N.M. Ex Rel. Lopez v. Trujillo, 2017 CO 79

Eight-year-old N.M. and a cousin walked past Alexander Trujillo’s house toward a playground across the street. Two pit bulls in Trujillo’s front yard rushed and barked at the chain‑link fence but did not escape or touch the boys.
Frightened, the boys ran into the street; N.M. was struck by a passing van and suffered severe injuries.
N.M. sued the van driver (later settled) and amended his complaint to assert negligence against Trujillo for failing to control his dogs and prevent them from frightening pedestrians.
The amended complaint alleged Trujillo knew his dogs had previously rushed and rattled the fence, but it did not allege any special relationship between N.M. and Trujillo.
Trujillo moved to dismiss under C.R.C.P. 12(b)(5) for failure to plead duty; the district court granted the motion, and the court of appeals affirmed in a split decision.
The Colorado Supreme Court granted certiorari to decide whether Trujillo owed a duty of care to N.M.; the Court affirmed dismissal, holding no duty arose as a matter of law absent a pleaded special relationship.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a dog owner owes a duty of care to a pedestrian who, frightened by dogs confined behind a fence, runs into the street and is injured	N.M.: dog ownership plus prior knowledge of dogs’ threatening behavior made injury foreseeable; no special relationship required to impose duty for dangerous animals	Trujillo: this is nonfeasance (failure to act) not misfeasance; absent a special relationship, no duty exists; not foreseeable that fenced dogs that did not contact plaintiff would cause the injury	Court: Held no duty as a matter of law because claim is nonfeasance and N.M. did not plead a special relationship; dismissal affirmed

Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (factors to consider when deciding whether to impose a duty of care)
Univ. of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987) (distinguishes misfeasance and nonfeasance; duty from limited "special relationships")
Warne v. Hall, 373 P.3d 588 (Colo. 2016) (adopts federal "plausibility" standard for C.R.C.P. 12(b)(5) motions)
Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (elements of negligence and duty as threshold question)
Conley v. Gibson, 355 U.S. 41 (U.S. 1957) (former federal pleading standard discussed)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (modern pleading "plausibility" standard)
Bittle v. Brunetti, 750 P.2d 49 (Colo. 1988) (refusal to impose duty to act absent a special relationship in slip/fall on adjacent public sidewalk case)
Fishman v. Kotts, 179 P.3d 232 (Colo. App. 2007) (upholding use of pattern instruction on dangerous animals but not addressing when duty arises)