N.M. v. Trujillo, 062617 COSC, 16SC388

Docket Nº16SC388
Opinion JudgeGABRIEL JUSTICE.
Party NameN.M., a minor child, by and through Maria Lopez, his mother and next friend, and Maria Lopez, individually, Petitioners v. Alexander S. Trujillo, Respondent
AttorneyAttorneys for Petitioners: Chalat Hatten & Banker, PC James H. Chalat Russell R. Hatten Denver, Colorado Attorneys for Respondent: Zupkus & Angell, P.C. Kristi A. Lush Erica O. Payne Denver, Colorado Attorneys for Amicus Curiae Colorado Civil Justice League: Taylor Anderson LLP Lee Mickus Margare...
Judge PanelMÁRQUEZ JUSTICE does not participate.
Case DateJune 26, 2017
CourtSupreme Court of Colorado

2017 CO 79

N.M., a minor child, by and through Maria Lopez, his mother and next friend, and Maria Lopez, individually, Petitioners

v.

Alexander S. Trujillo, Respondent

No. 16SC388

Supreme Court of Colorado, En Banc

June 26, 2017

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA2494

Attorneys for Petitioners: Chalat Hatten & Banker, PC James H. Chalat Russell R. Hatten Denver, Colorado

Attorneys for Respondent: Zupkus & Angell, P.C. Kristi A. Lush Erica O. Payne Denver, Colorado

Attorneys for Amicus Curiae Colorado Civil Justice League: Taylor Anderson LLP Lee Mickus Margaret Boehmer Denver, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Montgomery Little & Soran, PC Echo D. Ryan William B. Ross Greenwood Village, Colorado

OPINION

GABRIEL JUSTICE.

¶1 While walking past respondent Alexander Trujillo's home on his way to the playground at Dupont Elementary School, petitioner N.M. became frightened when Trujillo's two pit bulls rushed at the front-yard fence. Although the dogs did not get out of the yard or touch N.M., N.M., in his fright, ran across the street and was struck by a passing van, which seriously injured him.

¶2 N.M., by and through his parent and legal guardian, Maria Lopez, and Lopez, in her individual capacity (collectively, "N.M."), sued Trujillo for, as pertinent here, negligence. Trujillo moved to dismiss that claim, contending that N.M. had not sufficiently pleaded the requisite element of duty. The district court agreed and dismissed the case, and in a split, published decision, a division of the court of appeals affirmed. Lopez v. Trujillo, 2016 COA 53, ¶¶ 2, 41, P.3d .

¶3 We granted certiorari to decide whether, in the circumstances presented here, Trujillo owed N.M. a duty of care.1 We conclude that he did not. Because N.M.'s claim against Trujillo is predicated on Trujillo's alleged nonfeasance, or failure to act, and because this case is distinguishable from cases in which a dangerous or vicious animal attacks and directly injures someone, N.M. was required to plead a special relationship between himself and Trujillo in order to establish the duty of care necessary to support a negligence claim. N.M. concedes, however, that he did not plead such a special relationship. Accordingly, on the facts now before us, we conclude that Trujillo owed no duty of care to N.M. and that therefore the district court properly dismissed N.M.'s negligence claim against Trujillo.

I. Facts and Procedural History

¶4 In his amended complaint, N.M. alleged the following facts:

¶5 One day in August 2013, eight-year-old N.M. and his cousin were walking to the playground at Dupont Elementary School. As the pair approached Trujillo's home, which was directly across the street from the playground, two "large, vicious, and loud-barking" pit bulls in Trujillo's front yard rushed at the boys without provocation and "jumped on and rattled" the four-foot-high chain link fence that abutted the sidewalk on which the boys were walking.

¶6 Although neither dog escaped Trujillo's yard or touched the boys, the dogs startled and frightened them. Thinking that the dogs were going to jump over the fence and bite them, the boys ran into the adjacent street where N.M. was hit by a passing van. He suffered severe injuries and was hospitalized for twenty-four days.

¶7 Thereafter, N.M. sued the van driver and the driver's employer, alleging negligence, negligence per se, and respondeat superior.2 N.M. subsequently moved to amend his complaint to add claims against Trujillo, and the district court granted that motion.

¶8 As pertinent here, the amended complaint alleged that at the time of the incident at issue, Trujillo had actual knowledge of previous incidents in which his two pit bulls had frightened others by rushing the fence, barking loudly in a threatening manner, and jumping up on and rattling the fence. The complaint did not, however, allege any special relationship between Trujillo and N.M.

¶9 Based on the foregoing allegations, N.M. asserted, among other claims not presently before us, a negligence claim against Trujillo. In this claim, he alleged that Trujillo (1) had a duty to exercise reasonable care to control his vicious/dangerous pit bulls so as not to frighten, threaten, or harm others, or to cause others to harm themselves attempting to flee from the charging pit bulls; (2) knew or should have known that children walked along the sidewalk in front of his house to access the playground across the street; (3) breached his duty to exercise reasonable care to prevent his dogs from threatening and frightening pedestrians who were walking in front of his house; and (4) caused N.M. serious bodily injuries, damages, and losses. ¶10 In response to N.M.'s negligence claim, Trujillo filed a C.R.C.P. 12(b)(5) motion to dismiss. In this motion, Trujillo argued, among other things, that he owed no duty of care to N.M.

¶11 The district court ultimately granted Trujillo's motion as to N.M.'s negligence claim. In so ruling, the court concluded that, as a matter of law, Trujillo owed N.M. no duty because Trujillo "could not reasonably foresee that his dogs' barking or lunging at his fence would cause [N.M.] to be so frightened that he would run into the street and get hit by a car."

¶12 N.M. appealed, and in a split, published opinion, a division of the court of appeals affirmed. Lopez, ¶¶ 2, 41.

¶13 As pertinent here, the division majority evaluated the factors set forth in Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987), to guide courts in deciding whether to impose a duty of care and concluded that Trujillo did not owe N.M. such a duty. Lopez, ¶¶ 15-31. In reaching this conclusion, the majority first noted that the dogs were fenced inside Trujillo's yard by a four-foot-high chain-link fence and that the amended complaint did not allege that either dog had jumped over the fence or had physically harmed or touched N.M. Id. at ¶ 16. The majority further observed that although N.M.'s injuries were tragic, their likelihood was not foreseeable. Id. at ¶ 17. In addition, the majority stated that the social utility of Trujillo's conduct outweighed the foreseeability and likelihood of injury. Id. at ¶ 21. Finally, the majority opined that the magnitude of the burden on dog owners to guard against injury was high, as were the costs of placing any additional burdens on the owners, and that the consequences of imposing such additional burdens would be unreasonable. Id. at ¶ 22. Specifically, dog owners would effectively be required to keep dogs in a place where they could neither be seen nor heard by members of the public passing by, and additional measures would not alleviate the possibility that a passerby would be frightened by a suddenly barking dog. Id.

¶14 Accordingly, the division concluded that the district court had properly ruled that Trujillo did not owe N.M. a duty of care. Id. at ¶ 31.

¶15 Judge Vogt dissented. Although she agreed that the case turned on the application of the Taco Bell factors, her assessment of those factors differed from that of the majority. See id. at ¶¶ 43-51. Specifically, in Judge Vogt's view, a dog owner may be liable for harm caused by the dog to another person even if the dog does not physically contact the other person. Id. at ¶ 44. In addition, Judge Vogt deemed it "eminently foreseeable" that a child in N.M.'s position would (1) be frightened when two "large, vicious, loud-barking pit bulls" rushed and jumped on the fence and (2) run into the street to get away from them.

Id. at ¶ 46. Given the general recognition of the limitations on the right to keep vicious dogs, Judge Vogt further believed that the social utility of Trujillo's ownership of the dogs at issue did not outweigh the foreseeability of injury to others by those dogs. Id. at ¶ 50. Finally, Judge Vogt opined that the record at the motion to dismiss stage did not support the majority's conclusions as to the magnitude and reasonableness of the burden that would be placed on dog owners to guard against injury or harm caused by their dogs. Id. at ¶ 51. Judge Vogt would therefore have allowed N.M.'s negligence claim to go to the jury. Id. at ¶ 53.

¶16 N.M. subsequently sought, and we granted, certiorari.

II. Analysis

¶17 We begin by articulating the proper standard of review for the dismissal of claims under C.R.C.P. 12(b)(5). We then address the applicable duty of care in the context of nonfeasance claims such as that present here. Finally, we apply the pertinent standards to the facts of this case and conclude that, as a matter of law, Trujillo owed no duty of care to N.M.

A. Standard of Review

¶18 We review de novo a district court's dismissal for failure to state a claim under C.R.C.P. 12(b)(5), and we 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. Accordingly, we accept all allegations in the complaint as true, and we view them in the light most favorable to the non-moving party. Id. Dismissal under C.R.C.P. 12(b)(5) is proper only when the facts alleged in the complaint cannot, as a matter of law, support the claim for relief. Id.

¶19 At the time both the district court and the division decided this case, Colorado courts applied the standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007), for assessing motions to dismiss for failure to state a claim. Under this standard, a complaint could not be dismissed for failure to state a claim unless it appeared beyond doubt that the plaintiff could prove no set of facts in support of the claim that would entitle...

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