In Winger v. CM Holdings, L.L.C., 2015 WL 2393447 (Iowa Ct. App.), the Iowa Court of Appeals addressed the question of whether a violation of a city housing code provision is negligence per se. The Court answered in the negative because the violated standard was not statewide and was not followed “unwaveringly in all instances.”
In Winger, twenty-one year old Shannon Potts died from injuries suffered after falling from the balcony of a Des Moines apartment building. Shannon’s parents brought a claim for loss of consortium against CM Holdings, the owner of the building. The Des Moines Housing Code required the guardrails on the balcony to be at least 42 inches in height. The evidence demonstrated that the guardrails were only 32 inches in height, that CM Holdings had received four separate notices that the balcony railings were in violation of the Des Moines Housing Code, and that the height requirement was a matter of safety.
The district court first determined that CM Holdings was negligent as a matter of law and instructed the jury that, to recover against the defendant, plaintiffs must prove causation and damages. After the jury awarded plaintiffs $1.75 million, the district court concluded that it had improperly taken the issue of CM Holding’s negligence from the jury and granted a new trial. The Iowa Court of Appeals affirmed.
The Court of Appeals noted that the Iowa Supreme Court has limited the doctrine of per se negligence to violations of statute or ordinance which establish the standard of care required under the circumstances. For negligent per se to apply, the rule of conduct violated must establish a specific standard, followed unwaveringly in all instances. Additionally, the rule must have been adopted by a state legislative body or an administrative agency regulating on a statewide basis under the authority of the legislature.
While the guardrail height requirement established a specific standard and violating the requirement was a violation of Iowa Code section 562A.15 (1)(a)(1) (2011) (mandating, “The landlord shall comply with the requirements of applicable building and housing codes materially affecting health and safety.”), it was not a standard that was followed unwaveringly in all instances. Rather, earlier versions of the housing code had mandated lower height requirements and existing buildings were routinely grandfathered in. Additionally, no statewide standard had been violated. Iowa Code section 562A.15 (1)(a)(1) implies that each city can impose its own housing code.
In summary, the violation of the municipal housing code in Winger was evidence of negligence, not conclusive proof of negligence. However, the dissent argued that the majority, in holding that the standard of conduct violated must be statewide, relied on dicta in Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994) and misinterpreted Jorgensen v. Horton, 206 N.W.2d 100 (Iowa 1973). Whether the Iowa Supreme Court would agree with the dissent is yet to be determined. As of the publication date of this article, further review was pending.
Jared was a summer associate at Shuttleworth in 2015 and a student at the University of Iowa College of Law.