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This case arose out of a slip and fall which occurred in a medical facility in Las Vegas. While attempting to walk up a ramp leading to the main entrance, plaintiff slipped, fell and was injured. She brought an action against the owner of the facility, claiming in part that they were negligent because they had violated a provision of the Uniform Building Code (UBC). The UBC had been adopted at the time of her fall as part of the building code of Clark County Nevada. Plaintiff claimed that the slope of the ramp leading into the entrance of the complex exceeded the slope allowed under the UBC. The lower court found that a negligence per se theory did not apply to the facts of the case and refused to allow her to utilize the doctrine because she had alleged only that the defendant violated a building code provision enacted into law by an ordinance, not by a statute. The Court instructed the jury that if it found that the defendant had, in fact, violated the UBC, the jury could consider such a violation as evidence of the defendant’s negligence. In reversing the lower court’s decision, the Nevada Supreme Court noted it had consistently held that violation of a statute constituted negligence per se if the injured party belonged to a class of persons that the statute intended to protect and the injury was of the type that the statute was intended to prevent. The Court also noted that in a previous case it had declined to decide whether a violation of the UBC could be utilized as a basis for a negligent per se theory. (See Ashwood v. Clark County Nevada 113 Nev. 80 (1997)) In Ashwood, the Court had stated, in passing, that the UBC was legislative in nature and was arguably akin to an administrative regulation. The Court concluded that the UBC was to be accorded more deference than a mere administrative regulation. In so concluding, it held that if a violation of a building code provision adopted by local ordinance is established, and if an injured person fits within the class of persons that a particular provision of the code was intended to protect and if the injury suffered was of the type the provision was intended to prevent, the alleged violation would constitute negligence per se. The Court also held that whether an injured party belongs to such a class and whether the injury suffered was the type the provision was intended to prevent are questions of law to be determined by the Court and not the jury. The Court’s decision was not unanimous, with the dissenting justice being joined by two others of the full Nevada Supreme Court seven Justice panel to join his dissent. The dissent argued that a building code violation should not be considered negligence per se because building code provisions are not uniformly applied. The dissent cited examples that many building code provisions are often waived or made subject to variances by local governments. The dissent concluded as follows: “the inherent ability of local governments to waive enforcement or formerly provide variances is an important reason why building code ordinances should not be treated in the same way as we treat the violation of state legislative measures in such matters.” With its expansion of the negligence per se doctrine to include nonstatutory enactments, the battleground appears to be set for creative plaintiff’s counsel to seek like jury instructions in other ordinance related matters, such as in cases involving zoning violations.
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