DLR Online Special Features

Please visit here for a list of special feature editions of the DLR Online.

Events & Announcements

Mar. 10, 2019 - The Denver Law Review will soon be accepting submissions for the 2019 Emerging Scholar Award. For details on the award including eligibility, award information, and submission instructions, please review this document. We look forward to reviewing all submissions!

Jan. 9, 2019 - The Denver Law Review is pleased to open registration for our 2019 Symposium, Driven by Data: Empirical Studies in Civil Litigation and Health Law. We have a top-class list of speakers for this year's symposium and we look forward to seeing you there! Register by following this link.

Apr. 4, 2018 - The Denver Law Review is currently accepting submissions for its Recent Developments in the Tenth Circuit issue. For details on the issue and submission instructions, please review this document. We look forward to reviewing all submissions!

Subscriptions and Submissions

For information on how to subscribe to the Denver Law Review, please click here.

For the guidelines on how to submit an article to the Denver Law Review, please click here.

« Tenth Circuit Chooses Textualism Over Functionalism | Main | Hernandez-Carrera: Deference to Agencies' Interpretations After Supreme Court Decisions »

Colorado Supremes Poised to Address Defenses in Colorado’s Premises Liability Statute

By Ben Figa

The debate is heating up in Colorado about whether landholders can claim defenses of comparative negligence, pro rata liability and assumption of risk for injuries prior to 2006.  One published opinion of the Colorado Court of Appeals has said no and two others have said yes.

Colorado’s Premises Liability statute has caused many problems for lawyers, legislators and judges.  Essentially, the invitee-licensee-trespasser distinctions were once recognized at common law, but then the Colorado Supreme Court abandoned the common law classification scheme in favor of the traditional negligence concept.  The state legislature overruled the Colorado Supreme Court by passing the Colorado Premises Liability Act, which retained those common law distinctions.  The statute, when originally written, did not explicitly recognize the defenses of comparative negligence, pro rata liability and assumption of risk.  In 2006, the legislature amended the statute to include those defenses  Although the law is more settled now, the question remains: were those defenses available prior to the 2006 amendment?

The debate centers on whether the 2006 amendment was a “change” to or a “clarification” of the existing law.   If the amendment is considered a “change,” then defenses were not available prior to 2006.  Conversely, if the amendment was a “clarification,” then the defenses were available before the amendment. The presumption is that an amendment is a “change” absent evidence to the contrary. 

In Martin v. Union Pacific Railroad Co., a Union Pacific train struck a woman whose car was stalled vehicle at a gated crossing.   The railroad company offered evidence that Martin could have avoided the injuries by, for example, backing off of the crossing or exiting the car.  Interpreting the pre-2006 statute literally, the trial court struck the defenses of comparative negligence and pro-rata liability.  The Colorado Court of Appeals affirmed and determined that comparative negligence and pro-rata liability were not available as statutory defenses before 2006.  The court found that the legislative history conflicting and that the plain language indicated a “change” in the law.

Since the Martin decision, two divisions of the Colorado Court of Appeals have come to the opposite conclusion.  In Dewitt v. Tara Woods LP, the court concluded that comparative negligence was available as a defense even though the statute did not explicitly mention it.  The Dewitt found three arguments persuasive The Dewitt Court found three arguments persuasive:  the Colorado legislature was aware of comparative negligence when it enacted the statute; the comparative negligence statute applies to “any action;” and the prior version of the premises liability statute did not explicitly exclude comparative negligence as a defense.  For these reasons, the Dewitt Court found no ambiguity in the premises liability statute and did not address whether the amendment was a “change” or a “clarification.” In Tucker v. Volunteers of America Colorado Branch, a second court found this reasoning persuasive.

The Colorado Supreme Court has granted certiorari on Martin and will address whether comparative negligence, pro-rata liability and assumption of risk are available as defenses in premises liability actions before the amendment.  The outcome is important because many pre-2006 premises liability actions are now being litigated.  Additionally, the Martin holding creates an anomalous disparity between the defenses that can be claimed in premises liability actions versus other tort actions.


See Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (explaining the background).

C.R.S. §§ 13-21-111, 13-21-111.5, 13-21-111.7.

Martin v. Union Pac. R.R. Co., 186 P.3d 61 (Colo. App. 2007)

The court noted that language “shall continue to apply” indicates a clarification and “shall apply” signals a change.  Martin, 186 P.3d at 67.

DeWitt v. Tara Woods LP, --- P.3d ----, 2008 WL 4592122 (Colo. App. October 16, 2008); Tucker v. Volunteers of America Colorado Branch, --- P.3d ----, 2008 WL 5006528 (Colo. App. Nov. 26, 2008)

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Member Account Required
You must have a member account on this website in order to post comments. Log in to your account to enable posting.