                                                                                      FILED
                                                                                  Mar 14 2018, 8:52 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Jeffrey J. Stesiak                                        Adam C. Hawkins
      James P. Barth                                            Staff Counsel for Farmers
      Pfeifer, Morgan & Stesiak                                 Insurance Exchange and Affiliates
      South Bend, Indiana                                       Chicago, Illinois



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brenda and John Stachowski,                               March 14, 2018
      Appellants-Plaintiffs,                                    Court of Appeals Case No.
                                                                71A05-1708-CT-1776
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      Estate of Daniel Radman,                                  The Honorable Jenny Pitts Manier,
      Appellee-Defendant                                        Judge
                                                                Trial Court Cause No.
                                                                71D05-1603-CT-144



      Vaidik, Chief Judge.


[1]   In this case we address the difference between (1) a negligence-per-se claim, in

      which a plaintiff argues that the defendant’s violation of a statute or ordinance

      suffices to prove breach of an existing common-law duty of reasonable care,

      and (2) a private-right-of-action claim, in which a plaintiff asserts that a statute

      or ordinance, itself, created an enforceable duty.


      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018                           Page 1 of 6
[2]   Brenda and John Stachowski have sued the Estate of Daniel Radman for

      negligence, claiming that Brenda fell through an allegedly rotten handrail on the

      deck of a home in South Bend that the Stachowskis were renting from Radman

      (the Stachowskis originally named Radman as the defendant in their suit but

      substituted the Estate after learning that Radman had died). The Estate filed a

      motion for summary judgment, arguing that Radman did not have a duty to

      maintain the handrail. The trial court granted the Estate’s motion, and the

      Stachowskis appeal.


[3]   An action for negligence has three elements: “(1) a duty owed to the plaintiff by

      the defendant, (2) a breach of the duty, and (3) an injury proximately caused by

      the breach of duty.” Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014). The

      Stachowskis concede that Radman did not owe them a common-law duty to

      maintain the rental home in a safe condition once they took possession. See

      Zubrenic v. Dunes Valley Mobile Home Park, Inc., 797 N.E.2d 802, 806 (Ind. Ct.

      App. 2003) (“Generally, the common law does not impose a duty upon a

      landlord to protect tenants from injuries due to defective conditions on the

      property once possession and control of the property has been surrendered.”),

      trans. denied.1 Instead, they argue that a South Bend ordinance required

      Radman to maintain the handrail and that Radman therefore owed them a duty




      1
        There are exceptions to this general rule (repairs the landlord agrees to do, latent defects known to the
      landlord but not to the tenant, maintenance of common areas, see Zubrenic, 797 N.E.2d at 806), but none of
      them apply in this case. In addition, a lease agreement might impose certain maintenance responsibilities on
      a landlord, but the Stachowskis did not have a written lease with Radman.

      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018                        Page 2 of 6
      under the doctrine of negligence per se. Under that doctrine, the unexcused

      violation of a statute or ordinance constitutes negligence per se if the provision

      (1) “protect[s] the class of persons in which the plaintiff is included” and (2)

      “protect[s] against the type of harm which has occurred as a result of the

      violation.” City of Fort Wayne v. Parrish, 32 N.E.3d 275, 277 (Ind. Ct. App.

      2015), trans. denied.


[4]   But the doctrine of negligence per se doesn’t concern the duty element of a

      negligence action; rather, the doctrine assumes the existence of a common-law

      duty of reasonable care, and the court is asked to adopt the standard of conduct

      set forth in a statute or ordinance (often a criminal or regulatory provision) as

      the standard of conduct required under that preexisting duty, so that a violation

      of the statute or ordinance serves to satisfy the breach element of a negligence

      action. In other words, a finding of negligence per se merely represents a

      judicial acceptance of “the legislative judgment that acts in violation of the

      statute constitute unreasonable conduct.” Cook v. Whitsell-Sherman, 796 N.E.2d

      271, 276 (Ind. 2003). 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].” F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d 131, 143 n.12 (Ind. 2013)

      (Rush, J., dissenting) (citing 1 Dan B. Dobbs et al., The Law of Torts § 148 (2d

      ed. 2011) (explaining that negligence-per-se defendant “must be under a duty to

      use reasonable care; if he is not, violation of the statute cannot prove breach of

      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018   Page 3 of 6
      duty”) and Restatement (Third) of Torts: Liability for Physical and Emotional

      Harm § 38 cmt. d (2012) (explaining that negligence-per-se defendant is subject

      to duty of reasonable care “even without reliance on the statute”)). In short, a

      plaintiff cannot rely on the doctrine of negligence per se to satisfy the duty

      element of a negligence claim.


[5]   The Stachowskis cite this Court’s decision in Dawson by Dawson v. Long, where

      the majority concluded that a landlord’s violation of various Marion County

      property-maintenance ordinances (including one relating to handrails)

      constituted negligence per se. 546 N.E.2d 1265, 1268-69 (Ind. Ct. App. 1989),

      reh’g denied, trans. denied. In doing so, the majority did not first address whether

      the landlord owed a common-law duty to the plaintiff, nor did it respond to the

      dissent’s point that landlords generally don’t owe a common-law duty to repair

      and maintain. To the extent that Dawson stands for the proposition that the

      doctrine of negligence per se is relevant to the duty element of negligence, we

      believe it was wrongly decided.2




      2
        But even if we were to analyze the Stachowskis’ claim under Dawson, we would still affirm the trial court’s
      grant of summary judgment in favor of the Estate. As already noted, a statute or ordinance can support a
      claim of negligence per se only if the provision protects the class of persons in which the plaintiff is included
      and protects against the type of harm that occurred as a result of the violation. Parrish, 32 N.E.3d at 277; see
      also Dawson, 546 N.E.2d at 1268 (framing issue as whether statute or ordinance “was designed to protect the
      class of persons in which the plaintiff is included against the risk of the type of harm which has occurred as a
      result of its violation”). Here, the Stachowskis did not address that well-settled, two-prong standard in their
      opening brief. They alluded to it in their reply brief, but only in passing. By failing to address the controlling
      standard until their reply brief, and by failing to address the standard in a cogent manner even then, the
      Stachowskis waived any negligence-per-se argument they might have had under Dawson. See U.S. Gypsum,
      Inc. v. Ind. Gas Co., 735 N.E.2d 790, 797 n.5 (Ind. 2000) (“[A]n argument raised for the first time in a reply
      brief is waived.”); Merrill v. State, 716 N.E.2d 902, 904 n.2 (Ind. 1999) (finding appellate claim waived where
      appellant “failed to make a cogent argument”); see also Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018                              Page 4 of 6
[6]   When a plaintiff claims that the violation of a statute or ordinance gives rise to

      civil liability even in the absence of a common-law duty, the issue should be

      framed as whether the statute or ordinance confers a “private right of action”—

      a concept that is related to but distinct from the doctrine of negligence per se.

      Whereas a negligence-per-se plaintiff claims that a statute or ordinance should

      establish the applicable standard of conduct required under an existing duty of

      reasonable care, see Cook, 796 N.E.2d at 275, the issue when a plaintiff claims a

      private right of action is whether the legislative body intended to establish not

      just a standard of conduct but a duty enforceable by tort law, see, e.g., Estate of

      Cullop v. State, 821 N.E.2d 403, 408 (Ind. Ct. App. 2005) (explaining that

      existence of statutory duty does not necessarily mean that plaintiff “may

      enforce this duty in a private cause of action”), reh’g denied; Cuyler v. United

      States, 362 F.3d 949, 952 (7th Cir. 2004) (“[T]he mere fact that a statute defines

      due care does not in and of itself create a duty enforceable by tort law.”).


[7]   If the Stachowskis meant to assert that the South Bend handrail ordinance

      confers a private right of action, they missed the mark. As with negligence per

      se, we have a well-established standard for determining whether a legislative

      body intended to confer a private right of action. Absent an express right of

      action, the primary considerations are (1) whether the statute or ordinance was

      designed to protect particular individuals or the public in general and (2)

      whether it includes an independent enforcement mechanism. Doe #1 v. Ind.

      Dep’t of Child Servs., 81 N.E.3d 199, 202-04 (Ind. 2017); Estate of Cullop, 821

      N.E.2d at 408. The Stachowskis never address that standard in their briefs, so

      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018    Page 5 of 6
      they waived any private-right-of-action claim they might have had. See Ind.

      Appellate Rule 46(A)(8)(a) (requiring that the appellant’s arguments be

      supported by “cogent reasoning” and citations to the authorities relied on);

      Merrill v. State, 716 N.E.2d 902, 904 n.2 (Ind. 1999) (finding appellate claim

      waived where appellant “failed to make a cogent argument”).


[8]   Affirmed.


      May, J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion 71A05-1708-CT-1776 | March 14, 2018   Page 6 of 6
