Maria Lopez, individually and as mother and next friend to N.M, a minor child, Plaintiffs-Appellants,
Alexander S. Trujillo, Defendant-Appellee.
County District Court No. 13CV32771 Honorable Mark D. Warner,
Hatten Koupal & Banker, P.C., James H. Chalat, Russell R.
Hatten, Denver, Colorado, for Plaintiffs-Appellants
& Angell, P.C., Erica O. Payne, Kristi A. Lush, Denver,
Colorado, for Defendant-Appellee
* , J., concurs in part and dissents in part
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.
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.
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.
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.
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.
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.
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
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 ...