The premises liability statute replaces a common law claim of negligence if Gateway is a landowner. See Collard v. Vista Paving Corp., 292 P.3d 1232, 1238 (Colo. App. 2012); Wilson v. Marchiondo, 124 P3d 837, 840 (Colo. App. 2005). Although the parties dispute Gateway's status as a landowner for summary judgment purposes, the designation was sufficient to put Plaintiff on notice of its potential landowner status.
¶21 "To establish a claim of negligence, a plaintiff must show that the defendant owed him or her a legal duty of care, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff’s injury." Collard v. Vista Paving Corp. , 2012 COA 208, ¶ 29, 292 P.3d 1232. "If a negligence action is based on facts that do not impose a duty of care upon a defendant for a plaintiff’s benefit, the claim will fail."
Klinger v. Adams Cty. Sch. Dist. No. 50 , 130 P.3d 1027, 1031 (Colo. 2006) ; Collard v. Vista Paving Corp. , 2012 COA 208, ¶ 16, 292 P.3d 1232. ¶ 19 Red Flower asks us to temper our de novo review by deferring to the Treasurer's interpretation of the statute.
This list is not exhaustive and no single factor is determinative. See Collard v. Vista Paving Corp., 2012 COA 208, ¶ 30, 292 P.3d 1232 (“ ‘Colorado law recognizes that these factors are not exclusive and allows a court to consider any other relevant factors founded on the competing individual and social interests implicated by the particular facts of the case at issue.’ ” (quoting Ryder v. Mitchell, 54 P.3d 885, 890 (Colo.2002) )).
Although I do not presently decide whether a plaintiff may plead alternative claims for negligence and premises liability, I note that it is at least arguable that a plaintiff may do so until the court determines whether the defendant is a landowner. See Collard v. Vista Paving Corp., 292 P.3d 1232, 1238 (Colo. App. 2012) ("Whether [the defendant] qualifies as a landowner under the PLA is a threshold question in our review, as it determines whether section 13-21-115(2), C.R.S.2012, or the common law defines [the defendant's] duty to third parties. . . ."). Indeed, because the PLA applies only to landowners, it does not preempt negligence claims if the defendant is not a landowner as defined by the PLA.