Schlobohm v. United Parcel Service, Inc., 64486

• Decision Date: 18 January 1991
• Docket Number: No. 64486,64486
• Citation: 248 Kan. 122,804 P.2d 978
• Parties: Laura SCHLOBOHM, Appellant, v. UNITED PARCEL SERVICE, INC., and Smith Construction Co., Inc., Appellees.
• Court: Kansas Supreme Court

Page 978

804 P.2d 978

248 Kan. 122

Laura SCHLOBOHM, Appellant, v. UNITED PARCEL SERVICE, INC., and Smith Construction Co Inc., Appellees.

No. 64486.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. Violation of a statute or ordinance alone does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes or ordinances enacted to protect the public at large, therefore, do not create a duty to individuals injured as a result of the statutory violation and the doctrine of negligence per se is inapplicable.

2. Under the facts of this case, particular provisions of a city building code were enacted to protect a special class of individuals, of which appellant is a member, and the appellees' violation of the code was admissible evidence of negligence per se.

3. If the district court has conducted a full pretrial hearing on questions of law and ordered that evidence of violation of a city building code is inadmissible to prove negligence per se or standard of care, a party is not prohibited from appealing that issue because it failed to offer evidence at trial or request an instruction on negligence per se or standard of care.

4. Evidence of the nonoccurrence of prior accidents, which tends to establish that a reasonably careful person could negotiate a doorway safely absent negligence, is admissible on the issue of safety and comparative fault.

Thomas A. Krueger, of Krueger Law Offices, Chartered, Emporia, argued the cause and was on the brief, for appellant.

John G. Atherton, of Atherton & Vander Velde, Emporia, argued the cause and was on the brief, for appellee Smith Const. Co., Inc.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and James P. Nordstrom, of the same firm, was with him on the brief, for appellee United Parcel Service, Inc.

HERD, Justice:

This is a personal injury action in which Laura Schlobohm seeks damages for injuries sustained when she fell in the entranceway of the United Parcel Service (UPS) building in Emporia. Schlobohm alleged UPS and Smith Construction Company (Smith), the builder of the entranceway, were negligent, in part, in the construction and maintenance of the entranceway because it had an elevation differential of more than one inch. UPS and Smith asserted comparative negligence by Schlobohm. Following a trial to the jury, a verdict was returned assessing Schlobohm 88% fault, UPS 12% fault, and Smith 0% fault. The Court of Appeals affirmed, 792 P.2d 1077, and we granted Schlobohm's petition for review.

The relevant undisputed facts are: On December 4, 1986, Schlobohm, a business invitee of UPS, arrived at the UPS premises with a package for shipment. A car parked too close to the building prevented Schlobohm from fully opening the door. Therefore, she held the door partially open with her hip, maneuvered to the other side of the door, and stepped into the entranceway. Before Schlobohm could completely enter the building, the door forcibly closed, causing her to fall and catch her right ankle between the door and the 2 7/8 inch rise of the threshold. Schlobohm suffered a fractured and dislocated ankle that required several surgeries.

Prior to trial, Schlobohm proffered the testimony of a city building inspector, the 1976 Uniform Building Code (Code), and the city ordinance adopting the Code to show the threshold of the UPS entranceway violated the city ordinance and Code. The elevation differential between the outside landing and the top of the threshold was 2 7/8 inches. The Code prohibited a differential of more than one inch. 1976 Building Code § 3303(h). The district court ruled the Code was not admissible to prove negligence or the standard of care. The district court additionally ruled that evidence of other entranceways in the community was admissible and that evidence on the lack of prior accidents in the entranceway was admissible on the issues of notice and relative safety of the entranceway. Schlobohm appeals the district court's pretrial determination of legal issues regarding the admission of evidence.

Schlobohm first contends the district court erred in prohibiting admission of the Code as evidence of negligence per se or as a standard of care. For support, Schlobohm relies upon Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971).

In Noland, the plaintiff brought suit for personal injuries incurred when she fell down the stairs of defendant's department store. It was an undisputed fact that the defendant violated the city code by failing to equip the stairway with handrails. The Noland court ruled that breach of a duty imposed by law or ordinance constituted negligence per se. Testimony provided at trial established that handrails were designed for the protection of persons using a stairway and that the plaintiff had nothing to hang onto when she lost her balance. Thus, the court held it was error not to submit the issues of negligence per se and proximate cause to the jury. 207 Kan. at 73-77, 483 P.2d 1029.

The Court of Appeals rejected Schlobohm's reliance on Noland for two reasons. First, the court concluded Schlobohm was not a member of the class to be protected under the Code. Second, the Court of Appeals reasoned this court has not followed the Noland holding.

An examination of our case law subsequent to the Noland ruling reveals numerous cases in which we have repeated the general rule that violation of a statute or ordinance constitutes negligence per se and liability attaches where the violation is the proximate cause of damages. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 843, 610 P.2d 1107 (1980); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978); Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 7, 535 P.2d 865 (1975).

In Arredondo, an action to recover damages for personal injuries, the plaintiff premised liability upon the violation of a criminal statute. The plaintiff argued contributory negligence was not a defense because it would destroy the legislative intent to make sale of gunpowder to a minor a crime. 227 Kan. at 843, 610 P.2d 1107. We concluded the primary purpose of the criminal statute at issue, K.S.A. 21-4209, was to protect the general public, with incidental consideration given to the protection of minors. 227 Kan. at 849, 610 P.2d 1107. Violation of the statute, therefore, did not constitute negligence per se and the comparative negligence statute was utilized in determining damages. 227 Kan. at 850, 610 P.2d 1107. We find Arredondo is distinguishable from Noland.

More recently, in Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 803, 740 P.2d 606 (1987), the plaintiff sought to recover damages for wrongful termination based upon violation, inter alia, of cash basis and budget laws. The sole issue presented questioned when a personal right of action arises as a result of a breach of statutory duty. We stated the test to determine whether an individual injured by violation of statute could recover damages depended on whether the legislature intended to give such a right. We directed that legislative intent could primarily be determined by the form or language of the statute, but consideration could also be given to the nature of the evil sought to be remedied and the purpose the statute was intended to accomplish. Finally, we stated that a statute which did not purport to establish civil liability but merely made provision to secure the safety and welfare of the public did not establish civil liability. 241 Kan. at 804, 740 P.2d 606.

In Greenlee, we examined the cash basis and budget statutes at issue and determined they were not intended to provide job security but were intended to protect the public from financial overspending. 241 Kan. at 807, 740 P.2d 606. Thus, statutes clearly for the benefit of the public at large did not provide the plaintiff with an individual right of action based upon breach of a statutory duty.

Review of our holdings in Arredondo and Greenlee shows that this court has limited the general rule espoused in Noland. Violation of a statute or ordinance alone does not establish negligence per se. In addition, Arredondo and Greenlee require the plaintiff to establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes or ordinances enacted to protect the public at large, therefore, do not create a duty to individuals injured as a result of the statutory violation and the doctrine of negligence per se is inapplicable. Restatement (Second) of Torts §§ 288 comments a and d, 288B comments a and d (1964).

The issue presented to this court, therefore, is whether that provision of the Code, adopted by ordinance, which limits the elevation differential between the floor and threshold of a doorway to one inch was intended to protect the public at large or was intended to provide protection for a special class of which Schlobohm was a member.

Section 102 of the Code sets forth the purpose of the Code:

"The purpose of this Code is to provide minimum standards to safeguard life or limb, health, property, and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures within the city and certain equipment specifically regulated herein."

Section 3303(h) provides:

"Change in Floor Level at Doors. Regardless of...