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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowAn Indiana couple trying to bring a negligence claim against the lessor of a home with an allegedly-defective handrail can pursue neither a negligence per se argument nor a private-right-of-action argument, the Indiana Court of Appeals ruled in a Tuesday opinion discussing the differences between those doctrines.
After Brenda Stachowski fell through a handrail on the deck of a South Bend home she was renting from Daniel Radman, she and her husband, John, filed a negligence claim against him. Radman’s estate was substituted as a defendant after Daniel died, and the St. Joseph Superior Court granted the estate’s summary judgment motion.
On appeal in Brenda and John Stachowski v. Estate of Daniel Radman, 71A05-1708-CT-1776, the Stachowskis argued that a South Bend ordinance requiring Radman to maintain the handrail created duty under the negligence per se doctrine. However, in a Tuesday opinion upholding the grant of summary judgment, Indiana Court of Appeals Chief Judge Nancy Vaidik wrote that finding per se negligence “merely represents a judicial acceptance of ‘the legislative judgment that acts in violation of the statute constitute unreasonable conduct.’”
“As then-Justice Rush recently explained, ‘In a negligence per se action, the statute (or ordinance) supplies a defendant’s standard of care — the second element in a tort claim. The negligence per se defendant already owes a duty to use reasonable care without reliance on the statute (or ordinance),’” Vaidik wrote, referencing the now-chief justice’s dissenting opinion in F.D. v. Ind. Dept. of Child Servs., I N.E.3d 131, 143 n.12 (Ind. 2013). “In short, a plaintiff cannot rely on the doctrine of negligence per se to satisfy the duty element of a negligence claim.”
The Court of Appeals reached the opposite conclusion in Dawson by Dawson v. Long, 546 N.E.2d 1265, 1268-69 (Ind. Ct. App. 1989), so to that extent the current panel determined Dawson was wrongly decided. Instead, Vaidik said the issue before the court should be framed as whether the ordinance confers a private right of action.
There are two primary considerations concerning private rights of action: whether the ordinance was designed to protect individuals or the public, and whether it includes an independent enforcement mechanism. The Stachowskis did not address that standard in their briefs, the chief judge said, so their private-right-of-action claim is waived.
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