dissenting.
I respectfully dissent.
I.
Contrary to the conclusion of the majority that Vigil v. Franklin, 103 P.3d 322 (Colo.2004), does not resolve the applicability of the statutory affirmative defenses under sections 18-21-111 and 18-21-111.5, C.R.8.2007, and that Vigil is not controlling, I am of the opinion it does and is, and the trial court thus erred in striking defendants' statutory affirmative defenses.
I also disagree with the majority's reliance on the 2006 amendment to determine the legislative intent of Colorado's premises liability statute (Act).
My disagreement is based on two factors. First, both parties here agreed that the Act is not ambiguous. Second, even if it were ambiguous, the 2006 amendment did not change the Act, but clarified it.
IL.
In my view, the Act does not abrogate the defenses of comparative negligence and pro rata liability.
The Act as amended in 1990 provides in section 13-21-115(1.5)(d), C.R.98.2007, that the "purpose of this section is also to create a legal climate which will promote private property rights and commercial enterprises and will foster the availability and affordability of insurance." Subsection (1.5)(e) states in part that "its purpose is to protect landowners from liability in some cireumstances when they were not protected at common law," and subsection (1.5)(a) states in part that the provisions of the Act were enacted in 1986 "to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee."
The General Assembly has the authority to modify or repeal the common law, but courts recognize such changes only when they are clearly expressed. Our supreme court has said on a number of occasions that statutes contravening the common law must be strictly construed so that if the legislature wishes to abrogate rights that would otherwise be available under common law, it must state its intent either expressly or by clear implication. See, e.g., Vaughan v. McMinn, 945 P.2d 404 (Colo.1997).
The defenses of comparative negligence and pro rata liability were available to landowners when the Act was amended in 1990.
In Vigil the supreme court granted certio-rari to consider "whether the common law open and obvious danger doctrine survived enactment of Colorado's premises Hability statute." Vigil, 103 P.3d at 324 n. 2. The court held 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" and that the common law defenses to those duties were pre-empted. Id. at 323, 328.
Contrary to the view expressed by the majority, Vigil abrogated common law defenses to landowner duties but did not rule that statutory defenses were not to be allowed to a landowner.
The Vigil court in part II(A), "Creation of Common Law Duties and Defenses," stated that a defendant has the option at common law of arguing that he did not owe a duty to an injured plaintiff. It then pointed out, "Structurally, this argument is independent of and arises before other recognized negligent tort defenses such as contributory negligence and comparative fault. Where a defendant successfully argues no duty, there is no subsequent inquiry into negligence; considering additional defenses under the breach, causation, and damages elements is entirely unnecessary." Id. at 325.
Based on my understanding of the issue on which certiorari was granted, Vigil spoke to the existence of legal duty and common law defenses in premises liability cases and left other statutory defenses, such as comparative negligence and pro rata liability, untouched.
If the majority is correct in its view that the statutory defenses of comparative negligence and pro rata liability were not available to landowners before the 2006 amendment (H.B. 06-1237), then landowners would *74become insurers, because they could be held responsible for damages even for the injuries caused by the negligent acts of persons who come on their lands. In the absence of the defense of nonparty at fault, the landowner could not assign blame, in whole or in part, to another party or, in the absence of the defense of comparative negligence, assign some part of the blame to the person injured.
Comparative negligence is not a defense to any duty element of a negligence claim. It is a creature of statute designed to apportion damages among parties based on the percentage of fault attributable to each party or nonparty.
Although not mentioned in the majority opinion, plaintiff initially brought suit against Vincent Veruchi, alleging that he was negligent and that his negligence caused plaintiff's injuries. Plaintiff then settled her case against Veruchi. The trial court, relying on Vigil, ruled that defendants could not apportion fault to Veruchi when it struck defendants' statutory defenses, sections 13-21-111 (comparative negligence) and 13-21-111.5 (pro rata liability).
The majority reads Vigil as limited to duty issues. It concluded, "Based on this distinction between common law defenses to a landowner's duty and other defenses that do not affect such a duty, we conclude that Vigil simply does not address application of the affirmative defenses under sections 13-21-111 and 18-21-111.5."
Although both parties to this case state (plaintiff in oral argument and both parties in their briefs) that the Act is unambiguous, as did the supreme court in Vigil, the majority concludes that it is not bound by the concessions of the parties and that the Act is ambiguous, and therefore it is free to consider legislative history to determine legislative intent. Indeed, the majority does not consider the legislative history of the 1990 version of the Act, which was applicable at the time of the accident in 2002, but it seeks to divine the intent of the legislature by what took place in 2006. By this reasoning it forecloses consideration of decisions of other divisions of this court, and trial courts, both state and federal, which predate the 2006 amendment to the Act.
Because I believe that Vigil is controlling and the Act is unambiguous, I consider decisions of other divisions of this court and the trial courts that predated the 2006 amendment upon which the majority rests its opinion.
For example, in Pedge v. R.M. Holdings, Inc., 75 P.3d 1126 (Colo.App.2002), a division of this court in a premises liability case held that unidentified or unknown persons could be designated as nonparties pursuant to Colorado's pro rata apportionment statute, § 18-21-115. See also Thornbury v. Allen, 991 P.2d 335 (Colo.App.1999).
In 2005 and 2006, subsequent to the Vigil decision, three United States District Court Magistrate judges held in separate premises liability cases that affirmative statutory defenses such as comparative negligence and assumption of the risk were not to be denied to the defendants. Danielson v. Wal-Mart Stores, Inc., (D. Colo. No. 06-cv-00053-EWN-PAC, Mar. 29 & May 1, 2006) (unpublished order accepting magistrate's recommendation as to motion to strike defenses); Cole v. United States, (D. Colo. No. Civ. A04CV 1318PACMJW, July 8, 2005) (unpublished memorandum opinion and order); Rankin v. Union Pac. R.R., (D. Colo. No. 04-Cv-00372 OES PAC, Sept. 15, 2005) (unpublished order denying motion to strike defenses).
In 2005 in Means v. Simpson Housing Solutions, LLC, (Larimer County No. 05CV381), a judge in the District Court of Larimer County held that the defenses of comparative negligence, assumption of the risk, and mitigation of damages were not prohibited to the defendants in a premises liability case, and that such defenses remain in effect after Vigil.
In Donnelly v. Larry H. Miller Corp., (Boulder County No. 05CV327), a judge in the District Court of Boulder County held in a premises liability case that the defenses of comparative negligence and assumption of the risk were available to the defendant after Vigil.
To the same effect in Stanek v. Pacific Living Properties, (Adams County No. 05-*75CV-0464), an Adams County District judge denied the plaintiffs motion to strike the defenses of the plaintiff's own negligence, assumption of the risk, and fault of third parties, holding that Vigil did not rule that statutory defenses did not apply to premises liability actions.
In three cases in El Paso County and Boulder County District Courts, judges found that assumption of the risk and comparative negligence were not defenses available to defendants in premises liability cases. Gonzales v. Trout, (El Paso County No. 04CV3095); Heil v. Elite Props., (El Paso County No. 04CV72); Tribby v. Grizzard, (Boulder County No. 4CV763).
The majority ignores these cases which were included with the parties' briefs. None of these courts suggested or held that the Act was ambiguous or that Vigil was not controlling. It is only the majority in this case that has come to that conclusion and seeks to resolve that ambiguity by considering the 2006 amendment to the Act.
TIL.
Based on the conclusion that Vigil is not controlling and the Act ambiguous, the majority begins its journey on statutory interpretation. First it considers the 2006 amendment to the Act, which provided that statutory defenses of comparative negligence, nonparty at fault, and assumption of risk shall apply in premises liability causes of action aceruing on or after April 5, 2006.
Second, it states that if a statutory provision is ambiguous "we interpret it to reflect the General Assembly's intent."
Third, to divine that intent, the majority does not look to the premises liability statute that was in force at the time of the accident, but relies solely on the legislative intent expressed in the 2006 amendment.
Fourth, the majority then sets up the proverbial straw man: when a statute is amended, an intent to change is presumed. Having established the presumption of change, it then considers whether the General Assembly meant to change the law or to clarify it.
Assuming for the purposes of this dissent that the 1990 version of the Act was ambiguous and that the 2006 amendment should be considered, I conclude that contrary to the conclusion of the majority, the 2006 amendment was a clarification and not a change of the Act.
Following the format of the majority opinion, I first consider the legislative history of the 2006 amendment.
House Bill 06-1237 was sponsored in the House by Representative Carroll and in the Senate by Senator Dyer. It was assigned to the Judiciary Committee of each body. On the face of H.B. 06-1237, under the title "Bill Summary," there appears the following sentence: "Clarifies the applicability of certain statutory provisions in premises liability actions." The fiscal note also states, "This bill clarifies landowner's or landholder's tort liability for conditions or activities on his or her premises. Since this bill simply clarifies existing law it will not impact the disposition of premises liability cases by the courts. As such, this bill is assessed as having no fiscal impact."
At a hearing before the Senate Judiciary Committee, Senator Dyer, co-sponsor of the amendment, testified that "[tlhis clarifies the pre-statutory defenses of comparative negligence, third party at fault and assumption of the risk." Hearings on H.B. 06-1237 before the Senate Judiciary Committee, 65th Gen. Assemb., 2d Sess. (Mar. 14, 2006). Later in the hearing a representative of the Colorado Defense Lawyers Association stated that "[what H.B. 06-1237 does is to make sure in Title 5 that the statutory defenses of comparative negligence, assumption of risk are still to be considered part of the Premises Liability Statute." Id.
As noted in the majority opinion, Representative Carrol testified that "the purpose of this bill is to reinstate statutory defenses for landowners and premises liability actions" (emphasis added). Also a Colorado Trial Lawyers Association representative stated that H.B. 06-1237 reinstates the statutory defenses of comparative negligence, third party at fault and assumption of risk. Hearings on H.B. 06-1237 before the House Judi*76ciary Committee, 65th Gen. Assemb., 2d Sess. (Feb. 16, 2006).
Based upon its review of the legislative history and its observation that the testimony of a bill's sponsor is powerful evidence of legislative intent, the majority concludes that because the co-sponsors' statements are in conflict, the legislative history does not overcome the presumption that the amendment was intended to change the 1990 version.
I have two basic differences with the majority opinion. First, Senator Dyer, the cosponsor of the bill, testified that the bill "clarifies the pre-statutory defenses." Second, Representative Carroll's and the Colorado Trial Lawyers Association representative's use of the word "reinstate" clearly demonstrates that the purpose of H.B. 06-1237 was to clarify, not change, the law.
Webster's New World Dictionary College Edition defines "reinstate" as follows: "to instate again, restore to a former condition, position." The American College Dictionary defines "reinstate" as "to put back or establish again, as in a former position or state." To the same effect, William C. Burton's Legal Thesaurus (1980) states that "reinstate" means "[blring back, place in a former state, put back in to service an associate concept: reinstate to a job." Doubleday Roget's Thesaurus lists the following synonyms for "restore": "reinstate, put back, reinstall, re-elect, reset, reinsert." Black's Law Dictionary (8th ed.2004) defines reinstate as "to place again in a former state or position; to restore <the judge reinstated the judgment that had been vacated >."
Giving words their plain and ordinary meaning and applying the dictionary meaning of "reinstate," I believe it is appropriate to conclude that Representative Carroll was saying that statutory defenses were included in the Act as it existed in 1990. Certainly if the statutory defenses were not included in the Act then, they could not be reinstated. If they were included, then of course they could be reinstated, restored, or put back. In short, if they were not there in the first place, they could not be reinstated.
Applying the factors relied on by the majority the evidence is overwhelming that the 2006 amendment clarified and did not change the Premises Liability Act. First, the Bill Summary for H.B. 06-1237 states that it clarifies the applicability of certain statutory provisions. Second, the fiscal note states that the bill clarifies. Third, the co-sponsor in the Senate stated that the amendment clarifies the pre-statutory defenses of comparative negligence, third party at fault, and assumption of the risk. Fourth, Representative Carroll stated that the purpose of H.B. 06-1237 was to reinstate statutory defenses. The majority bases its opinion on the words of Representative Carroll that the purpose of the bill is to reinstate statutory defenses. In order to do so it ignores the plain meaning of the word "reinstate" and has it mean "change." Thus we are in the never-never land where words only mean what I say they mean.
Simply stated, there is no evidence that the amendment changed the law rather than clarified it. The best the majority can find to support its position is that the wording of the amendment suggests a change rather than a clarification. In HB. 06-1237 the words "shall apply" are used, whereas in Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000), the Colorado Supreme Court said that the phrase "shall continue to apply" indicated a clarification. Based on this difference the majority concludes that "shall apply" suggests change. I do not believe that the harsh result to landowners is supported by the fine distinction relied on by the majority.
Based on my review of H.B. 06-1287, I thus conclude that the legislature's intent was to clarify and not to change the law.
I would reverse and remand for a new trial on this issue alone. Accordingly, I take no position on the other issues discussed in the majority opinion.