Opinion by JUDGE FURMAN.
¶ 1 Plaintiff, Jillian Groh, was evicted from the Westin Hotel in downtown Denver, owned and operated by defendant, Westin Operator, LLC (Westin). Tragically, she was later injured in an accident while riding as a passenger in a car driven by an intoxicated driver. She now claims that the Westin was negligent in not preventing her from riding in that car.
¶ 2 We conclude the Westin did not owe a duty of care to Groh because (1) after she and her companions were evicted, the innkeeper-guest special relationship, which has been recognized by Colorado courts for the purpose of imposing a duty of care, no longer existed and (2) the Westin did not, through its affirmative acts or a promise to act, undertake a service that was reasonably calculated to prevent the type of harm that befell Groh. Thus, we affirm the district court's granting summary judgment in favor of the Westin.
¶ 3 Groh and a group of her friends decided to spend one evening visiting several bars and nightclubs in Denver, consuming alcoholic beverages. After the bars closed, Groh and the group — eleven in all — gathered in a room on the seventeenth floor of the Westin. Planning to stay overnight, Groh had reserved the room in advance using her sister's employee discount. (The room had two double beds.) Although Groh was the only registered guest, two of her friends had also been given keys to the room.
¶ 4 Around 2:45 a.m., a Westin security guard patrolling the nineteenth floor heard noise coming from lower floors through the elevator shaft. Though the Westin had not received any complaints, the guard decided to investigate the noise and rode the elevator down to the seventeenth floor, where he heard loud noises coming from Groh's room. The guard went to the door and asked for the person in charge to come out of the room. Groh stepped out.
¶ 5 The guard told Groh that she and the others in the room needed to quiet down. Groh acquiesced, but the guard believed the others were not cooperating and were still being too loud. Without asking Groh, the guard entered the room and told the others they needed to quiet down. As the guard exited the room, Groh became upset and started to argue with him. Groh told him that she thought he was being rude because, in her view, he was not supposed to walk into the room without her permission, and that she wanted to see his manager.
¶ 6 The guard then reentered the room and said everyone would have to leave. After the guard said this, various people protested that they had been drinking, that the room had been rented so that the group could avoid having to drive after drinking, and that the guard could not expect them to leave. In addition, one of Groh's male friends became involved in the argument between Groh and the guard. The guard radioed for the manager. Unable to personally respond at that moment, the manager sent a second security guard upstairs.
¶ 7 The second guard asked Groh if she could come across the hall, away from the room, to discuss the situation with him; she complied in a polite and respectful manner. The second guard and Groh negotiated an agreement wherein the two friends who had been given keys could stay with Groh but all of the others would have to leave. Groh then returned to the room and relayed the agreement to the others. Some of the others did not like it, and so Groh asked the second guard to come in and explain the agreement, which he did.
¶ 8 The group reiterated their protests that they were intoxicated and that they could not be expected to leave. One friend then stepped out of the room and loudly informed the guards that he refused to leave, despite the agreement. Another friend tried to intervene, pushing him away from the guards and into an open elevator. The second guard then radioed for the manager, who responded.
¶ 9 The manager and Groh discussed changing the agreement and letting the others stay. Because Groh was the registered guest, the manager asked that she stay. When it became clear that the manager would not modify the agreement to let the others stay, Groh said that, if her friends would have to leave, she would leave as well. That would turn out to be the first in a series of tragic decisions that led to tragic consequences. For purposes of summary judgment only, the Westin conceded that Groh was evicted.
¶ 10 Throughout this entire process, only the friend who loudly informed the guard that he refused to leave appeared to Westin personnel to be "a little tipsy"; Groh and the rest of the members of the group, despite their protestations, did not appear drunk to Westin personnel.
¶ 11 Several members of Groh's party decided to leave the hotel and were not involved in any of the subsequent events.
¶ 12 Shortly after 3:00 a.m., Groh and the remainder of her group left through the front entrance of the Westin. The first security guard accompanied Groh and the group to the door and blocked the doorframe with his body as the last of them exited, to prevent them from reentering.
¶ 13 Once outside, Groh used her cell phone to call her brother and inform him of the situation; he advised her to take a taxi home. During this time, one of Groh's friends was looking for a taxi. He asked the first security guard if the group could wait in the lobby until a cab was procured because of the cold temperatures outside, but the guard crossed his arms and said, "No, get the f*** out of here."
¶ 14 Groh and the rest of the group then walked along the front of the Westin's building and down a ramp into a parking garage. As Groh and the group walked, they passed several vehicles, including a taxi, but Angela Reed (who had joined the group earlier in the evening shortly after they had checked in) offered to drive. Groh then gave Reed the keys to her PT Cruiser — a vehicle with five seatbelts. Groh and the group (seven persons in all) got into the automobile, and Reed got behind the wheel. Reed was the only person in the car wearing a seatbelt.
¶ 15 Around 4:00 a.m., on northbound I-225, Reed encountered a vehicle that was driving well below the speed limit because it was towing a vehicle with a flat tire. Without braking, she crashed into this vehicle. One passenger died; the others sustained injuries, and Groh sustained severe injuries resulting in a persistent vegetative state. (A toxicology expert later estimated that Reed's blood alcohol content (BAC) was between 0.170 and 0.222 at the time of the accident. The legal BAC limit for driving under the influence is .08.) Reed was subsequently charged with several felonies associated with her driving Groh's vehicle while intoxicated.
¶ 16 Although the accident occurred fifteen miles from the Westin, Groh brought negligence and breach of contract claims against the Westin. The district court, however, granted summary judgment for the Westin:
¶ 17 The district court also found that the Westin had the right to evict Groh and the group based on her breach of the contract and that the Westin had not waived its right to object to the number of individuals staying in the room. In the words of the district court,
¶ 18 Groh appeals the district court's entry of summary judgment.
¶ 19 Summary judgment is appropriate only when the pleadings, affidavits, depositions, answers to interrogatories, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). "In considering whether the moving party has ultimately established its entitlement to summary judgment, we must grant the nonmoving party all favorable inferences that reasonably may be drawn from uncontested facts and resolve any doubt as to whether a triable issue of material fact exists against the moving party." Ludlow v. Gibbons, ___ P.3d ___, ___ (Colo. App. No. 10CA1719, Nov. 10, 2011)(cert. granted July 30, 2012)(citing Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo. 2008)).
¶ 20 We review a trial court's entry of summary judgment de novo. Woods v. Delgar Ltd., 226 P.3d 1178, 1180 (Colo. App. 2009).
¶ 21 Groh contends the district court erred in granting summary judgment on her negligence claim because, in her view, the Westin had a common law duty to "protect [her] while [she was] intoxicated" and "prevent [her] from driving while intoxicated." Groh also contends the trial court erred in its breach of contract ruling. We address each contention in turn.
¶ 22 "A negligence claim must fail if based on circumstances for which the law imposes no duty of care upon the defendant for the benefit of the plaintiff." University of Denver v. Whitlock, 744 P.2d 54, 56 (Colo. 1987). "The question of whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court." Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987)(quoting Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo. 1986)). "The court determines, as a matter of law, the existence and scope of the duty — that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection." Id. (quoting Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980)).
¶ 23 Resolution of the duty question requires us to determine whether the Westin "owed a duty of care to take reasonable measures to protect [Groh] against the injury that [s]he sustained." See Whitlock, 744 P.2d at 57. Groh was injured as a result of riding as a passenger, without a seatbelt, in a vehicle driven by an intoxicated driver. Thus, we must determine whether the Westin owed a duty of care to take reasonable measures to protect Groh against this injury. See id.
¶ 24 Groh contends the Westin "failed to exercise a minimum level of due care" concerning her "health or safety." Specifically, Groh's fourth amended complaint alleged that the Westin failed to take affirmative action to "determine if it was safe for [Groh] to leave [her] hotel room, if there was any alternative shelter available for [Groh] in the proximity of its hotel, or if it was safe for [Groh] to drive home." We conclude that these contentions about the Westin's failure to act are appropriately characterized as nonfeasance. See id.
¶ 25 Nonfeasance exists in cases of "pure failure to act," where the actor may have "had it in its power to take reasonable action to eliminate the peril but had no part in creating it." Id. at 59 n.4. The dissent claims that "the Westin set into motion the chain of events that led to Groh's injury by deciding to evict her and then escorting her from the premises, knowing that she was intoxicated and was accompanied by others who were as well." Contrary to the dissent's characterization, the Westin did not set into motion the chain of events that led to Groh's injury. It is undisputed that the Westin did not contribute to Groh's intoxicated state. Indeed, Groh alone made the decision to spend the evening visiting several bars and restaurants, become intoxicated, and later invite six to ten friends to her hotel room.
¶ 26 Because Groh complains of nonfeasance, rather than the Westin's negligent affirmative action (misfeasance), we are guided by our supreme court's analysis in Whitlock, to determine whether the Westin owed Groh a duty in this case.
¶ 27 In Whitlock, our supreme court addressed the issue of whether the University of Denver owed a duty of care to Whitlock, a student and fraternity member, "to take reasonable measures to protect him against injury resulting from his use of a trampoline under unsafe conditions when the trampoline was owned by the fraternity and was located on the front lawn of the house that the fraternity leased from the University." Id. at 55. The court concluded the University owed Whitlock no such duty. Id. at 62. Central to the court's conclusion was the "critical factor" that the University was charged with negligent failure to act rather than negligent affirmative action. Id. at 57. The court explained:
Id. (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984)). The court then concluded that, when nonfeasance is at issue, "the existence of a duty has been recognized only during the last century in situations involving a limited group of special relationships between parties." Id. at 58 (noting the innkeeper-guest as one such relationship). In a footnote, the court also recognized that "[s]pecial relationships are not the only situations that give rise to a duty to take affirmative action for another's aid or protection." Id. at 58 n.3. The court mentioned other "special situations," including ability to control a third person, land, or chattels, prior tortious conduct creating a situation of peril, and an assumed duty of care. Id. (citing Restatement (Second) of Torts § 314 cmt. a (1965)). The court then noted that none of the other special situations were implicated under the facts of the case, see id., and proceeded to analyze whether a special relationship existed between the University and Whitlock that would provide a basis for imposing a duty on the University, id. at 59. The court ultimately concluded that it did not, and, thus, no duty was owed: "Here, a conclusion that a special relationship existed between Whitlock and the University sufficient to warrant the imposition of liability for nonfeasance would directly contravene the competing social policy of fostering an educational environment of student autonomy and independence." Id. at 62.
¶ 28 Whitlock made clear that, where negligence based on nonfeasance is alleged, "[i]f . . . a duty is to be recognized, it must be grounded on a special relationship" between the parties, id. at 59, or a special situation, id. at 58 n.3. Once the court concluded that no special relationship or situation existed, it did not further analyze the duty factors set forth in Smith, 726 P.2d 1125, which typically guide analysis of whether a duty exists. See Whitlock, 744 P.2d at 57, 62.
¶ 29 The analysis in Taco Bell, announced the same day as Whitlock, does not result in a different outcome here. In Taco Bell, also a nonfeasance case, the court held that a restaurant had a legal duty to protect its patrons from the consequences of criminal acts of unknown third persons. 744 P.2d at 50. In so concluding, after finding the plaintiff's injury was foreseeable, the Taco Bell court analyzed the other Smith duty factors. Id. at 49-50. It was undisputed in Taco Bell, however, that a special relationship existed. Id. (duty arose out of land possessor relationship because the customer was injured on the restaurant's premises); see also Whitlock, 744 P.2d at 58 (identifying possessor of land-invited entrant as a special relationship for the purposes of imposition of duty of care in nonfeasance situations). Thus, it was the existence of the special relationship, not whether the case alleged nonfeasance, which required the court to consider the Smith duty factors. See Taco Bell, 744 P.2d at 49-50.
¶ 30 Accordingly, based on the approaches in Whitlock and Taco Bell, we reach the following conclusion: where a case is one of pure failure to act (nonfeasance), in determining whether a duty exists, a court should first identify whether a special relationship or situation exists "sufficient to warrant the imposition of liability for nonfeasance." Whitlock, 744 P.2d at 59, 62. If a court concludes that no such relationship or situation exists, it need not address whether a duty could otherwise be justified through consideration of the Smith duty factors. See id. at 62; see also Perreira v. State, 768 P.2d 1198, 1209 (Colo. 1989)("In addition to the existence of a special relationship, a court may appropriately consider other factors in determining the existence and scope of a legal duty." (emphasis added)). If, however, a court concludes that such a relationship or situation does exist, it should then proceed to analyze other relevant policy factors, see Taco Bell, 744 P.2d at 49-50, including "the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor." Smith, 726 P.2d at 1127.
¶ 31 Because Groh complains of the Westin's "negligent failure to act rather than [its] negligent affirmative action," Whitlock, 744 P.2d at 57, we turn to the question of whether a special relationship or special situation existed between the Westin and Groh "sufficient to warrant the imposition of liability for nonfeasance," id. at 62. Groh raises two possible "bases for recognition of such a duty," id. at 58 n.3, (1) the innkeeper-guest special relationship, and (2) the assumed duty of care doctrine. We examine each in turn.
¶ 32 "Special relationships that have been recognized by various courts for the purpose of imposition of a duty of care include . . . innkeeper/guest . . . ." Id. at 58 (citing Restatement § 314A); see also Allen v. Ramada Inn, Inc., 778 P.2d 291, 293 (Colo. App. 1989). An innkeeper owes a guest a duty of reasonable care that arises from the special relationship. See Allen, 778 P.2d at 293. When the individual ceases to be a guest of the hotel, however, the special relationship is terminated. See, e.g., Murray v. Marshall, 9 Colo. 482, 484, 13 P. 589, 590 (1887)(holding that when baggage is left "with the consent" of the innkeeper after the innkeeper-guest relationship ceases, "a contract is to be implied by which the innkeeper consents to continue his liability as innkeeper for a reasonable time"); see also Restatement § 314A cmt. c. An individual ceases to be a guest once evicted. See, e.g., Billingsley v. Stockmen's Hotel, Inc., 901 P.2d 141, 145 (Nev. 1995).
¶ 33 It is undisputed that Groh was a guest of the Westin on the evening in question, and that her claims are based on her guest status. But she did not retain that status indefinitely; Groh was lawfully evicted. Once evicted, the innkeeper-guest relationship terminated. See Murray, 9 Colo. at 484-85, 13 P. at 590; also Billingsley, 901 P.2d at 145. Thus, in this case the innkeeper-guest relationship provides no basis for imposing a duty on the Westin to protect Groh from the particular risk at issue here.
¶ 34 Moreover, imposing such a duty to an evicted former guest would directly contravene the Westin's clearly established duty to use reasonable care to protect its guests from third persons. See Allen, 778 P.2d at 293 ("[T]he innkeeper has a duty to use reasonable care to protect its guests from third persons."); Restatement § 314A cmt. c; see also Whitlock, 744 P.2d at 62.
¶ 35 Neither does an innkeeper's duty to evict a guest "in a manner reasonable under the circumstances," Rodriguez v. Primadonna Co., 216 P.3d 793, 798 (Nev. 2009), provide a special relationship or situation sufficient to warrant a duty to protect a former guest from the risk at issue in this case. Groh was not injured during the course of the eviction. She was injured fifteen miles away from the Westin after the eviction had already occurred.
¶ 36 We conclude, therefore, that the Westin had no duty to take affirmative action to protect Groh from the risk that she would get into a car driven by an intoxicated friend once she was evicted, because the special relationship "sufficient to warrant the imposition of liability for nonfeasance," Whitlock, 744 P.2d at 58, did not exist.
¶ 37 Groh also contends that the Westin is responsible under the assumed duty of care doctrine. See id. at 58 n.3 (citing Restatement § 314 cmt. a). Under this doctrine, "a party may assume duties of care by voluntarily undertaking to render a service." Jefferson County Sch. Dist. R-1 v. Justus, 725 P.2d 767, 770 (Colo. 1986); see also Wark v. United States, 269 F.3d 1185, 1189 (10th Cir. 2001).
¶ 38 For the doctrine to apply, however, Groh must first show that the Westin "undertook to render a service that was reasonably calculated to prevent the type of harm that befell [her]." Jefferson County Sch. Dist. R-1, 725 P.2d at 771. Second, Groh must also show either that she "relied" on the Westin "to perform the service" or that the Westin's "undertaking increased [her] risk." Id. The scope of this assumed duty "must be limited to the performance with due care of that service undertaken." Id. at 772-73 n.5. Liability under a voluntarily assumed duty, however, "can obviously be no broader than the undertaking actually assumed." Id.
¶ 39 Groh contends the Westin assumed a duty "to protect [her] while [she was] intoxicated and to prevent [her] from driving while intoxicated." Although it was undisputed that she was not driving, she nevertheless argues that the Westin assumed a duty to protect her because of (1) the Westin's advertisements that the hotel was in close proximity to bars and restaurants downtown, (2) the Westin's internal training documents, which show that it generally pays for alternative transportation in order to prevent intoxicated guests from driving, and (3) deposition testimony of the Westin's employees admitting that the Westin will pay for a taxi.
¶ 40 We conclude, however, that the record does not contain evidence which demonstrates that the scope of this assumed duty is so broad as to include preventing a former guest from being injured while riding as a passenger in a car driven by an intoxicated driver. Indeed, it was Groh's activity of choosing to become a passenger in a car driven by an intoxicated friend that created and gave rise to Groh's risk and subsequent injury. See, e.g., Smith v. City & County of Denver, 695 P.2d 770, 771-72 (Colo. App. 1984), aff'd, 726 P.2d 1125 (Colo. 1986). Simply put, Groh has provided no evidence which would demonstrate that the Westin undertook a service that was reasonably calculated to prevent her from being injured as a passenger in a car.
¶ 41 Additionally, Groh must show "either that [she] relied on the [Westin] to perform the service or that [the Westin's] undertaking increased [her] risk." Jefferson County Sch. Dist. R-1, 725 P.2d at 771. But she has not presented any evidence that she relied on the Westin's advertisements or training documents. Indeed, she has not presented any evidence that she even knew of their existence at the time she checked into the room.
¶ 42 As for increased risk, there is no evidence that the Westin's undertaking placed Groh in a more vulnerable position than she would have been in had the Westin taken no action at all. See id. at 772. Again, Groh contends the Westin undertook a duty to protect her by virtue of its advertisements and internal training documents. She points to no facts, however, that demonstrate she would have been in a less vulnerable situation had the Westin never created these advertisements or training documents.
¶ 43 Thus, because Groh has not cited any evidence indicating that the Westin "either through its affirmative acts or through a promise to act, undertook to render a service that was reasonably calculated to prevent the type of harm that befell [her]"— that she was injured in an accident while riding as a passenger in a car driven by an intoxicated driver — we conclude the Westin did not assume a duty of care toward Groh. Jefferson County Sch. Dist. R-1, 725 P.2d at 771.
¶ 44 Accordingly, we conclude that neither the alleged relationship between the Westin and Groh, nor the assumed duty of care doctrine, provides a "basis for the recognition of a duty of the [Westin] to take measures for protection of [Groh] against the injury that [s]he suffered." See Whitlock, 744 P.2d at 61. Because no such basis existed, we need not further address whether any other factors, other than those previously addressed, support this conclusion. See id. at 62.
¶ 45 Groh also contends the trial court erred in ruling, as a matter of law, that she breached her contract with the Westin. She contends the Westin waived any claim that she breached their rental contract when she and her group checked into the hotel and the Westin gave her three keys. She has cited no authority, however, and we have found none, which would indicate that the Westin waived its rights with regard to any number of persons above three.
¶ 46 In light of our holding, we need not address the remaining contentions.
¶ 47 The summary judgment in favor of the Westin is affirmed.
JUDGE RUSSEL concurs.
JUDGE WEBB dissents.
JUDGE WEBB dissenting.
¶ 48 As the majority recognizes, "Groh contends the Westin `failed to exercise a minimum level of due care' concerning her `health or safety,'" including "whether the Westin failed . . . to `determine if it was safe for [Groh] to leave [her] hotel room, if there was any alternative shelter available for [Groh] in the proximity of its hotel, or if it was safe for [Groh] to drive home.'" These contentions require a duty inquiry broader than the automobile accident in which Groh was catastrophically injured. Hence, I respectfully dissent from the majority's holding that, because a lawful eviction ends the special relationship between an innkeeper and its guest, the Westin did not owe Groh a duty of care after she had been evicted.
¶ 49 Instead, I would hold that where an innkeeper evicts a guest under circumstances potentially creating an imminent risk to the guest, because of either the guest's condition or the environment into which the guest has been evicted — or, as here, the two in combination — the jury must decide whether the eviction was reasonable. Thus, on this record, the eviction did not end the Westin's duties to Groh. And I would further hold that under circumstances of imminent risk, the innkeeper's duty of ordinary care does not end immediately when the guest is escorted out its front door. Therefore, I would reverse the summary judgment and remand for further proceedings.
¶ 50 Under established summary judgment jurisprudence mandating resolution of both disputed facts and reasonable inferences from even undisputed facts against the Westin, as the moving party, the following questions must be resolved in Groh's favor, at this stage of the proceedings:
This list suggests a case that is ill-suited for summary judgment.
¶ 51 The special relationship between an innkeeper and a guest obligates the innkeeper to exercise ordinary care concerning the guest. See, e.g., Burchmore v. Antlers Hotel Co., 54 Colo. 314, 317, 130 P. 846, 847 (1913). As a corollary of this duty, an innkeeper can only evict a guest "in a manner reasonable under the circumstances." Rodriguez v. Primadonna Co., LLC, 216 P.3d 793, 798 (Nev. 2009); Raider v. Dixie Inn, 248 S.W. 229, 230 (Ky. 1923) (innkeeper must remove guest in a reasonable manner). These duties both apply here, but they merit separate discussion. I begin with whether the Westin evicted Groh in a reasonable manner, as a matter of law, because the majority concludes that by doing so, the Westin ended its special relationship with Groh.
¶ 52 Particular circumstances of a guest that factor into the reasonable manner calculus, such as intoxication or a medical condition, do not magically vanish at the innkeeper's door.
¶ 53 Because our supreme court has treated common carriers like innkeepers for purposes of the special relationship analysis, Univ. of Denver v. Whitlock, 744 P.2d 54, 58 (Colo. 1987), common carrier cases are informative. A common carrier is liable for injuries caused by ejecting a passenger "at a time or place which is dangerous." McCoy v. Millville Traction Co., 85 A. 358, 360 (N.J. 1912) (drunken passenger was ejected into the snow); see also Bragg's Adm'x v. Norfolk & W. Ry. Co., 67 S.E. 593, 595 (Va. 1910) ("the condition of the weather and of the place where he was ejected [] would naturally imperil his safety, in addition to his intoxicated condition"). This duty to an intoxicated passenger applies even if the passenger has reached the destination called for in his ticket. Bartley v. Cincinnati, N. O. & T. P. Ry. Co., 67 F.Supp. 991, 993 (E.D. Ky. 1946).
¶ 54 Therefore, I would conclude that an innkeeper does not evict a guest in a reasonable manner if it fails to take any steps to mitigate risks to the guest that are imminent outside its entrance, resulting from either the guest's condition or the environment. And because here disputed facts exist concerning those risks, the eviction cannot be held reasonable, as a matter of law. Thus, it cannot end the duty of care discussed in the next section.
¶ 55 In my view, an innkeeper's duty of ordinary care to its guest does not end at its front door where the condition of the guest, the circumstances, or both, pose an imminent risk to the guest.
¶ 56 To establish a prima facie negligence claim, a plaintiff must show (1) a legal duty of the defendant, (2) breach of that duty, (3) causation, and (4) damages. See, e.g., Davenport v. Cmty. Corr. of Pikes Peak Region, Inc., 962 P.2d 963, 966 (Colo. 1998).
¶ 57 Because the threshold issue is whether the defendant owed the plaintiff a duty, "[a] negligence claim must fail if [it is] based on circumstances for which the law imposes no duty of care upon the defendant for the benefit of the plaintiff." Whitlock, 744 P.2d at 56. Whether a particular defendant owes a legal duty of care to a particular plaintiff is a question of law subject to de novo review. Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1147 (Colo. 1993); Woods v. Delgar Ltd., 226 P.3d 1178, 1180 (Colo. App. 2009).
¶ 58 Breach of duty is determined based on a standard of conduct, here ordinary care. Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002). Thus, "[o]nce the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform." Imperial Distrib. Services, Inc. v. Forrest, 741 P.2d 1251, 1254 (Colo. 1987) (quoting Restatement (Second) of Torts § 328B cmt. f (1965)). After being instructed on the standard of conduct, the jury applies this standard to the facts of the case. Imperial Distrib. Services, Inc., 741 P.2d at 1256.
¶ 59 In answering the duty question, a court must consider many factors, "including, for example, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor." Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992) (quoting Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo. 1986), superseded by § 13-21-115, C.R.S. 1987, as recognized in Vigil v. Franklin, 103 P.3d 322, 325 n.3 (Colo. 2004)). Other factors include, "convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and availability, cost, and prevalence of insurance". Whitlock, 744 P.2d at 57 n.2; see also Wheeler v. Eagle County, 666 P.2d 559, 562 (Colo. 1983) (Rovira, J., dissenting) (factors include "the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread") (quoting Raymond v. Paradise Unified Sch. Dist., 31 Cal.Rptr. 847, 851 (Cal. Ct. App. 1963)).
¶ 60 These factors are not exclusive, no single factor controls, "and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards — whether reasonable persons would recognize a duty and agree that it exists." Whitlock, 744 P.2d at 57 (quoting Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987)).
¶ 61 Our supreme court has been more hesitant in applying these factors to find duty in cases of failure to act rather than in cases of negligent action. In Whitlock, 744 P.2d 54, for example, the court found that mere authority to regulate trampoline use on university-owned property "militates against" creating a duty to a person injured while using a trampoline owned by a fraternity on property it leased from the university. Id. at 57. The majority relies on this limitation to avoid applying these duty factors after Groh was escorted out the Westin's front door. I disagree, for three reasons.
¶ 62 First, as previously indicated, disputed facts exist as to whether the eviction was reasonable and thus terminated the Westin's special relationship with Groh. In a special relationship case, the nonfeasance/malfeasance distinction has no significance.
¶ 63 Second, in Whitlock, id. at 62 n.4, the court explained that the "present case is one of pure failure to act . . . where the University .. . had no part in creating [the peril]." The court also recognized that "under some fact situations the difference between negligent action and negligent failure to act can be simply a matter of characterization." Id. In contrast, the Westin set into motion the chain of events that led to Groh's injury by deciding to evict her and then escorting her from the premises, knowing that she was intoxicated and was accompanied by others who were as well. See Smit v. Anderson, 72 P.3d 369, 373 (Colo. App. 2002) (applying misfeasance analysis to find a duty to supervise a party injured while constructing a house by a general contractor whose only role in the project was pulling a building permit on the homeowner's behalf, as this act "created the circumstances that placed Smit at risk of harm").
¶ 64 Third, nonfeasance liability arises from "a limited group of special relationships between parties." Whitlock, 744 P.2d at 58. Examples of those relationships "include common carrier/passenger, innkeeper/guest, [and] possessor of land/invited entrant." Id. "The genesis for the special relationship analysis lies in the jurisprudence of tort law," Henderson v. Gunther, 931 P.2d 1150, 1155 (Colo. 1997), not the terms of the parties' contracts. Thus, within such special relationships, the duty factors still apply, even where only nonfeasance is alleged. See Taco Bell, 744 P.2d at 46(affirmative duty owed to take steps to protect business invitees from robbery of business).
¶ 65 For these reasons, I apply the duty factors as follows.
¶ 66 Addressing eviction of an intoxicated guest, Dagen v. Marriott International, Inc., 2006 WL 3728344 (N.D.N.Y. 2006) (unpublished memorandum decision), denied a defense motion for summary judgment. The court explained:
2006 WL 3728344, *4. Although the Dagen court did not engage in an extended duty analysis, the Colorado duty factors set forth above support its conclusion.
¶ 67 Reasonably foreseeable risks involved in evicting a guest who, like Groh, is intoxicated and far from home, late on a winter evening, and in the company of other intoxicated persons, arise because such a guest cannot immediately mitigate the intoxication, and thus is suffering from impairment of both physical abilities and judgment. Thus, such a guest could be harmed by circumstances beyond the guest's control, shortly after leaving the hotel. For example, the guest could slip and fall on ice or walk a short distance from the hotel, pass out in a low-visibility location, and suffer frostbite or worse.
¶ 68 Unlike the majority, I do not consider the particular risk that ripened here — boarding Groh's vehicle, entrusting an intoxicated person to drive, and then crashing several miles away from the Westin — as the measure of reasonable foreseeability for purposes of deciding duty. See Ballard v. Uribe, 715 P.2d 624, 629 n.6 (Cal. 1986) ("a court's task — in determining "duty" — is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party").
¶ 69 The majority's reliance on Whitlock, 744 P.2d at 57, to constrain the duty inquiry based on the particular injury that Groh sustained, is unpersuasive in two ways. First, the plaintiff in Whitlock suffered the only type of injury, falling off a trampoline, possible from breach of the alleged duty, failure to require supervision of a trampoline in a public area. Second, Whitlock has never been cited for this individualized approach to duty, as contrasted with the class approach described below.
¶ 70 I view this facet of the duty inquiry as limited to whether Groh is a member of a class, intoxicated guests, to whom harm from eviction late on a winter night is reasonably foreseeable. See White v. Pines Enterprises, Inc., 728 P.2d 759, 761 (Colo. App. 1986) (landscaper who sprinkled sidewalk on a cold day "owed a general duty of care to all persons who might reasonably be foreseen to incur physical injuries as a result of such conduct . . . Plaintiffs were within that class of persons. Whether the landscaper actually breached that duty and thereby caused plaintiff's injuries is a question of fact to be resolved by the jury") (emphasis added); see also Montoya v. Connolly's Towing, Inc., 216 P.3d 98, 105 (Colo. App. 2008) (recognizing "a risk that either friends and family members using its storage lot or third parties could be injured") (emphasis added); In re Estate of Blacher, 857 P.2d 566, 568 (Colo. App. 1993) ("A duty of reasonable care may arise when there is a foreseeable risk of injury to others from a defendant's failure to take protective action to prevent the injury.") (emphasis added).
¶ 71 Once a plaintiff is within that class, remoteness of the peril that ripens does not negate duty. See Leppke v. Segura, 632 P.2d 1057, 1059 (Colo. App. 1981) (holding that, when defendant encountered an intoxicated driver on the side of the road at night and jump-started his car, "a finder of fact could conclude that, by jump-starting an automobile for an obviously drunken driver, thus giving him mobility which otherwise he would not have had, one or both of the defendants set into motion a force involving an unreasonable risk of harm to others . . . [warranting] a jury determination of breach of duty"); Doe v. Sisters of Holy Cross, 895 P.2d 1229, 1234 n.2 (Idaho Ct. App. 1995) ("A distinction exists, however, in that a breach of the duty of care may occur and yet the plaintiff's particular injury may exceed all bounds of reasonable foreseeability.") (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts §§ 42-43 (5th ed. 1984)).
¶ 72 Rather, if the court finds a duty and the trier of fact concludes that the defendant breached its duty of ordinary care, the particular risk that ripens presents an issue of proximate cause. See Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1021 (Colo. 2006) (quoting Restatement (Third) of Torts § 29 cmt. f (Proposed Final Draft No. 1, 2005)) ("[D]uty is a preferable means for addressing limits on liability when those limitations are clear, are based on relatively bright lines, [and] are of general application . . . . On the other hand, when the limits imposed require careful attention to the specific facts of a case, and difficult, often amorphous evaluative judgments for which modest differences in the factual circumstances may change the outcome, scope of liability [or proximate cause] is a more flexible and preferable device for placing limits on liability."); Nelson by Tatum v. Commonwealth Edison Co., 465 N.E.2d 513, 519 (Ill. Ct. App. 1984) ("While foreseeability is thus a proper matter for a court to consider in making its duty determination, the sounder approach would be to recall that the duty issue is broad in its implication and it is only the jury's negligence determination which need be strictly confined to the facts of the particular case.").
¶ 73 The social utility of allowing innkeepers to evict disruptive guests is significant. However, recognizing a limited duty of care to an evicted guest, under the circumstances of an imminent risk, would not outweigh that social utility. For example, the duty of care could be limited to allowing the evicted guest to remain on the premises long enough to call a taxi, offering the evicted guest to a taxi to be called by the hotel, or turning the guest over to a police officer, for a welfare check and, if appropriate, transportation to a detox center. Because the burden on innkeepers to take such steps to protect an intoxicated guest who is being evicted would be "relatively inexpensive," Taco Bell, 744 P.2d at 49, the costs would be properly "borne by the owner, operator, and, indirectly, the customers." Id.
¶ 74 According to the Westin, were it required to allow an evicted guest such as Groh, whom the Westin had already determined should not be on the premises, to remain in the lobby, the Westin would be at risk of breaching its duty to other guests if an altercation ensued. See Allen v. Ramada Inn, Inc., 778 P.2d 291, 293 (Colo. App. 1989); see also Restatement (Second) of Torts § 344 cmt. d (1965). However, this assertion conflates the broad duty question with circumstances informative of whether the innkeeper met the ordinary care standard of conduct. An innkeeper who evicted a guest for nonpayment of the room charge could not reduce its duty to the evicted guest by its duty to other guests.
¶ 75 Further, the Westin does not point to any record evidence that Groh was assaultive or threatening, as opposed to having been in a group that was making too much noise on a floor of sleeping rooms. And even if the record supported such a concern, a jury must decide whether the Westin could have reconciled these competing duties by allowing Groh to remain in the lobby for the limited time required to summon a taxi, while having the guard who had positioned himself in the doorway or the other guard who had been involved in the eviction monitor her.
¶ 76 The consequences of holding an innkeeper responsible to a guest who became intoxicated and was evicted for failing to exercise ordinary care after the guest is escorted out its entrance would not unfairly shift responsibility from the guest to a person or an entity that had no role in causing that intoxication. A guest who, like Groh, reserves a room in anticipation of possible intoxication has initially acted responsibly because doing so reduces risks that would otherwise arise from becoming intoxicated, far from home and late on a winter evening.
¶ 77 Innkeepers are in the better position than guests to take steps that would avoid injury.
¶ 78 Based on these factors, reasonable persons would recognize that an innkeeper's duty to an intoxicated guest who is being evicted into inclement weather does not end at its front entrance. This conclusion accords with the statement in New Albany Hotel Co. v. Dingman, 66 Colo. 306, 308-09, 181 P. 126, 127 (1919), that the "innkeeper's liability does not, however, cease at the very instant a guest leaves the inn." The court went on to recognize that the guest has "a reasonable length of time [] in which to remove his goods, during which period the extraordinary liability of the innkeeper continues." Id. Given the greater social consequences of personal injury than property damage, this principle should apply here.
¶ 79 In sum, because disputed facts exist as to whether the Westin evicted Groh in a reasonable manner, and in any event its legal duty to act with ordinary care did not end when Groh was escorted out of the lobby, that portion of the summary judgment should be reversed. Having so concluded, I need not address Groh's assumed duty argument.
¶ 80 I agree with the majority in upholding the trial court's ruling, as a matter of law, that Groh breached her contract with the Westin.
¶ 81 I would reverse the summary judgment and remand for further proceedings, limited to Groh's negligence claim.
