This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

SANDRA ORTIZ, 2 Appellant/Cross-Appellee, 3

v. No. 31,645 Consolidated 4 with 31,709 5
DAVID JOHNSON and PATRICIA JOHNSON, 6 individually and as husband and wife, 7 Appellees/Cross-Appellants. 8

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Nan G. Nash, District Judge 10 Law Office of Roger Moore 11 Roger Moore 12 Albuquerque, NM 13 for Appellant 14 Puccini & Meagle, P.A. 15 Patricia Bradley 16 Albuquerque, NM 172 for Appellees 1 MEMORANDUM OPINION 2 HANISEE, Judge. 3
{1} Plaintiff was bitten by a pit bull while walking her dog on a sidewalk in front 4 of an Albuquerque home. Plaintiff subseque ntly brought suit against Jonathan Hatch, 5 the tenant who housed the dog at the home, and David and Patricia Johnson 6 (collectively, the Johnsons), the owners of the property who leased the home to Hatch. 7 The district court granted summary judgment in favor of the Johnsons, finding that 8 Plaintiff failed to articulate a theory under which the Johnsons had breached a duty to 9 Plaintiff. The district court further found th at Plaintiff failed to provide any evidence 10 that the Johnsons knew or should have known that there was a dog with vicious 11 propensities on the property. Plaintiff appeal s on grounds that the district court erred 12 in finding that the Johnsons did not owe a duty to Plaintiff either as property owners 13 or under a Bernalillo County ordinance, and by concluding that there were no issues 14 of material fact. We affirm the district court. 15 I. BACKGROUND 16
{2} On August 26, 2010, Plaintiff walked her leashed dog past a residential property 17 in Albuquerque that was leased and occ upied by Hatch and owned by the Johnsons. 18 A pit bull that was boarded at the residen ce attacked Plaintiff and her dog, injuring 193 Plaintiff’s leg. In November 2010 Plainti ff brought suit against the Johnsons for her 1 injuries, alleging negligence, carelessne ss, negligence per se, recklessness, and 2 negligent infliction of emotional distre ss. The Johnsons counterclaimed against 3 Plaintiff for malicious abuse of process. 4
{3} In August 2011 the Johnsons brought a motion for summary judgment, relying 5

on Gabaldon v. Erisa Mortgage Co. , 1999-NMSC-039, ¶¶ 29-39, 128 N.M. 84, 990 6 P.2d 197, for the proposition that, as landlords, they were not liable for tort claims that 7 take place on or about a leased premises not in their possession or under their control. 8 Plaintiff responded by distinguishing Gabaldon as controlling authority only for 9 commercial leases and not for residential leases. Plaintiff also argued that the 10 Johnsons maintained control and possession over the property because of specific 11 terms in the lease. The lease terms on which Plaintiff relied were: 12 7. Tenant . . . agrees not to c onduct any type of business in the 13 residence, nor store or use any dangerous or hazardous materials. Tenant 14 agrees that the residence is to be used only as a single family residence, 15 with a maximum of [six] tenants. Tenant also agrees to comply with all 16 rules, laws, and ordinances aff ecting the residence, including all 17 applicable provisions of the Laws of the State of New Mexico. Tenant 18 agrees that no pets or other animal s are allowed in the residence without 19 the written permission of the Landlord. 20

. . . . 21 10. The Tenant agrees not to sub-let the residence or assign this Lease 22 without the Landlord’s written consen t. Tenant agrees to allow the 23 Landlord reasonable access to the residence for inspection and repair. 244 Landlord agrees to enter the reside nce only after notifying the Tenant in 1 advance, except in an emergency. 2

{4} In September 2011 the district court gran ted summary judgment in favor of the 3 Johnsons and dismissed Plaintiff’s suit against them with prejudice. In its decision 4 letter, the district court conc luded that Plaintiff failed to articulate “any specific theory 5 of negligence against the Johnsons beyond their ownership of the property where the 6 dog lived and their ability, under the lease terms, to control and inspect the 7 property[,]” both of which it deemed insuffici ent to create a duty toward Plaintiff. The 8 court also stated that Plaintiff did not provide “any evidence that the Johnsons knew 9 or should have known that there was a dog with vicious propensities boarded on their 10 property.” Plaintiff now appeals. 11 II. DISCUSSION 12
{5} We review the district court’s grant of summary judgment de novo. 13 Montgomery v. Lomos Altos, Inc ., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 14 (“An appeal from the grant of a motion fo r summary judgment presents a question of 15 law and is reviewed de novo. ”). “Summary judgment is appropriate where there are 16 no genuine issues of material fact and th e movant is entitled to judgment as a matter 17 of law.” Self v. United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 185 P.2d 582. “All reasonable inferences are cons trued in favor of the non-moving party.” 1 Montgomery , 2007-NMSC-002, ¶ 16 (internal quotation marks and citation omitted). 2 A. The Johnsons Did Not Owe a Duty to Plaintiff Because They Lacked 3 Possession of and Control Over the Premises 4
{6} At issue is whether the Johnsons, as landlords, owed a duty to Plaintiff. Our 5 Supreme Court in Edward C. v. City of Albuquerque , 2010-NMSC-043, ¶ 14, 148 6 N.M. 646, 241 P.3d 1086, defined the nature of a general duty inquiry in New Mexico 7 when it held that: 8 The question of the existence and scopeof a defendant’s duty of care . . . 9 depends on the nature of the . . . activ ity in question, th e parties’ general 10 relationship to the activity, and public policy considerations. . . . [It] is 11 a question [primarily] of policy to be determined with reference to legal 12 precedent, statutes, and other principles comprising the law. 13 (Internal quotation marks and citations omitted.) With respect to general, non14 possessory landlord liability, “[t]he common law rule regarding liability for injuries 15 to third persons places responsibility on th e tenant in possession and excuses the 16 landlord.” Lommori v. Milner Hotels, Inc. , 1957-NMSC-089, ¶ 11, 63 N.M. 342, 319 17 P.2d 949. This rule of non-liability generally applies unless one of the following 18 exceptions have been met: 19 (1) when the landlord knows of a hidden defect and does not 20 communicate that knowledge to the te nant; (2) when the landlord binds 21 himself by a covenant to repair; (3) when the landlord reserves control 22 of part of the premises as passageways, stairs, etc.; (4) when the injury 23 is to persons off the premises in which situation the owner continues 246 liable for ordinary negligence arising from conditions of disrepair, or 1 dangerous activities carried on by his tenant. 2 Id . (citations omitted). Notably, these exceptions to the general rule that landlords are 3 not liable for injuries suffered on the leas ed premises have been held to “ONLY 4 concern themselves with the landlord’s liab ility for acts directly connected with the 5 physical condition of the leased premises, or the lack thereof, to remedy unsafe 6 conditions on the premises after possession passes to the tenant.” Gabaldon , 1999- 7 NMSC-039, ¶ 28 (emphasis in original) (internal quotation marks and citation 8 omitted). 9
{7} This principle was recognized in Gabaldon , when our New Mexico Supreme 10 Court reversed this Court’s opinion rec ognizing a new cause of action against a 11 landlord that created liability for conditions on the property that he owns but does not 12 control based on the theory of negligent entrustment. Gabaldon , 1999-NMSC-039, 13 ¶¶ 38-39. In that case, our Supreme Court identified circumstances under which a duty 14 may be owed by non-possessory landlords and restricted liability to those exceptions 15 traditionally recognized in landlord/tenant jurisprudence. Id . ¶¶ 25-39. The Court 16 stated that “the legal position of a non-posse ssory landlord is not one of immunity or 17 privilege[, it] is simply the same le gal position offered by sellers of property. 18 [Landlords] are simply not, as a matter of law, responsible for what takes place on 197 land they do not possess, and do not have a right to control.” Id . ¶ 30 (alteration in 1 original) (internal quotation marks omitted). 2
{8} In the present case, the Johnsons rented the property to Hatch, and under the 3 lease, they neither possessed nor controlle d the property. Plaintiff argues that the 4 Johnsons nonetheless maintained control and possession over the property because of 5 specific terms in the lease that banned bus iness use and hazardous material storage, 6 required single family use, required approval for pets on the property, barred 7 subletting, and allowed the landlord reasonable access to th e residence for inspection 8 and repair. Yet, these l ease terms do not provide th e Johnsons with ongoing, post9 rental possession and contro l. Our Supreme Court in Gabaldonheld that lease terms 10 markedly similar to these at issue do not empower the landlord with the ability to 11 possess and control the leased property. Id. ¶ 29 The Court explicated that 12 “[a]lthough . . . the lease agreement [at issue there] granted [the landlord] a percentage 13 of [the tenant]’s gross receipts and [the landl ord] also reserved ri ghts to repair, inspect 14 the [property] and to approve such activitie s by [the tenant], there [wa]s no evidence 15 that [the landlord] controlled the [property].” Id. (internal quotation marks omitted). 16 The Court elaborated that the landlord “didnot manage the day-to-day operations of 17 the premises nor did it in any way control the activities occurring on the leased 18 property.” Id . Likewise, the Johnsons did not gain or retain control over the property 198 simply by including lease terms regarding the use of and ability to reenter, make 1 approvals of tenant activity, and inspect the property. The Johnsons similarly did not 2 manage Hatch’s use of the property nor did they contro l the activities occurring on it. 3
{9} Plaintiff attempts to distinguish Gabaldon , which involves a commercial lease, 4 by asserting its inapplicability to the presen t residential lease. Yet Plaintiff fails to 5 articulate why an otherwise similar residential lease, contrasted to a commercial lease, 6 would oppositely provide the Johnsons witha greater ability to possess and control 7 leased premises than in th e commercial setting. To the c ontrary, under the lease terms 8 discussed above, the Johnsons expressly lack the ability to control the day-to-day 9 activities occurring on, or the operation of, th e property. That the property at issue is 10 residential, as opposed to commercial, is anunavailing distinction that fails to justify 11 our departure from clear precedent and estab lished analysis. Moreover, Plaintiff failed 12 to present any evidence in her res ponse to the Johnsons’ motion for summary 13 judgment, other than the leas e agreement itself, to factually establish that the Johnsons 14 control activities or operations at the leas ed property, or uses of it. Under our 15 jurisprudence, as non-possessory landlords, the Johnsons cannot be liable for 16 Plaintiff’s injuries caused by their tenant’s pit bull. 17
{10} Also in an effort to establish a duty not otherwise present in our caselaw, 18 Plaintiff contends that “if the [Johnsons] had performed their duty to inspect the 199 subject rental property[,] . . . the subject animal would have been identified and 1 corrective measures could have been take n in order to avoid the [dog] attack upon 2 [Plaintiff].” But this is not consistent w ith New Mexico’s estab lished rules regarding 3 liability for dog bite injuries. “UJI 13-506 [NMRA] embodies New Mexico’s doctrine 4 of liability of dog owners for injuries caused by vicious dogs.” Smith v. Vill. of 5 Ruidoso , 1999-NMCA-151, ¶ 8, 128 N.M. 470, 994 P.2d 50. Distinct from the 6 question of a landlord’s duty, this instru ction provides that “[a]n owner of a dog is 7 liable for damages proximately caused by the dog if the owner knew, or should have 8 known, that the dog was vicious or had a tendency or natural inclination to be 9 vicious.” UJI 13-506. Thus, a core requireme nt before even a dog owner can be held 10 liable for his dog’s actions is knowledgeof that dog’s vicious propensities, or 11 information sufficient to confer such knowledgein the absence of it. The district court 12 was correct to note that no duty can exist where Plaintiff “presented no evidence that 13 the Johnsons knew, or should have known, th at the dog was dangerous or aggressive.” 14 Certainly, the standard for liability to attach is not lower for landlords than it is for the 15 actual owner of a dog. 16
{11} Plaintiff also argues that “in the pres ent case, the [Johnsons] retained the duty 17 and obligation to maintain and repair the entire subject residential property [such that] 18 under Lommori , [1957-NMSC-089, ¶ 2,] . . . the [J ohnsons] would be held liable for 1910 the injuries suffered by [Plaintiff].” We first note that Lommoridealt with a physical 1 defect in the property, where a passerby was injured by a falling windowpane. There, 2 our Supreme Court stated thatwhere the landlord “has cove nanted with the tenant to 3 make repairs, he is liable to the passer-by for the injuries inflicted.” Id. ¶ 21 (internal 4 quotation marks and citation omitted). 5
{12} We disagree with Plaintiff’s application of Lommori . The presence of Hatch’s 6 pit bull is not a physical defect to be repaired on the leased property. Nor does housing 7 one singularly constitute an i nherently dangerous activity. See Garcia v. Vill. of 8 Tijeras , 1988-NMCA-090, ¶ 31, 108 N.M. 116, 767 P.2d 355 (upholding an ordinance 9 banning ownership of American Pit Bull Terriers within the Village of Tijeras on 10 substantive due process grounds, but noti ng that in doing so “we do not intend to 11 condemn the . . . breed as a whole” and recognizing that “there are good pit bulls and 12 bad pit bulls” (internal quotation marks omitted)). But most critically, whether the 13 Johnsons did or did not inspect the property, Plaintiff provides no evidence 14 whatsoever to show that this pit bull wa s known to be dangerous by reference to any 15 specific event or by a pattern of observabl e behavior such that would require any 16 action on the part of the Johnsons. Thus , under UJI 13-506’s baseline framework of 17 duty applied in the context of dog b ite liability, and limited in scope by Lommoriand 18 Gabaldon , facts are not sufficiently alleged to withstand summary judgment. Upon 1911 the facts pleaded by Plaintiff herein, the Johnsons could not haveknown that this dog 1 was cause for concern. 2
{13} Despite the foregoing, Plaintiff contends that we should conclude, as a matter 3 of public policy, that she was owed a duty by the Johnsons. Plaintiff opines that “to 4 adopt the [Johnsons’] position[] that no duty was owed to [Plaintiff], would be to 5 allow owners of residential rental propert [ies] to turn a blind eye to those dangers 6 which exist upon the propert[ies] and walk away from responsibility for injuries and 7 damages suffered by innocent third[]parties.” 8
{14} We again disagree. In Gabaldon , with regard to this very argument, our 9 Supreme Court chose not to “unwittingly impose unreasonable and uncertain duties” 10 on landlords. 1999-NMSC-039, ¶ 37 (internal quotation marks and citation omitted). 11 Our Supreme Court explained that to do so would obligate “the [landlord] to guarantee 12 the acts of a [tenant and] effectively require independent inves tigation to establish 13 each [tenant’]s fitness to us e each [property], and would be manifestly unreasonable.” 14 Id . (internal quotation marks and citation omitted). Our Supreme Court opined that the 15 “potential liability of engaging in [leasehold] transactions might prove too costly and 16 have a chilling effect on the free flow of commerce.” Id . Based on this policy, the 17 Court chose not to saddle lessors with an impracticable duty of care in renting their 18 properties to tenants. See id . We follow suit in concluding that, even as a matter of 1912 public policy, the Johnsons did not owe a duty of care to protect Plaintiff from Hatch’s 1 pit bull. 2 B. The Bernalillo County Ordinan ce Does Not Establish a Duty 3
{15} Separate from Plaintiff’s effo rt to establish a landlord’ s legal duty to ensure the 4 suitability of tenants and guard against day-to-day activities that could be potentially 5 hazardous to passers-by, Plaintiff conte nds that under chapter six of the Bernalillo 6 County Animal Care Services Ordinance (2013) (BCACSO), a duty was owed by the 7 Johnsons to protect against Hatch’s pit bu ll. Yet Plaintiff misconstrues the provision 8 she cites, Section 6-31, and the ordinance itself. Section 6-31 so lely defines terms to 9 be applied in the administration of the BCACSO. The definition within Section 6-31 10 as quoted and relied on by Plaintiff states: 11 Owner/Responsible Party means a person [eighteen] years of age 12 or older or the parent or guardian of a person under [eighteen] years of 13 age who owns, harbors, keeps an anim al, has one in his care, or permits 14 an animal to remain on or about the premises owned or controlled by 15 him. 16 Plaintiff contends that pursuant tothis definition, the Johnsons “are 17 owners/responsible parties as it relates tothe subject pit bull . . . [because] merely 18 granting the right for the animal to remain on or about the premises” is sufficient to 19 meet the definition. Plaintiff cites no other ordinance provision of the BCACSO or 2013 statute in connection with this definition to support establishment of a duty owed by 1 the Johnsons to protect Plaintiff from a dog housed at the leased property. 2
{16} Although we need not resolve arguments that are not adequately developed, see 3 Headley v. Morgan Management Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 4 P.3d 1076, we nonetheless address the lone provision cited by Plai ntiff and conclude 5 that in the context of the BCACSO, the definition of “owner or responsible party” 6 does not create a statutory duty. Although the term is defined in a manner that does 7 not expressly exclude landlords who do not occupy or control leased premises, 8 nothing within the ordinance, when considered alongside that term, indicates an intent 9 to impose liability upon non-occupying property owners for the actions of a dog 10 unknown to them to be present or danger ous. Rather, the ordinance established 11 responsibilities associated with owning pets within the County of Bernalillo. For 12 example, Section 6-40 governs circumstances wherein an owner’s animals are known 13 to have bitten a person. It prescribes du ties associated with reporting the event and 14 surrender of the animal to the “animal care services department,” along with 15 notification regarding ensuing medical treatment of the person injured. Likewise, 16 Section 6-67 imparts duties associated with “dangerous animals.” Section 6-31 defines 17 a “dangerous animal” to be an animal which, “when unprovoked, engages in behavior 18 that requires a defensive action by a person to prevent bodily injury” or “injures a 1914 person.” Likewise, a “vicious animal” is defined to be “an animal which kills or 1 severely injures . . . a person.” Other pr ovisions prescribe responsibilities associated 2 with “animals running at large,” see § 6-51, or “vicious or dangerous animals,” see§ 3 6-67. Each provision addresses known scenarios associated with animals in Bernalillo 4 County; none address any heightened level of legal duty tobe borne by landlords that 5 lease property to pet owners. Similarly, S ections 6-41 and 6-44 es tablish requirements 6 for animal licenses and vaccines, a responsib ility surely not assignable to or shared by 7 a landlord. 8
{17} These provisions are consistent with th e expressed legislative intent of the 9 ordinance, which is to “protect reside nts from annoyance and injury” and “encourage 10 responsible ownership of animals as pets[.]” Sec tion 6-30 (emphasis added). Its 11 provisions advance these goals and lack the expression of language sufficient to 12 convince us that the long-established ru les of both landlord liability and dog bite 13 liability should be upended to create what woul d, in essence, be a new cause of action. 14 The definitions cited by Plaintiff cannot, considered as part of the whole ordinance, 15 be construed to establish a duty owed by the Johnsons to Plaintiff. 16
{18} Assuming arguendo that the definition of “owner/responsible party” was meant 17 to generally establish what Plaintiff contends, its remaining language fails to define 18 the existence and scope of whatever ensu ing duty the Johnsons would owe Plaintiff 1915 under the BCACSO. And even if we were to construe the language of a definitional 1 statement within a local ordi nance to signal a newly created duty, Plaintiff provided 2 no evidence indicating that the pit bull at i ssue was “own[ed], harbor[ed,] or [kept]” 3 or otherwise “permit[ted]” by the Johnsons to be present on the leased premises. See 4 § 6-31. This failure, in addition to a lack of evidence that the pit bull at issue was 5 known or considered to be a dangerous an imal, factually justifies summary judgment. 6 Without such evidence, the Johnsons could bear no duty pursuant to the definition 7 established in Section 6-31 to address a problem that they had no way of knowing or 8 predicting existed regarding an animal to which no evidence of dangerous propensities 9 was known or provided. As such, we agree with the district court that the Johnsons 10 cannot be held liable for Plaintiff’s injuries. 11 C. No Disputed Material Facts Exist 12
{19} Lastly, Plaintiff contends that there are numerous disputed issues of material 13 fact that prevented the proper utilizati on of summary judgment. Even assuming 14 Plaintiff’s factual allegations are true, however, the Johnsons legally owed no duty to 15 Plaintiff under the facts of this case, as we have explained above. Since we have 16 concluded that the district court properl y found there was no duty, we do not address 17 Plaintiff’s contentions regarding the remaining elements of negligence. See Lessard 18 v. Coronado Paint & Decorating Ctr., Inc. , 2007-NMCA-122, ¶ 27, 142 N.M. 583, 1916 168 P.3d 155 (“Determining the existence of a duty is a question of law for the 1 court[.]”). 2 III. CONCLUSION 3
{20} For the reasons stated above, we affirmthe district court’s grant of summary 4 judgment. 5
{21} IT IS SO ORDERED. 6

_________________________________ 7 J. MILES HANISEE, Judge 8

WE CONCUR: 9

_________________________________ 10 RODERICK T. KENNEDY, Chief Judge 11

_________________________________ 12 JONATHAN B. SUTIN, Judge 13