Lopez v. Trujillo
399 P.3d 750
Colo. Ct. App.2016Background
- On Aug. 5, 2013, eight-year-old N.M. and a cousin walked on a public sidewalk adjacent to defendant Trujillo’s front yard toward a school playground.
- Two pit bulls in Trujillo’s yard ran to and jumped against a four-foot chain‑link fence abutting the sidewalk, barking; the complaint alleges the dogs were “vicious” and frightened the boys.
- N.M. ran off the sidewalk into the street and was struck by a service van; his companion was uninjured. Plaintiffs settled with the driver/owner of the van and sued Trujillo for negligence and under Colorado’s Premises Liability Act (PLA).
- Trujillo moved to dismiss under C.R.C.P. 12(b)(5). The district court granted the motion, concluding Trujillo owed no duty and was not a “landowner” under the PLA.
- The court of appeals affirmed: (1) no duty as a matter of law because the dogs remained confined and the injury (running into traffic) was not foreseeable in the relevant sense; and (2) Trujillo was not a PLA landowner because the injury occurred on a public sidewalk and he did not create a condition on the sidewalk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dog owner owed duty of care to passerby frightened by fenced dogs | Trujillo had duty to exercise reasonable care to prevent his vicious dogs from frightening pedestrians (could foresee a child would flee into street) | No duty as a matter of law because dogs were confined behind fence and did not physically contact plaintiff; running into street was not a foreseeable risk of owner’s conduct | No duty; dismissal affirmed (majority) |
| Whether Colorado negligence law permits liability when injury results from fright, not physical contact | Fright-based injuries are actionable; analogous decisions allow recovery when dog’s conduct causes foreseeable flight and harm | Foreseeability and risk factors (Taco Bell) do not support imposing duty here; imposing duty would unreasonably burden property/dog owners | Majority: not foreseeable; cited California authority and others; duty rejected |
| Whether defendant is a "landowner" under the PLA for injuries on adjacent public sidewalk | Trujillo created a dangerous condition (keeping vicious dogs) that made him legally responsible for activities/conditions causing injury on the sidewalk | Sidewalk is public; Trujillo did not possess or control the sidewalk nor create a condition on the sidewalk itself | Not a landowner under the PLA; PLA claim dismissed |
| Whether factual disputes should have precluded dismissal | Plaintiffs: facts (vicious dogs, proximity to school, children frightened) could permit a jury to find duty and foreseeability | Defendant: even accepting allegations as true, law precludes duty because dogs remained confined and injury was indirect | Majority: dismissal appropriate; concurrence (Judge Vogt) would have let negligence claim proceed to jury |
Key Cases Cited
- Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (multi-factor test for whether a legal duty exists)
- Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (duty is the threshold element in negligence and is a question of law)
- Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002) (PLA landowner definition and focus on who created/controlled condition on property)
- Jordan v. Panorama Orthopedics & Spine Ctr., PC, 346 P.3d 1035 (Colo. 2015) (defendant not a landowner under PLA for injuries occurring on a common-area sidewalk)
- Sill v. Lewis, 344 P.2d 972 (Colo. 1959) (creating a hazardous condition on abutting sidewalk can impose liability)
- Fishman v. Kotts, 179 P.3d 232 (Colo. App. 2007) (no direct contact required; horse-rider injured when frightened by unconfined dogs)