April 7, 2018

When Does Negligence Become Negligence Per Se; Martin v. Hayduk

Category: Indiana Law Review | Author: | Share:

For a plaintiff, it is great when a defendant violates a statute or ordinance when committing a tort, because that usually converts an action from a normal negligence action to one based on negligence per se. But as this case shows, the test for when negligence is per se is actually more complex.

Hayduk owns a residence in Brownsburg in a rural neighborhood. He has two dogs and has installed an electric, invisible fence. The dogs wear electric collars and have never wandered beyond the electric fence.

Hayduk’s girlfriend, Stafford, lives in Zionsville with her five dogs. On June 30, 2015, Stafford was at Hayduk’s residence with their five dogs and both of Hayduk’s dogs. Stafford’s dogs wore electric collars and had been trained on Hayduk’s invisible fence.

Martin saw a truck in Hayduk’s driveway that day and wanted to buy it. There were no “for sale” signs on the truck and Martin had no reason to think that the truck was for sale. Nevertheless, Martin entered Hayduk’s property, parked in his driveway, and walked toward the house. Martin did not notice the “beware of dog” signs Hayduk had posted on his property.

When Martin neared the house, he was approached by at least five dogs. He was bitten, scratched, and sustained several injuries.

Martin sued Hayduk and Stafford, alleging that they negligently failed to confine and control their dogs. The defendants moved for summary judgment, arguing that Martin was a trespasser and that they did not willfully or wantonly injure him. Martin argued that the defendants violated local dog control ordinances regarding confining dogs and the number of dogs kept on the property. The trial court granted the defendants’ motion, and Martin appealed.

On appeal, the first issue was whether the defendants were negligent per se by violating the two ordinances. The first ordinance restricted the number of dogs to be kept on a property to four. Martin argued that since there were seven dogs on the property when he was injured (and he was injured by five dogs), the defendants had violated this ordinance. The Court disagreed because the risk the ordinance was directed at (risks to public health by preventing pet owners from accumulating more pets than he can care for properly), was not the same risk that applied to Martin (the risk of personal injury caused by animals). As these risks did not match, there was no negligence per se.

In any event, there is nothing in the ordinance to suggest that it is intended to protect against the type of harm Martin sustained, and Martin has not shown that Hayduk and Stafford were negligent per se by violating this ordinance.

The Court then looked to the ordinance prohibiting dog owners from allowing their animals to be at-large. But the Court found that there was no genuine issue of fact on this issue, because the dogs were not at-large, roaming freely. Rather, they were confined in an electric fence when Martin was injured.

But the Court ultimately reversed the trial court’s decision. First, some of Stafford’s dogs had a history of aggression, so there was a genuine issue of fact regarding whether she knew of the dogs’ vicious or dangerous propensities. And there was a genuine issue of fact on whether Martin incurred the risk, as the “beware of dog” signs were not well placed and Martin did not see them. Therefore, summary judgment was improperly granted on Martin’s common-law negligence claims.

Lessons:

  1. The violation of an ordinance is not negligence per se if the injured person was not injured by the type of harm the ordinance is meant to protect.
  2. If a dog has a history of aggression and “beware of dog” signs are not wellplaced, then it will be difficult for a defendant to obtain summary judgment if the defendant’s dog bites a trespasser.
  3. In dog bite cases, a home owner owes a duty of reasonable care to a visitor whether the person is an invitee, licensee or trespasser.