Kathryn Winger and Timothy Potts, plaintiffs-appellants/cross-appellees v. Cm Holdings, L.L.C., defendant-appellee/cross-appellant. ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0199
Filed May 20, 2015
KATHRYN WINGER and
TIMOTHY POTTS,
Plaintiffs-Appellants/Cross-Appellees,
vs.
CM HOLDINGS, L.L.C.,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
The plaintiffs appeal from the district court’s grant of a new trial in this
negligence action. The defendant cross-appeals from the court’s denial of its
motion for directed verdict. AFFIRMED ON BOTH APPEALS.
Robert G. Rehkemper and Cory F. Gourley of Gourley, Rehkemper, &
Lindholm, P.L.C., West Des Moines, for appellants.
Brenda K. Wallrichs of Lederer Weston Craig PLC, Cedar Rapids, and
Michael Carmoney and Jack W. Leverenz of Carmoney Law Firm, Des Moines,
for appellee.
Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DANILSON, C.J.
This appeal and cross-appeal involve the tragic death of the plaintiffs’
twenty-one-year-old daughter after a fall from a balcony. The jury was instructed
as a matter of law that the defendant was negligent for failing to have balcony
guardrails at least forty-two inches in height. The jury awarded damages to the
plaintiffs, and subsequently, the district court granted a new trial concluding it had
erroneously instructed the jury. In dispute is whether a violation of Des Moines
Municipal Housing Code, Neighborhood Inspection Rental Code section 60-127,
which requires guardrails “not less than 42 inches in height,” is negligence
per se. We conclude the answer is “no,” but may be evidence of negligence.
Accordingly, we agree with the district court’s grant of a new trial. We also reject
the defendant’s contention it was entitled to a directed verdict and affirm the trial
court’s grant of a new trial.
I. Background Facts and Proceedings.
The plaintiffs, Kathryn Winger and Timothy Potts, are the parents of
Shannon Potts, who on July 23, 2011, at the age of twenty-one, fell off a balcony
of the Grand Stratford Apartments in Des Moines, Iowa, owned by the defendant,
CM Holdings, L.L.C. Shannon died from injuries suffered in the fall. The railing
on the balcony from which Shannon fell was thirty-two inches in height. The
plaintiffs sued CM Holdings for loss of consortium, claiming it was negligent in a
number of respects, including failing to comply with the guardrail height
requirements of the housing code, allowing a dangerous condition to exist on its
premises, and failing to maintain the property in a safe condition.
3
Prior to trial, CM Holdings filed a summary judgment motion, asserting it
had received an extension of time from the Des Moines Housing Appeals Board
to bring the guardrails into compliance and thus was legally excused from any
negligence associated with having only thirty-two-inch guardrails. The plaintiffs
filed a motion for partial summary judgment, asking the trial court to determine
CM Holdings was negligent per se in failing to bring the balcony railings into
compliance with the housing code. CM Holdings resisted, asserting the plaintiffs’
motion was untimely and that violation of a municipal housing code was not a
basis for negligence per se. Following a hearing, the trial court denied the
plaintiffs’ summary judgment motion as untimely. It also denied CM Holding’s
summary judgment motion, ruling the housing board’s extension of time to bring
the guardrails into compliance did not constitute a waiver to comply with the
housing code, and thus was not a legal excuse.
A jury trial was held beginning on November 4, 2013. On November 6,
CM Holdings submitted proposed jury instructions concerning housing code
provisions.1 At the close of the evidence, CM Holdings moved for a directed
verdict on two grounds: first, that the guardrails were “grandfathered” into the
housing code existing at the time the apartment complex was built and, therefore,
CM Holdings was not negligent for having thirty-two-inch guardrails; and second,
that if the guardrails were not code compliant, CM Holdings’ violation of the
1
Specifically, one instruction referred to section 60-5 (“Any structure that was in
compliance on the day previous to the adoption of this code will be allowed to remain.”),
stating that “if you find [the section] applied” to the building at issue, “you must find that
defendant was not in violation of the Des Moines Housing Code Section 60-127, and
was not negligent as alleged.” Another proposed instruction provided that if the jury
found CM Holdings had a valid of extension of time from the housing board, “you must
find that defendant was not negligent.”
4
housing code was legally excused. For their part, the plaintiffs moved for a
directed verdict on the issue of liability, asserting CM Holdings was negligent per
se for failing to have forty-two-inch guardrails. On November 8, 2013, the trial
court issued a written “Ruling on Legal Issue of Violation of Municipal Housing
Code,” concluding:
The Court also finds that since the Defendant did not file an appeal
with the [housing appeals board] HAB, the Notice of Inspection
finding that the lattice did create a change that required the
guardrail to [be] updated to be in compliance with the new code
height of 42 inches[] cannot now be collaterally attacked by the
Defendant in this lawsuit. As noted above, Defendant never
followed the appeal process, never filed an appeal from the city’s
determination, and never challenged that it was obligated to install
42 inch guardrails on the balconies.
Finally, since Iowa Code § 562A.15(1)(a) [(2011)] requires
an owner to “comply with the requirements of applicable building
and housing codes materially affecting health and safety,” and the
evidence establishes the railing requirement was a matter of safety,
such violation constitutes negligence per se. See Wiersgalla v.
Garrett, 486 N.W.2d 290, 292-93 (Iowa 1992).
Thereafter, the jury was instructed,2 in part:
Instruction No. 15
You are instructed that the Court has determined as a matter
of law that pursuant to the Des Moines Municipal Housing Code the
Defendant was required before July 23, 2011, to install guardrails
that were at least 42 inches in height on the balcony of Apartment
No. 9 at 531 - 35th Street Des Moines, Iowa.
Defendant’s violation of law is negligence as to Instruction
No. 16.
Instruction No. 16
The Plaintiffs claim that the Defendant was at fault. Fault
was explained to you in Instruction No. 10. The Court has
determined as a matter of law the Defendant was negligent in
Instruction No. 15 and at fault.
2
After the trial court’s November 8 ruling of negligence per se, CM Holdings did not
request its proposed instructions (noted in footnote 1) be given, though it did object to
the ruling and ask that the court reconsider.
5
In order to recover against the Defendant, the Plaintiffs must
prove propositions 1 and 2.
1. The Defendant’s fault was a cause of Decedent’s death
and damage to the Plaintiffs.
2. The amount of damages.
If the Plaintiffs have failed to prove either numbered
proposition 1 or 2, they are not entitled to recover damages. If the
Plaintiffs have proved numbered propositions 1 and 2, you will
consider the defense of comparative fault as explained in
Instruction No. 17.
The jury returned special interrogatories finding CM Holdings sixty-five percent at
fault and Shannon Potts thirty-five percent at fault and finding each of the
plaintiffs had each sustained $875,000 in damages.
CM Holdings filed a motion for new trial, or in the alternative a remittitur,
asserting the court’s finding of negligence per se was erroneous and the
damages awarded were excessive. It also filed a motion notwithstanding the
verdict (JNOV) on the same grounds as its motion for directed verdict. The court
denied the defendant’s JNOV motion and granted a new trial, concluding it had
improperly taken the issue of CM Holding’s negligence from the jury. The
plaintiffs appeal, and the defendant cross-appeals.
II. Scope and Standards of Review.
The scope of our review of a district court’s ruling on a motion for new trial
depends on the grounds raised in the motion. Clinton Physical Therapy Servs.,
P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). If a
motion for new trial is based on a discretionary ground, we review the ruling for
abuse of discretion. Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 480
(Iowa 2004). If the ruling granting a new trial was prompted by a motion on a
6
legal question, our review is for errors of law. Iowa R. Civ. P. 1.1004(8); Olson v.
Sumpter, 728 N.W.2d 844, 848 (Iowa 2007).
On cross-appeal, CM Holdings argues the district court committed legal
error in not granting its motion for JNOV.
Our standard of review on motions JNOV was recently summarized by our
supreme court:
We review a district court’s ruling denying a motion for
judgment notwithstanding the verdict for correction of errors at law.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846
(Iowa 2010). On review, we “determine whether sufficient evidence
existed to justify submitting the case to the jury at the conclusion of
the trial.” Lee v. State, 815 N.W.2d 731, 736 (Iowa 2012). To
justify submitting the case to the jury, substantial evidence must
support each element of the plaintiff's claim. Van Sickle Constr.
Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687
(Iowa 2010). “Evidence is substantial when reasonable minds
would accept the evidence as adequate to reach the same
findings.” Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 790
(Iowa 2009). We view “the evidence in the light most favorable to
the nonmoving party.” Id.Garr v. City of Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014).
III. Discussion.
A. Appeal—Plaintiffs’ challenge to the grant of a new trial. Winger and
Potts maintain the “only time the trial court was wrong was when it thought it was
wrong but was actually right.” They contend a violation of a municipal ordinance
is negligence per se; the violation of the housing code was also a violation of
Iowa Code section 562A.15 (2011), which is also negligence per se; and the
7
statutory provision violated3 is sufficiently specific so that a violation of it
constituted negligence per se.
Iowa has long recognized the principle of negligence per se. See Kisling
v. Thierman, 243 N.W. 552, 554 (Iowa 1932). The principle exists because we
recognize some behavior involves an unreasonable danger to others. See
Rinkleff v. Knox, 375 N.W.2d 262, 265 (Iowa 1985) (“[T]he real basis of
negligence in the primary sense is not carelessness but behavior which should
be recognized as involving an unreasonable danger to others.”). In Jorgensen v.
Horton, 206 N.W.2d 100, 102 (Iowa 1973), the court observed, “We have
heretofore limited the doctrine of negligence per se to violations of statute or
ordinance which establish the standard of care required under the
circumstances.” Most recently, our supreme court has opined:
[R]ules of conduct that establish absolute standards of care, the
violation of which is negligence per se, must be ordained by a state
legislative body or an administrative agency regulating on a
statewide basis under authority of the legislature. That is the
position espoused in Restatement (Second) of Torts § 286 (1965)
and followed by this court in Jorgensen, 206 N.W.2d at 102.
Griglione v. Martin, 525 N.W.2d 810, 812 (Iowa 1994) (emphasis added). The
plaintiffs argue the emphasized statement in Griglione—that a standard must be
statewide to constitute negligence per se—is dicta and in conflict with prior
cases, as well as the Restatement (Second) and (Third) of Torts, and it should
not have been relied upon by the trial court to grant a new trial. 4 However, “[w]e
3
The plaintiffs cite section 562A.15(1)(a)(1), which provides: “The landlord shall . . .
[c]omply with the requirements of applicable building and housing codes materially
affecting health and safety.”
4
We note that one authority reports, “Most states apply negligence per se to the
violation of city ordinances. . . . But a few states regard violation of a city ordinance as
8
are not at liberty to overturn Iowa Supreme Court precedent.” State v. Hastings,
466 N.W.2d 697, 700 (Iowa Ct. App. 1990); see State v. Miller, N.W.2d 841
N.W.2d 583, 584 n.1 (Iowa 2014); State Eichler, 83 N.W.2d 576, 578 (Iowa 1957)
(“If our previous holdings are to be overruled, we should ordinarily prefer to do it
ourselves.”).5
In any event, the parties’ very arguments demonstrate the housing code’s
guardrail height requirement is not an ordinance the violation of which would
constitute negligence per se because the required height is not a standard that is
to be followed “unwaveringly in all instances.” See Griglione, 525 N.W.2d at 812(“[O]ur prior cases direct that, in order for the violation of rules of conduct to
constitute negligence per se, those rules must establish specific standards that
are to be followed unwaveringly in all instances.” (citing Jorgensen v. Horton, 206
N.W.2d 100, 102 (Iowa 1973), and Restatement (Second) of Torts § 285 cmt. b
(1965)).
Here, we may have a specific standard for balcony railings in the city of
Des Moines but there is no statewide standard. As Iowa Code section
562A.15(1)(a)(1) implies, each city can impose its own building and housing
code. Further, it is difficult to say it is to be followed unwaveringly in all
instances. The plaintiffs rely upon the guardrail height restriction contained in the
only evidence of negligence. E.g., Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994).”
Restatement (Third) Torts: Physical & Emotional Harm § 14, Reporter’s Note cmt. a
(Westlaw database updated March 2015); see also Barbara Kritchevsky, Tort Law is
State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se
Litigation, 60 Am. Univ. L. Rev. 71 (Oct. 2010) (noting the Griglione case requires a state
legislative body to create state law for negligence-per-se purposes).
5
While the parties argue over whether a city ordinance can ever be considered a
standard that the violation thereof constitutes negligence per se, that is not the issue we
are to decide.
9
housing code in 2011. CM Holdings argues a different, lower guardrail height
was set forth in an earlier municipal code. The city inspector testified the building
at issue complied with the city code in effect at the time it was built in 1968. He
also acknowledged owners of existing property are not required to bring their
building “up to code” every time the municipal code is changed and buildings are
“routinely grandfathered in.”6
The requisite specific, unwavering standards have been found in OSHA
requirements. See Koll v. Manatt’s Transp. Co., 253 N.W.2d 265, 270 (Iowa
1977); but see Wiersgalla v. Garrett, 486 N.W.2d 290, 292-93 (Iowa 1992)
(acknowledging that Koll had held that “violation by an employer of an OSHA or
IOSHA standard is neligence per se as to [the employer’s] employee,” 253
N.W.2d at 270, but concluding the trial court had erred in instructing the jury that
a violation of an OSHA standard by a co-worker constituted negligence per se).
In Montgomery v. Engle, 179 N.W.2d 478, 483-84 (Iowa 1970),7 however,
our supreme court held that a violation of a Sioux City municipal housing code
requiring handrails at “every exit from every dwelling” was not negligence per se,
but was evidence of negligence.8 We conclude the same is true of the guardrail
6
However, the evidence provided that CM Holdings had received four separate notices
that the balcony railings were in violation of the Des Moines Housing Code.
7
We acknowledge the Montgomery case was decided before the passage and
implementation of the Iowa Code chapter 562A, the Uniform Residential Landlord and
Tenant Law. Thus, the Montgomery case would not be a precedential deterrent if the
supreme court chose to rely upon Iowa Code section 562A.15(1)(a)(1), and of course,
our supreme court could choose to join the majority recognizing negligence per se for
ordinance violations. Nonetheless, we feel bound to the principles espoused in
Griglione.
8
In Struve v. Payvandi, 740 N.W.2d 436, 442-43 (Iowa Ct. App. 2007), this court
addressed the question of whether the trial court erred in refusing to submit the plaintiff’s
negligence-per-se theory to the jury. There, the plaintiff suffered brain damage as a
result of carbon monoxide poisoning. See Struve, 740 N.W.2d at 438. The plaintiff sued
10
ordinance here. We agree with the trial court that it was error to apply
negligence per se here, and affirm the grant of a new trial.
B. Cross-Appeal—CM Holdings’s challenge to denial of JNOV. On cross-
appeal, CM Holdings argues the district court erred in denying it judgment
notwithstanding the verdict because (1) the thirty-two inch guardrails were code
compliant because they were “grandfathered in” and (2) if the guardrails were not
code compliant, CM Holdings’ violation of the housing code was legally excused.
“The legal excuse doctrine allows a person to avoid the consequences of a
particular act or type of conduct by showing justification for acts that otherwise
would be considered negligent.” Rowling v. Sims, 732 N.W.2d 882, 885 (Iowa
2007). We have already determined that a violation of the guardrail ordinance
does not establish conclusive proof of negligence, i.e., negligence per se. We
believe the corollary is also true—that compliance with an ordinance that may or
may not be grandfathered does not constitute conclusive proof of
reasonableness. There is also a dispute regarding if the railings were
grandfathered in and whether they had lost that status due to some modification
of the railings by the attachment of plastic latticework by plastic zip ties. Finally,
her landlord, asserting theories of common law negligence, negligence per se under
Iowa Code section 562A.15(1)(d) (2005), and a violation of the implied warranty of
habitability. Id. The trial court concluded section 562A.15(1)(d) was a general standard
and did not give the jury enough information to determine whether the defendant was
negligent per se. Id. Following an unfavorable verdict, the plaintiff appealed. We
determined the plaintiff was entitled to a new trial because the trial court had not
instructed the jury on her theory of liability under the implied warranty of habitability. Id.
at 442. But we found no error in the trial court’s rejection of negligence per se. See id.
at 443 (noting section 562A.15(1)(d) does not define what constitutes a good and safe
working condition in a furnace, nor does it define adequate maintenance for a furnace
but “merely indicates that the landlord shall maintain heating appliances in a safe and
working order”). In a footnote, this court noted the landlord had complied with a Cedar
Rapids municipal code requirement that furnaces were to be inspected every seven
years.
11
CM Holdings contends if they were in violation of the housing code, they were
legally excused because of the extension afforded them by the city to rectify the
problem, but it would seem CM Holdings could have withheld renting the units or
locked access to the balconies until the work was completed. Yet, because we
are remanding for a new trial, we leave these issues to the district court to rule on
in the first instance.
AFFIRMED ON BOTH APPEALS.
Vaitheswaran, J., concurs specially; Doyle, J., dissents.
12
VAITHESWARAN, J. (concurring specially)
I specially concur. I agree CM Holdings’s violation of the Des Moines
housing code’s balcony-guardrail height requirement was evidence of negligence
rather than negligence per se, but I write separately because I reach the
conclusion for somewhat different reasons than the district court or majority.
First, I am not convinced this court’s opinion in Struve v. Payvandi, 740
N.W.2d 436 (Iowa Ct. App. 2007), is controlling, as CM Holdings argues. In
Struve, a tenant sued a landlord for a furnace malfunction, alleging “theories of
common law negligence, negligence per se under Iowa Code section
562A.15(1)(d) (2005)[9], and a violation of the implied warranty of habitability.”
Struve, 740 N.W.2d at 438. Struve argued “the trial court erred when it refused
to submit her negligence per se theory to the jury.” Id. at 442. This court
acknowledged a statutory violation could constitute negligence per se, but stated
“the statute must have enough specificity to establish a standard of conduct.” Id.
at 442-43. We said section 562A.15(1)(d) lacked the requisite specificity. It
simply required the landlord to “[m]aintain” heating appliances “in good and safe
working order” without defining “what constitutes a good and safe working
condition in a furnace” or define “adequate maintenance for a furnace.” Id. at
443. Because the statute was devoid of “a specific standard of conduct from
which a fact finder could find a violation,” we concluded “the trial court did not err
when it refused to submit Struve’s negligence-per-se theory to the jury.” Id. We
had no reason to decide whether Iowa Code section 562A.15(1)(a) 10 was
9
This provision is now numbered Iowa Code section 562A.15(1)(a)(4) (2015).
10
This provision is now numbered Iowa Code section 562A.15(1)(a)(1) (2015).
13
sufficiently specific to establish a standard of conduct and whether breach of the
standard constituted negligence per se. Accordingly, I believe Struve is
inapposite.
Second, I believe Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994),
permits a conclusion that a violation of a municipal housing code is negligence
per se. In Griglione, the court first said, “[I]n order for the violation of rules of
conduct to constitute negligence per se, those rules must establish specific
standards that are to be followed unwaveringly in all instances. Whether this is
the case is to be determined in light of the purpose of the particular rule.”
Griglione, 525 N.W.2d at 812 (citations omitted). The court concluded certain
written police procedures cited by the plaintiff failed to delineate the “type of
precise standard required to invoke the negligence per se doctrine.” Id. Second,
the court stated,
[R]ules of conduct that establish absolute standards of care, the
violation of which is negligence per se, must be ordained by a state
legislative body or an administrative agency regulating on a
statewide basis under authority of the legislature. That is the
position espoused in Restatement (Second) of Torts § 286 (1965)
and followed by this court in Jorgensen, 206 N.W.2d at 102.
Id.I agree Griglione mandates a statewide standard before violation of the
standard will be deemed negligence per se. I disagree such a standard is absent
here.
Winger and Potts rely on more than the Des Moines housing code. They
cite Iowa Code section 562A.15(1)(a) (2011) of the Iowa Uniform Residential
Landlord and Tenant Act, which requires landlords to comply with applicable
14
housing codes materially affecting health and safety. This is a statewide
standard incorporating by reference municipal housing codes. The housing code
provision—as prescribed by Griglione—is absolute and specific: balcony
guardrails are to be no less than forty-two inches high. Cf. Struve, 740 N.W.2d at442 n.3 (noting Cedar Rapids municipal code contained general requirement to
maintain heating equipment “in good and safe working condition”).
I recognize the forty-two inch height requirement is not itself a legislative
enactment of statewide application. This fact, CM argues, should preclude
section 562A.15(1)(a) from being “construed as a basis for imposing negligence
per se” because, then, section 562A.15(1)(a) “would serve as the basis for
hundreds of different standards of care for landlords across the state.” The
argument finds some support in Griglione, where the court stated, “There should
not be differing standards of care based on the varying policies of the particular
municipal corporation.” Griglione, 525 N.W.2d at 812. But this language is easily
distinguished because Griglione dealt with written “procedures” rather than an
ordinance. See also Jorgensen v. Horton, 206 N.W.2d 100, 103 (Iowa 1973)
(declining to find breach of private safety code to be negligence per se because
the code did not have “the force of law”). Unlike those procedures, ordinances
have the force and effect of law. See Hedges v. Conder, 166 N.W.2d 844, 851
(Iowa 1969) (“The prevailing view is that an ordinance of the character referred to
here is not to be distinguished from a statute.”); Boardman v. Davis, 3 N.W.2d
608, 611 (Iowa 1942) (“It is uniformly held that ordinances have the same force
and effect within the corporate limits as do laws passed by the legislature.”).
15
Accordingly, I believe the quoted language of Griglione is not an impediment to a
negligence per se conclusion.11
While, in my view, Griglione allows for a conclusion that a violation of a
specific standard in a municipal housing code amounts to negligence per se, I
believe Montgomery v. Engel, 179 N.W.2d 478 (Iowa 1970), dictates a contrary
result. There, a tenant fell on the apartment stairs. He sued the landlord for
injuries, alleging in part that the landlord “failed to equip said stairway with at
least one handrail in violation of” the Sioux City “minimum housing code.” Engel,
179 N.W.2d at 481. The court squarely addressed the question “whether the
alleged ordinance violation constitutes negligence per se or merely prima facie
evidence of negligence.” Id. at 483. Acknowledging “prior cases have not been
consistent in answering this question,” the court said the inconsistencies could be
explained by the court’s focus on “the purpose and intent of the statute or
ordinance involved.” The court endorsed “the wisdom of this approach.” Id. at
483-84. Having found the ordinance evinced an intent to cover this type of
situation, the court summarily held “evidence of violation of the ordinance here
involved is prima facie evidence of negligence.” Id. at 484.
As the majority points out, Engel was decided before the enactment of the
Iowa Uniform Residential Landlord and Tenant Act. But it addresses the precise
11
In my view, the larger hurdle faced by Winger and Potts in arguing that a breach of the
Des Moines housing code was a breach of Iowa Code section 562A.15(1)(a) and
amounted to negligence per se is the fact their daughter was a guest of a tenant rather
than a tenant herself. The Iowa Supreme Court has declined to answer the question
whether the Iowa Uniform Residential Landlord and Tenant Act imposes statutory duties
on landlords for the benefit of visitors. See Crawford v. Yotty, 828 N.W.2d 295, 304
(Iowa 2013) (“[W]e need not decide whether section 562A.15(1)(a)–(d) of the IURLTA
imposes statutory duties that are applicable to visitors of tenants.”). We also do not
need to consider the question because it was neither raised nor addressed in the district
court.
16
issue we face—whether a landlord’s violation of a specific municipal housing
code requirement should constitute negligence per se or evidence of negligence.
In my view, the court’s holding that the violation is simply evidence of negligence
rather than negligence per se is controlling. Accordingly, I concur in the majority
opinion affirming the grant of a new trial.
17
DOYLE, J. (dissenting)
I respectfully dissent. I believe the violation of the Des Moines Municipal
Housing Code’s balcony-guardrail minimum-height requirement was negligence
per se, not merely evidence of negligence. For the reasons stated in the special
concurrence, I too am not convinced that Struve v. Payvandi, 740 N.W.2d 436(Iowa Ct. App. 2007), is controlling. Although I also agree with the special
concurrence that Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994), does not
foreclose the possibility of a conclusion that a violation of a municipal housing
code is negligence per se, I do not agree that Griglione mandates a statewide
standard before violation of the standard can be deemed negligence per se.
Additionally, I part ways with the majority and special concurrence in that I do not
believe Montgomery v. Engle, 179 N.W.2d 478 (Iowa 1970), is controlling in this
case.
The Griglione court stated:
[R]ules of conduct that establish absolute standards of care, the
violation of which is negligence per se, must be ordained by a state
legislative body or an administrative agency regulating on a
statewide basis under authority of the legislature. That is the
position espoused in Restatement (Second) of Torts § 286 (1965)
and followed by this court in [Jorgensen v. Horton, 206 N.W.2d 100,
102 (Iowa 1973)].
525 N.W.2d at 812. That is a misstatement and is not the position espoused by
that Restatement or Jorgensen. See Jorgensen, 206 N.W.2d at 102;
Restatement (Second) of Torts § 286.
The Restatement defines “legislative enactment” as including “both
statues and ordinances.” Restatement (Second) of Torts § 286 cmt. a (1965)
(emphasis added). Furthermore,
18
Whether the legislative body of a municipality or other subdivision
of a state has power to define a standard of conduct obligatory
between citizens as to tort liability, is a question of public law . . . .
In so far as there is such power, a municipal ordinance has the
same force and effect as a statute enacted by the legislature of a
State, or by the Congress.
Id. at § 285 cmt. b. Despite what Griglione says, the Restatement does not
require that rules establishing absolute standards of care “be ordained by a state
legislative body or an administrative agency regulating on a statewide basis
under authority of the legislature” before a violation of the rule can be found to be
negligence per se. See id.
Nor does Jorgensen stand for such a proposition. See Jorgensen, 206
N.W.2d at 102. Jorgensen cites Restatement of Torts (Second) section 288B(1)
(1965) as a “succinct statement of the rule” that the “unexcused violation of a
legislative enactment or an administrative regulation which is adopted by the
court as defining the standard of conduct of a reasonable man, is negligence in
itself.” Id. Again, “legislative enactment” includes ordinances. See Restatement
(Second) of Torts § 286 cmt. a (1965). Like the Restatement, Jorgensen does
not require an ordinance to have statewide effect before a violation of it can be
found to be negligence per se. See Jorgensen, 206 N.W.2d at 102. I can only
conclude the “statewide standard” language of Griglione is unsupported dicta and
is therefore not controlling upon us.
The higher hurdle plaintiffs face is the Montgomery case. 179 N.W.2d at
478-84. In resolving the question of whether an ordinance violation constitutes
negligence per se or just evidence of negligence, the Montgomery court
acknowledged “our prior cases have not been consistent in answering this
19
question. Each case has been decided in light of the purpose and intent of the
statute or ordinance involved.” Id. at 483. In applying “the wisdom of this
approach,” and with no analysis and discussion as to the purpose and intent of
the ordinance in question, the court held that violation of a city housing code
requiring handrails in stairways was prima facie evidence of negligence, not
negligence per se. See id. at 483-84. The case at hand is distinguishable from
Montgomery.
Here the ordinance has enough specificity to establish a standard of
conduct. See Griglione, 525 N.W.2d at 812. In fact, it is very precise—a
guardrail must be not less than [forty-two inches]” in height. The purpose and
intent of the ordinance is crystal clear. Its purpose is to protect persons from
falling from heights. Its intent is to prevent injury and death. Dr. Hinrich, the
plaintiffs’ expert, testified the forty-two-inch requirement in the Des Moines
housing code “originated from the International Building Code, the standard that
has been adopted by most municipalities in the United States.” He further
testified:
The International Building Code is based on—that they
arrived at the [forty-two]-inch minimum height based on where the
average person’s center of gravity falls when standing. And I’m
sure that there was originally research done in order to arrive at
that height of [forty-two] inches.
But essentially if you have a [forty-two]-inch high guardrail,
for the vast majority of people, except for the tallest individuals, that
[forty-two] inches will be above the height, the standing height, of
one’s center of gravity.
And if you have something that’s above the center of gravity,
you’re less likely to fall over it than if something is below the center
of gravity. There’s something very important about that point that
we call the center of gravity and how high it is relative to the top of
the guard rail.
20
Dr. Hinrich opined that a forty-two-inch high guardrail would have saved Shannon
from falling and that she would be alive today but for the fact the rail was thirty-
two inches instead of forty-two inches. This was precisely the kind of tragic
incident the ordinance was designed to prevent. Viewed in light of the purpose
and intent of the ordinance, I would conclude violation of the ordinance
constitutes negligence per se. Accordingly, I would reverse the district court’s
grant of a new trial, and I would reinstate the jury’s verdict.
As long as I have the podium, I address a frequently noted appellate
practice issue. I observe that witnesses’ names were not placed at the top of
each page where transcript testimony appears in the parties’ appendix. See
Iowa R. App. P. 6.905(7)(c) (“The name of each witness whose testimony is
included in the appendix shall be inserted on the top of each appendix page
where the witness’s testimony appears.” (emphasis added)). By this note, I do
not single out these parties or their attorneys, for I have made similar
observations in countless appeals. My comment is directed to the appellate bar.
While the noted infraction may seem trivial, the violated rule is not just some
rigmarole designed to create more work for the appellate lawyer. Having the
name at the top of each page makes it much easier for the court to navigate an
appendix. Compliance with the rule saves precious time, reduces frustration,
and assists this court in meeting its mandate to achieve maximum productivity in
deciding a high volume of cases. See Iowa Ct. R. 21.11.