Lopez v. Trujillo

• Decision Date: 07 April 2016
• Docket Number: Court of Appeals No. 14CA2494
• Citation: 399 P.3d 750
• Parties: Maria LOPEZ, individually and as mother and next friend to N.M, a minor child, Plaintiffs–Appellants, v. Alexander S. TRUJILLO, Defendant–Appellee.
• Court: Colorado Court of Appeals

399 P.3d 750

Maria LOPEZ, individually and as mother and next friend to N.M, a minor child, Plaintiffs–Appellants,

v.Alexander S. TRUJILLO, Defendant–Appellee.

Court of Appeals No. 14CA2494

Colorado Court of Appeals, Div. I.

Announced April 7, 2016

Chalat Hatten Koupal & Banker, P.C., James H. Chalat, Russell R. Hatten, Denver, Colorado, for Plaintiffs–Appellants.

Zupkus & Angell, P.C., Erica O. Payne, Kristi A. Lush, Denver, Colorado, for Defendant–Appellee.

Opinion by JUDGE MÁRQUEZ^*

¶ 1 This case calls on us to evaluate for the first time in Colorado the liability of a dog owner for injuries sustained by a person frightened by the owner's dogs. Here, two pit bulls ran and jumped against a chain-link fence, barking and allegedly causing a passerby, who was separated from the dogs by the fence, to leave the sidewalk, enter the street, and be struck by a vehicle.

¶ 2 The injured passerby, plaintiff, N.M., and his parent and legal guardian, Maria Lopez, appeal from an order dismissing their complaint against defendant, Alexander S. Trujillo, for failure to state a claim for relief pursuant to C.R.C.P. 12(b)(5). We affirm.

I. Background

¶ 3 In their first amended complaint, plaintiffs alleged that on the afternoon of August 5, 2013, N.M., who was then eight years old, and his cousin, J.L., walked on a sidewalk in Adams County, heading towards the playground of an elementary school across the street. As N.M. and J.L. approached defendant's home, two "large, vicious, loud-barking pit bulls in the front yard of the house rushed at [the boys] (without being provoked)." The dogs jumped up on and rattled the four-foot-high chain-link fence that was parallel to, and right up against, the sidewalk. The complaint further alleged that the boys were frightened that the dogs were going to jump over the fence and bite them. So, they darted from the sidewalk out into the street. A service van struck N.M. when he ran into the street, causing serious injuries. J.L. was not injured. Plaintiffs also sued the driver and owner of the van, but plaintiffs settled with those parties.

¶ 4 In their first amended complaint, plaintiffs alleged defendant was negligent in maintaining his two vicious pit bulls, which he knew regularly threatened pedestrians on the sidewalk next to an elementary school. Plaintiffs also sued defendant in his capacity as a "landowner" under the Premises Liability Act (PLA), section 13–21–115, C.R.S. 2015. Defendant moved to dismiss pursuant to C.R.C.P. 12(b)(5), and the district court granted the motion.

¶ 5 Plaintiffs raise two contentions on appeal: (1) the district court erred in concluding as a matter of law that defendant owed no duty to N.M. and (2) the district court erred in concluding that defendant was not subject to liability as a landowner under the PLA. We perceive no error.

II. C.R.C.P. 12(b)(5) Standards

¶ 6 C.R.C.P. 12(b)(5) tests the legal sufficiency of a complaint to determine whether a plaintiff asserted a claim upon which relief can be granted.

Hemmann Mgmt. Servs. v. Mediacell, Inc., 176 P.3d 856, 858 (Colo.App.2007). In evaluating a motion to dismiss under C.R.C.P. 12(b)(5), the court must accept as true all averments of material fact and view the allegations of the complaint in the light most favorable to the plaintiff. Ashton Props., Ltd. v. Overton, 107 P.3d 1014, 1018 (Colo.App.2004). Subject to exceptions not applicable here, the court must consider only matters stated in the complaint and must not go beyond the confines of the pleading. Fluid Tech., Inc. v. CVJ Axles, Inc., 964 P.2d 614, 616 (Colo.App.1998). While motions to dismiss for failure to state a claim are viewed with disfavor, they may properly be granted where it appears beyond doubt that the plaintiff can prove no set of facts to sustain the claim. Hewitt v. Rice, 119 P.3d 541, 544 (Colo.App.2004), aff'd, 154 P.3d 408 (Colo.2007).

¶ 7 We review a dismissal for failure to state a claim under C.R.C.P. 12(b)(5) de novo and apply the same standards as the district court. Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 16, 269 P.3d 1248, 1253.

III. Negligence Claim

¶ 8 Arguing that defendant had a duty to exercise reasonable care to control his vicious pit bulls so as not to frighten or threaten others, plaintiffs contend the district court erred in concluding as a matter of law that defendant owed no duty to N.M. under his negligence claim. We disagree.

A. Applicable Law

¶ 9 To prove a prima facie negligence claim, the plaintiff must prove: (1) the defendant owed a legal duty of care; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant's breach caused that injury. Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004). Of these elements, duty is the threshold element. Id.

¶ 10 Whether a defendant owes a duty to a plaintiff is a question of law to be determined by the court. Id. "The court determines, as a matter of law, the existence and scope of the duty—that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection." Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980).

¶ 11 In determining whether the law imposes a duty on a particular defendant, the court should consider many factors, including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the defendant. Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987). No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards—whether reasonable persons would recognize a duty and agree that it exists. Id.

¶ 12 "The scope of the property does not define the scope of the duty [.]" Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 40, 347 P.3d 606, 616. The risk of harm does. Id. "As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution." Id. at ¶ 35, 347 P.3d at 614 (alteration and citation omitted).

¶ 13 Other divisions of this court have held that a dog owner has a duty to prevent harm and take reasonable precautions against harm caused by the owner's dog. See Snow v. Birt, 968 P.2d 177, 179 (Colo.App.1998) (concluding that the defendants owed a common law duty of care to protect guests in their home from a dog); Vigil in Interest of Vigil v. Payne, 725 P.2d 1155, 1157 (Colo.App.1986) (adopting the rule that where a landlord has actual knowledge that a tenant owns an animal whose vicious actions have created a clear potential for injury, the landlord has a duty to take reasonable precautions to protect third persons from the animal). However, both of these cases involved parties who were on the defendants' property and were directly injured by their dogs.

¶ 14 No Colorado appellate court has dealt specifically with whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner's property, and the dogs remained confined and never left the landowner's property.

B. Analysis

¶ 15 Plaintiffs contend defendant owed N.M. a duty of care. We disagree and conclude that the Taco Bell factors do not support a determination that defendant owed a duty to N.M. We address each factor in turn.

¶ 16 First, as to the risk involved, the dogs were fenced inside defendant's yard by a four-foot-high chain-link fence. While the dogs may have jumped up on and rattled the fence, the complaint does not allege that either dog jumped over the fence or physically harmed or touched N.M. or J.L.

¶ 17 Second, the allegations of the complaint do not support a determination of foreseeability and the likelihood of injury. "[F]oreseeability is based on common sense perceptions of the risks created by various conditions and circumstances." Taco Bell, 744 P.2d at 48. Here, N.M., scared by the pit bulls, "darted from the sidewalk out into [the street]" and was struck by a service van. While the injuries were tragic, their likelihood was not foreseeable.

¶ 18 Plaintiffs urge us to adopt the holding in Machacado v. City of New York, 80 Misc.2d 889, 365 N.Y.S.2d 974 (N.Y.Sup.Ct.1975). In Machacado, the court concluded that an actionable cause was stated when the plaintiff was frightened and fell and injured herself on a snow-covered sidewalk after a German Shepherd, snarling and barking at the plaintiff, emerged from behind a brick wall on the defendant's property and hurled itself at the snow-covered cyclone fence separating the sidewalk from the property. Id. at 975–80. The dog did not physically contact the plaintiff.

¶ 19 We conclude that Machacado is distinguishable. In Machacado , the plaintiff, startled by the dog, moved back, fell, and injured herself. Id . at 976. The court found that the "treacherous or uncertain" footing caused by the presence of snow on the ground "increase[d] the probability that injury will result ... from the frightened actions" of a person intending to avoid the dog. Id . Here, however, N.M. did not step back from the barking dogs but ran off the sidewalk and into the street. We conclude it was not foreseeable to defendant that a passerby, startled by the dogs that were confined, would run out into the street into the path of moving vehicles.

¶ 20 Our conclusion is supported by the reasoning of the California Court of Appeals. In Nava v. McMillan, 123 Cal.App.3d 262, 176 Cal.Rptr. 473 (Cal.Ct.App.1981), that court held that a pedestrian struck by an automobile after running into the street to avoid barking, fenced-in dogs did not face a foreseeable risk of harm. The court noted that "even if the dogs had been barking or jumping against the fence which separated them from the sidewalk, such activities...