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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 SANDRA ORTIZ,
3 Appellant/Cross-Appellee,
4 v. No. 31,645 Consolidated 5 with 31,709
6 DAVID JOHNSON and PATRICIA JOHNSON, 7 individually and as husband and wife,
8 Appellees/Cross-Appellants.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Nan G. Nash, District Judge
11 Law Office of Roger Moore 12 Roger Moore 13 Albuquerque, NM
14 for Appellant
15 Puccini & Meagle, P.A. 16 Patricia Bradley 17 Albuquerque, NM 1 for Appellees
2 MEMORANDUM OPINION
3 HANISEE, Judge.
4 {1} Plaintiff was bitten by a pit bull while walking her dog on a sidewalk in front
5 of an Albuquerque home. Plaintiff subsequently brought suit against Jonathan Hatch,
6 the tenant who housed the dog at the home, and David and Patricia Johnson
7 (collectively, the Johnsons), the owners of the property who leased the home to Hatch.
8 The district court granted summary judgment in favor of the Johnsons, finding that
9 Plaintiff failed to articulate a theory under which the Johnsons had breached a duty to
10 Plaintiff. The district court further found that Plaintiff failed to provide any evidence
11 that the Johnsons knew or should have known that there was a dog with vicious
12 propensities on the property. Plaintiff appeals on grounds that the district court erred
13 in finding that the Johnsons did not owe a duty to Plaintiff either as property owners
14 or under a Bernalillo County ordinance, and by concluding that there were no issues
15 of material fact. We affirm the district court.
16 I. BACKGROUND
17 {2} On August 26, 2010, Plaintiff walked her leashed dog past a residential property
18 in Albuquerque that was leased and occupied by Hatch and owned by the Johnsons.
19 A pit bull that was boarded at the residence attacked Plaintiff and her dog, injuring
2 1 Plaintiff’s leg. In November 2010 Plaintiff brought suit against the Johnsons for her
2 injuries, alleging negligence, carelessness, negligence per se, recklessness, and
3 negligent infliction of emotional distress. The Johnsons counterclaimed against
4 Plaintiff for malicious abuse of process.
5 {3} In August 2011 the Johnsons brought a motion for summary judgment, relying
6 on Gabaldon v. Erisa Mortgage Co., 1999-NMSC-039, ¶¶ 29-39, 128 N.M. 84, 990
7 P.2d 197, for the proposition that, as landlords, they were not liable for tort claims that
8 take place on or about a leased premises not in their possession or under their control.
9 Plaintiff responded by distinguishing Gabaldon as controlling authority only for
10 commercial leases and not for residential leases. Plaintiff also argued that the
11 Johnsons maintained control and possession over the property because of specific
12 terms in the lease. The lease terms on which Plaintiff relied were:
13 7. Tenant . . . agrees not to conduct any type of business in the 14 residence, nor store or use any dangerous or hazardous materials. Tenant 15 agrees that the residence is to be used only as a single family residence, 16 with a maximum of [six] tenants. Tenant also agrees to comply with all 17 rules, laws, and ordinances affecting the residence, including all 18 applicable provisions of the Laws of the State of New Mexico. Tenant 19 agrees that no pets or other animals are allowed in the residence without 20 the written permission of the Landlord.
21 ....
22 10. The Tenant agrees not to sub-let the residence or assign this Lease 23 without the Landlord’s written consent. Tenant agrees to allow the 24 Landlord reasonable access to the residence for inspection and repair.
3 1 Landlord agrees to enter the residence only after notifying the Tenant in 2 advance, except in an emergency.
3 {4} In September 2011 the district court granted summary judgment in favor of the
4 Johnsons and dismissed Plaintiff’s suit against them with prejudice. In its decision
5 letter, the district court concluded that Plaintiff failed to articulate “any specific theory
6 of negligence against the Johnsons beyond their ownership of the property where the
7 dog lived and their ability, under the lease terms, to control and inspect the
8 property[,]” both of which it deemed insufficient to create a duty toward Plaintiff. The
9 court also stated that Plaintiff did not provide “any evidence that the Johnsons knew
10 or should have known that there was a dog with vicious propensities boarded on their
11 property.” Plaintiff now appeals.
12 II. DISCUSSION
13 {5} We review the district court’s grant of summary judgment de novo.
14 Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971
15 (“An appeal from the grant of a motion for summary judgment presents a question of
16 law and is reviewed de novo.”). “Summary judgment is appropriate where there are
17 no genuine issues of material fact and the movant is entitled to judgment as a matter
18 of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970
4 1 P.2d 582. “All reasonable inferences are construed in favor of the non-moving party.”
2 Montgomery, 2007-NMSC-002, ¶ 16 (internal quotation marks and citation omitted).
3 A. The Johnsons Did Not Owe a Duty to Plaintiff Because They Lacked 4 Possession of and Control Over the Premises
5 {6} At issue is whether the Johnsons, as landlords, owed a duty to Plaintiff. Our
6 Supreme Court in Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶ 14, 148
7 N.M. 646, 241 P.3d 1086, defined the nature of a general duty inquiry in New Mexico
8 when it held that:
9 The question of the existence and scope of a defendant’s duty of care . . . 10 depends on the nature of the . . . activity in question, the parties’ general 11 relationship to the activity, and public policy considerations. . . . [It] is 12 a question [primarily] of policy to be determined with reference to legal 13 precedent, statutes, and other principles comprising the law.
14 (Internal quotation marks and citations omitted.) With respect to general, non-
15 possessory landlord liability, “[t]he common law rule regarding liability for injuries
16 to third persons places responsibility on the tenant in possession and excuses the
17 landlord.” Lommori v. Milner Hotels, Inc., 1957-NMSC-089, ¶ 11, 63 N.M. 342, 319
18 P.2d 949. This rule of non-liability generally applies unless one of the following
19 exceptions have been met:
20 (1) when the landlord knows of a hidden defect and does not 21 communicate that knowledge to the tenant; (2) when the landlord binds 22 himself by a covenant to repair; (3) when the landlord reserves control 23 of part of the premises as passageways, stairs, etc.; (4) when the injury 24 is to persons off the premises in which situation the owner continues
5 1 liable for ordinary negligence arising from conditions of disrepair, or 2 dangerous activities carried on by his tenant.
3 Id. (citations omitted). Notably, these exceptions to the general rule that landlords are
4 not liable for injuries suffered on the leased premises have been held to “ONLY
5 concern themselves with the landlord’s liability for acts directly connected with the
6 physical condition of the leased premises, or the lack thereof, to remedy unsafe
7 conditions on the premises after possession passes to the tenant.” Gabaldon, 1999-
8 NMSC-039, ¶ 28 (emphasis in original) (internal quotation marks and citation
9 omitted).
10 {7} This principle was recognized in Gabaldon, when our New Mexico Supreme
11 Court reversed this Court’s opinion recognizing a new cause of action against a
12 landlord that created liability for conditions on the property that he owns but does not
13 control based on the theory of negligent entrustment. Gabaldon, 1999-NMSC-039,
14 ¶¶ 38-39. In that case, our Supreme Court identified circumstances under which a duty
15 may be owed by non-possessory landlords and restricted liability to those exceptions
16 traditionally recognized in landlord/tenant jurisprudence. Id. ¶¶ 25-39. The Court
17 stated that “the legal position of a non-possessory landlord is not one of immunity or
18 privilege[, it] is simply the same legal position offered by sellers of property.
19 [Landlords] are simply not, as a matter of law, responsible for what takes place on
6 1 land they do not possess, and do not have a right to control.” Id. ¶ 30 (alteration in
2 original) (internal quotation marks omitted).
3 {8} In the present case, the Johnsons rented the property to Hatch, and under the
4 lease, they neither possessed nor controlled the property. Plaintiff argues that the
5 Johnsons nonetheless maintained control and possession over the property because of
6 specific terms in the lease that banned business use and hazardous material storage,
7 required single family use, required approval for pets on the property, barred
8 subletting, and allowed the landlord reasonable access to the residence for inspection
9 and repair. Yet, these lease terms do not provide the Johnsons with ongoing, post-
10 rental possession and control. Our Supreme Court in Gabaldon held that lease terms
11 markedly similar to these at issue do not empower the landlord with the ability to
12 possess and control the leased property. Id. ¶ 29 The Court explicated that
13 “[a]lthough . . . the lease agreement [at issue there] granted [the landlord] a percentage
14 of [the tenant]’s gross receipts and [the landlord] also reserved rights to repair, inspect
15 the [property] and to approve such activities by [the tenant], there [wa]s no evidence
16 that [the landlord] controlled the [property].” Id. (internal quotation marks omitted).
17 The Court elaborated that the landlord “did not manage the day-to-day operations of
18 the premises nor did it in any way control the activities occurring on the leased
19 property.” Id. Likewise, the Johnsons did not gain or retain control over the property
7 1 simply by including lease terms regarding the use of and ability to reenter, make
2 approvals of tenant activity, and inspect the property. The Johnsons similarly did not
3 manage Hatch’s use of the property nor did they control the activities occurring on it.
4 {9} Plaintiff attempts to distinguish Gabaldon, which involves a commercial lease,
5 by asserting its inapplicability to the present residential lease. Yet Plaintiff fails to
6 articulate why an otherwise similar residential lease, contrasted to a commercial lease,
7 would oppositely provide the Johnsons with a greater ability to possess and control
8 leased premises than in the commercial setting. To the contrary, under the lease terms
9 discussed above, the Johnsons expressly lack the ability to control the day-to-day
10 activities occurring on, or the operation of, the property. That the property at issue is
11 residential, as opposed to commercial, is an unavailing distinction that fails to justify
12 our departure from clear precedent and established analysis. Moreover, Plaintiff failed
13 to present any evidence in her response to the Johnsons’ motion for summary
14 judgment, other than the lease agreement itself, to factually establish that the Johnsons
15 control activities or operations at the leased property, or uses of it. Under our
16 jurisprudence, as non-possessory landlords, the Johnsons cannot be liable for
17 Plaintiff’s injuries caused by their tenant’s pit bull.
18 {10} Also in an effort to establish a duty not otherwise present in our caselaw,
19 Plaintiff contends that “if the [Johnsons] had performed their duty to inspect the
8 1 subject rental property[,] . . . the subject animal would have been identified and
2 corrective measures could have been taken in order to avoid the [dog] attack upon
3 [Plaintiff].” But this is not consistent with New Mexico’s established rules regarding
4 liability for dog bite injuries. “UJI 13-506 [NMRA] embodies New Mexico’s doctrine
5 of liability of dog owners for injuries caused by vicious dogs.” Smith v. Vill. of
6 Ruidoso, 1999-NMCA-151, ¶ 8, 128 N.M. 470, 994 P.2d 50. Distinct from the
7 question of a landlord’s duty, this instruction provides that “[a]n owner of a dog is
8 liable for damages proximately caused by the dog if the owner knew, or should have
9 known, that the dog was vicious or had a tendency or natural inclination to be
10 vicious.” UJI 13-506. Thus, a core requirement before even a dog owner can be held
11 liable for his dog’s actions is knowledge of that dog’s vicious propensities, or
12 information sufficient to confer such knowledge in the absence of it. The district court
13 was correct to note that no duty can exist where Plaintiff “presented no evidence that
14 the Johnsons knew, or should have known, that the dog was dangerous or aggressive.”
15 Certainly, the standard for liability to attach is not lower for landlords than it is for the
16 actual owner of a dog.
17 {11} Plaintiff also argues that “in the present case, the [Johnsons] retained the duty
18 and obligation to maintain and repair the entire subject residential property [such that]
19 under Lommori, [1957-NMSC-089, ¶ 2,] . . . the [Johnsons] would be held liable for
9 1 the injuries suffered by [Plaintiff].” We first note that Lommori dealt with a physical
2 defect in the property, where a passerby was injured by a falling windowpane. There,
3 our Supreme Court stated that where the landlord “has covenanted with the tenant to
4 make repairs, he is liable to the passer-by for the injuries inflicted.” Id. ¶ 21 (internal
5 quotation marks and citation omitted).
6 {12} We disagree with Plaintiff’s application of Lommori. The presence of Hatch’s
7 pit bull is not a physical defect to be repaired on the leased property. Nor does housing
8 one singularly constitute an inherently dangerous activity. See Garcia v. Vill. of
9 Tijeras, 1988-NMCA-090, ¶ 31, 108 N.M. 116, 767 P.2d 355 (upholding an ordinance
10 banning ownership of American Pit Bull Terriers within the Village of Tijeras on
11 substantive due process grounds, but noting that in doing so “we do not intend to
12 condemn the . . . breed as a whole” and recognizing that “there are good pit bulls and
13 bad pit bulls” (internal quotation marks omitted)). But most critically, whether the
14 Johnsons did or did not inspect the property, Plaintiff provides no evidence
15 whatsoever to show that this pit bull was known to be dangerous by reference to any
16 specific event or by a pattern of observable behavior such that would require any
17 action on the part of the Johnsons. Thus, under UJI 13-506’s baseline framework of
18 duty applied in the context of dog bite liability, and limited in scope by Lommori and
19 Gabaldon, facts are not sufficiently alleged to withstand summary judgment. Upon
10 1 the facts pleaded by Plaintiff herein, the Johnsons could not have known that this dog
2 was cause for concern.
3 {13} Despite the foregoing, Plaintiff contends that we should conclude, as a matter
4 of public policy, that she was owed a duty by the Johnsons. Plaintiff opines that “to
5 adopt the [Johnsons’] position[] that no duty was owed to [Plaintiff], would be to
6 allow owners of residential rental propert[ies] to turn a blind eye to those dangers
7 which exist upon the propert[ies] and walk away from responsibility for injuries and
8 damages suffered by innocent third[]parties.”
9 {14} We again disagree. In Gabaldon, with regard to this very argument, our
10 Supreme Court chose not to “unwittingly impose unreasonable and uncertain duties”
11 on landlords. 1999-NMSC-039, ¶ 37 (internal quotation marks and citation omitted).
12 Our Supreme Court explained that to do so would obligate “the [landlord] to guarantee
13 the acts of a [tenant and] effectively require independent investigation to establish
14 each [tenant’]s fitness to use each [property], and would be manifestly unreasonable.”
15 Id. (internal quotation marks and citation omitted). Our Supreme Court opined that the
16 “potential liability of engaging in [leasehold] transactions might prove too costly and
17 have a chilling effect on the free flow of commerce.” Id. Based on this policy, the
18 Court chose not to saddle lessors with an impracticable duty of care in renting their
19 properties to tenants. See id. We follow suit in concluding that, even as a matter of
11 1 public policy, the Johnsons did not owe a duty of care to protect Plaintiff from Hatch’s
2 pit bull.
3 B. The Bernalillo County Ordinance Does Not Establish a Duty
4 {15} Separate from Plaintiff’s effort to establish a landlord’s legal duty to ensure the
5 suitability of tenants and guard against day-to-day activities that could be potentially
6 hazardous to passers-by, Plaintiff contends that under chapter six of the Bernalillo
7 County Animal Care Services Ordinance (2013) (BCACSO), a duty was owed by the
8 Johnsons to protect against Hatch’s pit bull. Yet Plaintiff misconstrues the provision
9 she cites, Section 6-31, and the ordinance itself. Section 6-31 solely defines terms to
10 be applied in the administration of the BCACSO. The definition within Section 6-31
11 as quoted and relied on by Plaintiff states:
12 Owner/Responsible Party means a person [eighteen] years of age 13 or older or the parent or guardian of a person under [eighteen] years of 14 age who owns, harbors, keeps an animal, has one in his care, or permits 15 an animal to remain on or about the premises owned or controlled by 16 him.
17 Plaintiff contends that pursuant to this definition, the Johnsons “are
18 owners/responsible parties as it relates to the subject pit bull . . . [because] merely
19 granting the right for the animal to remain on or about the premises” is sufficient to
20 meet the definition. Plaintiff cites no other ordinance provision of the BCACSO or
12 1 statute in connection with this definition to support establishment of a duty owed by
2 the Johnsons to protect Plaintiff from a dog housed at the leased property.
3 {16} Although we need not resolve arguments that are not adequately developed, see
4 Headley v. Morgan Management Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
5 P.3d 1076, we nonetheless address the lone provision cited by Plaintiff and conclude
6 that in the context of the BCACSO, the definition of “owner or responsible party”
7 does not create a statutory duty. Although the term is defined in a manner that does
8 not expressly exclude landlords who do not occupy or control leased premises,
9 nothing within the ordinance, when considered alongside that term, indicates an intent
10 to impose liability upon non-occupying property owners for the actions of a dog
11 unknown to them to be present or dangerous. Rather, the ordinance established
12 responsibilities associated with owning pets within the County of Bernalillo. For
13 example, Section 6-40 governs circumstances wherein an owner’s animals are known
14 to have bitten a person. It prescribes duties associated with reporting the event and
15 surrender of the animal to the “animal care services department,” along with
16 notification regarding ensuing medical treatment of the person injured. Likewise,
17 Section 6-67 imparts duties associated with “dangerous animals.” Section 6-31 defines
18 a “dangerous animal” to be an animal which, “when unprovoked, engages in behavior
19 that requires a defensive action by a person to prevent bodily injury” or “injures a
13 1 person.” Likewise, a “vicious animal” is defined to be “an animal which kills or
2 severely injures . . . a person.” Other provisions prescribe responsibilities associated
3 with “animals running at large,” see § 6-51, or “vicious or dangerous animals,” see §
4 6-67. Each provision addresses known scenarios associated with animals in Bernalillo
5 County; none address any heightened level of legal duty to be borne by landlords that
6 lease property to pet owners. Similarly, Sections 6-41 and 6-44 establish requirements
7 for animal licenses and vaccines, a responsibility surely not assignable to or shared by
8 a landlord.
9 {17} These provisions are consistent with the expressed legislative intent of the
10 ordinance, which is to “protect residents from annoyance and injury” and “encourage
11 responsible ownership of animals as pets[.]” Section 6-30 (emphasis added). Its
12 provisions advance these goals and lack the expression of language sufficient to
13 convince us that the long-established rules of both landlord liability and dog bite
14 liability should be upended to create what would, in essence, be a new cause of action.
15 The definitions cited by Plaintiff cannot, considered as part of the whole ordinance,
16 be construed to establish a duty owed by the Johnsons to Plaintiff.
17 {18} Assuming arguendo that the definition of “owner/responsible party” was meant
18 to generally establish what Plaintiff contends, its remaining language fails to define
19 the existence and scope of whatever ensuing duty the Johnsons would owe Plaintiff
14 1 under the BCACSO. And even if we were to construe the language of a definitional
2 statement within a local ordinance to signal a newly created duty, Plaintiff provided
3 no evidence indicating that the pit bull at issue was “own[ed], harbor[ed,] or [kept]”
4 or otherwise “permit[ted]” by the Johnsons to be present on the leased premises. See
5 § 6-31. This failure, in addition to a lack of evidence that the pit bull at issue was
6 known or considered to be a dangerous animal, factually justifies summary judgment.
7 Without such evidence, the Johnsons could bear no duty pursuant to the definition
8 established in Section 6-31 to address a problem that they had no way of knowing or
9 predicting existed regarding an animal to which no evidence of dangerous propensities
10 was known or provided. As such, we agree with the district court that the Johnsons
11 cannot be held liable for Plaintiff’s injuries.
12 C. No Disputed Material Facts Exist
13 {19} Lastly, Plaintiff contends that there are numerous disputed issues of material
14 fact that prevented the proper utilization of summary judgment. Even assuming
15 Plaintiff’s factual allegations are true, however, the Johnsons legally owed no duty to
16 Plaintiff under the facts of this case, as we have explained above. Since we have
17 concluded that the district court properly found there was no duty, we do not address
18 Plaintiff’s contentions regarding the remaining elements of negligence. See Lessard
19 v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 27, 142 N.M. 583,
15 1 168 P.3d 155 (“Determining the existence of a duty is a question of law for the
2 court[.]”).
3 III. CONCLUSION
4 {20} For the reasons stated above, we affirm the district court’s grant of summary
5 judgment.
6 {21} IT IS SO ORDERED.
7 _________________________________ 8 J. MILES HANISEE, Judge
9 WE CONCUR:
10 _________________________________ 11 RODERICK T. KENNEDY, Chief Judge
12 _________________________________ 13 JONATHAN B. SUTIN, Judge