Giblin v. Sliemers et al

Filing 71

ORDER denying 64 Motion for Reconsideration by Judge R. Brooke Jackson on 12/19/16. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-02742-RBJ
MATTHEW GIBLIN,
Plaintiff,
v.
JOHN SLIEMERS and PATRICIA SLIEMERS,
Defendants.

ORDER

Defendants move for relief from a previous order issued by this Court. The motion is
denied.
I. BACKGROUND
As summarized in previous orders, this case involves a gas explosion at a cabin owned by
defendants John and Patricia Sliemers that injured plaintiff Matthew Giblin. Mr. Giblin was
renting the Sliemers’ cabin and attempted to relight the pilot light on the cabin’s water heater
when propane gas that had leaked into the air exploded. Mr. Sliemers had installed a number of
water heaters in the Sliemers’ rental units over the years without incident. However, Mr.
Sliemers is not a plumber. He installed the water heater in question without the assistance of a
plumber or other professional, without a plumbing permit, and without reading the
manufacturer’s instructions, which recommended the installation of a gas detector.
Mr. Giblin has alleged a violation of the Colorado Premises Liability Act (“CPLA”),
C.R.S. 13–21–115, which is Colorado’s exclusive framework for landowners’ duties to
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individuals that occupy the land. Vigil v. Franklin, 103 P.3d 322, 326 (Colo. 2004). It provides
that an “invitee,” such as Mr. Giblin, may recover by establishing: (1) that the landowner
“actually knew or should have known” of a danger on the premises; and (2) that the landowner’s
action or inaction constituted an unreasonable failure to exercise reasonable care to protect the
plaintiff from that danger. Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.
2008).
Defendants moved for a summary judgment dismissing the case. In an order issued on
November 24, 2015 the Court concluded that the “danger” for purposes of the statutory test was
a gas leak in the cabin’s propane piping system that caused gas to pool in the basement and a risk
of an explosion. ECF No. 53 at 8. However, the Court found that Mr. Giblin had failed to come
forward with evidence sufficient to generate a fact dispute as to whether defendants “actually
knew or should have known” of the danger, that is, that he had actual or knowledge or
constructive knowledge of the danger. Id. at 8–12. For that reason the Court granted
defendants’ motion and entered judgment in their favor on November 25, 2015. ECF No. 54.
Mr. Giblin moved for reconsideration, which the Court granted in part. Essentially, the
Court concluded that its focus on the Sliemers’ failure to obtain a plumbing permit had been too
narrow. ECF No. 62 at 5. Now defendants, pursuant to Rule 60(b), ask the Court to reconsider
the reconsideration.
II. ANALYSIS
The pending motion is critical of the Court’s comments concerning “foreseeability,”
suggesting that I applied a common law negligence concept that was preempted by the premises
liability statute. That misconstrues the order. Referring to common law landlord liability cases
in which courts considered the foreseeability and likelihood of injury in determining a

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landowner’s liability, I wrote: “While the Colorado Premises Liability Act erased this common
law inquiry, foreseeability remains inherent in the determination of whether a landowner should
have known that a danger existed.” ECF No. 62 at 7. That, to me, is simple common sense. If a
danger was not foreseeable, then it is hard for me to understand how one would conclude that the
landowner should have known that it existed.
The statute did not render “foreseeability” a bad word, nor did it establish that concepts
relevant to common law negligence necessarily are irrelevant when discussing a landowner’s
duties to an invitee. Consider, for example, Justice Martinez’s discussion of “negligence per se”
in the Lombard case. He acknowledged that “[t]he language of the premises liability statute
makes clear that a party may no longer bring a negligence per se claim against a landowner to
recover for damages caused on the premises.” 187 P.3d at 574 (emphasis in original). However,
he continued, “in addressing the premises liability statute, it is an entirely separate question
whether proof of the landowner’s violation of a statute intended for the plaintiff’s protection is
evidence of the landowner’s ‘unreasonable failure to exercise reasonable care.’” Id.
Under Vigil, the only issue of law concerning a landowner’s duty is the classification of
the plaintiff as a trespasser, licensee, or invitee. 103 P.3d at 328. The classification of Mr.
Giblin as an “invitee” is not disputed. Whether the landowner should have known of the relevant
danger, and if so, whether he unreasonably failed to exercise reasonable care to protect the
invitee from that danger are questions of fact to be determined by the trier of fact. Id. To defeat
a motion for summary judgment Mr. Giblin was obliged to come forward with sufficient
admissible evidence to create genuine and material issues concerning what Mr. Sliemers should

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have known about the danger of a gas leak in the cabin, and whether he took reasonable steps to
protect Mr. Giblin from that danger. I remain convinced that he has done so. 1
ORDER
For the reasons set forth above, plaintiff’s motion for reconsideration [ECF No. 64] is
DENIED.
DATED this 19th day of December, 2016.
BY THE COURT:

________________________________
R. Brooke Jackson
United States District Judge

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Defendants rely on McIntire v. Trammel Crow, Inc., 172 P.3d 977(Colo. App. 2007). The court
affirmed a summary judgment, noting that “[t]he trial court granted the motion after concluding, among
other things, that the manager [of a building] neither knew, nor had reason to know, that the pulley [being
used by construction workers to lift wallboard while repairing skylights] was inadequately moored and
was, therefore, dangerous.” Id. at 978–79. I interpret this as implicitly saying that the injured worker had
not come forward with evidence sufficient to create a triable issue of fact on whether the manager knew
or should have known of the danger. I find nothing in McIntire that is inconsistent with my conclusions
in the present case.

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