Lopez v. Trujillo , 2016 Colo. App. LEXIS 465 ( 2016 )

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 them 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 them 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 thé 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-foob-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 plaintiffs 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 reásonablé precautions against harm caused b^ '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 á 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 eases 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 á 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 piay 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. “[Fjoreseeability 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 “inerease[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 are quite common for a dog.” Id. at 476.

¶ 21 Third, we weigh the foreseeability and likelihood of injury .against the social utility of a defendant’s conduct, “It is an integral part of our whole system of private property that an owner or occupier of land has a privilege to use the land according to his own desires.” Nava, 176 Cal.Rptr. at 476. “Keeping a pet dog is undoubtedly one of the most cherished forms in which the constitutionally protected right to own personal property is exercised. To most people it is more than ownership of mere personal property.” Id. at 476-77. We conclude that the social utility of defendant’s ’ conduct outweighs the foreseeability and likelihood of injury.

¶ 22 Fourth, the magnitude of the burden on dog owners of guarding against injury is high, as are the costs of placing'any additional burdens' on dog owners. ' The consequences upon the community of imposing a burden as suggested by plaintiff would be unreasonable: the owner of a dog would in effect be required to keep a dog in a place where it could neither be seen nor heard by members of the public passing by. Additional measures, such as erecting a higher or sturdier fence, place a significant financial burden on dog owners and do not alleviate the possibility that a passerby would be frightened by a suddenly barking dog.

¶23 Nor do the authorities cited by the dissent lead to a- different conclusion. To support its disagreement with the Taco Bell risk factors, the dissent begins with a citation to CJI-Civ., 4th 13:1 (2013). Because the determination of whether a party owes a duty is a question of law to be determined by the court, presumably this instruction would not be given until that determination has been made. Thus, the instruction itself does not direct a court to determine whether a duty exists. Additionally, pattern jury instructions are not law. Krueger v. Ary, 205 P.3d 1150, 1154 (Colo.2009).

¶24 The one Colorado case the dissent cites where the plaintiff had no direct contact with the dog, Fishman v. Kotts, 179 P.3d 232 (Colo.App.2007), is distinguishable. In Fishman, the plaintiff and her companions were riding horses along a residential road when two unconfined dogs began barking at the horses and their riders. Id. at 284. One dog ran into the road, got under the plaintiffs horse, and began nipping and biting at the horse’s hooves. Id. The plaintiff leaned .over her horse, urging the dog to “go home,” when her horse reared up and fell on top of her, causing her severe injuries. Id. The plaintiff appealed a judgment entered on a jury verdict in favor of the defendants,, the dog owners. Id. A division of this court affirmed, holding, among other .things, that the trial court did not err in giving the jury the instructions outlined in CJI-Civ. 4th 13:1 (2006). Id. at 236. However, there was no discussion of the determination of duty as a matter of law or the Taco Bell factors in Fishman.

¶ 25 Citing to the collection of cases provided in 30 Á.L.R.4th 986 Liability of Dog Owners for Injuries Sustained, by Person Frightened by Dog (Westlaw database updated Mar. 2016), the dissent does not point to which cases in the article support the dissent’s position. The dissent cites a number of cases, but with the exception of Machacado, distinguished above, every case involves circumstances that differ greatly from those in the case before us.

¶ 26 To support its analysis of foreseeability and likelihood of injury, the dissfent begins with Brandeis v. Felcher, 211 So.2d 606 (Fla.Dist.Ct.App.1968). In resolving an appeal of a summary judgment for the defendants, the court addressed section 767.01 of the Florida statutes, which provided: “Owners responsible. — Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.” Id. at 607. The court stated that “[i]t has been said that liability imposed by this section is an absolute liability as an insurer and is not contingent upon a showing of the negligence of the- owner, or scienter.” Id. The court further explained that liability depended on whether “the dogs- [were] the [clause of the damage complained of by the plaintiffs” and added that causation is generally a question of fact. Id. The court noted that the plaintiffs proceeded upon a theory of absolute liability under the Florida statute, id. at 609, and concluded that, under that statute, a jury should be permitted to-determine whether, under the specific facts of the case, the damage to the decedent was “done by” the dogs, id. Here, plaintiffs cite no similar statute, and they proceeded under a theory of negligence, not absolute or strict liability.

¶ 27 Marchand v. York, 624 So.2d 440 (La.Ct.App.1993), is also distinguishable. There, the owner was in the garage with his guests and two Labrador dogs. Id. at 441. The dogs were not on a leash or in. any way confined! Id The plaintiff, a twelve-year-old girl, went up the driveway toward the open garage, and the dogs barked. Id. After witnesses gave differing accounts as to whether the dogs chased the plaintiff, the jury found in favor of the owner. Id. at 443. Here, the case involved confined dogs, and the court in Marchand did not discuss determination' of duty as a matter of law.

¶ 28 Likewise, in Moore v. Myers, 161 Md.App. 349, 868 A.2d 954, 960-61 (2005), the son of a pit bull owner had the pit bull with him and threatened the plaintiff and her friends that he .would “sic his dog on” them. Id. The plaintiff was injured while fleeing from the pit bull that was chasing her. Id. Unlike in the case before us, the dog was unleashed and not confined. Id. Also, the appellate court, in reversing the trial court’s decision in favor of the dog owner, relied on a county law that required an owner of a pit bull terrier to confine the.dog within a building or secure kennel or be “secured by an unbreakable or unseverable leash and maintained under the control of an adult.” Id. at 364; In this case, the dogs were confined behind a fence, and no comparable law is cited.

¶ 29 Finally, in Neulist v. Victor, 3 Ohio App.2d 88, 209 N.E.2d 494, 495-96 (Ohio Ct.App.1965), the plaintiff was riding her bike on a public sidewalk when two fighting dogs ran into the plaintiffs path, Id. According to her petition, the eight-year-old plaintiff, “to avoid hitting or running into said fighting dogs and to get out of the reach of the said dogs ... alight[ed] from her bicycle and onto the street,” where she was struck by a vehicle. Id. Unlike in this ease, where the dogs were confined behind a fence, the dogs in Neulist were not confined. Id. Therefore, Neulist is distinguishable.

¶ 30 The dissent also relies on certain statutes and ordinances as support for the proposition that the social utility of defendant’s conduct does not outweigh the foreseeability of the risk. Plaintiffs do not rely on either section 18-9-204.5(l)(a), C.R.S.2015, 'or the Denver pit bull ordinance. Plaintiffs, as residents of Adams County, rely on the Adams County ordinance cited by the dissent only to the extent that they argue that defendant failed to license his dogs as required by section 5-2 of article V of Adams County Ordinance Number 6. Section 5-7, upon which the dissent relies, prohibits “vicious and dangerous pet animals” “unless that pet animal is confined inside ... property surrounded by a fence.”. Adams County Ordinance No. 6, Art. V, § 5-7 (emphasis added). As previously stated, the dogs in this ease were appropriately confined by a fence.

¶ 31 Therefore, the trial court did not err in concluding that defendant did not owe N.M.. a duty of care as plaintiffs alleged.

IV. Liability Under PLA

¶32 Next, we also disagree with plaintiffs’ contention^ that the district court erred in concluding that defendant was not a “landowner” for purposes of the PLA.

A. Standard of Review

¶ 33 Whether a party is a landowner within the meaning of the PLA is a mixed question of fact and law. Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, ¶ 10, 350 P.3d 863, 867 (Jordan I) aff'd, 2015 CO 24, 346 P.3d 1035 (Jordan II). We review a court’s findings of historical' fact 'for clear error and decide only whether there is any evidence in the record to support those findings.. Id. at ¶ 13, 350 P.3d at 867. We review de novo the ultimate legal conclusion that a party is a landowner. Id.

B. Applicable Law

¶ 34 An injured person may bring a claim under the PLA only against a “landowner.” See § 13-21-115(2). A person need riot hold title to property to be considered a “landowner.” See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo.2002). A “landowner” includes “an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” § 13-21-115(1). The PLA “provides the exclusive remedy against a landowner for injuries sustained on the landowner’s property.” Corder v. Folds, 2012 COA 174, ¶ 9, 292 P.3d 1177, 1178.

¶ 35 A party may be regarded as a landowner if it is “legally conducting activity or creating a condition on the property and therefore responsible for that activity or condition.” Jordan I, ¶ 18, 350 P.3d at 868 (quoting Pierson, 48 P.3d at 1220). The focus in this context is “whether the defendant is somepne who is legally entitled tó be on the' real property and whether that defendant is responsible for creating a condition on real property or conducting an activity on real property thát injures an entrant.” Pierson, 48 P.3d at 1221. This emphasis places “prospective liability with the person or entity that created the condition or conducted the activity on the real property that, in turn, caused injury to someone.” Id. “[T]he cause of action must arise out of an injury occurring on the real property of another and by reason of the condition of the property or activities or circumstances directly related to the real property itself....” Id.

¶ 36 In their complaint, plaintiffs admitted that the sidewalk was not defendant’s property. Nevertheless, they contend that Jordan II, in which the supreme court concluded that the defendant was not a landowner of a sidewalk within the meaning of the PLA, is inapplicable because it only applies in a commercial leasing context. They contend that Jordan II stands only for the proposition that a tenant under a lease which allocates responsibilities for common areas to the landlord is not conducting an activity when patients use a sidewalk to access a commercial business. We do not read that opinion so narrowly. In Jordan II, the plaintiff tripped and fell on a common-area sidewalk leading to the building in which the defendant leased office spaced 2, 346 P.3d at 1037. While the supreme court granted, certiorari to determine whether the PLA applies to a commercial tenant defendant in a lawsuit seeking damages for injuries the plaintiff sustained in a common area, Jordan II nevertheless informs our application of the PLA. The supreme court held that the defendant was not a landowner within the meaning of the PLA and that the defendant “was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there.” Id. at ¶37, 346 P.3d at 1044; see also Jordan I, ¶ 2, 350 P.3d at 866 (concluding that the defendant was not a landowner because "there was no evidence that the defendant was in possession of the sidewalk or was responsible for creating a condition or conducting an activity on the sidewalk that caused the plaintiffs injuries).

¶ 37 Divisions of this court have also held that public sidewalks adjacent to a landowner’s property are not property of the landowner pursuant to the PLA. See Burbach v. Canwest Invs., LLC, 224 P.3d 437, 441-42 (Colo.App.2009); Land-Wells v. Rain Way Sprinkler & Landscape, LLC, 187 P.3d 1152, 1154 (Colo.App.2008). Accordingly, defendant is not a landowner as a “person in possession of real property” for PLA purposes. § 13-21-115(1).

¶ 38 Next, we must determine whether defendant was “legally conducting activity or creating á condition on the property and therefore responsible for that activity or. condition.” Jordan I, ¶ 18, 350 P.3d at 868 (quoting Pierson, 48 P.3d at 1220). Plaintiffs contend that defendant, like the defendant in Sill v. Lewis, 140 Colo. 436, 437, 344 P.2d 972, 972 (1959), affirmatively acted when he unleashed “two large vicious[ ] pit bulls upon unsuspecting passerbys [sic]” and created a sufficiently dangerous condition to impose' PLA liability. See Woods v. Delgar Ltd., 226 P.3d 1178, 1182 (Colo.App.2009) (citing Bittle v. Brunetti, 750 P.2d 49, 51 n. 2 (Colo.1988)). We are not persuaded.

¶ 39 In Sill, the defendant discharged water onto a sidewalk abutting his property. 140 Colo. at 437, 344 P.2d at 972. The plaintiffs injuries occurred when the water froze, creating “the icy condition of the sidewalk” which caused plaintiff to fall. Id. However, defendant in the case before us did not “unleash” his dogs onto the sidewalk or in any way affect the public sidewalk in a manner similar to the defendant in Sill. In fact, his dogs remained confined to his property, inside the fence. Sill is therefore inapposite.

¶ 40 Accordingly, we conclude that defendant was not a landowner within the meaning of the PLA and affirm the dismissal of the PLA claim in plaintiffs’ complaint.

V. .Conclusion

¶ 41 The judgment is affirmed.

JUDGE FOX concurs. JUDGE VOGT concurs in part and dissents in part.

* Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and' § 24-51-1105, C.R.S.2015.