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Sweeney v. United Artists Theater Circuit3/10/2005
JUDGMENT AFFIRMED IN PART, REVERSED IN PART
Loeb and Kirshbaum, JJ., concur
Plaintiff, Dillon S. Sweeney, appeals the trial court's judgment dismissing his complaint against defendant, United Artists Theater Circuit, Inc. Plaintiff also appeals an award of attorney fees and court costs to defendant. We affirm the dismissal and the award of court costs and reverse the award of attorney fees.
In March 2001, while attending a movie in defendant's theater, plaintiff and his friend (Ketchum) were injured when they were struck by an acoustic tile that fell from the ceiling. Shortly thereafter, Ketchum sued defendant for negligence under the Colorado Premises Liability Act, ยง 13-21-115, C.R.S. 2004, and the case settled.
Plaintiff commenced this action in May 2003, over two years after the incident. In his complaint, plaintiff did not plead the Colorado Premises Liability Act, but alleged breach of contract and negligent breach of contract. Plaintiff sought recovery of medical expenses, past earnings, future earnings, and damages for pain and suffering.
Defendant moved to dismiss under C.R.C.P. 12(b)(5) for failure to state a claim, alleging that plaintiff's claim was a personal injury claim that should have been brought under the Colorado Premises Liability Act and was barred by the two-year statute of limitations. The trial court granted defendant's motion, finding that plaintiff's movie ticket was a license rather than a contract and that plaintiff's claim was untimely filed as a tort claim. The court also awarded attorney fees and costs to defendant.
I.
Plaintiff contends that the trial court erred when it granted defendant's motion to dismiss. Specifically, plaintiff argues that sale of a movie ticket creates contractual duties on the part of theater operator to provide a safe environment in which to view the attraction and to give the ticket purchaser notice of any dangerous condition in the theater. He then argues that, because his complaint alleges that defendant breached these duties, the three-year contract statute of limitations, rather than the two-year tort statute of limitations, applies. We disagree.
A motion to dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of a plaintiff's complaint. Such a motion is looked on with disfavor and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. The court must accept all averments of material fact as true, and all the allegations in the complaint must be viewed in the light most favorable to the plaintiff. We review the trial court's ruling de novo. Verrier v. Colo. Dep't of Corr., 77 P.3d 875 (Colo. App. 2003).
A.
We are not persuaded by plaintiff's contention that defendant's sale of the admission ticket to plaintiff created contractual obligations to provide safe facilities and to notify him of a dangerous condition.
A license is a personal privilege to do some act or series of acts upon the land of another not involving possession of an estate or interest therein and, ordinarily, is revocable at the will of the licensor. See Patzer v. City of Loveland, 80 P.3d 908 (Colo. App. 2003); Booker v. Cherokee Water Dist., 651 P.2d 452 (Colo. App. 1982).
It is generally recognized that an admission ticket is a revocable license to witness a performance or attraction. See Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913); Boswell v. Barnum & Bailey, 135 Tenn. 35, 185 S.W. 692 (1916); Jordan v. Concho Theatres, 160 S.W.2d 275 (Tex. Civ. App. 1941). If a license is revoked, the li
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