                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 29, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    YVONNE CLEMMONS;
    LUTHER CLEMMONS,

                Plaintiffs-Appellants,

    v.                                                   No. 11-1119
                                            (D.C. No. 1:09-CV-00710-MSK-MJW)
    FC STAPLETON II, LLC,                                 (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         After she tripped and fell on an uneven concrete slab sidewalk, Yvonne

Clemmons and her husband, Luther Clemmons sued defendant FC Stapleton II,

LLC, 1 asserting negligence, premises liability, and loss of consortium claims.

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      Considerable confusion prevailed in the district court about the identity of
the appropriate landowner defendant in this case. See, e.g., Aplt. App., Vol. I at
                                                                      (continued...)
The district court granted summary judgment to FC Stapleton on the ground that

it had no notice of the defective sidewalk and denied plaintiffs’ motion for

reconsideration.

      In this appeal, plaintiffs challenge the grant of summary judgment on the

premises liability claim. Because we agree with plaintiffs that genuine issues of

material fact remain concerning whether FC Stapleton was on constructive notice

of a dangerous condition that caused Ms. Clemmons’ injuries, we reverse and

remand for further proceedings.

                                  BACKGROUND

      The accident occurred on May 25, 2007, when Ms. Clemmons tripped and

fell on the sidewalk in front of EB Games at the Quebec Square shopping center,

resulting in her injuries. As she described the accident, “I was walking along, and


1
 (...continued)
35-36 & n.4, 45-46, 48-52, 78-79. The district court substituted FC Stapleton for
the original defendant in the case, “Forest City Commercial Management Inc.
DBA FC Stapleton II, LLC,” see id. at 9 (bolding & capitalization omitted). It
then entered summary judgment in favor of FC Stapleton, see id. at 95, and later
treated FC Stapleton as the appropriate defendant in its opinion and order denying
the Clemmons’ motion for reconsideration, see id. at 135-40. Although FC
Stapleton has appeared and filed an appellee’s brief in this appeal, it has also
notified us, as it did the district court, that “[t]he proper landowner in this case is
[a related entity,] Quebec Square SPE, LLC.” Aplee. Br. at 3 n.1.

       FC Stapleton does not seek dismissal of either the case or this appeal on the
ground that it is not the appropriate party to be sued. Because FC Stapleton was
the party of record in the district court and is the party of record in this appeal,
we will treat it as the appropriate party for purposes of this disposition. The
parties remain free to seek substitution of the appropriate party on remand.

                                          -2-
my foot just came in contact with the rise of the sidewalk, and I fell forward.”

Aplt. App., Vol. II at 189 (depo. p. 53). She estimated the rise in the sidewalk

over which she tripped was an inch and a half to two inches high.

      The Summary Judgment Evidence

      In response to FC Stapleton’s motion for summary judgment, plaintiffs

presented both lay and expert testimony and photographic evidence concerning

the condition of the sidewalk where Ms. Clemmons fell. Mr. Clemmons, who had

some experience in the construction industry, returned to the location on the

following day and took photographs of the sidewalk. He estimated that it would

have taken “[p]robably six months or a year” for the sidewalk to settle, resulting

in the “approximately two [or] two and a half [inch]” rise between slabs that he

observed. Id. at 182 (depo. p. 13); 183 (depo. p. 44).

      On the date of the incident, Karla Maria Allen, Ms. Clemmons’ daughter,

took date-stamped photographs of the sidewalk where Ms. Clemmons fell. The

photographs were submitted as evidence. She estimated that “the elevation

between the two adjoining sidewalk slabs where my mother . . . tripped and fell

was more than one inch in height.” Id. at 202.

      An expert affidavit came from Ruperto Esquibel, who identified himself as

“an expert in concrete sidewalks, walkways, curbs, driveways, and gutters.” Id.

at 210. Having reviewed photographs of the area where Ms. Clemmons fell,

which were submitted to the court with his affidavit, he opined that:

                                         -3-
      a)    There was a defect in the concrete slab prior to the date of the
            accident which caused Yvonne Clemmons to trip and fall.

      b)    The probable cause of the defect was settling of the concrete
            slab due to inadequate and/or defective compaction prior to
            pouring the concrete.

      c)    The probable cause of the defect was also defective
            workmanship and/or installation.

      d)    This defective condition appeared to have developed over a
            period of three months or more.

      e)    The best way to have remedied the defective sidewalk was to
            tear out the sunken section of the defective sidewalk and to
            completely replace [it] with new concrete.

      f)    . . . [T]he defect created a dangerous and hazardous condition
            for pedestrians on the sidewalk.

Id. at 211 (emphasis added).

      For its part, FC Stapleton presented the affidavit of E. Kemel Blue, Jr.,

Vice President and General Manager for Forest City Commercial Management,

Inc. Mr. Blue stated that prior to Ms. Clemmons’ trip and fall, “FC Stapleton had

not received any complaints or concerns regarding this particular sidewalk outside

of EB Games.” Id., Vol. I at 144. Mr. Blue also noted that

      FC Stapleton employs contract security guards who patrol Quebec
      Square each night to check that all business doors are locked. If
      guards see any issues requiring maintenance or hazards that could
      present a danger to patrons, they are instructed to provide notice to
      FC Stapleton. Those security guards have not reported any




                                        -4-
       complaints or concerns regarding uneven sections of concrete on this
       particular sidewalk to FC Stapleton, including with regard to the area
       in front of EB Games.

Id.

       Finally, Mr. Blue noted that pursuant to FC Stapleton’s routine inspection

procedure, its maintenance personnel “conducted a property inspection between

May 1, 2007 and May 5, 2007 which revealed no issues with the subject sidewalk

near EB Games.” Id. at 145. Mr. Blue attached a copy of the inspection report to

his affidavit.

       FC Stapleton also presented a deposition excerpt from Manuel Moscato, a

Maintenance Supervisor/Operations Manager for Forest City Commercial

Management, Inc., who stated that he had conducted weekly inspections of the

area in front of EB Games, but had never noticed any problems there even after

Ms. Clemmons tripped and fell. Mr. Blue filed a supplemental affidavit in which

he stated that FC Stapleton did not receive any notice that it was in violation of

the Denver Municipal Code with respect to the sidewalk where Ms. Clemmons

had her accident. 2




2
      Plaintiffs had argued that the height of the sidewalk defect violated
Denver’s Revised Municipal Code, constituting constructive notice per se to FC
Stapleton. They do not renew this argument on appeal.

                                         -5-
      The Summary Judgment Ruling

      On summary judgment, the district court first ruled that plaintiffs could not

maintain a common-law negligence action, because Colorado’s premises liability

statute had abrogated the common law of landowner duties. Plaintiffs do not

dispute this disposition of their negligence claim.

      The district court next turned to plaintiffs’ ability to prove a substantive

claim under the premises liability statute. Under this statute, it noted, FC

Stapleton would be liable for any “unreasonable failure to exercise reasonable

care to protect [an invitee like Ms. Clemmons] against dangers of which [it]

actually knew or should have known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I).

The district court concluded that plaintiffs had “not come forward with sufficient

evidence to create a triable issue of fact with regard to whether FC Stapleton had

[actual or constructive] notice of the sidewalk’s dangerous condition.” Aplt.

App., Vol. I at 88-89. After surveying plaintiffs’ evidence, it opined that “the

fact that Mr. Clemmons, Ms. Clemmons, their daughter, or Mr. Esquibel

examined the premises after the incident and ascertained a defect does not amount

to proof that FC Stapleton had actual or constructive knowledge of the defect

prior to the accident.” Id. at 89. Therefore, plaintiffs could not “establish their

claim of statutory premises liability.” Id. at 93.




                                         -6-
      Plaintiffs’ Motion for Reconsideration

      Plaintiffs subsequently filed their motion for reconsideration or motion to

alter or amend the district court’s judgment pursuant to Fed. R. Civ. P. 59(e).

They argued, among other things, that

      [s]ince the defect in the case at bar existed for three months or more
      prior to the incident [according to Mr. Esquibel’s affidavit] and the
      defective condition of the sidewalk was in front of EB Games store,
      an area traversed by shoppers, a jury question has arisen as to
      whether the defect should have been seen by the Defendant Stapleton
      by and through its agents, servants and/or employees prior to . . .
      Yvonne Clemmons’ trip and fall May 25, 2007.

Aplt. App., Vol. I at 99.

      Plaintiffs further argued that given the regular inspections FC Stapleton and

its employees conducted of the area where Ms. Clemmons fell, “the jury must

decide whether Defendant Stapleton looked but did not see the defective

condition prior to the incident” and was therefore on constructive notice of it. Id.

at 101 (internal quotation marks omitted). The district court denied the motion,

reasoning that plaintiffs had not previously relied on FC Stapleton’s inspections

to establish constructive notice, and that in any event, the combination of

Mr. Esquibel’s expert opinion and the inspection reports was insufficient to

establish constructive notice. The district court reasoned as follows:

      The Plaintiffs’ expert opines that “this defective condition appeared
      to have developed over a period of three months or more.” The
      curious word here is “developed.” The Plaintiffs’ expert is not
      stating that a dangerous condition “existed” for three months or
more, and the use of the term “developed” suggests that the dangerous condition

                                        -7-
of the sidewalk evolved over a three month period – i.e. going from a state in
which the sidewalk segment began as level, progressively becoming slightly
elevated, and eventually becoming the dangerously elevated condition that Ms.
Clemmons encountered. The expert’s opinion does not reveal on what date he
believes the sidewalk defect became a condition that was both dangerous and
sufficiently conspicuous such that FC Stapleton’s inspectors should have taken
notice of it.

Id. at 138-39.

      This appeal followed.

                                   ANALYSIS

      Standard of Review

      “We review the district court’s grant of summary judgment de novo,

viewing the evidence in the light most favorable to the non-moving party.”

McCarty v. Gilchrist, 646 F.3d 1281, 1284 (10th Cir. 2011). “Summary judgment

is appropriate when there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law.” Id. at 1284-85. When applying this

standard, we draw reasonable inferences from the evidence in the light most

favorable to the non-moving party. Koch v. Del City, 660 F.3d 1228, 1238

(10th Cir. 2011). We review the district court’s denial of a Rule 59 motion for

reconsideration for an abuse of discretion. Ysais v. Richardson, 603 F.3d 1175,

1180 (10th Cir.), cert. denied, 131 S. Ct. 163 (2010).

      In a case founded on diversity of citizenship, we apply the substantive law

of the forum state. Haberman v. Hartford Ins. Grp., 443 F.3d 1257, 1264

(10th Cir. 2006). In this case, Colorado is the forum state. We therefore apply

                                        -8-
Colorado law in examining the district court’s grant of summary judgment. See

State Farm Mut. Auto. Ins. Co. v. Fisher, 618 F.3d 1103, 1106 (10th Cir. 2010).

      Constructive Notice

      Colorado’s Premises Liability Statute makes a landowner liable to an

invitee “for damages caused by the landowner’s unreasonable failure to exercise

reasonable care to protect against dangers of which he actually knew or should

have known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I). The principal issue in this

appeal is whether FC Stapleton “actually knew or should have known” of the

defective sidewalk condition that allegedly caused Ms. Clemmons’ injuries.

      “[T]he statute’s requirement that the landowner ‘knew or should have

known’ of the danger can be satisfied by either actual or constructive

knowledge.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 568

(Colo. 2008). It is enough to establish that the landowner should have known of

the condition; actual knowledge is not required. Id. at 571. Under Colorado law,

“constructive knowledge” is “knowledge that one exercising reasonable diligence

should have.” Id.

      “[A] dangerous condition should have been known to exist if it is

established that the condition had existed for such a period of time and was of

such a nature that, in the exercise of reasonable care, such condition and its

dangerous character should have been discovered.” Id. (quotation omitted).

“[A]s a matter of public policy and public safety, it is entirely appropriate that the

                                         -9-
law impute certain knowledge to prevent individuals from denying knowledge or

acting in a way so as to remain ignorant.” Id. at 571-72.

      In applying Colorado law relative to constructive notice of a defective

condition, we find persuasive the factually-similar case of Bodeman v. Shutto

Super Markets, Inc., 593 P.2d 700 (Colo. 1979). In that case the plaintiff, an

elderly woman, “was injured when the shopping cart which she was pushing

overturned on a sloped asphalt ramp leading from the sidewalk in front of [a]

grocery store to the parking lot.” Id. at 701. There was a hole in the ramp four

inches wide and two inches deep at the point where the cart overturned. The

plaintiff sued under common-law negligence principles, which relied on a

definition of constructive knowledge of a dangerous condition essentially

indistinguishable from that subsequently given by the Colorado courts to

constructive knowledge under the Premises Liability Statute:

      Before there can be liability for injuries resulting from a dangerous
      condition, it must be shown . . . that the defendant had constructive
      knowledge of the condition and failed to correct it ([i.e.], that the
      condition had existed for such a period of time that the defendant, in
      the exercise of due care, could have and should have known of it).

Id. (alteration omitted) (internal quotation marks omitted). 3


3
       FC Stapleton argues that plaintiffs’ reliance on Bodeman is misplaced
because the case involves a claim of simple negligence and predates the passage
of the Premises Liability Statute. In light of the indistinguishable definition of
constructive knowledge applied by Bodeman and Colorado courts interpreting the
Premises Liability Statute, we find FC Stapleton’s attempt to distinguish
                                                                       (continued...)

                                         -10-
      The Colorado Supreme Court granted certiorari in Bodeman after the

Colorado Court of Appeals overturned a jury verdict in favor of the plaintiff. The

Court of Appeals had reasoned that (1) she had failed to show that the defendant

had actual knowledge of the hole and (2) as to constructive knowledge, she had

presented no evidence concerning how long the hole had been there before the

accident. The Colorado Supreme Court sided with the dissent in the Colorado

Court of Appeals’ decision, which had pointed out that a hole like the one in

question “does not develop suddenly” and that the jury could draw an inference

that it had existed for a sufficient period of time to put the defendant on notice

that it needed to repair it or warn customers of it. Id. (emphasis added). The

Court stated:

      This is not a case in which the transitory nature of the defect creates
      a grave doubt as to whether the defendant could, in the exercise of
      reasonable caution, have discovered it, or as to whether the defect
      existed at all. As a matter of law, the evidence relating to the hole in
      the asphalt ramp, the dangerous condition which caused plaintiff’s
      injuries, created an issue as to whether [the defendant] had
      constructive notice of the existence of the hole.

Id. at 702 (citations omitted).

      Similarly, in this case, a reasonable jury could infer from the evidence that

the uneven sidewalk that allegedly caused Ms. Clemmons’ injuries had existed for

such a period of time that FC Stapleton should reasonably have become aware of


3
 (...continued)
Bodeman unpersuasive.

                                         -11-
it before the accident. Although none of plaintiffs’ witnesses testified directly as

to the exact period of time the defect Ms. Clemmons encountered was in

existence, they estimated that it had developed over a period of months. Given

the reasoning in Bodeman, Mr. Esquibel’s use of the word “developed” rather

than the word “existed” is not inconsistent with Colorado case law concerning

constructive notice of a danger. A reasonable jury could infer that this was not a

defect that “develop[ed] suddenly” before FC Stapleton had a chance to become

aware of it. Id. at 701.

      We consider briefly two additional points raised by FC Stapleton. First, it

argues that the “look but not see doctrine,” advanced in plaintiff’s motion for

reconsideration, has no place in a premises liability case. Aplee. Br. at 13. We

need not decide, however, whether plaintiffs could use FC Stapleton’s own

inspections to prove that FC Stapleton should have been on notice of the defect.

Under Colorado’s objective standard, the issue was whether the defect had existed

for such a period of time and was of such a nature that, in the exercise of

reasonable care, the condition and its dangerous character should have been

discovered. Under this standard FC Stapleton could have been on constructive

notice even if it never conducted weekly or monthly inspections.

      Although FC Stapleton provided evidence that it conducted regular

inspections and that its employees had not noticed the defective sidewalk in an

inspection conducted three weeks before the accident, this only demonstrates the

                                        -12-
existence of a factual dispute concerning when the defect existed and whether FC

Stapleton should have been aware of it. FC Stapleton’s evidence is countered by

plaintiffs’ evidence that the defect did exist and should have been noticed. Such

material fact disputes, which may implicate issues of credibility, cannot be

resolved on summary judgment but must ultimately be resolved by the trier of

fact.

        Second, FC Stapleton argues that it did exercise reasonable care to protect

against dangers on the sidewalk. It refers to its weekly and monthly inspections,

none of which “revealed a dangerous condition on the sidewalk where

Ms. Clemmons fell.” Id. at 15. But this is merely another way of attempting to

resolve the material factual dispute in this case by way of summary judgment.

While this is evidence of reasonable care, it may still be the case that the

inspection program failed to identify a hazard that was obvious.

        The judgment of the district court is REVERSED and the case is

REMANDED for further proceedings in accordance with this order and judgment.

                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




                                         -13-
