DeAguero v. Latitude: Court Rejects Negligence Claim, Limits to PLA Remedies

Latitude Tree House LLC owned and operated the Tree House Apartments in El Paso County, Colorado. In 2018, the company hired Primo Construction, LLC to perform landscaping improvements at the property. Primo was owned by Adolfo Toribio, who worked alongside his son, Pancho, and independent contractor Derrick DeAguero. On July 30, 2018, Toribio discovered a flat tire on Primo’s skid steer. Instead of using a jack, he decided to lift the skid steer with an excavator. While operating the excavator, Toribio struck DeAguero in the head, causing severe injuries that left him paralyzed. DeAguero’s common-law wife, Lydia Martinez, later became his full-time caretaker.

Trial Court Proceedings

DeAguero and Martinez filed suit against Toribio, Primo Construction, and Latitude under the Colorado Premises Liability Act (PLA), alleging that Latitude was liable as a landowner for failing to maintain safe premises. The plaintiffs also brought a negligence claim, which the court dismissed, ruling that the PLA provided their exclusive remedy. Latitude moved for summary judgment, arguing that it lacked actual or constructive knowledge of the dangerous condition that caused the injury.

The district court determined that DeAguero was an invitee under the PLA but found that Latitude had no knowledge of the specific condition—the use of the excavator to lift the skid steer—that created the danger. It concluded that the incident resulted from a spontaneous decision by Toribio rather than any preexisting hazard known to the property owner. The court granted summary judgment in Latitude’s favor.

DeAguero and Martinez filed a motion for reconsideration, which the court denied. The court also imposed attorney fees under Colorado Rule of Civil Procedure 11, finding that the motion misrepresented case law and lacked a factual basis.

Appellate Review

The Colorado Court of Appeals reviewed the trial court’s decision de novo. It first addressed whether the district court correctly defined the “dangerous condition.” The appellate court agreed that the dangerous condition was Toribio’s act of using the excavator to lift the skid steer, rather than general construction work at the site. It cited precedent holding that liability under the PLA depends on the landowner’s knowledge of a specific hazard, not the general risks of construction.

The plaintiffs argued that Latitude could be held liable under a theory of vicarious liability because its contractor, Primo, created the danger. The appellate court rejected this argument, explaining that while a landowner’s duty under the PLA is nondelegable, it extends only to dangers the landowner knew or should have known about. The court found no evidence that Latitude had actual or constructive knowledge of Toribio’s decision to lift the skid steer with an excavator or that it should have anticipated the conduct.

The plaintiffs also argued that the court erred by ruling before allowing depositions of Latitude’s agents. The appellate court found no abuse of discretion, concluding that additional discovery would not have revealed evidence that Latitude knew or should have known about the hazard.

Attorney Fees and Sanctions

The appellate court upheld the district court’s decision to impose Rule 11 sanctions for the plaintiffs’ motion for reconsideration. It found that the motion misrepresented the holding of prior cases and ignored well-established Colorado law requiring a landowner’s actual or constructive knowledge of the hazard. However, the appellate court denied Latitude’s request for appellate attorney fees, determining that the appeal was not frivolous.

Court’s Ruling

The Colorado Court of Appeals affirmed the summary judgment and attorney fee order in favor of Latitude Tree House LLC. It held that the property owner could not be held liable under the Colorado Premises Liability Act because it lacked knowledge of the dangerous condition that caused the injury.

Assistance with Premises Liability Matters

If you or a loved one have been injured due to unsafe property conditions, Whitcomb, Selinsky PC assists with premises liability cases. Contact our team to learn how we can help you evaluate potential claims involving property safety and owner responsibility.