People in Interest of A.T.S.
2025 COA 53. No. 22CA1175. Delinquency—Sixth Amendment—Confrontation Clause—Child Victim’s Trial Testimony—Use of Closed-Circuit Television—Defendant’s Presence—Prosecutorial Misconduct—Sufficiency of Evidence.
May 29, 2025
Qwest Corporation (Qwest) had a utility facility permit to install equipment in Cherry Hills Village for the provision of fiber optic internet service to numerous schools. The utility permit provided that Qwest agreed to own and maintain the installation and to keep the facility in an adequate state of repair. The installation was completed in 2010. In 2016, Kritzer was seriously injured while riding his bike in Cherry Hills Village. As relevant here, Kritzer and his wife sued Qwest, alleging that he rode over a sidewalk panel that was in a state of disrepair, and because of the sidewalk’s degraded condition, he was ejected from his bicycle and onto the pavement. The Kritzers brought four claims for relief against Qwest, including premises liability under the Colorado Premises Liability Act (PLA), negligence, and loss of consortium. Qwest moved for summary judgment, arguing that the statute of repose in the Construction Defect Action Reform Act (CDARA) barred the Kritzers’ claims. Before the district court ruled on Qwest’s motion, Qwest filed an alternative second motion for summary judgment, arguing that it was shielded from liability because it was an owner of land that qualified for immunity under Colorado Recreational Use Statute (CRUS). The Kritzers responded that CRUS didn’t bar their claims because Qwest wasn’t an owner of land under CRUS, and, in any event, Qwest didn’t invite or permit anyone to use the sidewalk panel for recreational purposes. Soon after the Kritzers filed their response, the district court issued an order granting Qwest’s first motion for summary judgment. The Kritzers appealed, and a court of appeals division reversed and remanded the case for further proceedings. The district court granted Qwest’s second motion for summary judgment on remand, concluding that Qwest was an “owner” under CRUS and that no disputed facts existed that could support a finding that the willful or malicious conduct exemption to CRUS applied.
On appeal, the Kritzers contended that the district court erred because Qwest isn’t an “owner of land” under CRUS and didn’t have authority to invite or permit Kritzer to use the sidewalk panel. CRUS grants owners of land, which are broadly defined, immunity from liability for injuries incurred on their land when such owners “either directly or indirectly invite[] or permit[], without charge, any person to use such property for recreational purposes.” CRS § 33-41-103(1). But CRUS doesn’t explicitly define “invites” or “permits.” Applying the ordinary meanings of these terms, the court concluded that “invites” indicates that some affirmative action on the part of the one doing the inviting is required. And in the context of § 33-41-103(1), “permits” unambiguously requires the party claiming immunity to have an ability or authority to prohibit or limit the use of the land for recreational purposes. Here, Qwest failed to establish as a matter of law that it directly or indirectly invited or permitted Kritzer or anyone else to use the land for recreational purposes. Accordingly, the district court erred by granting summary judgment in Qwest’s favor on grounds that, as a matter of law, CRUS shielded it from liability for the Kritzers’ claims.
The court declined the parties’ request to determine whether Qwest is an “owner of land” under CRUS § 33-41-102(3) because whether a party is an “owner of land” under CRUS doesn’t resolve whether one is a “landowner” under the PLA, so resolution of the issue is unnecessary to the disposition of this case.
Qwest also argued that, even if it isn’t entitled to benefit from CRUS, the district court’s order should be affirmed on grounds that the Kritzers invited error by advancing contradictory theories about the extent of Qwest’s interest in and control over the sidewalk panel where the accident occurred. However, the court was not persuaded that the positions taken by the Kritzers up to when Qwest asserted CRUS immunity are inconsistent with the grounds on which the court reversed the district court’s grant of summary judgment such that the district court’s error was invited or that the disposition of this appeal dictates the outcome of unresolved issues that were previously remanded and remain pending.
The judgment was reversed and the case was remanded for further proceedings.