalk Panel

¶ 26 The Kritzers contend that, regardless of whether Qwest is an

“owner of land” under CRUS, it isn’t shielded by CRUS’s liability

11 limitation because Qwest “lacked legal right or authority to directly

or indirectly permit, or charge a fee to, the public to use the

sidewalk panel for recreational purposes.” We agree.

a. Meaning of “Invites or Permits”

¶ 27 The relevant portion of the immunity provision of CRUS reads

as follows:

[A]n owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose;

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;

(c) Assume responsibility or incur liability for any injury to person or property . . . caused by an act or omission of such person.

§ 33-41-103(1)(a)-(c) (emphasis added).

¶ 28 While CRUS conditions an owner’s liability on whether the

owner of land “invites or permits” people to use its property for

recreational purposes, CRUS doesn’t explicitly define either term.

§§ 33-41-102, -103. Therefore, we must attempt to ascertain the

plain and ordinary meaning of “invites or permits,” as those words

12 are used in section 33-41-103(1). We begin this analysis by

considering the dictionary definition of “invites” and “permits.” See

People v. Harrison, 2020 CO 57, ¶ 16 (“To ascertain the plain and

ordinary meaning of a word in a statute, ‘we may consider a

definition in a recognized dictionary.’” (quoting Cowen v. People,

2018 CO 96, ¶ 14)).

¶ 29 First, we look at the word “invites.” The dictionary definition

of “invites” indicates that some affirmative action on the part of the

one doing the inviting is required. Webster’s, for example, defines

“invite” as “to request the presence or participation of,” “to provide

opportunity or occasion for,” or “to offer an incentive or inducement

to.” Webster’s Third New International Dictionary 1190 (2002).

Inherent in the definition of invite is that the inviter must take some

affirmative step to entice or encourage the invitee to take some

action.

¶ 30 “Permits,” on the other hand, is more passive than “invites.”

Black’s Law Dictionary defines the verb “permit” as “[t]o give

opportunity for; to make (something) happen” or “[t]o allow or admit

of.” Black’s Law Dictionary 1374 (12th ed. 2024). Webster’s

similarly defines “permit” as “to consent to expressly or formally” or

13 to “grant leave for or the privilege of.” Webster’s Third New

International Dictionary at 1683. Though more passive than

“invite,” permit still implies some authority to restrict. Cf. New

Webster’s Dictionary and Thesaurus of the English Language T-43

(1992) (listing antonyms for “permit” as “bar, forbid, inhibit, oppose,

restrain; ban, embargo, inhibition, injunction, restriction”); City of

Colorado Springs v. Bd. of Cnty. Comm’rs, 895 P.2d 1105, 1114

(Colo. App. 1994) (relying on antonyms of the word “significant” to

assist in the understanding of its meaning). After all, how can one

be said to permit something that the actor has no authority to

control? Cf. Bryan A. Garner, Garner’s Dictionary of Legal Usage 46

(3d ed. 2011) (“The words allow and permit have an important

connotative difference. Allow . . . suggests merely the absence of

opposition, or refraining from a proscription. In contrast permit

suggests affirmative sanction or approval.”).

¶ 31 That “permits” in the context of CRUS requires some ability to

prohibit or limit is consistent with the Tenth Circuit’s analysis of

CRUS in Nelson. In Nelson, a cyclist sued the Air Force Academy

after he struck a sinkhole on a path located on Air Force Academy

property and injured himself. 827 F.3d at 929. The Nelson court

14 concluded that the Air Force Academy wasn’t liable to the cyclist

under CRUS because the Air Force Academy “indirectly permitted”

the cyclist to use the land. Id. at 933. In assessing whether the Air

Force Academy permitted the cyclist to use the land, the court

considered the district court’s findings that the Air Force Academy

“never prevented usage of the path or took steps to close it off to the

public.” Id. at 932.

¶ 32 The Nelson court focused on whether the Air Force Academy

had the authority to exclude recreational users from the path. And

it’s clear from the opinion that the Air Force Academy did indeed

possess that authority because it’s noted that “[a]fter the accident,

the Academy closed the path.” Id. at 929.

¶ 33 Qwest, relying on McCormick, contends that “permits” doesn’t

include a right to exclude. In McCormick, the plaintiff sued the

State of Oregon after he injured himself diving into a lake. 466 P.3d

at 11. The State had built roads and “day use” areas in the park

surrounding the lake, and it would have been “difficult” to access

the lake without these areas. Id. Oregon’s recreational use statute

provides that an owner of land isn’t liable for any tort “that arises

out of the use of the land for recreational purposes . . . when the

15 owner of land either directly or indirectly permits any person to use

the land for recreational purposes.” Id. at 12 (quoting Or. Rev. Stat.

§ 105.682 (2024)) (emphasis modified). The State asserted that,

under Oregon’s recreational use statute, it was immune from

liability because it had “permitted” the plaintiff to use the lake. Id.

The plaintiff responded that because under Oregon law the public

was entitled to use the lake (and, therefore, the State couldn’t

prohibit his use of it), the State didn’t “permit” his use of the lake

and, therefore, Oregon’s recreational use statute afforded no

protection. Id. at 12-13.

¶ 34 The McCormick court agreed with the State, concluding that

“an owner’s ability to ‘permit’ recreational use of its land is not

contingent upon whether it can prohibit that use”; rather, an

“owner can ‘permit’ recreational use of its land in a variety of ways,

ranging from express consent to mere tolerance.” Id. at 15.

¶ 35 Qwest urges us to follow the Oregon Supreme Court’s lead and

give the term “permit” in CRUS a similarly relaxed meaning. We

aren’t persuaded to do so for two reasons.

¶ 36 First, the two statutes are materially different. Colorado

extends protection when an owner of land “invites or permits” use,

16 § 33-41-103(1) (emphasis added); whereas, the Oregon statute

limits protection to circumstances where the owner “permits” the

use, Or. Rev. Stat. § 105.682. The gloss on the word permit

adopted by the Oregon Supreme Court in McCormick wouldn’t have

been necessary had the court been applying Colorado’s statute.

This is so because CRUS includes the term “invites,” and by

building roads and “day use” areas in the park surrounding the

otherwise inaccessible lake, a court could have readily concluded

that the State “indirectly invite[d]” recreational use of the lake.

§ 33-41-103(1).

¶ 37 Second, Colorado has a longstanding and well-settled practice

that “[a] statutory grant of immunity, in derogation of the common

law, should be interpreted narrowly, and any exceptions to that

immunity, for the protection of injured persons, should be

construed broadly.” Waneka v. Clyncke, 134 P.3d 492, 497 (Colo.

App. 2005), aff’d, 157 P.3d 1072 (Colo. 2007); see also, e.g.,

Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000) (interpreting

Colorado Governmental Immunity Act); Lin v. City of Golden, 97

P.3d 303 (Colo. App. 2004) (same). It isn’t clear that Oregon follows

17 the same interpretive practice, and regardless there is no discussion

of the principle in McCormick.

¶ 38 Based on the foregoing, we conclude that the word “permits” in

the context of section 33-41-103(1) of CRUS unambiguously

requires some ability or authority on the part of the party invoking

immunity to prohibit or limit in some way the use of the land for

recreational purposes.

¶ 39 Moreover, the interpretation we adopt above is consistent with

the purpose of CRUS, which “is to encourage owners of land to

make land and water areas available for recreational purposes by

limiting their liability toward persons entering thereon for such

purposes.” § 33-41-101. If an owner of land who doesn’t have any

authority to limit or restrict a recreational user from using the land

is nevertheless immunized when the land is used for that purpose,

then the limited liability provided by CRUS isn’t incentivizing that

owner to open their land to recreational users. Put differently, the

interpretation urged by Qwest would allow an owner of land to

benefit from limited liability under CRUS even though the owner

isn’t doing anything to further the purpose of the statute.

18 Considering the purpose of CRUS, we conclude that that wasn’t the

legislature’s intent.

¶ 40 Thus, even if we were to conclude that the word “permits” in

section 33-41-103(1) is ambiguous, we would reach the same

conclusion regarding its meaning.

¶ 41 With this understanding of the meaning of the terms “invites”

and “permits” in mind, we turn to whether the district court erred

in granting summary judgment in favor of Qwest on the basis that

it was immune from liability under CRUS.

b. Application

¶ 42 For the reasons detailed below, we conclude that Qwest didn’t

establish as a matter of law that it directly or indirectly invited or

permitted Stuart Kritzer or anyone else to use the land for

i. Qwest Didn’t Invite Recreational Use

¶ 43 There is simply no evidence in the record that Qwest directly

or indirectly invited Stuart Kritzer or anyone else to use the

sidewalk panel for recreational purposes. Qwest points to nothing

in the record indicating that it took any action to entice or assist

recreational users like Stuart Kritzer to use the sidewalk panel.

19 Rather, Qwest purportedly removed an already existing sidewalk

panel and replaced it with a new one once it finished installing the

fiber optic cable and handholds.

¶ 44 Notwithstanding this absence of evidence, Qwest contends

that by alleging that Stuart Kritzer was an invitee under the PLA,

the Kritzers effectively admitted that “Qwest expressly or impliedly

invited” Stuart Kritzer to use the sidewalk panel for recreational

purposes. We reject this contention for two reasons.

¶ 45 First, Qwest’s argument rests on an improper conflation of the

meaning of “invitee” under the PLA with “invites” under CRUS.

Under the PLA, “invitee” is an injured party’s status vis-a-vis the

landowner. See § 13-21-115(2)(a); see also Henderson v. Master

Klean Janitorial, Inc., 70 P.3d 612, 615 (Colo. App. 2003). But

under CRUS, “invites” is an action taken by an owner of land. See

¶ 46 Second, even if a plaintiff’s allegation that they’re an “invitee”

under the PLA is tantamount to an admission that a landowner

under the PLA invited recreational use of the property, such an

allegation doesn’t carry the automatic inference that all of the

potential PLA landowners invited the plaintiff to use the premises.

20 See Henderson, 70 P.3d at 615-16 (concluding that (1) defendant

cleaning company was a landowner under the PLA because,

pursuant to its contract, it “had a legal responsibility for the

condition of the stairs and was potentially liable for injuries

resulting from that condition”; and (2) defendant cleaning company

owed the plaintiff a duty care commensurate with that which a

landowner owes to an invitee because the property owner had an

obligation to maintain the property and this obligation was

delegated to the cleaning company by virtue of its contract); see

also Willis v. Twin Shores Master Owner Ass’n, 2025 COA 37, ¶ 25

(“Because an individual’s status under the PLA depends on their

relationship to the landowner, that status may differ as between

two or more persons deemed to be landowners under the PLA.”).

¶ 47 Thus, we can’t conclude that Qwest established as a matter of

law that it directly or indirectly invited Stuart Kritzer to use the

sidewalk panel for recreational purposes.

ii. Qwest Didn’t Permit Recreational Use

¶ 48 Viewing the facts in the light most favorable to the Kritzers, we

also can’t conclude that, as a matter of law, Qwest permitted Stuart

Kritzer or anyone else to use the sidewalk panel for recreational

21 purposes. We reach this conclusion because there is no evidence in

the record that Qwest had any authority under the CDOT permit or

otherwise to restrict, limit, or curtail anyone’s use of the sidewalk

panel for recreational purposes. Qwest’s bare acquiescence without

any authority to do otherwise doesn’t establish that Qwest directly

or indirectly permitted the land at issue to be used for recreational

purposes. The district court erred by concluding to the contrary.

¶ 49 For these reasons, we conclude that the district court erred by

granting summary judgment in Qwest’s favor on the grounds that,

as a matter of law, CRUS shielded it from liability for the claims

asserted by the Kritzers.

2. Whether Qwest is an Owner of Land under CRUS

¶ 50 Because we conclude that the district court erred in

determining that Qwest invited or permitted recreational use of the

property at issue, we don’t need to — and therefore don’t — resolve

whether Qwest is an “owner of land” under section 33-41-102(3) of

CRUS. See Sedgwick Props. Dev. Corp. v. Hinds, 2019 COA 102,

¶ 31 (“[W]e follow the ‘cardinal principle of judicial restraint — if it

is not necessary to decide more, it is necessary not to decide more.’”

(quoting Mulberger v. People, 2016 CO 10, ¶ 23 (Gabriel, J.,

22 concurring in the judgment), in turn quoting PDK Lab’ies Inc. v. U.S.

Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in the judgment))).

¶ 51 Still, at oral argument, both partes invited us to resolve this

issue regardless of how we resolved the “permit or invite” issue.

After all, they say, the issue of whether Qwest is an owner of land

may well be dispositive of the Kritzers’ PLA claim, which, given our

disposition of this appeal, the district court will now have to

address. But we agree with the Kritzers that a “landowner” under

the PLA isn’t coextensive with an “owner of land” under CRUS.

Indeed, the legislature created two separate liability schemes in the

PLA and CRUS and, in doing so, set forth specific and separate

definitions of “owner.” Compare § 33-41-102(3) (defining “[o]wner”

under CRUS), with § 13-21-115(7)(b) (defining “[l]andowner” under

the PLA). And the fact that being (or not being) an “owner of land”

under CRUS doesn’t resolve whether one is a “landowner” under the

PLA stiffens our resolve not to reach an issue unnecessary to the

disposition of the case before us.

23 D. Invited Error

¶ 52 Qwest separately contends that, even if we conclude that it

isn’t entitled to benefit from CRUS, we should nevertheless affirm

the district court’s order on the grounds that the Kritzers invited

any error by advancing contradictory theories regarding the extent

of Qwest’s interest in and control over the sidewalk panel where the

accident occurred. According to Qwest, throughout this litigation

(including through the first appeal), it has been the Kritzers’

position that Qwest “owns and maintains” the sidewalk at issue and

has made “express or implied representation that the public is

requested, expected, or intended to enter or remain.”1 Because the

Kritzers asserted contradictory theories, Qwest argues, either the

six-year statute of repose in CDARA or CRUS bars their claims. We

reject this contention.

1 The latter quote comes from the Kritzers’ complaint where they

allege that “Stuart Kritzer entered the sidewalk in response to the express and implied representation that it was intended for the use of the public.” The Kritzers made this allegation to support their contention that Stuart Kritzer was an invitee under the PLA at the time of the accident. See § 13-21-115(7)(a), C.R.S. 2024. Importantly, for the purpose of this argument advanced by Qwest, however, the Kritzers don’t aver that it was Qwest that did the inviting or made the representations. This further highlights the analytical distinction between CRUS and the PLA.

24 ¶ 53 When this case was first remanded to the district court in

2021, this court instructed the district court to make further

findings on whether an exception to the CDARA statute of repose

applied. Kritzer I, No. 20CA0025, slip op. at ¶ 54. The district

court has yet to make those findings. And we’re not going to do so

here. We’re not persuaded that the positions taken by the Kritzers

up to the time that Qwest asserted immunity under CRUS are

inconsistent with the grounds on which we are reversing the district

court’s grant of summary judgment such that the court’s error was

invited or that our disposition of this appeal dictates the outcome of

unresolved issues previously remanded and still pending.

¶ 54 As alluded to in Part III.C.2 above, the applicability of the PLA

is analytically independent of the applicability of CRUS. The same

is true for the applicability of the statute of repose under CDARA.

On remand, the district court may make further findings consistent

with the instructions provided in Kritzer I, No. 20CA0025, slip op. at

¶¶ 54, 57.

IV. Other Issues

¶ 55 Because we conclude that the district court erred by granting

summary judgment on the grounds that Qwest was entitled to

25 immunity pursuant to CRUS, we don’t reach the Kritzers’

alternative contentions that (1) the CDOT permit imposed an

sidewalk panel, and this duty isn’t extinguished by CRUS; and (2)

summary judgment was improper because there are disputed

issues of material fact regarding whether the willful or malicious

exception to CRUS, § 33-41-104(1)(a), applies. We offer no opinion

with respect to these issues.

V. Attorney Fees and Costs

¶ 56 Qwest requests attorney fees and costs pursuant to section

33-41-105.5, C.R.S. 2024, C.A.R. 39, and C.A.R. 39.1. Because

Qwest didn’t prevail on appeal, it isn’t entitled to its attorney fees

incurred on appeal. Accordingly, we deny the request.

VI. Disposition

¶ 57 The judgment is reversed, and the case is remanded to the

district court for further proceedings.

JUDGE KUHN and JUDGE SCHUTZ concur.