January 20, 2018

Colorado Court of Appeals: Dog Owner Owes No Duty of Care to Person Injured by Truck Off Property

The Colorado Court of Appeals issued its opinion in Lopez v. Trujillo on Thursday, April 7, 2016.

Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Landowner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the court of appeals considered whether a dog owner owes a 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 confined and never left the landowner’s property. The court held there was no such duty.

The court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the landowner under the PLA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Person with Permission to Enter Property but Not Express Invitation is Licensee Under PLA

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, December 31, 2015.

Interlocutory Appeal—Premises Liability Act—Dog Bite Statute—Colorado Recreational Use Statute.

The Robinsons are sheep ranchers who hold a permit issued by the U.S. Forest Service (USFS) that allows them to graze sheep within the White River National Forest (subject land). Ms. Legro sustained serious injuries when two of the Robinsons’ predator control dogs attacked her on a road on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the District had permit authorization to access the road. The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

The Robinsons moved for summary judgment, arguing that the Colorado Premises Liability Act (PLA) preempted the Legros’ common law claims and they were not subject to liability under the dog bite statute because of the working dog exemption. The district court granted the motion. The Legros appealed, and a division of the Court of Appeals in Legro Iaffirmed that the Robinsons were landowners under the PLA, but concluded it was error to find the working dog exemption defeated the Legros’ strict liability claim. The Supreme Court granted certiorarito consider whether the Court in Legros Icorrectly interpreted the working dog exemption. The Supreme Court found it had been incorrect and that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property.

On remand, the Legros were granted leave to amend their complaint to add a claim for relief under the PLA. In a CRCP 56(h) motion, the Robinsons asked the district court to determine the duty they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS) applied, so Ms. Legro was a trespasser. Alternatively, they argued Ms. Legro was neither an invitee nor a licensee under the PLA.

The district court held that the CRUS did not apply to this case and that Ms. Legro was a trespasser as to the Robinsons under the PLA. Sua sponte, it also ruled that the working dog exemption barred the Legros’ strict liability claim because the Robinsons’ grazing permit created a sufficient property interest to satisfy the exemption.

The Legros argued it was error to find that Ms. Legro was a trespasser, and the Court of Appeals agreed. The grazing permit from the USFS provided a sufficient basis to infer that, by accepting the permit, the Robinsons consented to Ms. Legro’s entry on the property. The permit allows the USFS to determine who may enter the property, and therefore the Robinsons impliedly consented to entry on the property by anyone the USFS allowed. The Court then looked to whether Ms. Legro was affirmatively invited (invitee) or merely permitted (licensee). Because the USFS merely permitted Ms. Legro’s entry as part of the permit for the bike race, she was a licensee, not an invitee.

The Legros also argued it was error to hold that the working dog exemption applied so as to insulate the Robinsons from strict liability under the dog bite statute. The Court agreed, finding that the grazing permit did not confer a property interest in the subject land and therefore the exemption did not apply. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Dog, Not Property, Should Be Under Control of Owner for Exemption from Liability for Dog Bite

The Colorado Supreme Court issued its opinion in Robinson v. Legro on Tuesday, May 27, 2014.

Civil Actions Against Dog Owners—Working Dog Exemption—Statutory Interpretation.

The Supreme Court interpreted for the first time the phrase “on the property of or under the control of the dog’s owner” within the working dog exemption of Colorado’s civil dog bite statute, CRS § 13-21-124(5)(f). The Court held that the working dog exemption applies when a bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner. Therefore, the court of appeals erred in interpreting CRS § 13-21-124(5)(f) to mean that the property, rather than the dog, must be under the dog owner’s control for purposes of exemption from strict liability. Although the court of appeals erred in interpreting the statute, it correctly reversed the district court’s summary judgment order as to respondents’ claim under the dog bite statute. Accordingly, the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Prosecutor’s References to Defendant’s Silence Were Meant to Rebut Defense Claims and Not as a Means of Implying Guilt

The Colorado Court of Appeals issued its opinion in People v. Apodaca-Zambori on Thursday, March 14, 2013.

Assault in the First Degree—Reckless Endangerment—Sentencing.

Defendant appealed the judgment of conviction entered on a jury verdict finding her guilty of assault in the first degree and reckless endangerment. She also appealed her sentence. The judgment was affirmed.

On May 26, 2008, the victim, her husband, and their children were driving through an alley that ran behind a store owned by defendant’s boyfriend. The victim was forced to stop her car because defendant’s car was blocking the alley. The husband got out of the car, and there was a verbal altercation between him and several men, including defendant’s boyfriend.

Defendant entered the store from the alley, returned with a dog, and as the victim opened her car door, told the dog to “get her.” The dog bit the victim’s leg, defendant tried to pull the dog off, and the victim hit the dog on the snout. The bite caused permanent nerve damage.

Defendant immediately drove the dog to her father’s house. When confronted by police, defendant denied knowing anything about an attack or the dog’s location. Eventually, she told police the dog’s location and helped them retrieve it.

Defendant was initially issued a summons for an animal control violation, but the police cancelled the summons and booked her on felony charges and advised her of her Miranda rights. She was convicted of assault in the first degree, a class 3 felony, and reckless endangerment, a class 3 misdemeanor. On January 15, 2010, the trial court sentenced her to ten years in the custody of the Department of Corrections and five years mandatory parole.

On appeal, defendant argued it was error for the trial court to admit testimony and not strike references in the prosecutions’ closing argument to defendant’s silence before and after receiving a Miranda advisement. The Court of Appeals disagreed. A defendant is constitutionally protected against self-incrimination and has the right to remain silent. A prosecutor is to avoid making comments regarding a defendant’s pre- or post-arrest silence. Such error is reversible only when the prosecutor uses the defendant’s silence as a means of implying guilt. Here, the statements at issue were not made for the “purpose of suggesting the jury infer guilt” from defendant’s silence, but to address defendant’s contention that she was attempting to pull the dog off the victim and help. As for the statements made during closing argument by the prosecutor, they were not objected to, and therefore were reviewed for plain error. The statements referred to defendant’s acts, not her silence, and were appropriate responses to defense counsel’s closing argument that defendant’s acts were proof of her innocence.

Defendant also argued that it was error for the trial court not to consider during sentencing Colorado’s young adult offender sentencing statute, CRS § 18-1.3-407.5, which took effect October 1, 2009. Specifically, defendant argued that it was error to conclude that the effective date of the statute referred to the date of the offense, rather than the date of sentencing. She argued it applied to her because she was sentenced after October 1, 2009, even though she committed the offenses before that date. The session law, though not the text of the statute, stated that the act “shall take effect October 1, 2009” and that “[t]he provisions of this act shall apply to offenses committed on or after the applicable effective date of this act.” The Court concluded that the plain language of the statute and the session law adopting it made clear that the effective date was October 1, 2009, and it applies to offenses committed on or after that date. The judgment and sentence were affirmed.

Summary and full case available here.