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Recent Decision Regarding Dog Owner Liability under Premises Liability Act
Recent Colorado Court of Appeals decision regarding the premises liability act and dog owner liability.
The Colorado Court of Appeals recently issued a decision on the issue of dog-owner liability. The opinion decided an issue of first impression involving dog-owner liability under the Premises Liability Act and common law negligence.
The Plaintiff[1] in Lopez v. Trujillo (Case No. 2016COA53), and his cousin were walking on a public sidewalk in Adams County, on their way to a playground at an elementary school. As they passed Defendant’s house, two large pit bulls in Defendant’s front yard ran and jumped against the chain-link fence, which was parallel to, and right up against, the sidewalk. The Plaintiff and his cousin became frightened and ran into the street, where the Plaintiff was struck by a service van, causing serious injuries.[2]
The Plaintiff filed a lawsuit against the dog-owner alleging common law negligence and claims under the Premises Liability Act. Defendant filed a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief may be granted. The trial court ruled in Defendant’s favor, finding that Defendant in these circumstances owed no duty to the Plaintiff and was not subject to liability under the PLA.
On appeal, the trial court’s ruling was affirmed in a 2-1 decision.
1. Plaintiff’s Negligence Claim.
On the issue of negligence, the Court of Appeals found that the Defendant did not owe the Plaintiff a duty when the Plaintiff was not directly injured by the dogs or injured on the dog owner’s property.
In assessing whether or not a duty existed, the court considered whether the injury was foreseeable. The court found that the likelihood of an injury such as this was not foreseeable. The court distinguished the instant case from Machacado v. City of New York,[3] a New York case that found liability on the part of a dog owner whose dog snarled and barked at the plaintiff, scaring her and causing her to slip and fall on the snow. The distinguishing fact was that in Machacado, the plaintiff merely stepped back onto snow, while here, the minor Plaintiff ran off the sidewalk into the street, and into oncoming traffic.
The court found that the facts in the instant case were closer to the facts in Nava v. McMillan,[4] in which a California court held that a pedestrian struck by an automobile after running into the street to avoid barking, fenced-in dogs, was not a foreseeable risk of harm. The court in Nova noted that “even if the dogs had been barking or jumping against the fence which separated them from the sidewalk, such activities are quite common for a dog.”[5]
The court in Lopez next looked at the magnitude and burden on dog owners of guarding against injury. The court found the burden on dog owners would be substantial. Dog owners would be required to keep their 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, would place a significant financial burden on dog owners and would not alleviate the possibility that a passerby would be frightened by a suddenly barking dog.
2. Plaintiff’s Premises Liability Act (“PLA”) Claim.
The court next considered whether the defendant in the circumstances of this claim was a “landowner” within the meaning of the PLA. Under the PLA, an injured person can only bring a claim against “landowners,” as that term is defined in the statute. To be a landowner, an individual need not hold title to the property on which the injury occurred. A “landowner” includes “an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.”[6] An individual may be regarded as a landowner if he/she is “legally conducting activity or creating a condition on the property and therefore responsible for that activity or condition.”
The court ruled that public sidewalks adjacent to a landowner’s property are not property of the landowner pursuant to the PLA. As such, Defendant could not be considered a “landowner” merely because the injury occurred on the sidewalk adjacent to his property.
The Court also concluded that the Plaintiff was not injured by a condition on the sidewalk because the dogs never reached the sidewalk. Instead, the dogs were confined to the property inside the fence.
3. Dissenting Opinion.
The dissent, authored by Judge Vogt, would have concluded that defendant owed the Plaintiff a duty of care. The dissent concluded that it was “eminently foreseeable” that a child on his way to an elementary school across the street would be frightened by two large pit bulls rushing up to and jumping against the chain-link fence next to the sidewalk, and that the child would run into the street in response. According to the dissent, the social utility of dog ownership did not outweigh the risk of injury to others. Accepting as true the Plaintiff’s allegation that the dogs were “vicious,”[7] the dissent found that the social utility of owning the dogs is not outweighed by the foreseeability of injury to others. As for the burden to the dog owner, the dissent found the burden to be minimal: dog owners could confine the animal to a different part of the yard, not allowing the dog to reach the chain link fence, or, alternatively, move the fence away from the sidewalk, or erect a higher fence. Such measures, according to the dissent, would not be a significant financial burden to the defendant. The dissent would have sent to the jury the question of whether the dog owner acted reasonably in this case to protect against injury.
As this is an issue of first impression decided at the intermediate appellate level in a split decision, future intermediate level appellate decisions may conflict with this decision. We will update you on this area of the law as it develops.
[1] The Plaintiff, a minor, was 8 years old at the time of the accident. He filed suit through his mother and legal guardian, Maria Lopez.
[2] Plaintiffs also sued and settled with the driver and owner of the service van.
[3] 365 N.Y.S.2d 974 (N.Y. Sup. Ct. 1975).
[4] 176 Cal. Rptr. 473 (Cal. Ct. App. 1981).
[5] Id. at 476.
[6] C.R.S. § 13-21-115(1).
[7] When ruling on a Motion for Summary Judgment, courts must view all facts in the light most favorable to the nonmoving party. In this case, that meant accepting as true all facts alleged in Plaintiff’s complaint.