The Colorado Supreme Court will soon consider a case with the potential to expand the exposure of businesses and property owners to personal injury lawsuits. In Lopez v. Trujillo, the Court will determine whether a property occupier should foresee that passersby will endanger themselves in response to a circumstance found on the property that, while frightening, is fully contained and not capable of causing direct harm. The Court’s ruling in this case could open businesses to a whole new category of claimants.
The Lopez case arises from an accident that occurred when two dogs barked and lunged at an eight-year-old boy walking down a sidewalk. A secure four-foot fence restrained the dogs and prevented them from reaching the boy, but he nevertheless panicked and ran out into the street. A passing car struck the child and caused him serious injuries. The boy’s mother brought suit against the landowner, claiming that he was responsible for the injuries and should pay the cost of the child’s medical care and other damages. The trial court dismissed the claims, but the claimant appealed.
The Colorado Court of Appeals on April 7, 2016, determined that, as a matter of law, the owner did not owe a duty of care because “it was not foreseeable . . . that a passerby, startled by the dogs that were confined, would run out into the street into the path of moving vehicles.” A two-judge majority concluded that the social utility of allowing the landowner to use his property according to his own desires outweighed the likelihood of injury caused by those activities, and that the costs of additional protective measures – such as higher or studier fences – would create an unnecessary burden. A dissenting Court of Appeals judge, however, would have allowed a jury to consider the claim for damages. In this view, the injury to the child was foreseeable and not outweighed by the utility of the owner’s activities on the land.
The Colorado Supreme Court on October 3, 2016 granted certiorari to consider the case on the following issue:
Whether the court of appeals erred by holding that a dog owner does not owe a duty of care to a child pedestrian who, frightened by the owner’s dogs, ran into the street and sustained injuries from a passing vehicle.
In addressing this issue, the Court will necessarily examine the foreseeability of the passerby’s injury and whether the landowner owed a duty of care to a person who neither entered the property nor suffered injury directly as a result of a condition or activity maintained on the property. These concepts – foreseeability and a finite duty of care – establish legal boundaries useful to protect property owners against uncontrollable liability. A Colorado Supreme Court ruling that allows a jury to decide the boy’s claims will render these protections porous and expand the circumstances under which injured parties may raise viable lawsuits. Such an outcome will increase the frequency with which property owners and other businesses must face the expense, uncertainty and operational disruption associated with defending personal injury lawsuits, all of which would be contrary to the purpose of landowner liability laws in Colorado, which are designed to narrow landowner liability compared to common law.