v.

• Decision Date: 26 June 2017
• Docket Number: Supreme Court Case No. 16SC388
• Citation: 2017 CO 79
• Parties: Petitioners: N.M., a minor child, by and through Maria Lopez, his mother and next friend, and Maria Lopez, individually, v. Respondent: Alexander S. Trujillo.
• Court: Colorado Supreme Court

2017 CO 79

Petitioners: N.M., a minor child, by and through Maria Lopez,his mother and next friend, and Maria Lopez, individually, v. Respondent: Alexander S. Trujillo.

Supreme Court Case No. 16SC388

Supreme Court of the State of Colorado

June 26, 2017

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Negligence—Duty of Care—Nonfeasance—Special Relationships—C.R.C.P. 12(b)(5).

This case requires the supreme court to determine whether the respondent, a dog owner, owed a duty of care to the petitioner, a child who became frightened when the respondent's dogs rushed at respondent's front-yard fence and who, although not touched by the fenced-in dogs, ran into the street and was struck and injured by a passing van.

In the circumstances presented here, the court determines that, as a matter of law, the respondent did not owe the petitioner a duty of care. Because the petitioner's negligence claim against the respondent was predicated on alleged nonfeasance, or failure to act, and because the case is distinguishable from cases in which a dangerous or vicious animal attacks and directly injures someone, the petitioner was required to plead a special relationship between himself and the respondent in order to establish the duty of care necessary to support his negligence claim. The petitioner did not, however, plead such a special relationship. Accordingly, the court concludes that the respondent owed no duty of care to the petitioner and that therefore the district court properly dismissed the petitioner's negligence claim against the respondent. The supreme court thus affirms the judgment of the court of appeals.

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA2494

Judgment Affirmed

en banc

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, ColoradoAttorneys for Amicus Curiae Colorado Defense Lawyers Association:

Montgomery Little & Soran, PC

Echo D. Ryan

William B. Ross

Greenwood Village, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.

JUSTICE MÁRQUEZ does not participate.

¶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 specialrelationship. 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 bullshad 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 maybe 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...