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Lopez v. Trujillo

Court of Appeals of Colorado, First Division

April 7, 2016

Maria Lopez, individually and as mother and next friend to N.M, a minor child, Plaintiffs-Appellants,
v.
Alexander S. Trujillo, Defendant-Appellee.

         Adams County District Court No. 13CV32771 Honorable Mark D. Warner, Judge

          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

          Fox, J., concurs

          Vogt * , J., concurs in part and dissents in part

          MARQUEZ[*] JUDGE

          ¶ 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 ...


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