July 25, 2009
By: David K. Jaffe
Negligence Per Se in Premises Liability Case
In premises defect cases involving sidewalks, steps and stairways or other parking lot defects, the plaintiff is faced with the challenge of proving that the alleged defect constitutes an unreasonably unsafe condition. Without some form of objective analysis, either in the form of expert testimony or a written code or guideline, jurors are left with little guidance for their determination of whether the condition is unreasonably unsafe. Many expert witnesses, such as mechanical and structural engineers, are reluctant to define a condition as unsafe absent some violation of a local code, such as a building code, fire code, life safety code, housing code or other applicable code. Establishing a code violation in support of a negligence claim will significantly buttress a defective premises case. A plaintiff will face many obstacles, however, in attempting to introduce a code violation.
BOCA - State Building Code
The building code is published by an organization identified as Building Officials and Code Administrators, Inc. ("BOCA"). In 1971, the State of Connecticut adopted the 1970 BOCA Building Code, with some limited amendments. See Conn. Gen. Stat. § 29-252 et seq. Since 1971, there have been newer editions published by BOCA, all of which were adopted by Connecticut, but not always immediately. For example, the 1996 revision of BOCA was not adopted by Connecticut until May 1, 1999.
The state building code and local building codes contain a number of requirements for inside stairways, outside stairways, walkways, parking lots and other public areas which can be helpful in establishing a defective premises case. However, the state building code and local building codes are not retroactive. Thus, once a building is built, the building owner generally does not have an obligation to comply with subsequent revisions to the building code, absent a significant renovation or change in use.
For a negligence case, the relevant building code is that which was in effect at the time that the building was built. With modern structures, this is not an obstacle as the more modern codes are comprehensive. With older buildings, however, finding the applicable local building code can prove to be challenging. Moreover, the older codes were much less detailed and contained fewer provisions than the current building code and thus tend to be less helpful in establishing a defective premises case.
Some codes are retroactive. For example, most fire codes and life safety codes are retroactive, which means that the building owner does have a continuing obligation to comply with fire codes and life safety codes. These codes, however, pose different challenges in that the codes typically apply only to specific, limited situations that may not have applicability to a typical defective premises case. In order to succeed on a claim of negligence per se ( i.e., statutory negligence), based on the violation of a code or statute, it is necessary to establish that the code or statute is directly applicable to the particular case. More specifically, the duty created by the code or statute must be owing to the person injured and not to someone else in order for a violation to constitute actionable negligence.
Statutory negligence is only actionable if two conditions are met: (1) the plaintiff must be a member of the class protected by a statute or code; and (2) the injury must be of the type that the statute was intended to prevent. Whether a particular person is entitled to claim the protection of a statute is a question of law that a court will decide.
Connecticut courts have consistently declined to recognize claims based on statutory negligence where the terms of the statute did not expressly indicate intent to either protect the plaintiff, or to protect against the injury claimed. In Packtor v. Seppala & AHO Constr. Co., 33 Conn. App. 422 (1994), the plaintiff sustained injuries in a fall while climbing a second floor stairway, described as a "ships ladder," in a Stop & Shop grocery store. The plaintiff alleged a violation of Conn. Gen. Stat. §§ 29-389 & 29-391 which required two remote means of egress by stairways or fire escapes for each building. The plaintiff claimed that the defendant's failure to provide a suitable interior stairway as required by the Code was a violation of the statute, and therefore negligence per se. At the time of the plaintiff's fall, there was no fire or other emergency. The Court held that the provisions in the fire code applied to create safe conditions in the event of fire and in the absence of such an emergency, the statute had no applicability to the case.
Codes are Evidence of Standard of Care
In Considine v. City of Waterbury, 279 Conn. 830 (2006), the defendant city operated a municipal golf course. It rented a clubhouse located on the property to an entity operating a restaurant but retained responsibility for maintaining the common areas of the clubhouse that permitted public access to the clubhouse and to the restaurant. The city re-invested the restaurant's rent money into maintaining the golf course. The plaintiff was injured while waiting in the common area leading to the restaurant. While waiting for a friend, the plaintiff lost his balance and fell through a glass window panel, sustaining injuries. The Considine court held that the building code was admissible as evidence of the standard of care, even when the building pre-dated the code, and the code was therefore inapplicable to the building.
In Wendland v. Ridgefield Constr. Services, Inc., 184 Conn. 173 (1981), the Connecticut Supreme Court held that a violation of OSHA did not entitle the plaintiff to a negligence per se charge. However, the Court did rule that the OSHA regulation was admissible as evidence of the standard of care. Similarly, in New London Fed. Sav. Bank v. Tucciarone, 48 Conn. App. 89 (1998), the Connecticut Appellate Court ruled that building codes and fire codes were not evidence of negligence, but were evidence of the standard of care.
State and local codes are entitled to judicial notice, by statute. The statute mandates judicial notice of various laws (Connecticut private or special acts, state agency regulations, municipal ordinances and regulations). Judicial notice may be taken by the court on its own initiative or at the request of a party. A fact is to be judicially noticed if it is not reasonably subject to dispute because the fact is either known or capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned. The effect of judicial notice is that a proposition is accepted as true without the necessity of a corresponding offer of proof by a party, who ordinarily would have proved it.
 See Mroczek v. Kret, 81 Conn. App. 128 (2004) (Court affirmed exclusion of expert's testimony where testimony was not based on objective standard).
 See, e.g., Wright v. Brown, 167 Conn. 464, 468 (1975); Hassett v. Palmer, 126 Conn. 468, 472 (1940).
 See Wright v. Brown, 167 Conn. 464, 468-69 (1975); Gore v. People's Sav. Bank, 35 Conn. App. 126,130-31 (1991); W. Keeton, Prosser on Torts, § 36 at 220-229 (5 th Ed. 1984).
 See Hassett v. Palmer, 126 Conn. 468, 473 (1940).
 See also Gore v. People's Sav. Bank, 35 Conn. App. 126, 133 n8 (1991) (negligence declaring as nuisances "dilapidated or filthy" buildings did not constitute negligence per se in context of lead paint poisoning of minor); Cadrain v. Kent Condominiums, Inc., 24 Conn. App. 554 (1991) (statute regarding condominium bylaws did not create statutory duty of care with respect to snowplowing); Wright v. Brown, 167 Conn. 464, 469 (1975) (plaintiff bitten by dog was within class protected by dog quarantine statute, but injuries were not the type the statute intended to protect); Coughlin v. Peters, 153 Conn. 99 (1965) (ordinance regulating parked cars was not intended for the benefit of minor hit by moving car); Hassett v. Palmer, 126 Conn. 468 (1940) (violation of public utility regulation did not constitute negligence per se, where defendant's could not have reasonably anticipated injury); Gonchar v. Kelson, 114 Conn. 262, 264-67 (1932) (motor vehicle registration statute not intended to protect plaintiff in motor vehicle accident).
 See Conn. Gen. Stat. § 52-163.