Summary
In Salazar v. Webb, 44 Colo. App. 429, 618 P.2d 706 (1980), the Colorado Court of Appeals reversed the trial court's grant of summary judgment in favor of defendants-lessors who contended they were not liable to plaintiffs for injuries caused by a dangerous condition on the leased property because they did not retain control under the lease.
Summary of this case from Weiss v. United StatesOpinion
No. 79CA0824
Decided July 3, 1980. Rehearing denied August 7, 1980. Certiorari denied October 6, 1980.
In action to recover for injuries sustained by plaintiffs resulting from explosion which allegedly occurred when the methane gas seeped from landfill site into storm sewer, the trial court granted summary judgment to lessors of the landfill site, and plaintiffs appealed.
Reversed
1. LANDLORD AND TENANT — Lessors' Relinquishment — Premises — To Lessee — Not Relieved — Liability — Summary Judgment — Error. Lessors' relinquishment, under terms of lease, of control over premises did not relieve lessors of liability for injuries sustained in accident which allegedly was the result of methane gas from the landfill seeping into storm sewer and exploding; consequently, trial court erred in granting lessor's summary judgment on the basis of lessor's relinquishment of the landfill to the lessee.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Edward A. Jersin, Julie M. Reardon, for plaintiffs-appellants.
Goldstein, Armour Lonnquist, P.C., Alan A. Armour, for defendants-appellees.
This is one of a series of appeals of summary judgment orders by the plaintiffs, five children and their parents. The trial court granted the summary judgment motion by the defendants, Roger L. Webb and D. M. Simmons, individually and as participants in an enterprise known as 4150 Joint Venture. We reverse.
The children were severely injured by an explosion in a storm sewer beneath property owned by 4150 Joint Venture and leased to Colorado Disposal, Inc., to maintain a sanitary land fill. The complaint alleged that the explosion in the storm sewer was caused by methane gas which seeped from the landfill site.
The trial court ruled that the defendants were not liable for injuries which were alleged to have occurred as a consequence of the dangerous condition of their property since, under the lease, they did not retain control. In so ruling, the court concluded that Ogden v. McChesney, 41 Colo. App. 191, 584 P.2d 636 (1978), mandated that result. We disagree.
Ogden does not address the issue presented here. Under certain circumstances, a lessor may be held liable for physical harm which resulted from a dangerous condition on his land even though he retains no control over it. See, e.g., Restatement (Second) of Torts § 379A. Here neither the existence of a dangerous condition on the land nor physical harm to the plaintiffs, if any, was addressed in the trial court.
"A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if, (a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and (b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken."
[1] We must accept the factual allegations of the complaint as true where not otherwise controverted. See Tamblyn v. Denver, 118 Colo. 191, 194 P.2d 299 (1948). The complaint alleged that the accident which occurred was a direct result and a natural consequence of a dangerous activity on the land. Since the defendants' only contention in their motion was that they were relieved of any possible liability because they relinquished control over the leased property, and since the trial court's ruling was limited to this legal issue, the defendants were not entitled to judgment as a matter of law.
Judgment is reversed and the cause is remanded for further proceedings.
CHIEF JUDGE ENOCH and JUDGE COYTE concur.