concurring in part and dissenting in part.
¶ 42 I agree with the majority’s resolution of the Premises Liability Act issue. However, I do not agree that, under the particular circumstances of this case, plaintiffs would have been unable to prove any set of facts to sustain their negligence claim. See Hewitt v. Rice, 119 P.3d 541, 544 (Colo.App.2004), aff'd, 154 P.3d 408 (Colo.2007). I therefore respectfully dissent from the portion of the *758majority opinion that affirms the trial court’s dismissal of that claim pursuant to C.R.C.P. 12(b)(5).
¶ 43 Like the trial court, the majority concludes that, as a matter of law, defendant owed no duty to plaintiff N.M. As the majority correctly states, the controlling test for determining whether such a duty exists is that set forth'in Taco Bell v. Lannon, Inc., 744 P.2d 43, 46 (Colo.1987). Upon applying the Taco Bell factors to the facts alleged in plaintiffs’ complaint, I reach a different conclusion.
¶ 44 The first faetor to consider is the risk involved. Unlike the majority, I do not view it as dispositive of the risk issue that the dogs neither jumped over th'e four-foot-high chain-link fence nor physically harmed or touched the boys. In Colorado, a dog owner may- be liable for harm caused by the dog to another person even if the dog does not physically contact the - other person, CJI-Civ. 4th 13.1 (2013), titled Domestic Animals — Dangerous or Vicious Tendencies— Elements of Liability, permits a jury to assess liability against a defendant who (1) kept a kind or breed of animal that had vicious or dangerous tendencies; (2) knew or had notice that the animal had vicious or dangerous tendencies; (3) was negligent in not using reasonable care to prevent injuries or damages that could have reasonably been anticipated to be caused by the dangerous or destructive tendencies of the animal; and (4) was responsible, by his or her negligence, for injuries, damages, or losses to the plaintiff. The notes on use state that a different instruction should be used “[i]n dog bite cases” involving death or serious bodily injury, and they cite as authority a Colorado case, Fishman v. Kotts, 179 P.3d 232 (Colo.App.2007), in which the plaintiff had not had any direct contact with the dog but, rather, was injured when the dog frightened the horse she was riding, causing the horse to rear up and fall on her.
If 45 In this respect, the rale in Colorado accords with case law from other jurisdictions. See 30 A.L.R.4th 986 Liability of Dog Owners for Injuries Sustained by Person Frightened by Dog (Westlaw database updated Mar, 2016) (collecting and analyzing cases in which courts have considered whether, and under what circumstances, the owner of a dog is liable for injuries to another person who is frightened, but not bitten or otherwise physically attacked, by the dog).
¶ 46 The second faetor is the foreseeability and likelihood of injury. The majority concludes that “it was not foreseeable to defendant that a passerby, startled by the dogs, would run out into the street into the path of moving vehicles.” In my view, it was eminently foreseeable that a child on his way to the elementary' school across the street would be frightened when two “large, vicious, loud-barking pit bulls” rushed up tb and jumped up on the chain-link fence next to the sidewalk, and that the child would run into the street to get away from them. Similar' fact patterns have been described in cases from other jurisdictions. See Brandeis v. Felcher, 211 So.2d 606, 606-09 (Fla.Dist.Ct.App.1968) (children walking on sidewalk abutted by four-foot chain-link fence became frightened when- two German' Shepherds barked, ran at fence, and one dog put paws and head over fence; one child darted into street and was killed when struck by an oncoming car); Marchand v. York, 624 So.2d 440 (La.Ct.App.1993) (twelve-year-old girl, frightened by dogs who barked at her, ran into street where she was hit by car); Moore v. Myers, 161 Md.App. 349, 868 A.2d 954, 969 (2005) (“Monica’s flight from a barking and advancing pit bull was foreseeable. That she fled into the street and into the path of an on-coming car was a foreseeable consequence of her' fright. That Jaton may not have foreseen the specific nature of the’harm' that befell Monica is inconsequential.”); Neulist v. Victor, 3 Ohio App.2d 88, 209 N.E.2d 494 (Ohio Ct.App.1965) (two dogs frightened eight-year-old girl riding her bicycle on public sidewalk, causing her to ran into the path of an automobile which struck and injured her). Although these cases may involve different theories of liability and are otherwise distinguishable, the fact that they all involve situations where children frightened by dogs have run into the street and. been hit by cars supports a conclusion that such injury is in fact foreseeable.
*759¶ 47 As for the third Taco Bell factor, the majority cites the constitutionally protected right to own personal property — specifically, to keep a pet dog — in concluding that the social utility of defendant’s conduct outweighs the foreseeability of injury. Again, I disagree.
¶ 48 The complaint alleges that the dogs at issue here were “vicious.” For purposes of ruling on a motion to dismiss, that allegation must be accepted as true. In Colorado, it has already been determined that the privilege to use private property as one wishes is subject to limitations when such use amounts to ownership of a vicious or dangerous pet animal. See § 18-9-204.5(l)(a), C.R.S. 2015 (“[t]he general assembly hereby finds, determines, and declares that .... [d] angerous dogs are a serious and widespread threat to the safety and welfare of citizens throughout the state because of the number and serious nature of attacks by such dogs”; statute provides for criminal penalties against owners of dangerous dogs that injure other people); Adams County Ordinance No. 6, Art. V, § 5-7- (“Vicious and dangerous pet animals prohibited unless confined.”); see also Colo. Dog Fanciers, Inc. v. City & Cty. of Denver, 820 P.2d 644, 651 (Colo.1991) (“Because the ownership of a dog does not implicate fundamental rights such as.speech or association, the [Denver pit bull] ordinance should be upheld unless the dog owners are able to establish that the ordinance is unconstitutional on its face and incapable of any valid application”).
. ¶ 49 Again, courts from other jurisdictions have similarly recognized that the right to own a dangerous or vicious animal is subject to limitations. See Farrior v. Payton, 57 Haw. 620, 562 P.2d 779, 787 (Haw.1977) (“The right to harbor animals must yield to the duty of containing them in a reasonable manner so as to avoid the harm that can befall an unsuspecting person, lack of physical contact notwithstanding.”), quoting Machacado v. City of New York, 80 Misc.2d 889, 365 N.Y.S.2d 974, 979 (N.Y.Sup.Ct.1975).
¶ 50 Given the general recognition of the limitations on the right to keep vicious dogs, I cannot conclude that the social utility of defendant’s ownership of the dogs in this ease outweighs the foreseeability of injury to others by those dogs.
¶ 51 As for the final Taco Bell factor, the majority concludes that the magnitude of the burden of guarding against injury or harm is “high,” and the consequences of placing additional burdens on dog owners would be .“unreasonable,” because dog owners “would in effect be required to keep a dog in a place where it could neither be seen nor heard by members of the public passing by.” I disagree with that conclusion because it appears to rest on assumptions for which, at this stage in the proceedings, there is no factual support. It may be that this dog owner, who kept the pit bulls' in a yard separated from passing school children only by a four-foot-high chain-link fence directly abutting the sidewalk, could have better guarded-against the harm that occurred by confining the animals to a different part of the yard on school days, or moving the fence further from the sidewalk, or erecting a higher fence. Such measures would not necessarily amount to placing a “significant financial burden” on this dog owner, let alone on dog owners generally. , .
¶ 52 More important, whether the dog owner in this ease had a duty to do more than he did is a question for the jury. See Machacado, 365 N.Y.S.2d at 980 (“Whether an owner owes no further duty than to erect a fence under the circumstances of this case and without other reasonable safeguards or restraints is a- question to be answered by community standards through a jury’s verdict.”). It would likewise be for the jury to determine whether issues of contributory negligence or causation would reduce or preclude any recovery by plaintiffs in this case.
¶ 53 The jury will not have that opportunity because the trial court held, and the majority agrees, that as a matter of law defendant owed no duty to N.M. For the reasons set forth above,'I disagree with that conclusion. I would let the negligence claim go to the jury.