Fishman v. Kotts

179 P.3d 232 (2007)

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Fishman v. Kotts

Colorado Court of Appeals
179 P.3d 232 (2007)

Facts

Vicky Fishman (plaintiff) and three companions were riding horses along a public road. When Fishman approached the property of Nickolas and Judith Kotts (defendants), the Kottses’ dogs ran into the road and began nipping at Fishman’s horse’s legs. Fishman leaned over and told the dogs to go home, at which time her horse reared up and fell backwards onto Fishman. Fishman suffered injuries as a result. Fishman filed suit against the Kottses, alleging common-law negligence and negligence per se. Fishman’s negligence per se argument hinged on a county ordinance that made it unlawful for an owner of a dog to allow the dog to run at-large without the accompaniment of said owner. At trial, the court permitted Fishman to refer to the ordinance and argue that its violation constituted negligence per se. However, the trial court did not instruct the jury that the Kottses’ failure to comply with the ordinance was negligence per se. The jury returned a verdict for the Kottses. Fishman appealed, arguing that the trial court erred in not instructing the jury that the Kottses’ violation of the ordinance was negligence per se.

Rule of Law

Issue

Holding and Reasoning (Terry, J.)

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