Summary 2006 WY 155

Summary of Decision issued December 15, 2006

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Case Name: Frost v. Allred

Citation: 2006 WY 155

Docket Number: 06-24

Appeal from the District Court of Fremont County, the Honorable, Judge Norman E. Young.

Representing Appellant (Plaintiff): John C. Schumacher of Law Office of John Schumacher, of Riverton, Wyoming, and Mark J. White of White & White, P.C., Riverton, Wyoming. Argument by Mr. Schumacher.

Representing Appellee (Defendant): Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming

Date of Decision: December 15, 2006

Issues: Whether the district court erred in instructing the jury that violation of a building code could be considered as evidence of negligence, rather than that such a violation was negligence per se. Whether the district court erred in permitting the jury to determine which of two versions of the Uniform Building Code applied in this case.

Holdings: There are four elements to a negligence cause of action: (1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the defendant’s breach of the duty of care proximately caused injury to the plaintiff; and (4) the injury sustained by the plaintiff is compensable by money damages.

The duty of care is a question of law to be determined by the court. It is a standard-fixing function which the judiciary must perform in order to give the jury a direction to decide whether a defendant’s conduct in a particular case is justifiable or should be condemned and that if the conduct is found to be at variance with the standard, money is to be taken from the defendant to repair the plaintiff’s damage. Neither the term “negligence per se” nor the term “evidence of negligence” correctly describes the alternatives available to a trial court that has been asked to instruct a jury as to the legal effect of the breach of a statute, ordinance, or administrative agency rule in a negligence action. Saying that the judge’s choice is between “negligence per se” and “evidence of negligence” is linguistically misleading mainly because the former phrase suggests that it captures all four elements of the tort. It does not. What a judge is really being asked to do in such situations is to decide whether to declare the legislative or administrative enactment to be the minimum standard of care as a matter of law. In other words, if the enactment establishes the standard of care, its breach establishes the first two elements of the cause of action. If, however, the trial judge declines to equate the enactment with the duty of reasonable care, then breach of the enactment only becomes evidence that reasonable care was not exercised.

So, what are the means by which a court determines a standard of conduct? The effect of the violation of a statute, ordinance, or administrative regulation should be decided under the Restatement (Second) of Torts §§ 286, 287, 288, 288A, 288B, and 288C. In Wyoming, under the Restatement approach, (1) the trial court’s decision whether to adopt an enactment as the standard of care is discretionary; and (2) application of negligence per se is not always appropriate, especially when the facts represent a conglomeration of circumstances.

In the case at hand, it was not an abuse of discretion by the district court to use the Restatement approach to determine not to adopt the Uniform Building Code (UBC) as the standard of care, and to instruct the jury, instead, that violation of a building code could be evidence of negligence, rather than being negligence per se. Not only was there a dispute as to which UBC version was in effect, there was also evidence that, even if the latter version was in effect, the front landing provision would not have been well known to the public, and may or may not have been enforced against existing structures. This is exactly the type of “conglomeration of facts” that constitutes a sound basis for allowing the trial judge to exercise his discretion in the matter.

While the question of the existence of a duty generally is a question of law for the court, there are instances where that question is dependent upon a determination of certain basic facts, in which case the question of the existence of a duty is a question of fact to be determined by the jury. In the instant case, several issues of fact required the jury, rather than the court, to determine whether the 1979 version or the 1997 version of the UBC, or neither of them, applied under the circumstances. First, the home was built while the former code was in effect. Second, city officials disagreed as to which code might have applied at the time of the injury. And third, even if the latter code was in effect, evidence indicated that it applied to existing structures only if those structures had violations that were “dangerous to life,” which is a question of fact. The district court did not err in having the jury determine these factual issues.

The district court did not err in instructing the jury that evidence of a violation of the uniform building code could be considered as evidence of negligence, and it did not err in allowing the jury to decide issues of fact in determining whether Appellees owed a duty to Appellant.

Affirmed.

C. J. Voigt delivered the opinion for the court.

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