Under Colorado law, plaintiffs must prove several things in claims of negligence. First, is that the defendant owed a duty of care to the plaintiff at the time. Once established, it must be determined this duty was breached. Lastly, a causal correlation existed between the defendant's breach and the injuries incurred. Negligence may be demonstrated through an action, or a failure to take action, which leads to injury recoverable by the plaintiff. Whether a defendant owes a duty is a question of law for the court to determine. Colorado's Supreme Court recently heard the case of N.M. v. Trujillo, which centers on whether a duty of care existed that we will review.
Eight-year-old “N.M.” was walking to school approaching the house of Alexander Trujillo when suddenly his two “large, vicious and barking” pit bulls ran up to the fence surrounding his property, startling the youth. The dogs did not escape the fence; however, the boy fled across the street directly in front of a van that struck him and caused injuries requiring over 20 days of hospitalization. The family filed a personal injury suit against the defendants including the van driver, his employer under respondeat superior, and Trujillo. The claim alleged Trujillo was aware his dogs had frightened others before when rushing up to and rattling the fence. The claim of negligence against Trujillo was as follows:
- He had a duty to control his vicious dogs to prevent frightening or threatening anyone and exercise reasonable care
- That he knew, or should have, that children walking to school used the sidewalk in front of his property
- He breached this duty of care by allowing his dogs to threaten and frighten pedestrians
- This breach was the cause of serious injuries
Motion for Dismissal & Appeal
Trujillo responded to the claim by filing a motion for dismissal, insisting he did not owe a duty of care at the time to the plaintiff. The district court agreed, explaining that he could not “reasonably foresee” that his dog's aggressive behavior would lead to such an accident. N.M. appealed the decision, but the appellate court affirmed that no duty existed either. The court found the dogs safely contained with a four-foot fence within the property and the dogs had no physical contact with the plaintiff. They concurred that despite the tragic events, the outcome was both highly unlikely and unforeseeable. If a duty did exist, it would force the dog owner to bear a significant and unreasonable burden of maintaining the dogs in a manner that they could neither be seen or heard by passing pedestrians.
Failure to Act vs Active Misconduct
The courts explained a distinction exists between claims stemming from defendant inaction or failure to act (nonfeasance) and those based on a defendant demonstrating active misconduct (misfeasance). In nonfeasance scenarios, a duty exists only under certain circumstances where a special relationship exists, which is based on a “definite relationship” between the parties that imposes a duty. The relationships recognized thus far include:
- Innkeeper/inn guest
- Landowner/invited guest
- Medical center/patient
Plaintiff's counsel agreed the claim was based on nonfeasance. The court said the plaintiff had not established the existence of a special relationship with the defendant. The plaintiff contended the “special relationship” requirement should not be necessary, referencing past negligence cases that established a duty of care without the existence of a special relationship. Those included Barger v. Jimerson (1954) and DuBois v. Myers (1984).
Supreme Court Interpretation
The court interpreted these cases were based on a theory of strict liability after animal caused injuries. These cases also did not address the conduct of the defendants; rather, they focused on the animals involved and didn't discuss the defendant's duty to the plaintiffs. In these cases, the animals had physically (directly) injured the plaintiffs. N.M insisted the case should proceed to discovery and likely would reveal facts that allow for a misfeasance (active misconduct) claim that does not require a special relationship. This case was in the motion to dismiss phase and any decision to proceed would require that the current claims were satisfied, not for purposes of uncovering claims that have not yet been named.