Fishman v. Kotts

• Decision Date: 06 September 2007
• Docket Number: No. 05CA1887.,05CA1887.
• Parties: Vicky FISHMAN, Plaintiff-Appellant, v. Nickolas KOTTS and Judith Kotts, Defendants-Appellees.
• Court: Colorado Court of Appeals

179 P.3d 232

Vicky FISHMAN, Plaintiff-Appellant, v. Nickolas KOTTS and Judith Kotts, Defendants-Appellees.

No. 05CA1887.

Colorado Court of Appeals, Div. II.

September 6, 2007.

Crosse Law Office, P.C., Charles Crosse, Samuel Barfield, Denver, Colorado, for Plaintiff-Appellant.

Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge TERRY.

Plaintiff, Vicky Fishman, appeals the judgment entered on a jury verdict in favor of defendants, Nickolas and Judith Kotts (the dog owners). We affirm.

Fishman and three companions were riding their horses along a residential street in Weld County. As they approached the dog owners' property, the owners' two dogs began barking at the horses and riders. One of the dogs stopped at the edge of the owners' property, but the other dog ran into the road, got underneath Fishman's horse, and began nipping and biting at the horse's hooves.

Fishman testified at trial that she was an experienced rider, but she was concerned about the dog's safety and worried that he was upsetting her horse. According to Fishman and other witnesses, she leaned over her horse and was urging the dog to "go home" when her horse reared up and fell on top of Fishman, causing her severe injuries.

Fishman filed this action against the dog owners alleging, as relevant here, strict liability, negligence per se, and negligence. At trial, she contended that the owners had violated a Weld County animal control ordinance and that such a violation constituted negligence per se. Although the trial court permitted Fishman's counsel to refer to the ordinance during his closing argument and to argue that the owners had violated it by not restraining their dogs, the court did not instruct the jury that the owners' failure to comply with the ordinance was negligence per se.

The jury returned a verdict in favor of the owners, and the trial court entered judgment on the verdict.

I.

Fishman contends, in essence, that the trial court erred when it did not instruct the jury that the owners' violation of the ordinance constituted negligence per se. We disagree.

We review a district court's rejection of a party's tendered instructions for an abuse of discretion. Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 70 (Colo.App.2004).

Negligence per se is shown when a defendant violates a statute adopted for the public's safety and the violation proximately causes the plaintiff's injury. Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo.2002). A plaintiff seeking to recover under the doctrine of negligence per se must show that he or she is a member of the class the statute was intended to protect and that the injuries suffered were of the kind the statute was enacted to prevent. Largo Corp. v. Crespin, 727 P.2d 1098, 1107-08 (Colo.1986).

As pertinent here, the Weld County ordinance at issue provides:

A. It is unlawful for the owner or any person having custody of any dog to allow, suffer, permit or sanction the running at-large of said dog without the accompaniment of said owner or person having custody of the dog....

B. dog shall be deemed to be running at-large when off or away from the premises of its owner and not under the control of such owner.

Weld County Code § 14-4-20.

In Downing v. Lillibridge, 39 Colo.App. 231, 233, 566 P.2d 714, 716 (1977), a division of this court addressed a similar ordinance which provided, as relevant here: "It shall be unlawful for any owner ... of any dog to allow such dog to run at large in the City unless such dog is under the reasonable control of such owner." The division held that violation of the ordinance did not constitute negligence per se. Downing, supra, 39 Colo. App. at 233, 566 P.2d at 716.

The division's ruling in Downing hinged on aspects of the ordinance that are also present in the Weld County ordinance. Both ordinances would permit owners to let their dogs run, provided they were under the owner's control. The division in Downing concluded that before civil liability could be imposed on the dog's owner, the plaintiff had to prove the owner was negligent. Downing, supra, 39 Colo.App. at 233, 566 P.2d at 716.

As the Arizona Supreme Court explained in Santanello v. Cooper, 106 Ariz. 262, 265-66, 475 P.2d 246, 249-50 (1970):

In those instances where statutes attempt to deal with animals at large by providing ... "that the owner shall not `permit,' 'allow,' or `suffer' his animals to run at large, the courts have generally held, or recognized, that statutes of this type are not violated in the absence of at least negligence by the owner of the animals."

....

The word "allow" means to approve of, to sanction, to permit, to acknowledge. So defined, "allow" requires some degree of knowledge, either actual or constructive, on the part of the dog owner that his dog is at large; therefore, its use in the ordinance negates any intention to create strict liability for violation of the ordinance. We hold that in order for there to be civil liability for violation of this ordinance it must be established that a person coming within the scope of the ordinance intentionally or negligently allowed a dog covered by the ordinance to run at large in violation of the ordinance.

(Citations omitted; emphasis added.)

Other courts have reached the same conclusion. See Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 292 (Alaska Ct.App. 2004) ("The verbs `permit' and `allow' are commonly understood to imply some volition on the part of the actor. And other jurisdictions having similar —laws laws providing that the owner of an animal shall not `permit,' `allow' or `suffer' the animal to run at large—require proof of at least negligence."); Slack v. Villari, 59 Md.App. 462, 476 A.2d 227, 232 (1984) ("There is no indication that [the dog's owner] knew the dog was going out of bounds, or that she `allowed' him to leave the premises. The mere accidental escape of an animal, without proof of the owner's knowledge or negligence, is insufficient evidence to constitute a violation of [a statute providing that dog owners shall not `allow' dogs to run at large]."); see also John A. Glenn, Annotation, Dog Owner's Liability for Damages from Motor Vehicle Accident Involving Attempt to Avoid Collision with Dog on Highway, 41 A.L.R.3d 888 (1972).

Fishman's reliance on Lui v. Barnhart, 987 P.2d 942 (Colo.App.1999), is misplaced. There, a horse escaped from a corral and collided with a vehicle. A division of this court held that the violation of a Greenwood Village municipal ordinance constituted negligence per se because it provided: "No person owning or keeping any animal, other than an ordinary domesticated house cat, shall fail to keep said animal on the premises of the owner or keeper unless the animal is ... [o]n a leash ... or [w]ithin a vehicle, or similarly confined...." Lui, supra, 987 P.2d at 944 (emphasis added). Thus, the Greenwood Village ordinance permitted owners to let their animals run loose only on the owner's premises. It did not contain an exception for animals under the owner's control, as does the ordinance at issue here.

We therefore conclude the trial court did not err by not instructing the jury that the violation of the Weld County ordinance constituted negligence per se.

II.

We also reject Fishman's contention that the trial court abused its discretion in instructing the jury on the liability of dog owners.

We review jury instructions de novo to determine whether the instructions as a whole accurately informed the jury of the governing law. A trial court's decision to give a particular jury instruction is reviewed for abuse of discretion. See Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1173 (10th Cir.2000); Woznicki v. Musick, 119 P.3d 567, 573 (Colo.App.2005); Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996).

When instructing a jury in a civil case, the trial court shall generally use those instructions contained in the Colorado Jury Instructions (CJI-Civ.) that apply to the evidence under the prevailing law. C.R.C.P. 51.1(1); Vista Resorts v. Goodyear Tire & Rubber Co., supra, 117 P.3d at 70.

Here, the trial court gave the jury CJI-Civ. 13:1, which provides:

For the plaintiff ... to recover from the defendant ... [the jury] must find all the following have been proved by a preponderance of the evidence:

(1) The defendant ... kept ... a [breed of animal];

(2) The [animal] had vicious or dangerous tendencies;

(3) The defendant knew or had notice that the [animal] had vicious or dangerous tendencies;

(4) The defendant was negligent in that [he] did not use reasonable care to prevent injuries or damages that could have reasonably been anticipated to be caused by the dangerous or destructive tendencies of the [animal];

(5) The plaintiff had [injuries]; and

(6) The [defendant's negligence was or the vicious or dangerous tendencies of the animal were] a cause of the plaintiff's[injuries].

CJI-Civ. 4th 13:1 (2006); see Sandoval v. Birx, 767 P.2d 759, 761 (Colo.App.1988); Dubois v. Myers, 684 P.2d 940, 942 (Colo.App. 19...