Cramer v. Van Parys

• Decision Date: 18 September 1972
• Docket Number: No. 1216--I,1216--I
• Citation: 7 Wn.App. 584,500 P.2d 1255
• Parties: Evangeline H. CRAMER, Respondent, v. John VAN PARYS and Jane Doe Van Parys, his wife, individually and the marital community composed thereof, Appellants.
• Court: Washington Court of Appeals

Page 584

7 Wn.App. 584

500 P.2d 1255

Evangeline H. CRAMER, Respondent, v. John VAN PARYS and Jane Doe Van Parys, his wife individually and the marital community composed thereof, Appellants.

No. 1216--I.

Court of Appeals of Washington, Division 1 Panel One.

Sept. 18, 1972.

Petition for Rehearing Denied Nov. 13, 1972.

Horswill, Keller, Rohrback, Waldo & Moren, Pinckney M. Rohrback, Seattle, for appellants.

Minor, Cogdill & Deno, James E. Deno, Everett, for respondent.

CALLOW, Judge.

A landlord appeals from a judgment in favor of his tenant injured when she fell on a snow-covered stairway leading from her rented apartment.

The tenant testified that on the morning of December 16, 1967, she was descending the stairs with two bags in her arms when she slipped, caught her balance, slipped again, fell and was injured. She said also that she grabbed for the handrail during the second slip, but 'it wasn't there anymore.'

Error is assigned to the giving of an instruction setting forth the provisions of the Snohomish County Building Code concerning stairway railings. The jury was further instructed that violation of the ordinance constituted negligence as a matter of law. Error is not assigned to the instruction on negligence per se. Section 3305(g) of the Uniform Building Code provides as follows: (These sections in the Snohomish County and Uniform Building Codes are identical.)

Handrails. Stairways shall have handrails on each side, and every stairway more than eighty-eight inches (88 ) in width shall have intermediate handrails dividing the stairway into portions not more than sixty-six inches (66 ) in width.

Handrails shall be placed not less than thirty inches (30 ) nor more than thirty-four inches (34 ) above the nosing of treads(.)

The stairway in question was constructed in two sections, with the bottom part at a right angle to the top section. The top section of the stairs had a metal handrail on each side. The lower section, which consisted of six steps, had a handrail on each side which terminated on the tread of the second step from the bottom, three inches back from the outward edge of the step. Therefore, no handrail was opposite the bottom step and a half. This is where plaintiff fell.

The landlord contends the code provision is relevant only to the height of handrails and has no application to the length or extent of a handrail. The tenant argues that failure to have a railing opposite each step was a violation of the code.

The applicable rules of statutory construction were collected in In re City of Kent, 1 Wash.App. 737, 739, 463 P.2d 661, 663 (1969):

(2) the words of the statute must be understood in their usual and ordinary sense in the absence of statutory definition (State v. Roadhs, 71 Wash.2d 705, 430 P.2d 586 (1967)); (3) they must be read in context (City of Mercer Island v. Kaltenbach, 60 Wash.2d 105, 371 P.2d 1009 (1962)); (4) they must be construed to make the statute purposeful and meaningful (Davis v. Washington Toll Bridge Authority, 57 Wash.2d 428, 439, 357 P.2d 710 (1960)); (5) they must be construed to give effect to all the language used (Danley v. Cooper, 62 Wash.2d 179, 381 P.2d 747 (1963)); (6) they must be construed to give effect to each word if possible (Chelan County v. Fellers, 65 Wash.2d 943, 400 P.2d 609 (1965)); (7) they must be construed so that each part is given effect with every other part or section (City of Tacoma v. Cavanaugh, 45 Wash.2d 500, 275 P.2d 933 (1954)); and (8) the words should not be read in isolation (Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968)).

Further the ordinance should be construed as a whole so that the spirit and purpose of the legislation prevails. Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wash.2d 319, 382 P.2d 639 (1963). The modern trend has been to give legislation enacted to preserve public safety a liberal interpretation in favor of its objectives. 3 J. Sutherland, Statutory Construction § 7204 (F.Horack 3d ed. 1943).

A further guide to the meaning of the code was offered by the testimony of the Administrator for the Snohomish County Building and Plumbing Department whose duties involved the enforcement of the building code in question. It was his opinion that the handrail did not comply with the code provisions in effect at the time of the accident. There was no abuse of discretion by the trial court in admitting this expert testimony. Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969); Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476 P.2d 713 (1970). Terrace Heights Sewer Dist. v. Young, 3 Wash.App. 206, 208, 473 P.2d 414, 416 (1970), supports the use of the administrator for this purpose, stating:

Further, in the construction of statutes and ordinances, as well as resolutions of municipal corporations, the court should give great weight to the contemporaneous construction of an ordinance or resolution by the official charged with its enforcement. In re Estate of Lloyd, 53 Wash.2d 196, 332 P.2d 44 (1958).

See also Morin v. Johnson, 49 Wash.2d 275, 300 P.2d 569 (1956).

Turning to the ordinance itself, it commences, 'Stairways shall have handrails on each side, . . .' and these handrails are to be located 'above the nosing of the treads(.)' No other code provisions apply to handrails, and it would be contrary to the purpose of the building code to hold that the ordinance only details the height of handrails but does not contemplate full protection of users by requiring the handrail to extend to the bottom of the stairway. With the rules of construction in mind, we hold that the ordinance requires handrails which extend the full length of the stairway, and the code provisions were properly admitted.

The trial court refused to instruct on the doctrine of volenti non fit injuria, and defendant asserts this was error. Quaere: Can volenti non fit injuria or assumption of the risk be a defense to negligence Per se stemming from violation of an ordinance enacted for the public safety? The elements of volenti are discussed in Detrick v. Garretson Packing Co., 73 Wash.2d 804, 440 P.2d 834 (1968); Wood v. Postelthwaite, 6 Wash.App. 885, 496 P.2d 988 (1972).

The plaintiff submitted the case to the jury under theories of negligence per se based on the claimed violation of the stair rail ordinance and common law negligence stemming from the alleged failure of the landlord to remove snow from the stairway. The landlord proposed instructions on volenti which commingled the two theories and could have been interpreted by the jury as requiring the application of the doctrine to negligence per se. Close analysis of the proposed instructions reveals that the theories are so intertwined therein as to be inextricable.

In Kelly v. The Vogue, 21 Wash.2d 785, 153 P.2d 277 (1944), where an employee was injured on the stairway of an employer, assumption of the risk was held to be no defense in the event the jury found the injury was caused by violation of a statutory duty to provide all stairways with 'suitable handrails' and to keep them in 'good and safe repair.'

In the Kelly case, an instruction was approved which informed the jury that a plaintiff assumed no risk in connection with a defendant's violation, if any, of an ordinance.

Other courts have reached similar results in cases involving statutes enacted for the protection of the general public rather than limiting the doctrine to statutes intended to protect employees. W. Prosser, Torts § 68 (4th ed. 1971), remarked that such holdings are based upon the

somewhat ingenious ground that the obligation and the right so created are public ones, which it is not within the power of any private individual to waive. This amounts to saying that the policy of the statutes overrides private agreements and understandings. Such decisions are quite likely to appear in other states in the near future.

Thus in L'Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), an injured tenant claimed her injuries stemmed from the landlord's failure to light a stairway as required by a statute, and the court held that a risk forbidden existence by a statute, yet existing because of a violation of the statute, could not be assumed.

The defendants urge that the principle of assumption of risk in a case such as is here presented should be extended beyond mere structural defects--should be extended to all defects of which the person injured had such knowledge that he may be assumed to have waived the obligation of the person responsible for the defect. Such a waiver constitutes a relinquishment of a personal right. One cannot give what one does not possess. One may waive a personal obligation of another to the one waiving. One cannot waive an obligation owed by another to the public. The obligation of the defendants here in question was a public obligation created by statute, and could not be waived by the plaintiff. Moreover, such a waiver in this case must be deduced from an assumption based upon long knowledge and use of the plaintiff and not from express waiver. In treating of the principle of assumption of risk, as applied to master and servant, we find the following statement of the law: 'In a case of this sort, where the State imposes a duty, and annexes a penalty to the violation of it, a presumption is raised that the employer who violates his duty to the State has not discharged his duty to his workpeople, rather than a presumption that, because a workman continues at work in illegal circumstances, even with knowledge of them, he must be taken to waive their effect upon him; or, to state the matter in another way, criminal negligence on the part of the master is more consistent with a neglect of civil duty to his workman than with the existence of an agreement between master and workman to avoid the obligation of the law. This view is in accordance with the weight of authority. In the earliest case dealing with the fencing...