Violation of Municipal Code Is Evidence of Negligence, Not Negligence Per Se

Posted on: June 23rd, 2015

Negligence per se is the violation of an absolute standard of care, which must be ordained by a state legislative body or an administrative agency regulating on a statewide basis under authority of the legislature that is to be followed unwavering in all instances.  In a case warranting such an instruction, the jury is told that the defendant’s violation of that code section is negligence.

The plaintiffs, parents of Sharon Potts, a 21-year-old that fell off a balcony at her apartment and later died from injuries sustained in the fall, sued the owner of the apartment complex for wrongful death in Winger & Potts v. CM Holdings, LLC, No. 14-0199 (Iowa Ct. of Appeals May 20, 2015). The railing that Sharon fell over was only 32 inches high. The Des Moines Municipal Code section 60-127 requires guardrails to be at least 42 inches high. The issue on appeal was whether the defendant’s violation of section 60-127 constituted negligence per se.

The court here noted on appeal that each city is allowed to impose its own building and housing code with differing requirements on balcony heights. Therefore, the city-specific municipal code provisions do not regulate on a statewide basis. Further, Des Moines adopts new building codes and amends previous sections all the time without requiring owners of existing properties to bring their buildings “up to code” every time the municipal code changes. Therefore, the court reasoned, the Des Moines municipal building code is not an ordinance the violation of which would constitute negligence per se because the required height is not a standard that is to be followed unwaveringly in all instances. The court concluded in stating, although the defendant’s violation of section 60-127 is not negligence per se, it is evidence of negligence and the jury should have been instructed accordingly.

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