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Vigil v. Franklin11/30/2004
JUDGMENT REVERSED
EN BANC
JUSTICE KOURLIS dissents, JUSTICE HOBBS and JUSTICE COATS join in the dissent.
Petitioner James Vigil seeks review of the court of appeals' decision that the trial court's grant of summary judgment was proper because the common law open and obvious danger doctrine survived enactment of Colorado's premises liability statute. We reverse.
Upon review, we find that the express, unambiguous language of the statute evidences the General Assembly's intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property. Accordingly, common law landowner duties do not survive its enactment. In addition, nothing in the plain language of the statute, either expressly or by clear implication, incorporates the common law defense of open and obvious dangers. Therefore, we hold that the common law open and obvious danger doctrine does not survive the enactment of Colorado's premises liability statute.
I. Facts and Proceedings Below
Vigil, 36-years-old and mildly retarded, filed a tort cause of action seeking damages for injuries he received in a tragic diving accident. Since the trial court granted summary judgment on the pleadings, no trial was held and much of the circumstances concerning the accident are disputed. Vigil alleges that on June 25, 1997, he dove into a four-feet-deep, above-ground pool on Respondents William, Gladys, and Will Franklins' ("the Franklins") property and sustained severe spinal injuries, rendering him a permanent quadriplegic. Vigil was on the Franklins' property as a laborer for the Arkansas Valley Community Center for Handicapped and for Retarded Persons, Inc. (the "Girch Center"), from which he received job training skills and work experience. The Franklins had contracted with the Girch Center for weed removal and other manual labor. On the morning of the accident, Vigil worked at another Girch Center jobsite repairing wood pallets. After a lunchtime altercation with another laborer, the Girch Center transferred Vigil to the Franklins' property for the afternoon.
Vigil worked until about 2:30 p.m., when he and other Girch Center laborers began joking about whether anyone wanted to get thrown into the swimming pool. Then, as Vigil stated in his deposition: " e were getting ready to clean up. And I had mentioned to the guys that, ell, is anyone going to jump in the pool. And when I didn't hear nothing or no response, I said, ou bunch of chickens. And since nobody was going to go, I was going." Vigil took off his shirt, shoes, and socks, removed his wallet, and ran towards the pool. He climbed up onto the narrow white metal rim of the pool, and crouched with his head lowered. According to Vigil, he "was attempting to dive in and come up on the other side right away" - to execute a racing-style dive. Instead, the top front of Vigil's head struck the bottom of the pool, fracturing his sixth and seventh cervical vertebra. Fellow Girch Center laborers pulled Vigil out of the pool and emergency medical assistance was requested.
The Franklins moved for summary judgment, arguing, inter alia, that they owed no duty of care to Vigil because diving into an above-ground pool was an open and obvious danger. With no analysis and without stating any specific grounds, the trial court granted their motion, finding, among other things, the following undisputed facts:
[1.] The existence of the swimming pool and the nature of its structure were obvious, that is, it was beyond doubt that the structure was a swimming pool, that some of the pool extended above ground level, and that . . . [Vigil] was taller than that p
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