Colorado-Real-Estate-Journal_292656

Page 28 - July 20-August 2, 2022 www.crej.com Law & Accounting WORLDWIDE LOCATIONS United States Europe, Middle East Asia, Latin America Greenberg Traurig is a service mark and trade name of Greenberg Traurig, LLP and Greenberg Traurig,P.A. ©2020 Greenberg Traurig, LLP. Attorneys at Law. All rights reserved. Attorney Advertising. °These numbers are subject to fluctuation. 33905 GREENBERG TRAURIG, LLP | 2200 AT TORNEYS | 41 LOCATIONS WORLDWIDE ° 1144 15th Street | Suite 3300 Denver, CO 80202 | 303.572.6500 GTL AW.COM GT Denver’s Real Estate Team Our goal is to provide more than just legal services to our clients. We aim to be a partner to clients, supporting their business objectives through innovative legal offerings in the real estate sector. Brady McShane Christopher Neumann Katy O’Brien Neil Oberfeld Keith Pockross Paul Seby Christopher Thorne Matthew Tieslau Mark Baker Laurinda Frederick Stephen Goler Peter Kelley Discover the personal touch, the seamless service, and the expertise of our real estate professionals. Our relationship with Plante Moran goes beyond audit and consulting services. They’re like a business partner, providing valuable advice because they look at issues from a business person’s perspective. They have local presence and knowledge, but they also have strong national experience and are at the table for national policy decisions. We get the best of both worlds.” - President & CEO of a longtime client RJ McArthur | rj.mcarthur@plantemoran.com | 303-740-9400 plantemoran.com Make the mark. “ W hen an individual is injured or killed on another’s property as a result of an unsafe condition, the control- ling law in the state of Colorado is C.R.S. §13-21-115, often referred to as the Colorado Premises Lia- bility Act. In response to a 2020 Colorado Supreme Court ruling that expanded the types of busi- nesses and institutions that could be liable under the CPLA for acts of violence by third parties, the Colorado Legislature passed SB22-115 in the 2022 session, and it was signed into law by Gov. Jared Polis on April 7. SB22-115, entitled “Clarifying Terms Related to Landowner Liability,” substan- tively modified C.R.S. §13-21-115, to explicitly reject the majority rul- ing in Rocky Mountain Planned Parenthood, Inc. v. Wagner, 467 P.3d 287 (Colo. 2020). The case centered on a 2015 attack on the Colorado Springs Planned Parenthood facility by an individual who opposed the types of services offered at the facili- ty, which left three people dead and nine others injured. Plaintiffs brought suit against the facility alleging that, as invitees of Planned Parenthood’s Colorado Springs facility, they were owed a duty of care by Planned Parenthood to protect them and to provide a safe and secure environment, “free from foreseeable risks and danger- ous conditions on the premises of which [Planned Parenthood] knew or should have k n o w n . ” The plaintiffs alleged that the attack was foresee- able, given the “long history of violent direct attacks, kill- ings and threats” against Planned Par- enthood facilities. The plaintiff’s initial case was dismissed by the district court because the mass shooter’s con- duct was the “predominant cause” of the shooting victims’ injuries, such that Planned Par- enthood’s failure to implement certain security measures could not be deemed a substantial fac- tor in causing them. Despite this, the plaintiffs appealed the case. In 2020, the Colorado Supreme Court, in a 4-3 vote, reversed the District Court holding. The Supreme Court’s majority ruling found that third-party crim- inal conduct may be foreseeable depending on whether the goods or services offered are controver- sial; and, a landowner could be held liable as a substantial factor in causing the harm, regardless of whether a third-party criminal act was the predominant cause of that harm. The court’s ruling acted as a major divergence from years of existing federal court case prec- edent, which generally recognized that criminal acts were unforesee- able, and therefore constituted an intervening and “predominant” cause of harm to relieve landown- ers from liability under the CPLA. This ruling, which was met by a fierce, three-judge dissenting opinion, tested the boundaries of the proximate cause inquiry, and created an obligation for land- owners to protect invitees against unknown criminal acts if there is the possibility they know, or should have known, of a perceiv- able threat against their business. The dissent feared the majority’s rulingcouldincreasethefrequency and severity of threats of violence by allowing political agitators and domestic terrorists to make wild and unfounded threats of violence against businesses they oppose, thereby forcing those businesses, like Planned Parenthood, to fortify their facilities to extreme levels in order to limit their exposure to lia- bility. The introduction of violent speech could, in turn, cause busi- nesses to be prohibitively expen- sive to operate, virtually impos- sible to insure and cumbersome to the community at large. The dis- sent goes on to say, “But, because mass shooters are not animated by reason or cost/benefit analysis, it is irrational to ask businesses – or jurors – to engage in the cost/ben- efit analysis of determining what sorts of preventative measures are sufficient to prevent or mitigate the harm caused by a shooter’s senseless acts of violence.” While the court focused on Planned Parenthood in this case, the logical conclusion of this deci- sion opened up the possibility for a broad range of businesses to be targeted, including syna- gogues; mosques; Sikh temples; churches; private or religious schools; bars and restaurants that serve the LGBTQ+ community; doctors who provide controversial services; movie theaters; concert halls; minority-owned businesses; government buildings; sports sta- diums; and the list goes on. The court’s ruling created an oppor- tunity for many businesses to lose the protections provided under CPLA, and be subject to civil liti- gation if they should have known that violence could occur. Echoing the dissent’s concerns in Wagner, SB22-115 was signed into law in April. The bill, aptly titled “Clarifying Terms Related to Landowner Liability,” does not attempt to amend the CPLA, but instead clarifies the landowner lia- bility owed at the statutory level. Specifically, it expressly rejects the findings of the majority’s decision in Wagner to expand landowner liability, and resets the proximate cause analysis to conclude that the premeditated and intentional actions of criminal third parties constitute the “predominant” cause of the injuries they inflict, such that any negligence on the part of a property owner simply is not a “substantial factor” in caus- ing those injuries. SB22-115 goes on to explicitly state that Wagner was “improper- ly decided” and that other courts or victims must not rely on the Colorado Supreme Court’s opin- ion to the extent it determined the foreseeability of third-party crimi- nal conduct is based on whether the goods or services offered by a landowner are controversial. In other words, the bill returns the CPLA to the status quo with regard to landowner liability, and restores a uniform expectation of a care for all property owners, whether they operate a controver- sial business or not. With the steadily increasing rise of vitriolic speech, which is like- ly to increase following the U.S. Supreme Court’s decision to over- turn Roe v. Wade, having the abil- ity to reasonably predict the rights and responsibilities by Colorado’s landowners under the CPLA is critical, especially for landowners with businesses and institutions providing goods and services that some may find controversial. SB22-115 provides important stat- utory clarification for those land- owners. s Jack Reutzel, a real estate attorney with Fairfield and Woods, contributed to this article. Legislators respond to court's landowner liability ruling Conner G. Eversole Associate attorney, Fairfield and Woods PC