Heath v. La Mariana Apartments

• Decision Date: 12 March 2008
• Docket Number: No. 30,129.,30,129.
• Citation: 2008 NMSC 017,180 P.3d 664
• Parties: Melanie HEATH, individually and as next friend of Holdyn H., a minor, Plaintiff-Petitioner, v. LA MARIANA APARTMENTS and Gerald Deabel, Defendants-Respondents.
• Court: New Mexico Supreme Court

180 P.3d 664

2008 NMSC 017

Melanie HEATH, individually and as next friend of Holdyn H., a minor, Plaintiff-Petitioner, v. LA MARIANA APARTMENTS and Gerald Deabel, Defendants-Respondents.

No. 30,129.

Supreme Court of New Mexico.

March 12, 2008.

Martin, Lutz, Roggow, Hosford & Eubanks, P.C., William L. Lutz, David Price Lutz, Stephen E. Hosford, Las Cruces, NM, for Petitioner.

Cervantes Moberly Law Firm, K. Joseph Cervantes, Las Cruces, NM, L. Helen Bennett, P.C., Linda Helen Bennett, Albuquerque, NM, for Respondents.

OPINION

BOSSON, Justice.

{1} In this appeal, we direct our attention to the Uniform Building Code ("UBC" or "the Code") as a potential source of a jury instruction on negligence per se. We examine the circumstances under which the UBC imposes an obligation to retrofit conditions in older apartment buildings that complied with the UBC edition in effect at the time of construction, but which no longer comply with newer editions of that code. Particularly, we examine whether any such obligation in this case with regard to guardrail spacing is sufficiently specific to depart from the common law standard of ordinary care and justify a jury instruction on negligence per se. We agree with the Court of Appeals that the UBC falls short of specificity in this particular instance, and no such instruction was warranted. See Heath v. La Mariana Apartments, 2007-NMCA-003, ¶ 14, 141 N.M. 131, 151 P.3d 903. We affirm, specifically adopting the prior analysis of the Court of Appeals in Abeita v. Northern Rio Arriba Electric Cooperative, 1997-NMCA-097, 124 N.M. 97, 946 P.2d 1108, with regard to negligence per se.

BACKGROUND

{2} On July 28, 2001, Plaintiff Melanie Heath was standing with her three-year-old son, Holdyn, on the second-story balcony in front of the entrance to her apartment at La Mariana Apartments (the Apartments), owned by Gerald Deabel (Defendant) in the City of Las Cruces. Plaintiff went inside to answer the telephone and Holdyn fell through an eight and three-quarters inch space between a wooden roof support column and the first vertical post of the balcony guardrail, landing head first on the pavement below. As a result of his fall, Holdyn suffered a fractured skull and allegedly developed post-traumatic epilepsy.

{3} Plaintiff filed a negligence lawsuit against Defendant on behalf of herself and as next friend of Holdyn. At trial, the district court directed a verdict against Plaintiff on her claim for negligence per se, finding that the UBC did not contain a standard specific enough to support a jury instruction on negligence per se. On the remaining issue of common law negligence, the jury found that Defendant was not negligent. Plaintiff appealed the district court's rejection of her negligence per se instruction, but the Court of Appeals affirmed.

{4} The Apartments were constructed in 1982 and were purchased by Defendant in 1994. At the time the Apartments were built, their design and construction was governed by the 1979 edition of the UBC, as adopted by ordinance. The 1979 UBC specified that the maximum spacing between guardrail posts on balconies was nine inches. The guardrail posts in front of Plaintiff's second-floor apartment measured just under nine inches, and thus were in compliance with the edition of the UBC in effect at the time the Apartments were built.

{5} Subsequent editions of the UBC adopted by the City reduced the maximum spacing between guardrail posts from nine inches to six inches, and then from six inches to four inches. These revisions were made in response to safety concerns; specifically, children were falling through or getting stuck between the guardrail posts. The version of the UBC in effect when Holdyn fell specified a four-inch spacing. However, a question remains as to whether the UBC requires owners like Defendant to update or retrofit their property, in this case by reducing the guardrail spacing to no more than four inches.

{6} We granted Plaintiff's petition for a writ of certiorari to review that question and determine whether the UBC provisions relied upon by Plaintiff support an instruction on negligence per se. This issue is a matter of law that we review de novo. See Acosta v. City of Santa Fe, 2000-NMCA-092, ¶ 16, 129 N.M. 632, 11 P.3d 596 (interpreting ordinance to determine if legal duty exists is a question of law).

DISCUSSION

{7} We apply a four-part test to determine whether a negligence per se instruction is appropriate in a given case.

(1) [T]here must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant must violate the statute, (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.

Archibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). Only the first factor is at issue in this case.

{8} We agree with the Court of Appeals that the first factor — whether the statute defines a standard of conduct — is properly evaluated under the analysis set forth in Abeita, 1997-NMCA-097, 124 N.M. 97, 946 P.2d 1108. See Heath, 2007-NMCA-003, ¶¶ 8-9, 141 N.M. 131, 151 P.3d 903. In that case, our Court of Appeals found "substantial authority for the proposition that a negligence-per-se instruction is appropriate only if the statute or regulation defines the duty with specificity." Abeita, 1997-NMCA-097, ¶ 21, 124 N.M. 97, 946 P.2d 1108. Thus, when a statute imposes a specific requirement, there is an absolute duty to comply with that requirement, and "`no inquiry is to be made whether the defendant acted as a reasonably prudent man, or was in the exercise of ordinary care.'" Id. (quoting Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274, 278 (1935)).

{9} However, "`where duties are undefined, or defined only in abstract or general terms,'" leaving it to the jury to evaluate the factual circumstances of the particular case to determine whether the defendant acted reasonably, then a negligence per se instruction is not warranted. Id. (quoting Swoboda, 196 N.E. at 278); see also Watkins v. Hartsock, 245 Kan. 756, 783 P.2d 1293, 1297 (1989) ("The distinction between `negligence' and `negligence per se' is the means and method of ascertainment, in that the former must be found by a factfinder from the evidence, while the latter results from violation of the specific requirement of law or ordinance; and the only fact for the determination of the factfinder is the commission or omission of the specific act inhibited or required." (Quoted authority omitted.)) The task for any court, then, is one of statutory construction to determine whether the statutory or regulatory provisions at issue define with specificity what is "reasonable" in a particular circumstance, such that the jury does not have to undertake that inquiry. See Abeita, 1997-NMCA-097, ¶¶ 23-25, 124 N.M. 97, 946 P.2d 1108 (noting that regulations requiring electric lines to be maintained so as to reduce hazards to life "as far as practicable" and provide "adequate clearance" were indistinguishable from a standard of reasonable care, and thus would not justify a negligence per se instruction unless other provisions in the same regulations supplied further specificity).

{10} Plaintiff contends that various provisions of the 1997 UBC, when read together, establish a sufficiently specific standard to support an instruction on negligence per se in this instance. The four-inch guardrail spacing requirement in Section 509 is, by itself, specific enough if this were new construction. The question, however, is whether the UBC is sufficiently specific with regard to any obligation to retrofit.

{11} Plaintiff points to two other provisions of the UBC that she claims are relevant to retrofitting. One of these provisions is contained in Section 102, which falls under the chapter entitled "Administration," and states that:

All buildings or structures regulated by this code that are structurally unsafe or not provided with adequate egress, or that constitute a fire hazard, or are otherwise dangerous to human life are, for the purpose of this section, unsafe.

. . . .

All such unsafe buildings, structures or appendages are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal. . . .

(Emphasis added.) The other provision to which Plaintiff directs our attention is Section 3401, which is contained in the chapter labeled "Existing Structures." This provision states that "[b]uildings in existence at the time of the adoption of this code may have their existing use or occupancy continued, if such use or occupancy was legal at the time of the adoption of this code, provided such continued use is not dangerous to life." (Emphasis added.)

{12} We also take note of Section 3402, which is a type of "grandfather clause," providing that "[a]ll devices or safeguards required by [the] code shall be maintained in conformance with the code edition under which installed." Thus, as a kind of general rule, Section 3402 does not require property owners to retrofit the devices or safeguards on their property when new versions of the UBC are adopted, but instead allows them to maintain such safeguards as is, so long as they conform to the code edition under which they were installed. For the convenience of the reader, we will refer to Section 509 as the "Guardrail Spacing provision," Section 102 as the "General Safety provision," Section 3401 as the "Use of Existing Structures provision," and Section 3402 as the "Grandfather provision" throughout the rest of this Opinion.

{13} Plaintiff reads these provisions to mean that any condition that is "dangerous to life" must be abated by bringing that part of the building up to code. She reasons that the UBC creates a duty on the part of property owners to re-inspect...