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An individual who was injured when he fell from bleachers that were not protected by handrails sued the City of New York and others for negligence based on an alleged violation of a city building code.  A trial court found that the violation constituted negligence per se.  This was reversed on appeal, with the appellate court holding that although the code violation constituted evidence of potential negligence it did not automatically require a finding of negligence.

In explaining its reasoning, the court found that although New York City was free to enact building codes, such codes must be recognized as distinct from State statutes for purposes of establishing negligence.  Under New York law, the court stated, “As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability.  By contrast, violation of a municipal ordinance constitutes only evidence of negligence.”   Even when a section of the Administrative Code has the force of statute with respect to its application, this does not determine its tort consequences.  In this particular case, the court found that in the absence of a violation of a duty statutorily imposed by the State, it was unwarranted to reach negligence per se finding.  Kevin Elliott v. City of New York, 95 N.Y. 2d 730; 747 N.W.2d 760 (2001).

Risk Management Note — Just as a violation of a local building code may not constitute negligence per se with automatic liability, proof of compliance with a local building code may not prove that parties were not negligent.  If, for example, a building code requires a minimum spacing of six inches between rails on balcony banisters, an architect might argue that designing within those code requirements proves that it met the standard of care and could not be found negligent. This might be true.  But how a court rules will likely depend upon the facts of the case.  If, for example, the banister was located in a high traffic area where infants or small children might fall through, it is conceivable that an expert witnesses would testify that the architect should have met a higher standard of care than what was established by the local code.  This would be based upon what the expert testified ordinarily would be done by architects on similar projects under similar circumstances at the time this project was designed.  That expert would have to present evidence that other architects designed smaller width rails for such projects.  In defending itself, the architect and its insurance carrier would need to present expert witness testimony showing that the generally accepted standard was to design the width at six inches.  The local building code would then be used as one source of evidence to support that standard of care – but might not necessarily prove the case.

Please note that creating a claim hypothetical is risky business, particularly for a risk management consultant to an insurance company. I disclaim in advance any knowledge of whether this hypothetical resembles any actual or potential claim situations, and deny any intent to render an opinion on any actual or potential claim.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 3, No. 8 (Nov 2001).

Copyright 2001, ConstructionRIsk.com, LLC