Willis v. Twin Shores Master Owner Association, Inc.

2025 COA 37

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 24CA0369
• 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 April 3, 2025

2025COA37

No. 24CA0369, Willis v. Twin Shores Master Owner Association, Inc. — Torts — Premises Liability; Real Property — Common Interest Communities — Colorado Premises Liability Act — Injured Party’s Status — Invitee

As a matter of first impression, a division of the court of

appeals considers the standard of care a common interest

community association owes to a unit owner’s guest who is injured

in an area that is part of the common elements owned and

controlled by the association. The division concludes that, in

relation to such an association, a unit owner’s guest is an invitee

under the Colorado Premises Liability Act (PLA), § 13-21-115,

C.R.S. 2024.

Because the division concludes that there is a genuine dispute

of material fact as to where the plaintiff fell — and whether that

location was part of the common elements owned and controlled by the association — the division reverses the district court’s grant of

summary judgment in favor of the defendants on the plaintiff’s PLA

claim and remands the case for further proceedings. COLORADO COURT OF APPEALS 2025COA37

Court of Appeals No. 24CA0369 Jefferson County District Court No. 22CV30123 Honorable Ryan P. Loewer, Judge

Tiffani Willis,

Plaintiff-Appellant,

v.

Twin Shores Master Owner Association, Inc., and Hammersmith Management, Inc.,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur

Announced April 3, 2025

Fuicelli & Lee, P.C., R. Keith Fuicelli, Matthew Durkin, Denver, Colorado; The Paul Wilkinson Law Firm LLC, Nelson Boyle, Denver, Colorado, for Plaintiff- Appellant

SGR, LLC, Heather A. Salg, Jean M. Peterson, Denver, Colorado, for Defendants-Appellees ¶1 This slip-and-fall case presents a novel issue concerning the

standard of care a common interest community association owes to

a unit owner’s guest who is injured in an area that is part of the

common elements owned and controlled by the association. We

conclude that, in relation to such an association, a unit owner’s

guest is an invitee under the Colorado Premises Liability Act (PLA),

§ 13-21-115, C.R.S. 2024.

¶2 Accordingly, we reverse the district court’s entry of summary

judgment in favor of the defendants, Twin Shores Master Owners

Association, Inc., and Hammersmith Management, Inc., on the PLA

claim asserted by the plaintiff, Tiffani Willis. The judgment was

predicated on the conclusion that Willis was the defendants’

licensee at the time of her injury and didn’t present sufficient facts

to establish liability to her as a licensee. We conclude, however,

that if Willis was injured in an area that was part of the common

elements owned and controlled by the association — an issue on

which there is a genuine dispute of material fact — then she was

the defendants’ invitee. We therefore reverse the judgment and

remand the case for further proceedings.

1 I. Background

¶3 Twin Shores is organized as a planned community under the

Colorado Common Interest Ownership Act (CCIOA). See § 38-33.3-

103(22), C.R.S. 2024. Twin Shores Master Owners Association,

Inc., is the unit owners’ association, and Hammersmith

Management, Inc., is its management company. Under the

community’s declaration, the association owns, controls, and

maintains the common elements — including parks and

walkways — for the unit owners’ benefit, use, and enjoyment. The

unit owners, in turn, have a nonexclusive easement for themselves

and their tenants, agents, employees, customers, contractors,

licensees, guests, and invitees to use those common elements.

¶4 At the time in question, Willis was in a long-term romantic

relationship with the owner of a townhome in Twin Shores. Willis

wasn’t on the title to the unit but contends that she resided there

with her partner. Willis also contends that, as a resident, she paid

for upkeep on and upgrades to the unit, participated as the unit’s

representative in the association, paid the unit’s association dues

on at least one occasion, and served as vice president of the

association’s board of directors.

2 ¶5 In her complaint, Willis alleges that one winter she slipped and

fell while walking on “a sidewalk adjacent to the common area and

residences that was covered with snow and ice,” causing her to

suffer significant injuries. However, the parties contest precisely

where the accident occurred and whether it was on a sidewalk, in

the park, or elsewhere, including potentially on property not owned

and controlled by the association.

¶6 In response to motions filed early in the case, the district court

determined that, at the time of her injury, Willis wasn’t in a

mutually beneficial financial relationship with the defendants and

therefore was a licensee under the PLA. Based on that ruling, the

court precluded Willis from obtaining discovery the court found

irrelevant due to her status as a licensee. The court later granted

summary judgment in favor of the defendants, concluding that

Willis hadn’t presented sufficient evidence to satisfy her burden as

a licensee of showing that the defendants had actual knowledge of

the alleged dangerous condition before the time of her fall.

II. The PLA

¶7 On appeal, Willis contends that the district court erred by

ruling as a matter of law that she was a licensee under the PLA. We

3 conclude that there are factual questions as to whether Willis was a

licensee or an invitee of the defendants, making summary judgment

inappropriate.

A. Standard of Review

¶8 We review de novo a district court’s grant of summary

judgment. S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019

COA 58, ¶ 11. Likewise, where the controlling facts are not in

dispute, we review de novo a district court’s determination of a

party’s status under the PLA. Lakeview Assocs., Ltd. v. Maes, 907

P.2d 580, 583-84 (Colo. 1995).

¶9 Summary judgment should be granted only when the

pleadings and supporting documentation show that there are no

genuine issues of material fact and that the moving party is entitled

to a judgment as a matter of law. Ruiz v. Chappell, 2020 COA 22,

¶ 8. The moving party bears the burden of establishing the lack of

a triable factual issue, and all doubts as to the existence of any

such issue must be resolved against the moving party. Stanczyk v.

Poudre Sch. Dist. R-1, 2020 COA 27M, ¶ 51, aff’d on other grounds,

2021 CO 57.

4 B. Legal Standards

¶ 10 The PLA governs the extent of a landowner’s liability “[i]n any

civil action brought against a landowner by a person who alleges

injury occurring while on the real property of another and by reason

of the condition of such property, or activities conducted or

circumstances existing on such property.” § 13-21-115(3). This

statute provides the sole remedy against landowners for injuries on

their property. Tolle v. Steeland, LLC, 2023 COA 84, ¶ 21.

¶ 11 The standard of care a landowner owes a person under the

PLA depends on the person’s status as a trespasser, a licensee, or

an invitee. See § 13-21-115(2)(c)(I), (4); Jordan v. Panorama

Orthopedics & Spine Ctr., PC, 2015 CO 24, ¶ 18. An injured party’s

status is “determined by the relationship between the injured party

and the landowner.” Henderson v. Master Klean Janitorial, Inc., 70

P.3d 612, 615 (Colo. App. 2003); see also Maes, 907 P.2d at 584

(“[T]he distinction between an invitee and a licensee . . . depends on

the nature of the relationship between the landowner and the

person who enters or remains on the landowner’s property.”). This

case concerns two of those three statuses — licensee and invitee.

5 ¶ 12 A licensee is someone “who enters or remains on the land of

another for the licensee’s own convenience or to advance the

licensee’s own interests, pursuant to the landowner’s permission or

consent.” § 13-21-115(7)(c). This includes a social guest. Id. A

licensee may recover damages caused by a landowner’s

“unreasonable failure to exercise reasonable care with respect to

dangers created by the landowner that the landowner actually knew

about” or “unreasonable failure to warn of dangers not created by

the landowner that are not ordinarily present on property of the

type involved and that the landowner actually knew about.”

§ 13-21-115(4)(b)(I)-(II).

¶ 13 An invitee, by contrast, is someone “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.”

§ 13-21-115(7)(a). An invitee, then, is an individual who is present

to transact business of mutual interest or as the result of an

invitation extended to the public. Wycoff v. Grace Cmty. Church of

Assemblies of God, 251 P.3d 1260, 1267-68 (Colo. App. 2010)

6 (Wycoff I). An invitee generally may recover damages caused by a

landowner’s “unreasonable failure to exercise reasonable care to

protect against dangers the landowner actually knew about or

should have known about.” § 13-21-115(4)(c)(I).

C. Application

¶ 14 The parties argue at length whether Willis’s claimed residency

in one of the units, her payment to and volunteer work for the

association, or other facts specific to her relationship with the

association control the determination of whether she was a licensee

or an invitee. We conclude instead that the two controlling facts are

(1) whether Willis was, at a minimum, the guest of a unit owner and

(2) whether her injury occurred in an area that is part of the

common elements owned and controlled by the association. The

first fact is undisputed, but the second remains in dispute.

Accordingly, the entry of summary judgment was inappropriate.

¶ 15 In reaching this conclusion, we first consider the standard of

care landlords owe tenants and their guests in common areas. We

then turn to cases from other states applying a similar standard to

common interest community associations and unit owners’ guests

using common elements. Finally, we join those states in concluding

7 that a unit owner’s guest is the association’s invitee with respect to

common elements owned and controlled by the association.1

¶ 16 In the landlord-tenant context, Colorado courts treat tenants

as invitees in common areas a landlord controls for tenants’ use.

See Maes, 907 P.2d at 585. As the supreme court explained in

Maes, “An apartment lease . . . reflects an agreement mutually

obligating the tenant and the landlord” and “benefit[ting] both

parties.” Id. at 584. The landlord receives periodic payments of

rent while the tenant receives access to the leased premises and a

right to use the common areas. Id. at 584-85. This effectively

makes tenants “patron[s] of the [landlord’s] business,” such that

tenants are the landlord’s business invitees when using the

common areas. Id.; see also Van Schaack & Co. v. Perkins, 272

P.2d 269, 270 (Colo. 1954) (expressing the pre-PLA common law

rule that “when a landlord retains control of portions of a building

for the use and benefit of all the tenants, [the landlord] is under [a]

1 We have no occasion to, and therefore do not, consider whether

the duties are the same where the common elements are owner owned. Cf. Trailside Townhome Ass’n v. Acierno, 880 P.2d 1197, 1200-03 (Colo. 1994). We consider only the duties arising where, as here, the common elements are association owned.

8 duty to exercise reasonable care to keep those portions in a safe

condition for use by the tenants”).

¶ 17 Colorado courts, like courts in other states, have applied this

same rule to a tenant’s guests, treating such guests as a landlord’s

invitees in their use of common areas controlled by the landlord.

See, e.g., Palmer Park Gardens, Inc. v. Potter, 425 P.2d 268, 271

(Colo. 1967) (a tenant’s guest injured in a parking lot intended for

the use of tenants and their guests was the landlord’s invitee); Perez

v. Grovert, 962 P.2d 996, 998 (Colo. App. 1998) (a landlord may be

liable to a tenant’s guest if the landlord “retained control over the

portion of the premises where [a dangerous] condition existed”

(citing Restatement (Second) of Torts § 360 (Am. L. Inst. 1965)));

Petraszewsky v. Keeth, 506 N.W.2d 890, 893 (Mich. Ct. App. 1993);

Burch v. Univ. of Kan., 756 P.2d 431, 435 (Kan. 1988); Slusher v.

State, 437 N.E.2d 97, 99 (Ind. Ct. App. 1982); Rennick v. Hoover,

606 P.2d 1079, 1081 (Mont. 1980), overruled in part on other

grounds by Richardson v. Corvallis Pub. Sch. Dist. No. 1, 950 P.2d

748 (Mont. 1997); see also Restatement (Second) of Torts § 360 (“A

possessor of land who leases a part thereof and retains in his own

control any other part which the lessee is entitled to use . . . is

9 subject to liability to his lessee and others lawfully upon the land

with the consent of the lessee . . . for physical harm caused by a

dangerous condition upon that part of the land retained in the

lessor’s control, if the lessor by the exercise of reasonable care

could have discovered the condition and the unreasonable risk

involved therein and could have made the condition safe.”);

Restatement (Second) of Prop.: Landlord and Tenant § 17.3 (Am. L.

Inst. 1977) (similar statement of the law).2

¶ 18 The rationale for treating a tenant’s guest as the landlord’s

invitee is that part of the landlord’s business, and part of the

consideration the landlord receives from the tenant, relates to

holding common areas open for the use of tenants and their guests.

As comment f to section 360 of the Restatement (Second) of Torts

explains, “If the terms of the lease entitle the [lessee] to permit third

persons to come upon the part of the land retained within the

lessor’s control, it is immaterial whether they come as invitees of

2 The defendants cite Wilson v. Marchiondo, in which a division of

this court treated a tenant’s social guest as the landlord’s licensee. 124 P.3d 837, 841 (Colo. App. 2005). But in that case, the guest’s injury occurred in the backyard of the leased property — not in a common area controlled by the landlord. Id. at 838, 841.

10 the lessee or as his licensees” because “[i]t is the lessor’s

business . . . to afford his lessee facilities for receiving all persons

whom he chooses to admit for any legitimate purpose.” Thus, even

if a guest is a licensee as to the lessee, that guest “enters the land

on a matter directly connected with the business of the lessor” and

is “entitled to expect that the lessor will exercise reasonable care to

discover and remedy any [dangerous] condition.” Id.; see also

Restatement (Second) of Torts § 332 cmt. k (similar comment);

Restatement (Second) of Prop.: Landlord and Tenant § 17.3 cmt. h

(same); Slusher, 437 N.E.2d at 99 (“[T]he duty to maintain common

areas retained under the landlord’s control in a safe condition

‘extends also to members of the tenant’s family, his employees, his

invitees, his guests, and others on the land in the right of the

tenant, since their presence is a part of the normal use of the

premises for which the lessor holds them open.’” (quoting William L.

Prosser, Law of Torts § 63, at 406 (4th ed. 1971))); Rennick, 606

P.2d at 1081 (“[T]he landlord is in the business of providing

facilities for a tenant to receive all persons for lawful purposes;

therefore, the presence of a guest is related to the property owner’s

business.”).

11 ¶ 19 Several courts have extended this same rationale to common

interest communities, holding that unit owners and their guests are

an association’s invitees in their use of common elements controlled

by the association. See, e.g., Janini v. London Townhouses Condo.

Ass’n, ___ N.W.3d ___, No. 164158, 2024 WL 3381445, at *5 (Mich.

July 11, 2024); Walters v. Beach Club Villas Condo., Inc., 301 So. 3d

343, 348 (Fla. Dist. Ct. App. 2020); Macias v. Summit Mgmt., Inc.,

220 A.3d 363, 381 (Md. Ct. Spec. App. 2019); Sevigny v. Dibble

Hollow Condo. Ass’n, 819 A.2d 844, 855 (Conn. App. Ct. 2003); see

also Martinez v. Woodmar IV Condos. Homeowners Ass’n, 941 P.2d

218, 221 (Ariz. 1997) (“[A] condominium association has a duty not

only to the unit owners and their tenants but also to those who are

on the land with their consent and who will inevitably be expected

to use common areas . . . .”).

¶ 20 In doing so, some courts have described “a unit owner’s

relationship with [an] association as being akin to a tenant’s

relationship to a landlord with regard to the common areas,” such

that it makes sense to apply the same standard of care. Sevigny,

819 A.2d at 855 (collecting cases). As one court explained,

12 Because a landlord exercises exclusive control over the common areas of the premises, the landlord is the only one who can take the necessary precautions to ensure that the common areas are safe for those who use them. Similarly, a cooperative association has exclusive control over the common areas of the cooperative, and the association is the only one that can act to make the common areas safe. We are satisfied that with regard to premises liability, the duty a cooperative association owes those who come on the premises is the same as the duty a landlord owes those who come on its premises.

Stanley v. Town Square Coop., 512 N.W.2d 51, 53 (Mich. Ct. App.

1993). The court went on to explain that just as a portion of a

tenant’s rent may be deemed consideration for the right to invite

guests to use the common areas, so may a portion of a unit owner’s

payments to an association be deemed consideration for the right to

invite guests to use the common elements. Id. at 54; see also

Janini, 2024 WL 3381445, at *5 (similar reasoning); Martinez, 941

P.2d at 221 (same).

¶ 21 We agree with this reasoning. Although no published opinion

in Colorado has directly confronted this issue, the supreme court

has recognized that an association’s control over common elements

used by owners is “analogous” to a landlord’s control over common

13 areas used by tenants. Trailside Townhome Ass’n v. Acierno, 880

P.2d 1197, 1203 (Colo. 1994). It is also clear that “direct dealings

with a landowner” are not required for an individual to hold the

status of invitee. Wycoff v. Seventh Day Adventist Ass’n of Colo.,

251 P.3d 1258, 1259 (Colo. App. 2010) (Wycoff II).

¶ 22 Like a landlord, a common interest community association

generally assumes control over a community’s common elements.

See § 38-33.3-302(1)(f), C.R.S. 2024 (“Except as provided in

[CCIOA], and subject to the provisions of the declaration, the

association . . . may . . . [r]egulate the use, maintenance, repair,

replacement, and modification of common elements . . . .”);

§ 38-33.3-307(1), C.R.S. 2024 (“Except to the extent provided by the

declaration [or CCIOA], the association is responsible for

maintenance, repair, and replacement of the common

elements . . . .”); see also § 38-33.3-103(5)(b) (“In a planned

community,” common elements include “any real estate within [the

community] owned or leased by the association, other than a

unit.”). The same is true of the association in this case, as the

declaration charges it with controlling and maintaining the common

elements for the use of the unit owners and their guests.

14 ¶ 23 And like a landlord-tenant lease, an association’s declaration

“reflects an agreement mutually obligating the [unit owners] and the

[association]” that “benefit[s] both.” Maes, 907 P.2d at 584. As part

of the arrangement in a planned community like this one, the

association receives periodic dues payments while the unit owners

receive the right to invite their guests to use the common elements.

See id. at 584-85; see also § 38-33.3-216(2), C.R.S. 2024 (“In a

planned community, subject to the provisions of the declaration

and the ability of the association to regulate and convey or

encumber the common elements . . . , the unit owners have an

easement: (a) [i]n the common elements for the purpose of access to

their units; and (b) [t]o use the common elements and all other real

estate that must become common elements for all other purposes.”).

¶ 24 In that regard, if the association allows guests to use the

common areas it owns and controls, then it is part of the

association’s business to provide those facilities for the use of unit

owners’ guests, and those guests are “entitled to expect that the

[association] will exercise reasonable care to discover and remedy

any [dangerous] condition.” Restatement (Second) of Torts § 360

cmt. f; see also Restatement (Second) of Prop., Landlord and Tenant

15 § 17.3 cmt. h; Stanley, 512 N.W.2d at 53; Slusher, 437 N.E.2d at

99; Rennick, 606 P.2d at 1081. Accordingly, when, as here, the

association owns and controls common elements, the unit owners’

guests are effectively “patron[s] of the [association’s] business,”

such that they are business invitees in their use of those common

elements. Maes, 907 P.2d at 584-85.

¶ 25 We therefore conclude that, as to an association, a unit

owner’s guest is afforded invitee status under the PLA in areas that

are part of the common elements owned and controlled by the

association.3 This is so irrespective of whether the guest is the

licensee or the invitee of the unit owner. Because an individual’s

status under the PLA depends on their relationship to the

landowner, see Maes, 907 P.2d at 584; Henderson, 70 P.3d at 615,

that status may differ as between two or more persons deemed to be

3 We acknowledge that in Wright v. Vail Run Resort Community

Ass’n, a division of this court treated a unit owner’s guest as the association’s licensee with respect to an injury incurred in an area owned, managed, and maintained by the association. 917 P.2d 364, 365-66 (Colo. App. 1996). But there was no analysis in that case explaining why the guest was deemed a licensee or whether that issue was even contested. See id. To the extent that our opinion conflicts with Wright, we decline to follow it. See Indep. Reservoir Co. v. Lichter, 2025 COA 13, ¶ 16 (one division of this court isn’t bound by the holding of another division).

16 landowners under the PLA. See generally Wycoff I, 251 P.3d at

1266-68 (assessing an individual’s status as to the organization

that held the event at which she was injured); Wycoff II, 251 P.3d at

1259-60 (separately assessing the same individual’s status as to the

owner of the ranch where she was injured); see also Restatement

(Second) of Torts § 332 cmt. k (a tenant’s guest may be a landlord’s

invitee in common areas regardless of whether they are a licensee or

an invitee as to the tenant); Restatement (Second) of Torts § 360

cmt. f (same); Restatement (Second) of Prop., Landlord and Tenant

§ 17.3 cmt. h (same). Thus, while the PLA declares that a social

guest is a licensee, see § 13-21-115(7)(c), we consider that status to

apply only as to the person who invited the guest — here, the unit

owner — and not necessarily as to others who may be deemed

landowners — here, the association and its management company.

¶ 26 Applying this rule to this case, because it is undisputed that

Willis was, at a minimum, the guest of a unit owner but it is

disputed whether her injury occurred in an area that is part of the

common elements owned and controlled by the association, the

entry of summary judgment was improper. Accordingly, we reverse

17 the district court’s grant of summary judgment and remand the

case for further proceedings.

III. Disposition

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

district court for further proceedings consistent with this opinion.

JUDGE FOX and JUDGE LUM concur.