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Lachenman v. Stice11/30/2005
revealed any such authority. It has been held, however, that violation of an administrative regulation does not constitute negligence per se, but such violation may be generally considered as evidence of negligence for a jury to consider. Beta Steel v. Rust, 830 N.E.2d 62, 73-74 (Ind. Ct. App. 2005); Vandenbosch v. Daily, 785 N.E.2d 666, 670 (Ind. Ct. App. 2003); Zimmerman v. Moore, 441 N.E.2d 690, 696 (Ind. Ct. App. 1982); see also Jones v. City of Logansport, 436 N.E.2d 1138, 1148 (Ind. Ct. App. 1982) (violation of OSHA regulations which were incorporated by reference into contract between parties to relieve them from drawing up their own construction guidelines was a violation of contract terms which, while not negligence per se, could be considered as evidence of negligence); cf. Indian Trucking v. Harber, 752 N.E.2d 168, 172 (Ind. Ct. App. 2001) (violation of federal regulations which were incorporated by reference in Indiana Code supported finding of negligence per se); Dawson ex rel. Dawson v. Long, 546 N.E.2d 1265, 1268 (Ind. Ct. App. 1989) (in order for trier of fact to determine negligence per se, there must be evidence of a violation of a statute or ordinance). But see Town of Montezuma v. Downs, 685 N.E.2d 108, 116 (Ind. Ct. App. 1997) (violation of federal exposed pipeline regulations established negligence per se); Imel v. Thomas, 585 N.E.2d 712, 714 (Ind. Ct. App. 1992) (stating that violation of safety regulation or ordinance is negligence per se) (citing Witham v. Norfolk & W. Ry. Co., 561 N.E.2d 484, 485 (Ind. 1990) (holding only that proof of violation of safety regulation creates rebuttable presumption of negligence)).
In Duke's GMC, Inc. v. Erskine, 447 N.E.2d 1118, 1124 (Ind. Ct. App. 1983), the court held that the recognized rules of a sport are at least indicia of the standard of care which those who play the sport owe to each other. The court further held that while violation of such rules may not be negligence per se, such violation may be evidence of negligence. Id. The same thing can be said with regard to Lachenman's claims that the Stices violated the Association's dog control guidelines. Violation of property owner's association rules and regulations will not support a determination of negligence per se, but a violation could be evidence of negligence. Therefore, to the extent that the trial court's summary judgment ruling was based upon Lachenman's claim of negligence per se, we affirm. However, we do not agree that violation thereof is totally irrelevant to Lachenman's standard claim of negligence. Upon remand for trial on the remaining issues, evidence regarding any violation of the guidelines could be submitted to the trier of fact as evidence of the Stices' negligence.
E. Potential Breeding Income
In her complaint, Lachenman sought to recover, "Loss of future breeding income figured at one litter of four (4) pups for each of the next seven (7) years at $500.00 per pup ($14,000.00), as Plaintiff's dog was registered in the stud files of the National Kennel Club." Appellant's App. at 17. Upon summary judgment, the Stices argued that damages for unborn animals is not recoverable and that Lachenman's claim of future breeding income was too speculative. Lachenman only briefly mentioned the issue of potential breeding income in her response to the trial court, as part of her argument regarding the sentimental value of her dog and in passing in her conclusion. In its order on summary judgment, the trial court ruled that Lachenman could not be compensated for future breeding income which might have been generated by her dog. Although Lachenman complains about this ruling several times in her brief, she never fully develops an argument as to why the trial
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