COLORADO COURT OF APPEALS                                        2016COA147

Court of Appeals No. 15CA1664
El Paso County District Court No. 14CV34327
Honorable Edward S. Colt, Judge


Emma Andrade,

Plaintiff-Appellant,

v.

Margaret Johnson,

Defendant-Appellee.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division V
                       Opinion by CHIEF JUDGE LOEB
                       Nieto* and Casebolt*, JJ., concur

                          Announced October 6, 2016


Franklin D. Azar & Associates, P.C., Patric J. LeHouillier, Colorado Springs,
Colorado; Berniger, Berg & Diver, LLC, Michael A. Berniger, Colorado Springs,
Colorado, for Plaintiff-Appellant

Hunter & Associates, Christopher J. Metcalfe, Denver, Colorado, for Defendant-
Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In this personal injury action, plaintiff, Emma Andrade,

 appeals the summary judgment in favor of defendant, Margaret

 Johnson, on Andrade’s claim pursuant to the premises liability

 statute, section 13-21-115, C.R.S. 2016 (the Act), and on her

 common law negligence claim. We affirm the district court’s entry

 of summary judgment for Johnson as to the premises liability

 claim, although we do so for reasons different from those

 articulated by the district court. Because we conclude that section

 3.4.103(D) of the Colorado Springs City Code (the Code) expressly

 imposes civil liability on an owner or occupant of property who fails

 to comply with section 3.4.103 when such failure to comply is the

 proximate cause of a third party’s injury, we reverse the summary

 judgment for Johnson on Andrade’s common law negligence claim

 and remand to the district court for further proceedings on that

 claim.

           I.    Background Facts and Procedural History

¶2    Andrade was walking with her daughter on a public sidewalk

 in Colorado Springs on her way to a birthday party at the house of

 one of Johnson’s neighbors. Andrade used a walking cane to assist

 herself with walking. As she was walking on the public sidewalk


                                   1
 adjacent to Johnson’s house, Andrade slipped and fell. She was

 taken to a nearby hospital, where she underwent surgery to repair a

 fracture in her leg.

¶3    Andrade filed a complaint seeking damages against Johnson

 in district court, asserting a premises liability claim under the Act

 and a common law negligence claim. Andrade alleged that an

 “uneven sidewalk” caused her fall.1 To support her premises

 liability claim, Andrade alleged that Johnson was a “landowner,” as

 defined in section 13-21-115(1); that the uneven sidewalk adjacent

 to Johnson’s home constituted a danger that Johnson was aware of

 or reasonably should have been aware of; that Johnson failed to

 exercise reasonable care to protect Andrade; and that Andrade was

 injured as a result of her fall.

¶4    To support her common law negligence claim, Andrade’s

 complaint alleged, in pertinent part, as follows:

            13. Defendant had a duty to maintain the
            sidewalk in front of her residence so that it
            was safe for pedestrian use.

            14. Defendant knew or reasonably should
            have known that the uneven sidewalk in front

 1 Later in the district court proceedings, Andrade claimed that she
 fell when her walking cane became stuck in a hole in the sidewalk.

                                    2
           of her residence constituted a danger to
           pedestrians.

           15. The Defendant failed to exercise
           reasonable care to protect the Plaintiff and
           others against dangers of which the Defendant
           was aware.

           16. Plaintiff was injured as a result of
           Defendant’s negligence. . . .

¶5    Johnson filed a motion for summary judgment, arguing that

 because Andrade fell on a public sidewalk, Johnson was not a

 “landowner” under section 13-21-115(1), and thus could not be

 liable under the Act. Johnson also argued that under Colorado law,

 landowners do not have a duty to those injured on public walkways,

 and thus, as a matter of law, she was not liable for common law

 negligence.

¶6    In Andrade’s response to Johnson’s motion for summary

 judgment, she argued that section 3.4.103(B) of the Code2 required

 Johnson to notify the City Engineer of the damage to the sidewalk

 adjacent to her property, and her failure to do so was the proximate



 2 Section 3.4.103(B) of the Colorado Springs City Code, titled
 “Notice Of Damage To A Public Sidewalk” states: “It is the
 responsibility of every owner and occupant of real property within
 the City to notify the City Engineer of any damage to a public
 sidewalk which abuts or is adjacent to that owner’s real property[.]”

                                   3
 cause of Andrade’s injuries. Andrade requested that the district

 court deny Johnson’s summary judgment motion because there

 were questions of material fact as to the issue of proximate cause,

 specifically whether Johnson’s failure to report the sidewalk

 damage to the City Engineer was an unreasonable risk to the health

 and safety of the public, and whether Johnson knew or should have

 known about the damage to the sidewalk.

¶7    In Johnson’s reply in support of her motion for summary

 judgment, she asserted that Andrade had not presented any

 arguments or evidence specifically refuting Johnson’s arguments in

 support of her motion for summary judgment on both claims.

 Johnson also asserted that Andrade’s argument regarding the Code

 appeared to support a negligence per se claim, which Andrade had

 not pleaded in her complaint. Thus, Johnson contended that the

 negligence per se claim was not properly before the district court.

 Johnson also argued that the sidewalk adjacent to her house was

 not damaged, and that there was only a slight disparity in height

 between two sections of the sidewalk that had occurred as a result

 of normal settlement over a period of years.




                                   4
¶8    The district court granted Johnson’s motion for summary

 judgment in a short written order in which the court summarized

 the parties’ arguments and then provided the following quote from

 Burbach v. Canwest Inv., LLC, 224 P.3d 437, 442 (Colo. App. 2009):

           In short, we perceive nothing in the language
           of the premises liability statute which indicates
           the General Assembly intended to abrogate the
           no duty rule. Indeed, as noted, the statute
           was intended to narrow, not expand,
           landowner liability. We therefore decline Ms.
           Burbach’s invitation for us to construe the
           statute in a manner that would create the
           anomalous result whereby one’s liability as to
           property in which it does not have a legal
           interest is expanded at the same time its
           liability as to property in which it has a legal
           interest is contracted. See Fis[c]hbach v.
           Holzberlein, 215 P.3d 407, 409 (Colo. App.
           2009) (a court will not adopt an interpretation
           of a statute that leads to an illogical or absurd
           result or that is at odds with the legislative
           scheme).

 Without any further analysis, the district court stated that it found

 Burbach “to be well-reasoned, persuasive and controlling,” and it

 granted Johnson’s motion for summary judgment.

¶9    Andrade now appeals the district court’s entry of summary

 judgment in favor of Johnson.

                       II.   Standard of Review



                                   5
¶ 10   We review de novo a district court’s grant of a motion for

  summary judgment. Burbach, 224 P.3d at 439. Summary

  judgment is appropriate if the pleadings, depositions, answers to

  interrogatories, and admissions, together with affidavits, if any,

  establish that there is no genuine issue of material fact, and that

  the moving party is entitled to judgment as a matter of law.

  C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas Ass’n, 2016 CO

  29, ¶ 8; Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714,

  718 (Colo. 1987). When reviewing a district court’s grant of a

  motion for summary judgment, we view the facts in the light most

  favorable to the nonmoving party. Rocky Mountain Expl., Inc. v.

  Davis Graham & Stubbs LLP, 2016 COA 33, ¶ 17. When, as a

  matter of law and based on undisputed facts, the nonmoving party

  cannot prevail, the movant is entitled to summary judgment.

  Kaiser, 741 P.2d at 718.

¶ 11   However, summary judgment is a drastic remedy “and is not a

  substitute for a trial of disputed facts.” Id. The court may not

  grant summary judgment when there are disputed factual issues

  that must be resolved in a trial, and all doubts regarding the

  evidence must be resolved against the moving party. Id. The


                                     6
  moving party bears the burden of proving that there are no genuine

  issues of material fact. Id. at 719. Once the moving party has met

  that burden, the nonmoving party must demonstrate “by receivable

  facts that a real, and not formal, controversy exists.” Id.

¶ 12   We also review de novo questions of statutory interpretation.

  Burbach, 224 P.3d at 439.

                      III.   Premises Liability Claim

¶ 13   We first address the district court’s summary judgment on

  Andrade’s premises liability claim under the Act and, for the

  reasons set forth below, discern no error in that judgment.

¶ 14   Andrade’s complaint alleged generally that Johnson was liable

  under the Act because she failed to exercise reasonable care to

  protect Andrade from the uneven sidewalk. Andrade’s complaint

  alleged, without any factual support, that Johnson was a

  “landowner” as that term is defined in section 13-21-115. However,

  nowhere in her briefs on appeal does Andrade directly challenge or

  contest the district court’s dismissal of her premises liability claim.

¶ 15   Johnson contends that the district court properly granted

  summary judgment in her favor on Andrade’s premises liability

  claim because, based on the undisputed fact that Andrade fell on a


                                     7
  public sidewalk, as a matter of law, Johnson is not a “landowner”

  for purposes of the Act.

¶ 16   As pertinent here, the Act applies only if the party sought to be

  held liable is a “landowner” as defined therein, see § 13-21-115(1);

  see also Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 16; Jordan

  v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, ¶ 11, aff’d,

  2015 CO 24, and those who are injured on the property of another

  are classified as either trespassers, invitees, or licensees, § 13-21-

  115(1.5)(a).

¶ 17   Initially, we note that Andrade concedes in her opening brief

  that she was not an invitee, licensee, or trespasser on Johnson’s

  property “because she was walking on the sidewalk outside

  [Johnson’s] home.” Because section 13-21-115(1.5)(a) of the Act

  states that those who are injured on the property of another are

  classified as either trespassers, invitees, or licensees, Andrade’s

  concession on its face makes the Act inapplicable to her claim

  under the facts of this case.

¶ 18   Even more pertinent, Andrade does not argue that Johnson is

  a “landowner” for purposes of the Act and, thus, concedes that

  element of her claim under the Act as well. These concessions


                                     8
  indicate, in our view, that Andrade does not contest the court’s

  entry of summary judgment on her claim under the Act.

¶ 19   In any event, based on the undisputed facts in the record

  before us, as a matter of law, Johnson is not a “landowner” under

  the Act. The Act is inapplicable here because Johnson is not a

  “landowner” of the public sidewalk adjacent to her property. See

  § 13-21-115(1); Larrieu, ¶ 26; Jordan, ¶ 24 (“[P]ossessory interest”

  in a public sidewalk is “virtually indistinguishable from the interest

  that any member of the public has to use the sidewalk.”); Burbach,

  224 P.3d at 441-42. There is no record support for the proposition

  that Johnson is a “landowner” under the Act.

¶ 20   To the extent Andrade contends that section 3.4.103(B) of the

  Code provided Johnson with “landowner” status under the Act, that

  contention is contrary to Colorado law. See § 13-21-115(1);

  Burbach, 224 P.3d at 441. Because Andrade’s injury did not occur

  on Johnson’s property, she “[has] no claim under the [premises

  liability] statute.” Larrieu, ¶ 26.

¶ 21   Although the district court did not base its analysis of

  Andrade’s claim under the Act on the “landowner” issue,

  nevertheless, we conclude that the district court did not err by


                                        9
  granting summary judgment for Johnson on Andrade’s premises

  liability claim. See Steamboat Springs Rental & Leasing, Inc. v. City

  & Cty. of Denver, 15 P.3d 785, 786 (Colo. App. 2000) (“An appellate

  court may affirm a correct judgment based on reasoning different

  from that relied on by the trial court.”).

                   IV.   Common Law Negligence Claim

¶ 22   Andrade also contends that the district court erred by entering

  summary judgment for Johnson on her common law negligence

  claim. Andrade argues that, pursuant to section 3.4.103(B) of the

  Code, Johnson had a duty to notify the City Engineer about the

  damaged sidewalk adjacent to her property, and that, pursuant to

  section 3.4.103(D) of the Code, Johnson became civilly liable for

  Andrade’s injury that occurred as a result of Johnson’s “inaction” in

  failing to notify the City Engineer about the damaged sidewalk.

¶ 23   We conclude that the plain language of section 3.4.103(B)

  unambiguously imposes a duty on owners and occupants of real

  property to notify the City Engineer about any damage to the public

  sidewalk abutting or adjacent to their real property. We also

  conclude that, as pertinent here, section 3.4.103(D) expressly

  imposes civil liability on owners or occupants of property who fail to


                                     10
  comply with their duty to notify in section 3.4.103(B) when their

  failure to notify is the proximate cause of a third party’s injury.

  However, disputed issues of fact remain as to whether the public

  sidewalk was damaged and whether Johnson’s failure to report the

  alleged damage was the proximate cause of Andrade’s injuries.

  Therefore, we conclude that the district court erred by entering

  summary judgment for Johnson on Andrade’s common law

  negligence claim, and we reverse that aspect of the judgment and

  remand to the district court for further proceedings on that claim.

¶ 24   As an initial matter, Johnson contends that, on appeal,

  Andrade only repeats the negligence per se claim she made in

  response to Johnson’s motion for summary judgment, and she

  again notes that Andrade did not allege such a claim in her

  complaint. Johnson contends that Andrade merely argued in

  support of her common law negligence claim that “[Johnson] had a

  duty to maintain the sidewalk in front of her residence so that it

  was safe for pedestrian use,” and thus, Andrade’s arguments

  regarding the Code in support of a purported negligence per se

  claim are not properly before us.




                                      11
¶ 25   We agree that Andrade did not expressly plead a negligence

  per se claim in her complaint. However, in addition to the

  allegation in Andrade’s complaint that “[Johnson] had a duty to

  maintain the sidewalk in front of her residence so that it was safe

  for pedestrian use,”3 her complaint also alleged that “[Johnson]

  failed to exercise reasonable care to protect [Andrade] and others

  against dangers of which [Johnson] was aware.” Given that

  Andrade argues in support of her common law negligence claim

  that, pursuant to section 3.4.103(B) of the Code, Johnson had a

  duty to notify the City Engineer about the allegedly damaged

  sidewalk and that she breached this duty, for purposes of our

  analysis, we assume that this latter allegation in her complaint was

  sufficient to encompass her common law negligence arguments

  regarding the Code. Furthermore, Andrade’s arguments regarding

  the effect of the Code formed the basis for her response to the

  motion for summary judgment on her negligence claim. And, the

  record shows that Johnson was fully aware of these arguments

  because she anticipated them in her motion for summary judgment

  3Andrade concedes in her briefs on appeal that Johnson did not
  have a duty to maintain or repair the public sidewalk adjacent to
  her property.

                                   12
  and then responded substantively to them in her reply brief in

  support of that motion.

                  A.   The Common Law No Duty Rule

¶ 26   Andrade’s contention requires us to analyze the contours of

  the “no duty” rule and whether it applies here to bar her common

  law negligence claim as a matter of law.

¶ 27   Under the “no duty” rule, which is firmly embedded in

  Colorado’s jurisprudence, Bittle v. Brunetti, 750 P.2d 49, 51-52

  (Colo. 1988), the supreme court and divisions of this court have

  consistently held that an owner of real property has no duty to

  persons who claim injury arising from the condition of an abutting

  public sidewalk. The “no duty” rule is also the common law rule in

  the majority of jurisdictions outside of Colorado. Id. at 52.

¶ 28   For example, several cases in Colorado have held that property

  owners have no common law duty to remove naturally

  accumulating snow and ice from the public sidewalks abutting their

  property, and, therefore, the property owners have no common law

  duty to third parties who are injured on the public sidewalks due to

  snow and ice. See id. at 55; Burbach, 224 P.3d at 439-40; Easton v.

  1738 P’ship, 854 P.2d 1362, 1364-65 (Colo. App. 1993). This “no


                                    13
  duty” rule is not strictly limited to situations involving snow and ice

  on a public sidewalk, but also applies when a public sidewalk

  adjoining an owner’s property is in need of maintenance or repairs.

  See Foster v. Redd, 128 P.3d 316, 318 (Colo. App. 2005).

¶ 29   Courts applying the “no duty” rule have reasoned that, under

  general tort law, an individual’s ownership, possession, and control

  are relevant to the existence of a special relationship on which a

  duty can be based. Bittle, 750 P.2d at 52-53. Thus, while several

  Colorado cases have held that property owners can be held liable

  for not taking reasonable measures to remove snow and ice from

  their own property, see Palmer Park Gardens, Inc. v. Potter, 162

  Colo. 178, 182-83, 425 P.2d 268, 271 (1967); King Soopers, Inc. v.

  Mitchell, 140 Colo. 119, 124-25, 342 P.2d 1006, 1009 (1959), courts

  are generally disinclined to find that a property owner owed a duty

  to those injured on public property. See Bittle, 750 P.2d at 52-53.

  Additionally, Colorado courts generally have been “unwilling to

  impose liability for injuries caused by natural obstacles or

  conditions.” Id. at 53.

¶ 30   However, as pertinent here, there is a critical exception to the

  “no duty” rule. A municipal ordinance specifically providing that a


                                    14
property owner will be civilly liable for its violation can serve to

establish the existence of a defendant’s “legally cognizable duty

owed to a plaintiff.” Easton, 854 P.2d at 1364. But ordinances

requiring property owners adjacent to a public sidewalk to maintain

or clear the sidewalk of snow and ice do not impose liability on the

property owners for a third party’s injury absent an express

imposition of such liability. See Burbach, 224 P.3d at 439; see also

Easton, 854 P.2d at 1364-65 (finding that a city ordinance stating

that property owners would be “jointly and severally liable” if they

failed to keep all public sidewalks abutting the premises of their

property clear of snow, ice, sleet, and hail — considered along with

another provision of the city code stating that property owners

would be fined for failing to keep the public sidewalks clear of snow

— did not manifest a specific expression of legislative intent that the

ordinance was to serve as a basis for civil liability). Therefore, to

overcome the general common law “no duty” rule, an ordinance

must clearly state that a property owner will be civilly liable for

violating the ordinance. See Woods v. Delgar Ltd., 226 P.3d 1178,

1183 (Colo. App. 2009).




                                   15
                 B.    Principles of Statutory Interpretation

¶ 31      Resolution of Andrade’s contention also requires us to

  interpret provisions of the Code. When interpreting a city code, we

  apply ordinary rules of statutory construction. Alpenhof, LLC v.

  City of Ouray, 2013 COA 9, ¶ 10.

¶ 32      Our primary task when construing statutes is to ascertain and

  give effect to the legislative body’s intent, Gagne v. Gagne, 2014

  COA 127, ¶ 25, and we must refrain from rendering judgments that

  are inconsistent with that intent. State v. Nieto, 993 P.2d 493, 500

  (Colo. 2000). To determine a legislative body’s intent, we look first

  to the plain language of the statute, giving words and phrases their

  ordinary meanings. Id. We read the words and phrases in context

  and construe them according to their common usages. Gagne,

  ¶ 25.

¶ 33      In addition, when we construe a statute, we should read and

  consider the statute as a whole. Id. at ¶ 26. We also must

  “interpret [the statute] in a manner giving consistent, harmonious,

  and sensible effect to all of its parts.” Id. In doing so, we should

  not interpret the statute so as to render any part of it meaningless,

  absurd, or superfluous. Id.; see also People v. Rice, 2015 COA 168,


                                      16
  ¶ 12. If the statutory language is clear and unambiguous, we look

  no further. Gagne, ¶ 27.

¶ 34    “Moreover, as here, where the interaction of common law and

  statutory law is at issue, we acknowledge and respect the

  [legislative body’s] authority to modify or abrogate common law, but

  can only recognize such changes when they are clearly expressed.”

  Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). Statutes that

  deviate from the common law “must be strictly construed, so that if

  the legislature wishes to abrogate rights that would otherwise be

  available under the common law, it must manifest its intent either

  expressly or by clear implication.” Id. (quoting Vaughan v. McMinn,

  945 P.2d 404, 408 (Colo. 1997)).

   C.    Analysis and Interpretation of the Relevant Provisions of the
                                    Code

¶ 35    Andrade contends that the “no duty” rule is inapplicable here

  because the Code expressly provides for civil liability under the

  circumstances of this case. We agree.

¶ 36    We interpret the relevant provisions of the Code to determine

  whether they reflect a clear, specific expression of legislative intent

  that the Code is to serve as a basis for civil liability, thus making



                                     17
  the general common law “no duty” rule inapplicable. See id.; see

  also Easton, 854 P.2d at 1364-65.

¶ 37   Section 3.4.103, titled “RESPONSIBILITY OF REAL PROPERTY

  OWNERS AND OCCUPANTS,” is part of article 4 of the Code, titled

  “SIDEWALKS,” and provides as follows:

            A. Cleaning Sidewalks: Every owner and
            occupant of real property within the City shall
            keep the public sidewalks which abut or are
            adjacent to their real property, or public
            sidewalks located upon real property subject to
            a public easement or right of way, in a clean
            condition free from projections and
            obstructions across the surface, debris, litter,
            or dangerous conditions not involving the
            structural integrity of the sidewalk.

            B. Notice Of Damage To A Public Sidewalk: It
            is the responsibility of every owner and
            occupant of real property within the City to
            notify the City Engineer of any damage to a
            public sidewalk which abuts or is adjacent to
            that owner’s real property, or public sidewalk
            located upon the owner’s or occupant’s real
            property subject to a public easement or right
            of way.

            C. Notice Of Damage To A Public Sidewalk;
            Individual’s Or Entity’s Fault: It is the
            responsibility of any individual or entity to
            notify the City Engineer of any damage to a
            public sidewalk which occurs or may occur as
            a result of that individual’s or entity’s action or
            inaction.



                                    18
              D. Civil Liability: The owner or occupant of the
              real property or both and an individual or
              entity whose action or inaction results in
              damage to a public sidewalk, shall be primarily
              liable in tort for any injury proximately caused
              by failure to comply with this section.

¶ 38   Looking to the plain language of these provisions of the Code

  and giving words and phrases their ordinary meanings, Nieto, 993

  P.2d at 500, we first conclude that section 3.4.103(B)

  unambiguously imposes a duty on owners and occupants of real

  property to notify the City Engineer of any damage to a public

  sidewalk which abuts or is adjacent to that owner’s or occupant’s

  real property. Thus, if the public sidewalk adjacent to Johnson’s

  real property was in fact damaged, she had a duty to notify the City

  Engineer of the damage.

¶ 39   For the reasons set forth below, we also conclude that section

  3.4.103(D) clearly imposes civil liability for any injury proximately

  caused by a failure to comply with the other provisions of section

  3.4.103, although that conclusion requires a more complex

  analysis.

¶ 40   As noted, section 3.4.103(D) provides that “[t]he owner or

  occupant of the real property or both and an individual or entity



                                    19
whose action or inaction results in damage to a public sidewalk,

shall be primarily liable in tort for any injury proximately caused by

failure to comply with this section.” In conducting our de novo

interpretation of the Code, see Burbach, 224 P.3d at 439, we must

consider whether the phrase “whose action or inaction results in

damage to a public sidewalk” refers only to the words “an individual

or entity,” or whether that phrase also refers back to the words

“owner or occupant of the real property.”4 If we interpret the phrase

“whose action or inaction results in damage to a public sidewalk” to

refer back to “owner or occupant of the real property,” then section

3.4.103(D) would read, as applicable here: “The owner or occupant

of the real property . . . whose action or inaction results in damage

to a public sidewalk, shall be primarily liable in tort for any injury

proximately caused by failure to comply with this section.”

Conversely, if we interpret the phrase “whose action or inaction

results in damage to a public sidewalk” as only referring back to the

words “an individual or entity,” then section 3.4.103(D) would read,

4 Johnson does not respond to Andrade’s statutory interpretation
arguments in her answer brief, but instead simply cites cases about
the general common law “no duty” rule without analyzing whether
Colorado Springs intended to impose civil liability in section
3.4.103(D), thus making the “no duty” rule inapplicable here.

                                   20
  as applicable here: “The owner or occupant of the real property . . .

  shall be primarily liable in tort for any injury proximately caused by

  failure to comply with this section.” We conclude this second

  interpretation is correct and is consistent with the clearly expressed

  legislative intent of these Code provisions.

¶ 41   Considering the statutory framework as a whole and looking to

  the plain language of the statute, Nieto, 993 P.2d at 500; Gagne,

  ¶ 25, we find it important that subsections (A) and (B) of section

  3.4.103 impose duties on only owners and occupants of real

  property. Thus, subsection (A) imposes a duty on owners and

  occupants to keep the public sidewalks adjacent to their real

  property in a clean condition free from obstructions across the

  surface, debris, litter, or dangerous conditions not involving the

  structural integrity of the sidewalk; subsection (B) imposes a duty

  on owners and occupants to notify the City Engineer of any damage

  to a public sidewalk adjacent to or abutting their real property. By

  use of the word “any,” subsection (B) clearly imposes a duty to

  notify regardless of whether the owners or occupants of the real

  property damaged the public sidewalk themselves. Conversely,

  section 3.4.103(C) imposes a duty on “any individual or entity to


                                    21
  notify the City Engineer of any damage to a public sidewalk which

  occurs or may occur as a result of that individual’s or entity’s action

  or inaction.” (Emphasis added.) Importantly, under subsection (C),

  any such individuals or entities must notify the City Engineer only

  if their action or inaction results in damage to the public sidewalk.

¶ 42   Thus, looking to the statutory framework and plain language

  of the Code, section 3.4.103(C) is the only section that imposes a

  duty on an individual or entity only when such individual’s or

  entity’s action or inaction results in damage to a public sidewalk.

  Thus, in context, the phrase “whose action or inaction results in

  damage to a public sidewalk” in section 3.4.103(D) refers only to a

  third party individual or entity, and not to an owner or occupant of

  real property adjacent to a public sidewalk. See Nieto, 993 P.2d at

  500; Gagne, ¶ 25.

¶ 43   Further, the phrase “individual or entity” does not, in our

  view, include an “owner or occupant” of real property because such

  an interpretation would render the words “owner or occupant of the

  real property or both,” in section 3.4.103(D) meaningless and

  superfluous. See Gagne, ¶ 26; see also Rice, ¶ 12 (stating that we

  must interpret a statute in a manner giving consistent,


                                     22
  harmonious, and sensible effect to all of its parts, and in doing so,

  we should not interpret the statute in a way that renders any part

  of it meaningless, absurd, or superfluous). Owners and occupants

  already have a duty to notify the City Engineer of damage under

  subsection (B) regardless of who caused the damage to the

  sidewalk.

¶ 44   Were we to interpret section 3.4.103(D) to read, “[t]he owner or

  occupant of the real property or both . . . whose action or inaction

  results in damage to a public sidewalk, shall be primarily liable in

  tort for any injury proximately caused by failure to comply with this

  section,” such an interpretation would negate any civil liability for

  owners or occupants of real property who breach their notice duty

  under section 3.4.103(B) but do not damage the public sidewalk

  themselves; and it would also negate civil liability of owners or

  occupants of real property who breach their duty in section

  3.4.103(A) to keep the public sidewalk clear of debris. See Code §

  3.4.103(A) (“Every owner and occupant of real property . . . shall

  keep the public sidewalks which abut or are adjacent to their real

  property . . . in a clean condition free from projections and

  obstructions across the surface, debris, litter, or dangerous


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  conditions not involving the structural integrity of the sidewalk.”).

  Such an interpretation would, in our view, be inconsistent with the

  plain language of section 3.4.103(D), which imposes civil liability on

  owners or occupants of real property for any injury proximately

  caused by their failure to comply with the provisions of section

  3.4.103.

¶ 45   We also find it instructive that in part 2 of article 4, titled

  “SNOW REMOVAL,” section 3.4.202(A) and (B) states that owners of

  real property have an affirmative obligation to remove snow and ice

  from the sidewalk abutting or adjacent to their property within

  certain time limits to protect public safety, and that “[v]iolation of

  this duty shall constitute negligence per se and an unlawful act,

  subjecting the violator to civil liability for any injury proximately

  caused by the violation, civil liability for the costs of removal and

  criminal prosecution.” This Code provision further illustrates the

  City’s intent to craft a broad statutory framework that imposes civil

  liability in certain instances on owners and occupants of real

  property who breach duties imposed on them by the Code. Cf.

  Burbach, 224 P.3d at 439; Easton, 854 P.2d at 1364-65.




                                     24
¶ 46   In sum, based on our analysis of the plain language and

  statutory framework of the Code, we conclude that the provisions of

  section 3.4.103 are unambiguous and express a clear legislative

  intent to impose civil liability when an owner or occupant of real

  property fails to notify the City Engineer about any damage to the

  public sidewalk adjacent to his or her real property, see Code

  § 3.4.103(B), and the owner’s or occupant’s failure to notify the City

  Engineer about the damaged public sidewalk proximately causes

  injury to a third party. Because we conclude that section

  3.4.103(D) is unambiguous, we also conclude that the general

  common law “no duty” rule is inapplicable here. See Vigil, 103 P.3d

  at 327 (stating that deviations from the common law must be

  clearly expressed); cf. Burbach, 224 P.3d at 439-40 (declining to

  deviate from the “no duty” rule where the municipal code at issue

  did not expressly impose civil liability for violation of its provisions).

  Accordingly, the district court erroneously entered summary

  judgment for Johnson on Andrade’s common law negligence claim

  based on the court’s application of the “no duty” rule.




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                            D.    Application

¶ 47   Although we interpret section 3.4.103(B) to impose a duty on

  owners and occupants of real property to notify the City Engineer of

  damage to an adjacent or abutting public sidewalk, and interpret

  section 3.4.103(D) to impose civil liability on owners or occupants of

  real property who breach this duty to notify when their breach is

  the proximate cause of a third party’s injury, that does not mean

  that Johnson is necessarily civilly liable for Andrade’s injuries. On

  the record before us, there are genuine issues of material fact as to

  whether the public sidewalk was in fact damaged and whether

  Johnson’s failure to notify the City Engineer of the alleged damage

  proximately caused Andrade’s injuries. See Kaiser, 741 P.2d at

  718. The district court did not consider these issues in its

  summary judgment order.

¶ 48   The record contains an affidavit from the Streets Manager of

  Colorado Springs stating that the City had not received any

  complaints from Johnson that the sidewalk adjacent to her property

  was damaged. However, Johnson only had a duty pursuant to

  section 3.4.103(B) to notify the City Engineer of damage to the

  public sidewalk adjacent to her property if the sidewalk was


                                    26
  actually damaged. Here, the parties dispute whether the sidewalk

  was in fact damaged.

¶ 49   The record contains two different sets of photographs, one set

  supplied by each party, of the sidewalk adjacent to Johnson’s

  home. Each set of photographs depicts different parts of the

  sidewalk and different areas of possible damage. Johnson contends

  that there is no damage to the public sidewalk adjacent to her

  house at all; but given the conflicting photographs and the parties’

  dispute regarding whether or not the public sidewalk adjacent to

  Johnson’s home was damaged, that is an issue that cannot be

  resolved by summary judgment on this record. See id. (stating that

  “summary judgment is a drastic remedy, and is not a substitute for

  a trial of disputed facts”).

¶ 50   Similarly, the district court record does not contain any

  evidence regarding the issue of proximate cause — specifically,

  whether Johnson’s failure to notify the City Engineer of the alleged

  damage to the public sidewalk adjacent to her property proximately

  caused Andrade’s injuries. See id.; In re Estate of Heckman, 39 P.3d

  1228, 1232 (Colo. App. 2001) (“Proximate cause is ordinarily a

  question of fact for the jury and may be decided as a matter of law


                                   27
  only when reasonable minds could draw but one inference from the

  evidence.”). Therefore, the case must be remanded to the district

  court for further proceedings on these issues.

                            V.   Conclusion

¶ 51   With respect to that aspect of the summary judgment on

  Andrade’s premises liability claim under the Act, the judgment is

  affirmed. With respect to that aspect of the summary judgment on

  Andrade’s common law negligence claim, the judgment is reversed.

  The case is remanded to the district court with directions to

  conduct further proceedings on Andrade’s common law negligence

  claim because there are genuine issues of material fact as to

  whether the public sidewalk was damaged and whether Johnson’s

  failure to report the alleged damage to the City Engineer

  proximately caused Andrade’s injuries.

¶ 52   Accordingly, the judgment is affirmed in part, reversed in part,

  and the case is remanded to the district court with for further

  proceedings consistent with this opinion.

       JUDGE NIETO and JUDGE CASEBOLT concur.




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