dissenting.
We granted certiorari to consider whether the common law "open and obvious" doctrine survived the enactment of Colorado's premises liability statute, section 13-21-115, C.R.S. (2004), and whether the doctrine supported the grant of summary judgment against the plaintiff, Vigil. The majority now holds that no common law landowner principles survive the enactment of the premises liability statute, and hence that the common law defense of "open and obvious danger" is no longer applicable.
Because I read the express purpose of the premises liability statute as the protection of private property rights, and because the common law doctrine of "open and obvious danger" is completely consistent with that purpose, I would agree with both the trial court and court of appeals' decisions in this case. Accordingly, I respectfully dissent.
I. Background
Until 1971, landowner liability turned on the status of the plaintiff-invitee, licensee, or trespasser. See, e.g., Husser v. School Dist. No. 11, 159 Colo. 590, 413 P.2d 906 (1966). In that year, this court overturned that formula and reinstated general negligence principles for assessment of landowner liability to someone injured on his or her property. Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971).
In 1986, the general assembly reenacted a premises liability statute to resurrect in part the lability scheme that this court overturned in 1971. Additional amendments were passed in 1991. See, ch. 109, see. 1, § 13-21-115, 1986 Colo. Sess. Laws 683; ch. 107, see.1, § 13-21-115, 1990 Colo. Sess. Laws 867. The purpose of the modern premises liability statute is clear and unequivocal: namely, to promote private property rights and "protect landowners from liability in some cireumstances when they were not protected at common law." § 13-21-115(1.5)(d)-(e), C.R.S. (2004). A fortiori, the statute narrows the landowner's exposure to liability. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo.2002).
The court of appeals has since held that section 13-21-115 provides the sole remedy to injured persons, a contention supported by the plain language of the statute. See § 13-21-115(2), C.R.S. (2004) ("the landowner shall be liable only as provided in subsection (3) of this section.") (emphasis added). See also Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612, 613 (Colo.App.2003), Thornbury v. Allen, 991 P.2d 335, 340 (Colo.App.1999).
We approach the case before the court today, then, with two clear principles: first, that the landowner liability act sets forth the sole basis for private landowner lability; and second, that the purpose of the act is to constrain and limit such liability. Within the reach of those two principles, we must decide whether a common law defense favorable to landowners survives enactment of the legislation. Although the clear language of subsection (2) of the premises lability statute establishes the only situations in which a trespasser, licensee, or invitee may recover, it does not plainly limit defenses available to the landowner in such an action. The majority concludes that the precise and limited *333language of the statute delineating duties of a landowner and eliminating other such duties that might exist at common law has a similar effect with respect to defenses. I disagree.
II. Abrogation of Common Law
The general assembly has the authority to modify or abrogate common law. See § 2-4-211, C.R.S. (2004), Beach v. Beach, 74 P.3d 1, 4 (Colo.2003). To exercise that authority, the general assembly must clearly express its intent to do so. Preston v. Dupont, 35 P.3d 433, 440 (Colo.2001). Finally, statutes in derogation of the common law must be strict, ly construed in favor of the person against whom the provisions are intended to apply. Id. Absent such explicit abrogation, statutes must be deemed subject to the common law. Bradley v. People, 8 Colo. 599, 604, 9 P. 783, 786 (1886).
Contrary to the majority's holding, I would conclude that the general assembly did not clearly abrogate the open and obvious danger doctrine when it enacted the premises liability statute.
III Open and Obvious Doctrine
The "open and obvious danger" doctrine was viable under both the common law premises liability scheme and the general negligence scheme. Smith v. City and County of Denver, 726 P.2d 1125 (Colo.1986) (general negligence scheme), Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956) (common law premises liability scheme).
Although the open and obvious doctrine does not bar recovery as a matter of law, a landowner may avoid liability for injuries caused by open and obvious dangers based upon the rationale that where the potential for danger is readily apparent a warning of the obvious is unnecessary. Smith, 726 P.2d at 1127. In short, the doctrine establishes the notion that a landowner has a duty to warn of dangerous conditions on his or her land that an entrant would not otherwise discover or realize.
IV. Establishing Duty
In a negligence action, the plaintiff must establish four elements: duty, breach,, harm, and causation. Duty is a threshold element that presents a question of law to the court. Smith, 726 P.2d at 1127. If the court concludes as a matter of law that no duty existed, a negligence action cannot be maintained. Determining whether a duty exists requires that a court consider various factors including the risk involved and the foreseeability of harm. Campbell v. Burt Toyota-Diahatsu, Inc., 983 P.2d 95, 97 (Colo.App.1999).
Under the premises liability statute, the landowner's duty correlates with the status of the injured party. The court must first determine the classification of the injured plaintiff in order to trigger the appropriate level of duty. Generally, the landowner must exercise reasonable care to protect lawful visitors from dangers of which the landowner was actually aware. § 13-21-115(3). Although landowners have a duty to exercise reasonable care in protecting individuals who enter upon their lands, they are not absolute insurers of the safety of those individuals. Therefore, the "reasonableness" of the landowners conduct is dependent upon the type of danger and foreseeability of the risk to the plaintiff. Under the common law, if the danger is open and obvious, the land owner is under no duty to warn as a matter of law.
V. Teneyck
The majority offsets the reasoning of the court of appeals in Teneyck v. Roller Hockey Colorado, Inc., 10 P.3d 707 (Colo.App.2000) against the court of appeals opinion here and concludes. that the Teneyck reasoning supports the result it reaches today. Like the court of appeals below, I read Teneyck to be limited to the commercial context. In Teneyck, the court of appeals declined to apply the "no duty" rule for injuries that are common, frequent and expected during the activity in question to a spectator's claim of risk from a puck at a hockey game. The court of appeals noted that the general assembly had specifically codified its intent to apply that doctrine to a variety of other sports or activities, and the absence of such a specific statute in the hockey context convineed the court *334that the general assembly did not intend a no duty exemption for hockey.
In the court of appeals' opinion below, the panel (including one judge who participated in Teneyck), distinguished Teneyck on the grounds that it arose in a commercial context and "the plaintiff has not directed our attention to any statutes, comparable to those cited in Teneyck, indicating that the General Assembly intended to remove the protection afforded landowners by the open and obvious danger doctrine in connection with the myriad private purposes to which land may be put." Id. at 1084 (emphasis added). I agree that the existence of statutes codifying the 'no duty' rule as to some sporting events or other activities has little persuasive impact here, where the question is whether the general assembly intended to afford private landowners the right to assert the no duty rule in a negligence action. I cannot agree that by limiting the causes of action, the general assembly also implicitly limited all defenses thereto.
VI. Application
The court of appeals held, as a matter of law, that the landowners had no duty to warn Vigil of the risk from diving into an above ground shallow swimming pool on their land because it presented an open and obvious danger. The trial court held similarly in granting the defendants' motion for summary judgment.
The majority of jurisdictions hold that an above ground pool is an open and obvious danger. See Hemphill v. Johnson, 230 Ga.App. 478, 497 S.E.2d 16 (1998), O'Sullivan v. Shaw, 431 Mass. 201, 726 N.E.2d 951 (2000), Barham v. Knickrehm, 277 Ill.App.3d 1034, 214 Ill.Dec. 721, 661 N.E.2d 1166 (1996), Donacik v. Pool Mart, Inc., 270 A.D.2d 921, 705 N.Y.S.2d 784 (N.Y.App.Div.2000), Long v. Manzo, 452 Pa.Super. 451, 682 A.2d 370 (1996), Griebler v. Doughboy Recreational, Inc., 160 Wis.2d 547, 466 N.W.2d 897 (1991), Glittenberg v. Doughboy Recreational, Inc., 441 Mich. 379, 491 N.W.2d 208 (1992), but see, Corbin v. Coleco Industries, Inc., 748 F.2d 411 (7th Cir.1984), Leonard v. Pitstick Dairy Lake and Park, Inc., 124 Ill.App.3d 580, 79 Ill.Dec. 740, 464 N.E.2d 644 (1984). Indeed, Colorado has applied the open and obvious danger doctrine in cases involving injuries sustained from diving into shallow water. Smith, 726 P.2d at 1125, Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956), Phipps v. Mitze, 116 Colo. 288, 292, 180 P.2d 233, 235 (1947) (danger of reservoir was open and apparent therefore landowner not Hable for child's drowning).
Vigil testified he was attempting to perform a shallow racing-style dive into the pool. By itself, this is some indication that he, too, was aware of the risk associated with diving into shallow water. See Glittenberg, 491 N.W.2d at 208 ("fact that ... plaintiffs acknowledged the necessity to perform a shallow dive simply underscores the conclusion that the risk of diving in shallow water is open and obvious").
Applying the open and obvious doctrine to this case, I would conclude that the landowner had no duty to warn Vigil of the risk of diving into an above ground swimming pool and summary judgment was appropriate.
VII. Conclusion
The premises liability statute was enacted to protect landowners. By defining and limiting the circumstances in which a landowner may be liable to someone entering upon his or her land, the general assembly did not intend, by my reading, to abrogate defenses that would otherwise be available to that landowner at common law. Indeed, those defenses are consistent with the very essence of the statute and hence should be honored by the courts. Accordingly, I would affirm the court of appeals, and respectfully dissent from the majority's opinion.
I am authorized to state that Justice HOBBS and Justice COATS join in this dissent.