S.W. ex rel. Wacker v. Towers Boat Club, Inc.

2013 CO 72, 315 P.3d 1257, 2013 WL 6800697, 2013 Colo. LEXIS 933

• Court: Supreme Court of Colorado
• Decided: December 23, 2013
• Docket: Supreme Court Case No. 12SC391
• Status: Published

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

T1 We granted certiorari to consider an issue of first impression: whether, under Colorado's premises liability statute, section 13-21-115, C.R.S. (2018), the attractive nuisance doctrine applies only to trespassing children but not to licensees or invitees. We hold that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. We therefore reverse the judgment of the court of appeals because it erroneously held that the attractive nuisance doctrine only protects trespassing children. On remand, the trial court must consider the merits of S.W.'s attractive nuisance claim.

I. Facts and Procedural History

[ 2 During the summer of 2008, S.W.-who was eleven years old at the time-attended a private party held by Respondent Towers Boat Club, Inc. ("Towers") as a guest of one of the boat club's member families. While S.W. and two other children were playing on a rented, inflatable bungee run,¹ a gust of wind hurled the structure somewhere between 15 and 75 feet into the air and between 100 and 200 yards across the property before it crashed back to earth. As a result of this incident, SW. allegedly sustained traumatic brain injuries, numerous areas of brain hemorrhage, a fractured left leg, and multiple fractures of his right arm.

3 Petitioners S.W. and his parents, David and Rhonda Wacker (collectively "the Wack-ers"), sued three entities: Towers, bungee run manufacturer Blaster Bouncer Jumping Castles, Inc. ("Blaster Bouncer"), and landowner North Poudre Irrigation Company ("North Poudre"). The Wackers then settled with Blaster Bouncer and North Poudre, leaving only Towers, which had rented the land from North Poudre and thus also qualified as a landowner under section 13-21-115(1). The Wackers brought three claims against Towers: (1) premises liability; (2) negligence; and (8) attractive nuisance.²

4 Towers moved for summary judgment. The trial court granted Towers' motion on the Wackers' claims of premises liability and negligence, finding that S.W. was a licensee and that Towers thus did not breach any duty owed to him; however, it denied summary judgment on the attractive nuisance claim. Towers then filed a motion for reconsideration, arguing that because S.W. was a licensee, he could not assert a claim for attractive nuisance. The trial court granted that motion, reasoning that "the attractive nuisance doctrine, as incorporated into [seetion] 183-21-115, applies only to trespassing children and not to 'licensees.' "

1 5 The Wackers appealed, arguing that (1) child licensees could bring a claim for attractive nuisance at common law, and (2) precluding S.W. from raising an attractive nuisance claim on account of his licensee status violated his constitutional right to equal protection. The court of appeals affirmed the trial court's ruling. S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 2, 318 P.3d 38. After reviewing section 13-21-115, the court of appeals concluded that "the common law doctrine of attractive nuisance applies only to trespassing children." Id. at ¶ 27. The court of appeals also rejected the Wackers' equal protection argument, holding that "there is no constitutional infirmity in treating [a trespassing] child preferentially to ... a mere licensee." Id. at ¶ 42.

T 6 In a special concurrence, Judge Gabriel opined that the majority should not have addressed the constitutional issue. Id. at 145 (Gabriel, J., specially concurring). Judge Gabriel observed that "even under [the Wackers'] view of the attractive nuisance doctrine, the attraction must have enticed the child to enter the landowner's property." Id. at ¶ 48. He thus concluded that "even if the attractive nuisance doctrine could be read to apply to invitees, licensees, and trespassers alike, as a matter of law, [the Wackers] cannot prevail on their attractive nuisance claim." Id.

T7 We granted certiorari to address an issue of first impression: whether, under the premises liability statute, section 13-21-115, the attractive nuisance doctrine and its protections are applicable only to trespassing children but not to children on premises as licensees or invitees.

II. Standard of Review

18 We review de novo the court of appeals' decision affirming the trial court's grant of summary judgment. Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 819 (Colo.2004). In this case, the pro-priecty of the trial court's decision granting summary judgment turns on its interpretation of section 13-21-115, which we also review de novo. See Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004).

IH. Analysis

T9 This case turns on the interplay between Colorado's premises liability statute, section 18-21-115, and the common law doe-trine of attractive nuisance. Section 18-21-115 provides a comprehensive scheme for determining a landowner's liability to persons injured on his land. Under the terms of the statute, persons on another's land are classified as either trespassers, licensees, or invitees³ The extent of a person's right to recover from the landowner hinges on that person's classification within this explicit trichotomy. See § 18-21-1158). The statute ranks these classifications into a logical hierarchy, as it explicitly provides that "the circumstances under which a licensee may recover include all of the cireumstances under which a trespasser could recover and ... the cireumstances under which an invitee may recover include all of the cireumstances under which a trespasser or a licensee could recover." § 18-21-115(8.5). The statute further provides that it "shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age." § 18-21-115(2). We thus begin our analysis by examining the attractive nuisance doctrine as it developed at common law.

A. The Common Law Doctrine of Attractive Nuisance

T 10 Because section 18-21-115 specifically incorporates the doctrine of attractive nuisance, our first step is to examine the precise contours of the doctrine as it developed at common law. Our survey reveals that, although the doctrine primarily featured cases involving child trespassers, its application did not turn on a child's classification within the trespasser-licensee-invitee trichotomy. Rather, the linchpin of the attractive nuisance doctrine was the intuitive concept that children, due to their youth and impulsive behavior, are instinctively drawn to certain objects and are thus prone to placing themselves in danger. For this reason, the doctrine imposed a duty on landowners to protect all children from certain attractions on their land, whether they entered the land through trespass or invitation. Therefore, all children-regardless of classification within the trichotomy-could bring a claim for attractive nuisance at common law.

T11 The earliest articulation of the attractive nuisance doctrine in the United States appears in Sioux City & P.R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) (commonly dubbed the "Turntable Case"). In that case, a six-year-old boy wandered onto a railroad company's property and injured his foot on a turntable.⁴ Id. at 657-58. The U.S. Supreme Court, considering the boy's age, held that the railroad company could be found negligent, noting that "while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negli-genee or from its tortious acts." Id. at 661. Thus, although the Court recognized that the boy was a trespasser, that fact did not underpin its holding. Rather, the critical factor was that the boy, in being attracted to the turntable, behaved as children typically do. See id. at 660 ('The care and caution required of a child is according to his maturity and capacity only. ...").

12 At the turn of the century, the attractive nuisance doctrine made its way to Colorado. In Kopplekom v. Colorado Cement-Pipe Co., 16 Colo.App. 274, 275-76, 64 P. 1047, 1047-48 (1901), a child was erushed and killed while playing with a large piece of cement piping. The court of appeals, noting that the piping "was a temptation to children who had not arrived at years of discretion and judgment," reversed the trial court's dismissal of the plaintiff's complaint. Id. at 276, 64 P. at 1048. Applying the rationale from the Turntable Case, the court stated:

If an owner sees fit to keep on his premises something that is an attraction and allurement to the natural instinets of childhood, the law ... imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such as may be attracted thereby.

Id.at 278, 64 P. at 1048 (emphasis added); see also Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 470, 84 P. 813, 815-16 (1906) (quoting this language from Kopplekom ). Crucially, the court deemed this to be the rule of law even if the child was a trespasser; it did not suggest that a child's status as a trespasser was in any way a prerequisite for the attractive nuisance doctrine to apply. See Kopplekom, 16 Colo.App. at 278, 64 P. at 1048 (stating that "[ilf it be said that ... the piping was upon private premises, that the children were trespassers, and that they were not upon the land by invitation or consent," then the outcome would remain the same because "[clhildren, wherever they go, must be expected to act upon childish instinets and impulses") (internal quotation marks omitted). This case makes plain that a landowner's duty to children at common law stemmed from the "attraction and allurement" of objects he maintained on his premises-whether a child was a trespasser was immaterial.

1 13 Nevertheless, the court of appeals determined that our precedent restricted attractive nuisance claims solely to child trespassers. S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 27, 318 P.3d 38. We recognize that a narrow reading of isolated phrases from a trio of Colorado cases-each relied upon by the court of appeals-may give rise to this mistaken impression. See, e.g., Niernberg, by Niernberg v. Gavin, 123 Colo. 1, 3, 224 P.2d 215, 216 (1950) ("[Tlhe attractive-nuisance doctrine is only an exception to the general rule limiting the liability of landowners as to trespassers...."); Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 146, 235 P. 373, 374 (1925), overruled in part by Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) ("While [a landowner] owes a duty to one invited, and some attractive agencies may amount to an invitation to a child, ... such an agency must invite to trespass and not merely after trespass, and must be an unusual thing, unusually, extraordinarily attractive, not an ordinary matter...."); Esquibel v. City & Cnty. of Denver, 112 Colo. 546, 550, 151 P.2d 757, 759 (1944), overruled in part by Mile High Fence, 175 Colo. 537, 489 P.2d 308 (quoting Hayko ).

T 14 Closer serutiny reveals, however, that while each of these cases involved trespassing children, we never rooted our holdings in the children's status as trespassers. In Niernberg, we declared the issue of attractive nuisance to be "academic" because the landowner observed the trespassing child plaintiff playing near the dangerous area and warned him to stay away, meaning the doe-trine simply did not apply. 123 Colo. at 3-4, 224 P.2d at 216. And in Esquibel, after the child plaintiff injured herself while trespassing in a junkyard, we held that the landowner could not be deemed liable because the junkyard was not sufficiently appealing to children to qualify as an attractive nuisance. 112 Colo. at 550, 151 P.2d at 759 ("Neither do we believe that this collection of junk satisfies the test announced [in Haykol as an 'unusual thing.'"). In both cases, the plaintiffs status as a trespasser was irrelevant.

" 15 The Hayko case is even more telling. There, the child plaintiff entered the defendant's shack and discovered a box of dynamite blasting caps, which exploded after he opened them, severely injuring his fingers. 77 Colo. at 144, 235 P. at 374. The trial court directed a verdiet for the defendant, and we affirmed, holding that the plaintiff could not recover under the attractive nuisance doctrine. Id. at 145, 235 P. at 374. Specifically, we stated that although a landowner "owes a duty to one invited, and some attractive agencies may amount to an invitation to a child," that duty only applies to trespassing children if the nuisance at issue is "an unusual thing, unusually, extraordinarily attractive, not an ordinary matter." Id. at 146, 235 P. at 374. Because the defendant's shack was "an ordinary matter" rather than an unusually attractive object, we forbade recovery under the attractive nuisance doctrine. We further stated that the doe-trine only applies where the landowner "maintain[s] an attraction which entices to trespass, not merely entices one after he has become a trespasser." Id. at 145, 235 P. at 374.

¶ 16 Hayko, then, specified that in order for a trespassing child to recover under the attractive nuisance doctrine, he must have observed the attractive object prior to his trespass. Nowhere in our opinion, how ever, did we expressly limit the doctrine's application to trespassers. Rather, Hayko and its progeny stand for the self-evident proposition that a landowner should not be held liable in the event that a child trespasses onto his land and then discovers an attractive nuisance. Such a rule is sound, as otherwise landowners would be vulnerable to liability regardless of how carefully they attempted to obscure attractive objects from a child's eye. See id. at 145, 235 P. at 374 ("We know of no general legal duty, either to children or adults who enter without invitation, express or implied, to keep dangerous things from one's land or to use care about them But the purported implication that non-trespassing children are somehow prohibited from bringing attractive nuisance claims because they were not enticed to trespass simply does not follow.⁵

117 Our review of the common law doe-trine of attractive nuisance thus illustrates that the doctrine was never intended to apply exclusively to trespassers. Accordingly, we conclude that all children-regardless of their classification within the trespasser-i-censee-invitee trichotomy-could bring an attractive nuisance claim at common law.

118 This conclusion, however, does not end our inquiry. Because the General Assembly specifically incorporated the attractive nuisance doctrine into section 13-21-115, our task is not only to map the contours of the doctrine but also to consider its application in light of the statute. To do this, we trace the development of section 13-21-115, beginning with our 1971 decision in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308, superseded by statute, § 13-21-115, as recognized in Lakeview Assocs., Ltd. v. Maes, 907 P.2d 580 (Colo.1995).

B. The Attractive Nuisance Doctrine and Section 13-21-115

I 19 In Mile High Fence, we abolished the trespasser-licensee-invitee trichotomy and mandated that landowners instead be held to a more general reasonable person standard. 175 Colo. at 548, 489 P.2d at 314. In 1986, in response to Mile High Fence, the General Assembly enacted section 13-21-115, which reinstated the trichotomy. Vigil v. Franklin, 103 P.3d 322, 326 (Colo.2004). In Gallegos v. Phipps, 779 P.2d 856, 862 (Colo.1989), however, we observed that the statute "impose[d] on landowners a higher standard of care with respect to a licensee than an invitee"; we therefore declared it unconstitutional, holding that "[such an inverted hierarchy of duties bears no rational relationship to a legitimate governmental interest," id. We further stated that "any logical hierarchy of duties requires that a landowner take more precautions to protect someone he has invited on the land for the landowner's own purposes (and thus at least impliedly given an assurance of safety), than a person whose presence is only suffered." Id. at 862-63. Then, in 1990, in response to Gallegos, the General Assembly amended section 13-21-115 to its current form. Vigil, 103 P.3d at 326. The newly drafted statute retained the trichotomy but addressed our constitutional concerns by explicitly providing a clear hierarchy:

It is the intent of the general assembly ... that the cireumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and that the circumstances under which an invitee may recover include all of the cireumstances under which a trespasser or a licensee could recover.

§ 18-21-115(8.5).

120 This explicit statement of legislative intent reinforces our conclusion that all children, not just trespassers, may recover under the attractive nuisance doctrine. We recognize, of course, that the statutory provision sustaining the attractive nuisance doctrine appears in subsection (2) of section 13-21-115 ("This subsection (2) shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age."), whereas the hierarchical provision is found in subsection (8.5). But in interpreting the statute, we must read it "as a whole, construing each provision consistently and in harmony with the overall statutory design." Whitaker v. People, 48 P.3d 555, 558 (Colo.2002). It thus defies comprehension to suggest that, when the General Assembly amended section 13-21-115 in order to mollify our constitutional concerns as expressed in Gallegos, it created a logical hierarchy solely for premises liability claims but simultaneously perpetuated an inverted hierarchy for attractive nuisance claims. See Frazier v. People, 90 P.3d 807, 811 (Colo.2004) ("A statutory interpretation leading to an illogical or absurd result will not be followed."). On the contrary, a harmonious reading of section 13-21-115 as a whole buttresses our conclusion that all children, regardless of classification, may recover under the attractive nuisance doctrine.

T21 In disposing of the Wackers' equal protection challenge, the court of appeals attempted to cireumvent this inescapable conclusion when it held that "a child who is enticed to trespass on the land by an attractive nuisance is accorded the preferential treatment reserved in the law for invitees." S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2012 COA 77, ¶ 42, 318 P.3d 38. That is, the court of appeals suggested that trespassing children lured by an attractive nuisance are legally transformed from trespassers into invitees Id. at ¶¶ 37-38. Therefore, according to the court of appeals, allowing trespassers but not licensees to bring attractive nuisance claims does not violate the logical hierarchy mandated by seetion 13-21-115 because those trespassers are actually treated as invitees under the law. See id. at ¶ 39.

1 22 We find no support in our case law for this proposition. The court of appeals cites to a dictum in Denver Tramway Corp. v. Callahan, 112 Colo. 460, 464-65, 150 P.2d 798, 799-800 (1944), in which we stated that "there is no question but that the [child plaintiff] was a trespasser on the private property of defendant, unless he was "invited by an 'attractive nuisance.'" The court of appeals also cites Kopplekom v. Colorado Cement-Pipe Co., 16 Colo.App. 274, 277, 64 P. 1047, 1047-48 (1901), suggesting that this case "citled] with approval cases from other jurisdictions that treat children enticed by an attractive nuisance to trespass as invitees." Wacker, ¶ 37. Yet neither of these cases contains language that even remotely resembles a formal pronouncement suggesting that trespassing plaintiffs are somehow converted into invitees in any legal sense. In Denver Tramway, the child plaintiff drowned while playing in a river located near the defendant's turbine intake plant. 112 Colo. at 461, 150 P.2d at 798. In declining to apply the attractive nuisance doctrine, we made little mention of the plaintiff's status as a trespasser and instead simply recognized that the plant was not sufficiently attractive to support an attractive nuisance claim. Id. at 465, 150 P.2d at 800 ("[SJhould we adopt the [complaint's description of the plant] as a definition of an attractive nuisance, it might well include every factory, industrial plant and railroad yard in the state, that happened to be built on the bank of a river."). And Kopplekom, as we have already discussed, see supra ¶ 12, focused not on the plaintiff's classification but on the "attraction and allurement" of the nuisance itself.⁶

128 Thus, in fixating on our precedent's use of the words "invited" or "invitation," the court of appeals spun a semantic distinction into a legal rule that heretofore did not exist. Our earlier use of these terms did not legally convert plaintiffs from trespassers into invitees; rather, such language merely functioned as synonyms for analogous terms (such as "attraction" or "allurement") that also express the well-recognized concept that children are drawn to certain dangerous objects because of their immaturity. Therefore, regardless of the specific term used to describe the attraction, all of our cases reinforce the central precept underlying an attractive nuisance claim: that the child plaintiff must have been attracted to the object at issue, regardless of his legal classification.

124 Accordingly, we hold that all children-regardless of their classification as trespassers, licensees, or invitees-may bring a claim under the attractive nuisance doe-trine.

IV. Conclusion

1 25 Because we hold that a child licensee may bring a claim for attractive nuisance, the judgment of the court of appeals is reversed. On remand, the trial court must consider the merits of S.W.'s attractive nuisance claim.

JUSTICE EID dissents.

JUSTICE MARQUEZ dissents, and JUSTICE COATS joins in the dissent.

1 . A bungee run is an inflatable, three-lane structure in which children harness themselves into one end and then race to the opposite end. The bungee run cables slow the children down as they run, eventually pulling them back to the start.

2 . Technically, the Wackers' complaint against Towers only included claims for premises liability and negligence-it did not specifically refer to the attractive nuisance doctrine. In their proposed trial management order, however, the Wackers indicated that they intended to pursue recovery on a theory of attractive nuisance. After reviewing a motion to strike the attractive nuisance claim, the trial court found that even though the complaint did not specifically identify the attractive nuisance doctrine, it nevertheless contained sufficient allegations to state a claim for attractive nuisance.

3 . Specifically, section 13-21-115(5) defines the three classifications as follows:

(a) "Invitee" means 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.

(b) "Licensee" means a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent. '"Licensee" includes a social guest.

(c) "Trespasser"' means a person who enters or remains on the land of another without the landowner's consent.

4 . A turntable is a large revolving platform that railroad companies use to rotate trains.

5 . In his special concurrence below, Judge Gabriel misconstrued Hayko along these lines. See Wacker, ¶ 48 (Gabriel, J., specially concurring) ("It has long been settled in Colorado that for the attractive nuisance doctrine to apply, the attraction must have enticed the child to trespass; it is not enough if the attraction enticed the child only after he or she became a trespasser.") (citing Hayko, 77 Colo. at 145, 235 P. at 375). Therefore, according to Judge Gabriel, because S.W. was not attracted to the bungee run until after he had already entered the property as a licensee, the bungee run cannot qualify as an attractive nuisance. Id. As we have illustrated, this interpretation does not comport with our precedent.

6 . - Notably, the word "invitee" appears in neither of these decisions. This further distinguishes these opinions from an out-of-state case also cited by the court of appeals, Concrete Constr., Inc., of Lake Worth v. Petterson, 216 So.2d 221, 222 (Fla.1968), in which the Florida Supreme Court suggested that a child "who enters upon another's property in response to a special attraction is classified as an implied invitee." Such an unambiguous statement regarding a nuisance's effect on a child's classification is wholly absent from our attractive nuisance case law.