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O P I N I O N
The building code Is it enough to just comply with a building code? Courts say compliance is not an absolute defense.
C ourts distinguish between types of negligence.There is ordinary negligence (failure to use reasonable care), gross negligence (conduct that is akin to intentional wrongdoing, and shows a reckless indifference to the rights of others), and “negligence per se” (violation of a law).
William Quatman
In the latter situation, some courts have found that building codes adopted by local ordinance are “laws,” and that, in absence of a legal justification or excuse, the violation of a code is proof of negligence. We don’t need expert witnesses to testify on the “standard of care” in those cases, since the code is proof alone of the standard. As one court put it, “The jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. It merely decides whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law.” A willful violation of a building code requirement can have more serious results, and may warrant the assessment of punitive damages against the defendant. So, if the violation of a building code is negligence, then compliance with a code must mean no negligence, right? Not necessarily. Courts have
stated that compliance with building codes or industry standards is not an absolute defense to a claim of negligence. Compliance may be “evidence” of due care, but compliance with a code does not preclude a finding of negligence where a reasonable person would have taken additional precautions to protect the public from injury, above and beyond the code requirements. “If the violation of a building code is negligence, then compliance with a code must mean no negligence, right? Not necessarily.” In a recent Pennsylvania case, an injured pedestrian sued the owner and operator of a bar after a drunk driver’s mini-van jumped a 5-inch
See WILLIAM QUATMAN, page 12
THE ZWEIG LETTER June 27, 2016, ISSUE 1158
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