Colorado case law holds that a person who owns, keeps or harbors a dog which causes injury can be held liable under theories of general negligence, negligence per se, and the Premises Liability Act which incorporates the negligence doctrine. For more about negligence generally, see Legal Rights of a Dog Bite Victim.
In Snow v. Birt, 968 P.2d 177 (Colo.App. 10/29/1998), a young girl named Cynthia was visiting her father, who owned a dog. Her father and the dog lived with Cynthia’s grandparents. A week prior to this visit, the dog bit a different child and then, at this visit, the dog bit Cynthia. The grandparents clearly knew about the prior bite because they built a dog run to confine the dog, upon orders of the health department after the first bite.
On Cynthia’s behalf, a claim for compensatory and punitive damages was made against the grandparents. It was alleged that they were liable on the grounds of general negligence and negligence per se based on the violation of a municipal ordinance. The ordinance provided that “[i]t shall be the duty of every owner or keeper of any animal in their possession or control, to exercise reasonable care and to take all necessary steps and precautions to protect other people . . . from injuries or damage which might result from their animal’s behavior.” Another ordinance defined “owner or keeper” to include “any person . . . possessing, harboring, keeping, having an interest in, or having control or custody, either permanently or temporarily, of an animal.”
The grandparents moved for summary judgment, asserting that they owed no legal duty to Cynthia and that any such duty was owed by Cynthia’s father, the dog’s owner and keeper. The trial court granted the motion, but the court of appeals reversed.
The court held first that the grandparents were harborers and/or keepers of the dog, and that the dog was in their control or custody. The court also held that the municipal ordinances imposed a duty of care upon defendants to exercise reasonable care and to take all necessary precautions to protect Cynthia from being injured by the dog. Additionally, the court held that the grandparents owed the little girl a common law duty of care, based on the fact that the they were harborers and/or keepers of the dog, and that the dog was in their control or custody.
This case therefore stands for the proposition that harborers and keepers (as opposed to owners) of a dog may be held liable for injuries it inflicts, founded upon general negligence and negligence per se based on the violation of a municipal ordinance.
Negligence per se
It has been specifically held that negligence per se is a proper ground for liability, based on the violation of a statute or ordinance that is intended to prevent harm. Lui v. Barnhart, 987 P.2d 942 (Colo.App. 08/19/1999). As the plaintiff in Lui was driving home at night, his vehicle collided with defendant’s horse. The horse had escaped from its corral and had wandered into the street. A city ordinance required that owners of animals “shall not fail” to keep their animals physically confined or restrained. At trial, based on the ordinance and the horse’s presence in the road, plaintiff requested the trial court to instruct the jury concerning negligence per se, among other things. The trial judge gave the requested instruction, but the jury found no negligence. On appeal, the giving of the instruction was upheld. The court of appeal stated:
Some situations that may not be considered inherently dangerous to others but could pose a risk of danger under certain circumstances may be regulated by statute or ordinance, which, in turn, may be the basis of a negligence per se claim if the statute is violated. In such situations, the statute itself establishes the standard of care and its violation is equivalent to a breach of duty and conclusively establishes that aspect of a plaintiff’s negligence claim.
The wording of the statute or ordinance is critical to proving whether it was violated. In Lui, supra, the horse was wandering loose, the ordinance required that owners of animals “shall not fail” to keep their animals physically confined or restrained, and therefore a violation occurred. The result will be the opposite, however, if the ordinance makes it “unlawful for any owner . . . of any dog to allow such dog to run at large.” This was how the ordinance was worded in Downing v. Lillibridge, 566 P.2d 714, 39 Colo. App. 231 (Colo.App. 04/21/1977). The Downing court held that there was no violation because the word “allow” required proof of either negligence or intentional conduct on the part of the defendant:
In construing statutory language similar to that contained in the ordinance above, the overwhelming majority of courts has held that civil liability for injuries caused by an animal running at large cannot be imposed against the owner of the animal absent a showing of negligence or intentional conduct on the part of the owner in permitting the animal to run at large. See, e.g., Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246 (1970); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); and see generally, 4 Am. Jur. 2d, Animals § 116; Annot, 34 A.L.R.2d 1285. We therefore conclude that the use in the ordinance of the word “allow” evidences a legislative intent to require proof of an owner’s negligence as a predicate to recovery in a civil action.
Where no in-state precedents exist, Colorado courts examine out-of-state cases that construe similarly worded statutes. People v. Julien, 47 P.3d 1194 (Colo. 2002), Air Communications & Satellite Inc. v. EchoStar Corp., 38 P.3d 1246, 1251 (Colo. 2001).
Liability based on the Premises Liability Act
A Colorado landowner’s liability for a dog bite may be determined under the dog bite statute if the landowner also owned the attacking dog, or under the Premises Liability Act if the landowner was merely the harborer or keeper of the dog. Legro v. Robinson (2012) 2012 COA 182, 328 P.3d 238 (holding that the PLA did not abrogate a specific civil cause of action under Colorado’s dog bite liability statute), aff’d, 2014 CO 40, 325 P.3d 1053.
Since the 1800’s, anyone who keeps a dog at their house in the State of Colorado will be held liable if the person’s negligence results in a dog bite incident. Hornbein v. Blanchard, 4 Colo. App. 92, 35 P. 187 (1893) (defendants who kept dog at their house could be liable “regardless of ownership”).
It makes no difference that the defendant was not the owner of the dog. “Historically, a duty to protect third persons from injury caused by an animal has not been limited solely to the owner of the animal. Courts have extended this duty to persons who ‘keep’ ‘possess’ or ‘harbor’ the animal.” Snow ex rel. Birt v. Birt (Colo. App. 1998) 968 P.2d 177, 179.
“[A] PLA claim requires an invitee to show that his or her damages were caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which the landowner actually knew or should have known. ” Legro, supra, at pp. 13-14.
“[A] licensee asserting a PLA claim must show that the landowner unreasonably failed to (1) exercise reasonable care with respect to dangers created by the landowner of which he or she actually knew, or (2) warn of dangers of which he or she knew. ” Legro, supra, at p. 14.