## Facts

- Vicky Fishman and three companions were riding horses on a residential/public road in Weld County, Colorado, near Nickolas and Judith Kotts’s property.
- 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; her horse then reared and fell backward onto her, causing injuries.
- Fishman sued the Kottses for common-law negligence and negligence per se, relying on a county ordinance making it unlawful to allow a dog to run at large without the owner’s accompaniment.
- The trial court allowed Fishman to present the ordinance to the jury and argue its violation, but refused to instruct that a violation constituted negligence per se.
- The jury returned a verdict for the Kottses.

## Issues

1. Whether the trial court erred by refusing to give a negligence-per-se instruction based on a county “dog at large” ordinance.
2. Whether the trial court abused its discretion in instructing the jury to consider the ordinance only as part of the overall negligence analysis rather than as conclusive proof of breach.

## Decision

- The Colorado Court of Appeals affirmed the judgment on the defense verdict.
- The court held the trial court did not err in refusing a negligence-per-se instruction based on the ordinance.
- The court concluded the instructions, viewed as a whole, permitted the jury to consider the ordinance in evaluating negligence.

## Legal Principles

- Negligence per se applies only when a statute or ordinance is intended to protect the class of persons involved from the type of injury suffered and clearly defines the duty/standard of care.
- A broadly worded animal-control ordinance may be regulatory or penal and may not supply a sufficiently specific civil standard of care to make its violation negligence per se.
- Even when negligence per se is unavailable, an ordinance may be admissible and argued as evidence bearing on the standard of care and breach.
- Trial courts have substantial discretion over jury instructions; reversal is not warranted if the instructions fairly state the law and permit the parties to present their theories.

## Conclusion

The court upheld a defense verdict where loose dogs allegedly caused a horse to throw its rider, ruling that a general “dog at large” ordinance did not require a negligence-per-se instruction, though the jury could consider the ordinance as evidence when deciding ordinary negligence.


Fishman v. Kotts, 179 P.3d 232 (Colo. App. 2007)