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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




                                            16
