Parker Bldg. Services Co. Inc. v. Lightsey

• Decision Date: 17 June 2005
• Docket Number: No. 1031377.,1031377.
• Citation: 925 So.2d 927
• Parties: PARKER BUILDING SERVICES COMPANY, INC. v. Shiann LIGHTSEY, as mother and next friend of her minor child Kace LIGHTSEY.
• Court: Alabama Supreme Court

Page 927

925 So.2d 927

PARKER BUILDING SERVICES COMPANY, INC. v. Shiann LIGHTSEY, as mother and next friend of her minor child Kace LIGHTSEY.

No. 1031377.

Supreme Court of Alabama.

June 17, 2005.

Rehearing Denied October 14, 2005.

R. Larry Bradford and Shane T. Sears of Bradford Law Firm, P.C., Birmingham; and Warren B. Lightfoot, William H. Brooks, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.

J. Gusty Yearout, William P. Traylor III, and Jason L. Yearout of Yearout & Traylor, P.C., Birmingham, for appellee.

SEE, Justice.

This case was tried before a jury, which returned a verdict in favor of the plaintiff Shiann Lightsey, as mother and next friend of her minor child Kace Lightsey. The trial court entered a judgment on the jury's verdict, and Parker Building Services Company, Inc., the defendant below, moved for a new trial. The trial court denied the motion. Parker Building appeals. We reverse and remand.

I.

On May 1, 2001, Kace Lightsey, a five-year-old boy, went with his older sister and their mother, Shiann Lightsey, to a facility in Homewood, Alabama, used by the Alabama Academy of Fast Pitch Softball. Kace's older sister was attending batting practice at the facility, and Kace was playing on the observation deck. At some point while he was playing, Kace crawled under the guardrail of the observation deck and stepped onto the adjacent ceiling that covered a bathroom. The ceiling caved in, and Kace fell to the bathroom floor, hitting his head. As a result of his head injury, Kace suffered a stroke that led to permanent paralysis on the left side of his body.

In March 1999, Equity Investments, Ltd., the owner of the facility, had hired Parker Building to perform some repairs to the facility — patching drywall, putting in new ceiling tile, filling in a concrete trench, and relocating the stairs. The guardrail on the observation deck was not among the repairs Equity Investments asked Parker Building to perform. However, the guardrail was in the area affected by the work performed by Parker Building. At that time, the facility was vacant, and Alabama Academy was not yet a tenant of the facility.

At the time Parker Building was performing repairs to the facility, the City of Homewood had adopted ordinance no. 1778, which required a permit for repair jobs, and ordinance no. 1790, which adopted the 1991 version of the Standard Building Code. The Building Code specified different standards for buildings depending upon their intended use. To be in compliance with Homewood's ordinance no. 1778 and the Building Code, Parker Building should have obtained a permit for the repair job and contacted an inspector for the City of Homewood to complete an inspection after Parker Building had finished the repairs. Parker Building, however, failed to obtain a permit or to have an inspector inspect the finished work. According to an inspector for the City of Homewood, he would have inspected the affected work area, including the guardrail on the observation deck, and determined if the area complied with the Building Code. An inspector for the City of Homewood testified at trial that the guardrail around the observation deck met the requirements in the Building Code for a building used as a warehouse but failed to meet the requirements for a building used for public assembly; he further testified that, based on the condition of the guardrail, he would have rejected the work if he had known the building would be used for public assembly. Such a rejection would have required Equity Investments or Parker Building to bring the guardrail into compliance with the Building Code for a building used for public assembly.

After Kace's accident, Shiann Lightsey sued Parker Building, Equity Investments, the Alabama Academy of Fast Pitch Softball, and Holly Vance, the owner of the Academy. Equity Investments and the Academy entered into a pro tanto settlement with Lightsey for $6,400,000, and they were dismissed from the case. The record appears to indicate that Vance was dismissed when Equity Investments and Alabama Academy were dismissed.¹ Lightsey proceeded to trial against Parker Building on a negligence claim.²

The first trial resulted in a hung jury. On March 1, 2004, the second trial began. At the second trial, the trial court charged the jury on negligence per se as to Parker Building's violation of the provisions of the Building Code relating to the permit fee, permit application, and guardrails.³ Before and after the trial court's instructions Parker Building objected and requested that the trial court charge the jury on prima facie negligence. The trial court denied Parker Building's request.

The jury returned a verdict for Lightsey and against Parker Building and awarded Lightsey $8,000,000. The jury then credited $6,400,000, that Lightsey had received from settling with Equity Investments and the Academy, and rendered a verdict for Lightsey for the balance of $1,600,000. Parker Building moved for a new trial, arguing that it was error for the trial court to charge the jury on negligence per se. The trial court denied the motion.

Parker Building appeals. We reverse the trial court's judgment and remand for further proceedings.

II.

There is a strong presumption that a trial court's ruling on a motion for a new trial is correct. Alabama Dep't of Transp. v. Land Energy, Ltd., 886 So.2d 787, 792 (Ala.2004). The trial court's ruling on a motion for new trial "`should not be disturbed on appeal unless the record plainly and palpably shows that the trial court erred and that some legal right has been abused.'" 886 So.2d at 792 (quoting McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993)). However, we review a ruling on a question of law de novo. Ex parte Forrester, 914 So.2d 855, 858 (Ala. 2005).

III.

We note that these facts present a case of first impression. This Court has never addressed the issue whether a violation of a standard building code adopted by a city ordinance constitutes negligence per se.

The doctrine of negligence per se or negligence as a matter of law arises from the premise that the legislature may enact a statute that replaces the common-law standard of the reasonably prudent person with an absolute, required standard of care. Thomas Learning Ctr., Inc. v. McGuirk, 766 So.2d 161, 171 (Ala.Civ.App. 1998). When the legislature adopts such a statute, anyone who violates it and causes an injury to a person whom the statute was intended to protect is liable for negligence per se. Id. Proof of a violation of the statute is proof of negligence. Id.

We note, first, that the doctrine of negligence per se is applicable to a violation of an ordinance as well to violation of a statute. See Keeton v. Fayette County, 558 So.2d 844, 887 (Ala.1989)(stating that violation of a statute or an ordinance may be negligence per se); Simpson v. Glenn, 264 Ala. 519, 521, 88 So.2d 326, 327 (1956)(holding that there is no distinction between violation of a statute and violation of a municipal traffic ordinance in applying the doctrine of negligence per se).

However, not every violation of a statute or an ordinance is negligence per se. This Court has stated that four elements are required for violation of a statute to constitute negligence per se: (1) The statute must have been enacted to protect a class of persons, of which the plaintiff is a member; (2) the injury must be of the type contemplated by the statute; (3) the defendant must have violated the statute; and (4) the defendant's statutory violation must have proximately caused the injury. Fox v. Bartholf, 374 So.2d 294, 295 (Ala.1979).

The first element requires that the statute have been enacted to protect a class of persons. This Court has stated that a class of persons is to be distinguished from the general public. Thomas Learning, 766 So.2d at 171. Parker Building argues that negligence per se is inapplicable in this case because, it argues, the Building Code was adopted for the benefit of the general public and not for the benefit of a class of persons. Lightsey argues that the Building Code was adopted for a class of persons, specifically those within the "built environment." We agree with Parker Building that the purpose of this Building Code is to protect the general public and that negligence per se is therefore inapplicable in this case.

The Building Code applicable in this case states:

"101.2.1 General. This Code is hereby declared to be remedial, and shall be construed to secure the beneficial interests and purposes thereof — which are public safety, health, and general welfare — through structural strength, stability, sanitation, adequate light and ventilation, and safety to life and property from fire and other hazards attributed to the built environment including alteration, repair, removal, demolition, use and occupancy of buildings, structures, or premises, and by regulating the installation and maintenance of all electrical, gas, mechanical and plumbing systems, which may be referred to as service systems."

The purpose of the Building Code is to protect the public generally; the Building Code does not delineate a specific class of persons it seeks to protect distinguishable from the public.

In determining the purpose of the Building Code, we give the words used in the Building Code their plain, ordinary, and commonly understood meaning and we interpret the language to mean what it says. See Ex parte Gadsden Reg'l Med. Ctr., 904 So.2d 234, 236 (Ala.2004)(stating that the words in a statute are given their plain, ordinary, and commonly understood meaning, and the statute must be interpreted to mean what it says when plain language is used). Section 101.2.1 of the Building Code states, first, that the Building Code is to be construed as remedial, and second, that it is intended to secure "public safety, health, and general welfare."

The purposes to be served by the Building Code of "public...