N.M., a minor child, by and through Maria Lopez, his mother and next friend, and Maria Lopez, individually, Petitioners
Alexander S. Trujillo, Respondent
to the Colorado Court of Appeals Court of Appeals Case No.
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,
Attorneys for Amicus Curiae Colorado Defense Lawyers
Association: Montgomery Little & Soran, PC Echo D. Ryan
William B. Ross Greenwood Village, Colorado
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.
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 .
We granted certiorari to decide whether, in the circumstances
presented here, Trujillo owed N.M. a duty of
care. 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.
Facts and Procedural History
In his amended complaint, N.M. alleged the following facts:
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.
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.
Thereafter, N.M. sued the van driver and the driver's
employer, alleging negligence, negligence per se, and
respondeat superior. N.M. subsequently moved to amend his
complaint to add claims against Trujillo, and the district
court granted that motion.
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.
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
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."
N.M. appealed, and in a split, published opinion, a division
of the court of appeals affirmed. Lopez,
¶¶ 2, 41.
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.
Accordingly, the division concluded that the district court
had properly ruled that Trujillo did not owe ...