                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 9, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court



    M ITCH ELL LELAND W YLE,

                Plaintiff-Appellant,

    v.                                                  No. 04-1545
                                                 (D.C. No. 02-B-729 (CBS))
    SK IW A T CH CO N D O MIN IU M                       (D . Colo.)
    C ORPO RA TIO N , A CO LO RA DO
    CORPORATION; SKIW ATCH
    C ON D O M IN IU M A SSO CIA TION;
    ERIC A ND RU TH ODEN S;
    A N D RO M A N A N D O LH A
    N O W A KIWSK Y ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Plaintiff M itchell Leland W yle, an attorney proceeding pro se, appeals from

the district court’s order granting defendants’ summary judgment motions and

denying M r. W yle’s motions for summary judgment and judgment on the

pleadings. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The district court detailed the facts of this case and we restate them here

only as is necessary to our disposition. On April 15, 2000, a fire broke out in an

electrical closet at the Skiwatch condominium complex in Breckenridge,

Colorado. 1 At that time, M r. W yle was sleeping in a Skiwatch condominium he

had rented for his vacation in Breckenridge. He allegedly suffered various

injuries as a result of the fire. Invoking diversity jurisdiction, M r. W yle filed suit

for negligence and breach of contract against the Skiwatch Condominium

Corporation and Skiwatch Condominium Association (Skiwatch), Eric and Ruth

Odens, and Roman and Olha Nowakiwsky.

      The district court concluded that Colorado’s premises liability statute,

Colo. Rev. Stat. § 13-21-115, is the exclusive remedy against a landowner in

Colorado for injuries occurring on the landowner’s property. Finding each of the

defendants to be landowners, the district court next concluded that M r. W yle’s

“breach-of-contract claim is obviated by the exclusivity of the premises-liability

statute.” Aplees. Jt. Supp. App. at 11. After thoroughly considering the

1
      W e note that the district court made a typographical error in the order
appealed from when it, on several occasions, stated the fire occurred on
April 11, 2000.

                                           -2-
evidence, the district court granted defendants’ summary judgment motions,

holding that M r. W yle failed to demonstrate a material factual controversy existed

regarding defendants’ alleged knowledge of the condition of the electrical system

that resulted in the fire. The district court also denied M r. W yle’s Fed. R. Civ. P.

12(c) motion for judgment on the pleadings as to defendants Eric and Ruth Odens.

This appeal followed.

      Colorado’s substantive tort law governs this diversity action, but we follow

“federal law in determining the propriety of the district court’s grant of summary

judgment.” Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir. 2001).

Summary judgment is appropriate when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Id.;

Fed. R. Civ. P. 56(c). W here, as here, the district court ruled on cross-motions

for summary judgment, we review its order de novo, “constru[ing] all factual

inferences in favor of the party against whom summary judgment was obtained.”

NISH v. Rumsfeld, 348 F.3d 1263, 1266 (10th Cir. 2003). W e also review

de novo the district court’s denial of a Rule 12(c) motion, accepting all

well-pleaded allegations in the complaint as true, and construing them in the light

most favorable to the plaintiff. Ram irez v. Dep’t of Corr., 222 F.3d 1238, 1240

(10th Cir. 2000).

      M r. W yle identifies five issues on appeal. First, he contends Vigil v.

Franklin, 103 P.3d 322 (Colo. 2004), precludes the entry of summary judgment in

                                          -3-
premises liability cases. W e disagree. Contrary to M r. W yle’s position, we do

not think the Colorado Supreme Court eliminated or intended to eliminate

summary judgment practice by stating in Vigil, “the only issue of law to be

determined by the court [under § 13-21-115] is the classification of the injured

plaintiff; liability and damages are questions of fact to be determined by the

finder of fact,” 103 P.3d at 328. Indeed, since Vigil, the Colorado Court of

Appeals has affirmed the entry of summary judgment in at least one premises

liability case. Wilson v. M archiondo, 124 P.3d 837, 841-42 (Colo. Ct. App. 2005)

(holding landlord who lacked actual knowledge of dog’s allegedly vicious nature,

prior to entering into lease agreement, owed victim of dog bite no duty of care

under premises liability statute), cert. denied, 2005 W L 3764931 (Colo. Dec. 19,

2005).

         Second, M r. W yle takes issue with the district court’s dismissal of his

breach-of-contract claim. He asserts the court erroneously: found no

contract existed, held Colorado’s premises liability statute precluded

breach-of-contract actions, and failed to grant M r. W yle summary judgment on

his breach-of-contract claim. M r. W yle’s breach-of-contract arguments are

misplaced. W hether a contract existed and whether a defendant or defendants

breached that contract (if one existed) is immaterial because–as the district court

correctly concluded–Colorado’s premises liability statute provides the exclusive

remedy against a landowner for injuries sustained on the landowner’s property.

                                            -4-
Vigil, 103 P.3d at 331; see Wilson, 124 P.3d at 842 (“[b]ecause the premises

liability statute is the exclusive remedy under which plaintiffs may recover, we

need not address plaintiffs’ other theories of liability” strict liability and civil

conspiracy); Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538,

540-41 (Colo. Ct. App. 2005) (observing exclusivity of premises liability statute

and affirming dismissal of plaintiff’s claims for breach of contract and negligent

breach of contract), cert. denied, 2005 W L 2181649 (Colo. Sept. 12, 2005).

      Third, M r. W yle asserts the district court erroneously ignored his “proof”

that the defendants had both actual and constructive knowledge of the dangers to

which they were subjecting their tenants. Aplt. Opening Br. at 32. W e are not

persuaded. Having carefully considered the briefs, the record, and the applicable

law , we concur with the district court’s conclusion that

      no reasonable jury could find [the defendants] had actual or
      constructive knowledge of the condition of the electrical system
      generally, or of the electrical box with the smashed copper pipe in
      place of a fuse that resulted in the April 15, 2000 fire . . . .
      Consequently, [they] could not be found to have breached any duty
      to use reasonable care to protect against such a danger.

Aplees. Jt. Supp. App. at 14-15.

      Fourth, M r. W yle asserts the district court erroneously denied his Rule

12(c) motion for judgment on the pleadings because the Odens did not respond to

his summary judgment motion “within 20 days,” as required by D. Colo. Civ. R.




                                           -5-
56.1(A). 2 In M r. W yle’s view, the Odens’s failure to respond obligated the

district court to grant his Rule 12(c) motion. M r. W yle is mistaken. A party’s

failure to respond to a summary judgment motion is not a legally sufficient basis

on which to enter judgment against that party. Reed v. Bennett, 312 F.3d 1190,

1194 (10th Cir. 2002). The district court must also examine the moving party’s

submission to “determine if it has met its initial burden of demonstrating that no

material issues of fact remain for trial and the moving party is entitled to

judgment as a matter of law.” Id. at 1195. In this case, M r. W yle did not meet

his initial burden; accordingly, judgment in his favor was not appropriate and w e

therefore see no error in the district court’s denial of M r. W yle’s Rule 12(c)

motion. See id.

      Lastly, M r. W yle argues the district court judge should have disqualified

himself pursuant to 28 U.S.C. § 455. M r. W yle also suggests the district court

judge’s “adverse appearances inextricably attach to” the magistrate judge, and he

too should have disqualified himself. Aplt. Opening Br. at 51. Based on our

review of the record, however, there is no merit to M r. W yle’s judicial partiality

argument.




2
       M r. W yle also contends the Odens were at fault for not timely responding
to his Rule 12(c) motion. But, significantly, the district court in this case entered
judgment for defendants before the Odens’s response to M r. W yle’s Rule 12(c)
motion was even due.

                                          -6-
      The judgment of the district court is AFFIRM ED. All pending motions are

D EN IED .


                                                 Entered for the Court



                                                 John C. Porfilio
                                                 Circuit Judge




                                      -7-
