 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Lachenman v. Stice11/30/2005
ent infliction of emotional distress. In short, the trial court did not err in granting summary judgment in favor of the Stices upon Lachenman's claim of negligent infliction of emotional distress.
C. Claims under Indiana Code § 15-5-12-3
Lachenman argues that the trial court erred in granting summary judgment in favor of the Stices with regard to her claim under I.C. § 15-5-12-3. Lachenman's argument on this point is unclear. As best we are able to discern, however, Lachenman's main contention is that by violating Section 3, the Stices were negligent per se. The unexcused or unjustified violation of a duty prescribed by a statute or ordinance constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and the statute or ordinance is intended to protect against the risk of the type of harm which has occurred as a result of its violation. Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 690, 704 (Ind. Ct. App. 2004). Thus, a threshold issue is whether the statute or ordinance at issue was indeed violated. Here, I.C. § 15-5-12-3 states in relevant part that it is a Class C misdemeanor if an owner of a dog recklessly, knowingly, or intentionally fails to take reasonable steps to restrain the dog and the dog enters property other than the owner's property and, as a result of the failure to restrain the dog, the dog "bites or attacks another person resulting in unprovoked bodily injury to the other person."
Lachenman argues that this statute includes "attacks of the property owner's pets on the property owner's home property." Appellant's Brief at 26. This argument is without merit. The plain language of I.C. § 15-5-12-3 requires the recklessly unrestrained dog to bite or attack another person resulting in unprovoked bodily injury to the other person. As noted, Lachenman effectively admits in her brief that she sustained no bodily injury, and she stated in her deposition that no person was bitten or hurt in the attack that killed her dog. Simply put, I.C. § 15-5-12-3 is inapposite. Because of this, we also reject Lachenman's suggestion that violation of this statute supports her claim for damages based upon emotional distress.
D. Violation of Association Regulations
Lachenman further claims that the Stices were negligent per se as a result of their violation of the Hidden Valley Lake Property Owner's Association rules and regulations regarding dogs. Lachenman attached to her complaint a copy of the Hidden Valley Lake "Dog Control Guidelines." Appellant's App. at 19. Mr. Miller's deposition testimony revealed that after the attack which killed Lachenman's dog, the Association declared the Stices' German Shepard dog to be a vicious dog and fined the Stices for failing to follow the guidelines. In support of her position, Lachenman cites Plesha v. Edmonds ex rel. Edwards, 717 N.E.2d 981 (Ind. Ct. App. 1999), trans. denied, in which the defendants violated a municipal ordinance regarding control of animals when their dog attacked a boy walking in their yard. The ordinance at issue required that all dogs were to be "kept under restraint." Id. at 986. The court held that the ordinance did not limit a dog owner's duty of reasonable care, but defined the duty. Id.
Here, there is no designated evidence suggesting that the Hidden Valley Lake guidelines are the equivalent of a municipal ordinance. Indeed, all indications are that the authority promulgating the guidelines is a property owner's association. Lachenman cites no authority for the proposition that violation of a property owner's association regulation supports a determination of negligence per se; neither has our research
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Indiana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|