Lead Opinion
Opinion by
¶ 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 them 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 them 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 thé 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-foob-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
¶ 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,
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,
¶ 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 plaintiffs interest that has been infringed by the conduct of the defendant is entitled to legal protection.” Metro. Gas Repair Serv., Inc. v. Kulik,
¶ 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,
¶ 12 “The scope of the property does not define the scope of the duty[.]” Westin Operator, LLC v. Groh,
¶ 13 Other divisions' of this court have held that a dog owner has a duty to prevent harm and take reásonablé precautions against harm caused b^ 'the owner’s dog. See Snow v. Birt,
¶ 14 No Colorado appellate court has dealt specifically with whether a dog owner owes á duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property, and the dogs remained
B. Analysis
¶ 15 Plaintiffs contend defendant owed N.M. a duty of care. We disagree and conclude that the Taco Bell, factors do not support a determination that defendant owed a duty to N.M. We address each factor in turn.
¶ 16 First, as to the risk involved, the dogs were fenced inside defendant’s yard by' a four-foot-high chain-link fence. While the dogs piay have jumped up on and rattled the fence, the complaint does not allege that either dog jumped over the fence or physically harmed or touched N.M. or J.L.
¶ 17 Second, the allegations of the complaint do not support a determination of foreseeability and the likelihood of injury. “[Fjoreseeability is - based on common sense perceptions of the risks created by various conditions and circumstances.” Taco Bell,
¶ 18 Plaintiffs urge us to adopt the holding in Machacado v. City of New York,
¶ 19 We conclude that Machacado is distinguishable. In Machacado, the plaintiff, startled by the dog, moved back, fell, and injured herself. Id. at 976.. The court found that the “treacherous or uncertain” footing caused by the presence of snow on the ground “inerease[d] the probability that injury will result ... from the frightened actions” of a person intending to avoid the dog. Id. Here, however, N.M. did not step back from the barking dogs- but ran off the sidewalk and into the street. We conclude it was not foreseeable to defendant that a passerby, startled by the dogs that were confined, would run out into the-, street into the path of moving vehicles.
• ¶ 20 Our conclusion is supported by the reasoning of the California Court of Appeals. In Nava v. McMillan,
¶ 21 Third, we weigh the foreseeability and likelihood of injury .against the social utility of a defendant’s conduct, “It is an integral part of our whole system of private property that an owner or occupier of land has a privilege to use the land according to his own desires.” Nava,
¶ 22 Fourth, the magnitude of the burden on dog owners of guarding against injury is high, as are the costs of placing'any additional burdens' on dog owners. ' The consequences upon the community of imposing a burden as suggested by plaintiff would be unreasonable: the owner of a dog would in effect be required to keep a dog in a place where it could neither be seen nor heard by members of the public passing by. Additional measures, such as erecting a higher or sturdier fence, place a significant financial burden on dog owners and do not alleviate the possibility that a passerby would be frightened by a suddenly barking dog.
¶23 Nor do the authorities cited by the dissent lead to a- different conclusion. To
¶24 The one Colorado case the dissent cites where the plaintiff had no direct contact with the dog, Fishman v. Kotts,
¶ 25 Citing to the collection of cases provided in 30 Á.L.R.4th 986 Liability of Dog Owners for Injuries Sustained, by Person Frightened by Dog (Westlaw database updated Mar. 2016), the dissent does not point to which cases in the article support the dissent’s position. The dissent cites a number of cases, but with the exception of Machacado, distinguished above, every case involves circumstances that differ greatly from those in the case before us.
¶ 26 To support its analysis of foreseeability and likelihood of injury, the dissfent begins with Brandeis v. Felcher,
¶ 27 Marchand v. York,
¶ 28 Likewise, in Moore v. Myers,
¶ 29 Finally, in Neulist v. Victor,
¶ 30 The dissent also relies on certain statutes and ordinances as support for the proposition that the social utility of defendant’s conduct does not outweigh the foreseeability of the risk. Plaintiffs do not rely on either section 18-9-204.5(l)(a), C.R.S.2015, 'or the Denver pit bull ordinance. Plaintiffs, as residents of Adams County, rely on the Adams County ordinance cited by the dissent only to the extent that they argue that defendant failed to license his dogs as required by section 5-2 of article V of Adams County Ordinance Number 6. Section 5-7, upon which the dissent relies, prohibits “vicious and dangerous pet animals” “unless that pet animal is confined inside ... property surrounded by a fence.”. Adams County Ordinance No. 6, Art. V, § 5-7 (emphasis added). As previously stated, the dogs in this ease were appropriately confined by a fence.
¶ 31 Therefore, the trial court did not err in concluding that defendant did not owe N.M.. a duty of care as plaintiffs alleged.
IV. Liability Under PLA
¶32 Next, we also disagree with plaintiffs’ contention^ that the district court erred in concluding that defendant was not a “landowner” for purposes of the PLA.
A. Standard of Review
¶ 33 Whether a party is a landowner within the meaning of the PLA is a mixed question of fact and law. Jordan v. Panorama Orthopedics & Spine Ctr., PC,
B. Applicable Law
¶ 34 An injured person may bring a claim under the PLA only against a “landowner.” See § 13-21-115(2). A person need riot hold title to property to be considered a “landowner.” See Pierson v. Black Canyon Aggregates, Inc.,
¶ 35 A party may be regarded as a landowner if it is “legally conducting activity or creating a condition on the property and therefore responsible for that activity or condition.” Jordan I, ¶ 18,
¶ 36 In their complaint, plaintiffs admitted that the sidewalk was not defendant’s property. Nevertheless, they contend that Jordan II, in which the supreme court concluded that the defendant was not a landowner of a sidewalk within the meaning of the PLA, is inapplicable because it only applies in a commercial leasing context. They contend that Jordan II stands only for the proposition that a tenant under a lease which allocates responsibilities for common areas to the landlord is not conducting an activity when patients use a sidewalk to access a commercial business. We do not read that opinion so narrowly. In Jordan II, the plaintiff tripped and fell on a common-area sidewalk leading to the building in which the defendant leased office spaced 2,
¶ 37 Divisions of this court have also held that public sidewalks adjacent to a landowner’s property are not property of the landowner pursuant to the PLA. See Burbach v. Canwest Invs., LLC,
¶ 38 Next, we must determine whether defendant was “legally conducting activity or creating á condition on the property and therefore responsible for that activity or. condition.” Jordan I, ¶ 18,
¶ 39 In Sill, the defendant discharged water onto a sidewalk abutting his property.
¶ 40 Accordingly, we conclude that defendant was not a landowner within the meaning of the PLA and affirm the dismissal of the PLA claim in plaintiffs’ complaint.
V. .Conclusion
¶ 41 The judgment is affirmed.
Notes
Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and' § 24-51-1105, C.R.S.2015.
Concurrence in Part
concurring in part and dissenting in part.
¶ 42 I agree with the majority’s resolution of the Premises Liability Act issue. However, I do not agree that, under the particular circumstances of this case, plaintiffs would have been unable to prove any set of facts to sustain their negligence claim. See Hewitt v. Rice,
¶ 43 Like the trial court, the majority concludes that, as a matter of law, defendant owed no duty to plaintiff N.M. As the majority correctly states, the controlling test for determining whether such a duty exists is that set forth'in Taco Bell v. Lannon, Inc.,
¶ 44 The first faetor to consider is the risk involved. Unlike the majority, I do not view it as dispositive of the risk issue that the dogs neither jumped over th'e four-foot-high chain-link fence nor physically harmed or touched the boys. In Colorado, a dog owner may- be liable for harm caused by the dog to another person even if the dog does not physically contact the - other person, CJI-Civ. 4th 13.1 (2013), titled Domestic Animals — Dangerous or Vicious Tendencies— Elements of Liability, permits a jury to assess liability against a defendant who (1) kept a kind or breed of animal that had vicious or dangerous tendencies; (2) knew or had notice that the animal had vicious or dangerous tendencies; (3) was negligent in not using reasonable care to prevent injuries or damages that could have reasonably been anticipated to be caused by the dangerous or destructive tendencies of the animal; and (4) was responsible, by his or her negligence, for injuries, damages, or losses to the plaintiff. The notes on use state that a different instruction should be used “[i]n dog bite cases” involving death or serious bodily injury, and they cite as authority a Colorado case, Fishman v. Kotts,
If 45 In this respect, the rale in Colorado accords with case law from other jurisdictions. See
¶ 46 The second faetor is the foreseeability and likelihood of injury. The majority concludes that “it was not foreseeable to defendant that a passerby, startled by the dogs, would run out into the street into the path of moving vehicles.” In my view, it was eminently foreseeable that a child on his way to the elementary' school across the street would be frightened when two “large, vicious, loud-barking pit bulls” rushed up tb and jumped up on the chain-link fence next to the sidewalk, and that the child would run into the street to get away from them. Similar' fact patterns have been described in cases from other jurisdictions. See Brandeis v. Felcher,
¶ 48 The complaint alleges that the dogs at issue here were “vicious.” For purposes of ruling on a motion to dismiss, that allegation must be accepted as true. In Colorado, it has already been determined that the privilege to use private property as one wishes is subject to limitations when such use amounts to ownership of a vicious or dangerous pet animal. See § 18-9-204.5(l)(a), C.R.S. 2015 (“[t]he general assembly hereby finds, determines, and declares that .... [d] angerous dogs are a serious and widespread threat to the safety and welfare of citizens throughout the state because of the number and serious nature of attacks by such dogs”; statute provides for criminal penalties against owners of dangerous dogs that injure other people); Adams County Ordinance No. 6, Art. V, § 5-7- (“Vicious and dangerous pet animals prohibited unless confined.”); see also Colo. Dog Fanciers, Inc. v. City & Cty. of Denver,
. ¶ 49 Again, courts from other jurisdictions have similarly recognized that the right to own a dangerous or vicious animal is subject to limitations. See Farrior v. Payton,
¶ 50 Given the general recognition of the limitations on the right to keep vicious dogs, I cannot conclude that the social utility of defendant’s ownership of the dogs in this ease outweighs the foreseeability of injury to others by those dogs.
¶ 51 As for the final Taco Bell factor, the majority concludes that the magnitude of the burden of guarding against injury or harm is “high,” and the consequences of placing additional burdens on dog owners would be .“unreasonable,” because dog owners “would in effect be required to keep a dog in a place where it could neither be seen nor heard by members of the public passing by.” I disagree with that conclusion because it appears to rest on assumptions for which, at this stage in the proceedings, there is no factual support. It may be that this dog owner, who kept the pit bulls' in a yard separated from passing school children only by a four-foot-high chain-link fence directly abutting the sidewalk, could have better guarded-against the harm that occurred by confining the animals to a different part of the yard on school days, or moving the fence further from the sidewalk, or erecting a higher fence. Such measures would not necessarily amount to placing a “significant financial burden” on this dog owner, let alone on dog owners generally. , .
¶ 52 More important, whether the dog owner in this ease had a duty to do more than he did is a question for the jury. See Machacado,
¶ 53 The jury will not have that opportunity because the trial court held, and the majority agrees, that as a matter of law defendant owed no duty to N.M. For the reasons set forth above,'I disagree with that conclusion. I would let the negligence claim go to the jury.