Vega v. EASTERN COURTYARD ASSOCIATES

• Citation: 24 P.3d 219,117 Nev. 436
• Decision Date: 13 June 2001
• Docket Number: No. 34059., No. 33932
• Parties: Wendy VEGA, Appellant, v. EASTERN COURTYARD ASSOCIATES, A Limited Partnership, Respondent. Wendy Vega, Appellant, v. Eastern Courtyard Associates, A Limited Partnership, Respondent.
• Court: Supreme Court of Nevada

24 P.3d 219

117 Nev. 436

Wendy VEGA, Appellant, v. EASTERN COURTYARD ASSOCIATES, A Limited Partnership, Respondent.

Wendy Vega, Appellant, v. Eastern Courtyard Associates, A Limited Partnership, Respondent.

Nos. 33932, 34059.

Supreme Court of Nevada.

June 13, 2001.

Parker Nelson & Arin, Chtd., and Casey D. Gish, Las Vegas, for Appellant.

Pyatt & Silvestri and Phillip V. Tiberi, Las Vegas, for Respondent.

Before the Court En Banc.

OPINION

ROSE, J.

In these consolidated appeals¹ we are asked to determine whether the violation of a validly adopted building code provision constitutes negligence per se. We conclude that the violation of a building code provision adopted by a county ordinance is negligence per se if the plaintiff belongs to the class of persons the building code provision is intended to protect, and the injury the plaintiff suffered is of the type the provision was intended to prevent. Accordingly, because the district court failed to properly instruct the jury regarding the negligence per se doctrine, we reverse the district court's judgment in favor of the respondent, as well as the district court's order awarding attorney fees, and remand this case to the district court for further proceedings consistent with this opinion.

FACTS

On September 10, 1993, appellant Wendy Vega had a scheduled appointment at respondent Eastern Courtyard Associates' medical facility in Las Vegas. While attempting to negotiate a ramp² leading to the main entrance, Vega slipped, fell and was injured. Vega commenced suit, claiming Eastern Courtyard was negligent.

Prior to trial, Vega moved for partial summary judgment on the issue of duty and breach pursuant to the theory that Eastern Courtyard was negligent per se. Vega argued that Eastern Courtyard, as owner of the premises, had violated a provision of the Uniform Building Code ("UBC"), which had been adopted as part of the Building Code of Clark County.³ Vega claimed that the slope of the ramp leading into the entrance of the medical complex exceeded the slope allowed under the UBC, and that such a violation constituted negligence as a matter of law, or negligence per se. The district court, however, found that factual issues remained for trial, and, accordingly, denied Vega's motion for partial summary judgment.

Vega again raised the theory of negligence per se in her trial brief. Vega proposed that the jury be charged with Nevada Jury Instruction 4.12, which reads:

There was in force at the time of the occurrence in question [a law] [laws] which read as follows:

A violation of the law[s] just read to you constitutes negligence as a matter of law. If you find that a party violated a law just read to you, it is your duty to find such violation to be negligence; and you should then consider the issue of whether that negligence was a [proximate] [legal] cause of injury or damage to the plaintiff.⁴

The district court, however, again ruled that Vega's negligence per se theory did not apply to the facts of this case. The district court refused to allow Vega to utilize the negligence per se doctrine because Vega only alleged that Eastern Courtyard violated a building code provision enacted into law by an ordinance, not a statute. Thus, the case proceeded to trial solely on the issue of liability.⁵

At trial, Vega presented expert testimony demonstrating that the slope of the ramp exceeded the slope allowed under the UBC. Notably, Eastern Courtyard presented no evidence of its own regarding the slope of the ramp, nor did Eastern Courtyard challenge the characterization of the slope in question as a "ramp" under the UBC. Instead, Eastern Courtyard argued that even if the ramp violated the UBC, such a violation was not the proximate cause of Vega's injuries. In support of this argument, Eastern Courtyard demonstrated that if the jury accepted Vega's expert's calculations, any violation of the UBC was minimal.

At the close of evidence, the district court instructed the jury that if it found that Eastern Courtyard had, in fact, violated the UBC, the jury could consider such a violation as evidence of Eastern Courtyard's negligence.⁶ The jury subsequently returned a verdict in favor of Eastern Courtyard. Following the favorable verdict, Eastern Courtyard filed a motion for attorney fees pursuant to NRCP 68. Because Vega failed to oppose the motion, the district court granted attorney fees to Eastern Courtyard in the sum of $31,596.25. This appeal followed.

DISCUSSION

Whether a particular statute, administrative regulation or local ordinance is utilized to define the standard of care in a negligence action is clearly a question of law to be determined exclusively by the court.⁷ Accordingly, our review is de novo.⁸

Although we have never ruled on the applicability of an alleged violation of a building code provision in a plaintiff's negligence action, we have consistently held that the violation of a statute constitutes negligence per se if the injured party belongs to the class of persons that the statute was intended to protect, and the injury suffered is of the type the statute was intended to prevent.⁹ In Barnes v. Delta Lines, Inc.,¹⁰ we held that where a plaintiff adduced evidence at trial showing that the defendant violated a statute designed to protect a class of persons to which the plaintiff belonged, the district court erred by failing to instruct the jury regarding the negligence per se doctrine.¹¹ And later, in Del Piero v. Phillips,¹² we applied the same analysis to a municipal ordinance. In that case we determined that a violation of the Reno Municipal Code, along with the defendant's failure to yield to pedestrians as required by the "rules of the road," required that the jury be instructed regarding negligence per se.¹³

In Ashwood v. Clark County,¹⁴ we declined to decide whether a violation of the UBC could be utilized as the basis for a plaintiff's theory that the defendant was negligent per se.¹⁵ But as dictum in Ashwood evidences, we recognized that the UBC was legislative in nature. We also determined, however, that the UBC arguably appeared to be akin to an administrative regulation. We now take this opportunity to refute the dictum contained in Ashwood, and hold that the UBC is not administrative in nature.

Instead, we conclude that an alleged violation of a provision of the UBC may be utilized as part of a plaintiffs negligence per se theory if the plaintiff belongs to the class of persons that the provision was intended to protect, and the injury suffered is of the type the provision was intended to prevent. We see no reason not to apply the reasoning and analysis we employed in Barnes and Del-Piero to an alleged violation of a building code provision. Other jurisdictions that have addressed this issue are in accord with this ruling.¹⁶

Accordingly, we hold that if (1) a violation of a building code provision adopted by local ordinance is established, (2) an injured party fits within the class of persons that a particular provision of a building code was intended to protect, and (3) the injury suffered is of the type the provision was intended to prevent, the alleged violation constitutes negligence per se. We also hold that whether an injured party belongs to the class of persons that the provision at issue was meant to protect, and whether the injury suffered is the type the provision was intended to prevent, are questions of law to be determined by the court.¹⁷ If the district court had utilized Vega's proffered instruction, the jury would have been able to determine whether the ramp at issue fit within the UBC's definition of a ramp, whether Eastern Courtyard had, in fact, violated the UBC provision and whether the alleged violation was the proximate cause of Vega's injuries.¹⁸ Because Vega adduced sufficient evidence at trial supporting her negligence per se theory, it was reversible error for the district court to refuse to instruct the jury accordingly.¹⁹

CONCLUSION

The violation of a building code provision may serve as the basis for an action brought under a negligence per se theory if the plaintiff belongs to the class of persons that the provision was intended to protect, and the injury the plaintiff suffered is of the type the provision was intended to prevent. Therefore, the district court incorrectly instructed the jury concerning Eastern Courtyard's alleged violation of the UBC. Upon remand, the district court should determine if Vega belongs to the class of persons that the provision was intended to protect, and the injury Vega allegedly suffered is of the type the provision was intended to prevent. If the district court so finds, it must instruct the jury regarding the negligence per se doctrine. Accordingly, we reverse the district court's judgment, as well as the district court's order granting attorney fees, and remand this matter to the district court for further proceedings consistent with this opinion.

SHEARING, LEAVITT and BECKER, JJ., concur.

MAUPIN, C.J., with whom YOUNG and AGOSTI, JJ., agree, dissenting.

I would affirm the district court's decision in this instance. In 1969 we decided Price v. Sinnott.²⁰ The appellant in Price argued that an administrative rule promulgated by the Nevada Liquefied Petroleum Gas Board, which had been violated by the respondent, should serve as a basis for the appellant's theory of negligence per se. Holding that the administrative rule in that case did not rise to the level of a state statute, this court held that evidence of the rule's violation could be considered by a jury as evidence of negligence, but not considered as negligence per se.²¹ More recently, we decided Ashwood v. Clark County,²² in which we noted in the margin:

[T]here is some question as to whether the Clark County Building Code is an appropriate basis for application of the negligence per se doctrine. In Price v. Sinnott, we held that "proof of a deviation from an administrative regulation is only

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