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NEGLIGENCE PER SE - STATUTORY NEGLIGENCE - ADMINISTRATIVE CODE - MUNICIPAL ORDINANCE - FORCE OF STATUTE - NEW YORK CITY BUILDING CODE


ISSUE & DISPOSITION

Issue(s)

Whether violations of sections of the Administrative Code that impose a specific duty, and thus have the "force of statute" in the City of New York, are negligence per se.

Disposition

No. Even if a section of the Administrative Code has the "force of statute," violations are evidence of negligence, not negligence per se, because having the "force of statute" means that a municipal ordinance is a controlling authority, and this has no bearing on the ordinance's tort consequences.

SUMMARY

Plaintiff was injured falling from the fifth row of a set of bleachers adjacent to a softball field at John F. Kennedy High School, a public school in the Bronx. Plaintiff brought a negligence suit against the City of New York and the New York City Board of Education, claiming a violation of § 27-531(a)(8)(d) of the New York City Building Code. This provision states that protective guards shall be provided at the open ends of bleachers from the front third row to the highest row of seats. The trial court granted Plaintiff's motion for a directed verdict on liability, holding that Defendants' violation of the Building Code constituted negligence per se. The court submitted the issues of causation and damages to the jury, which found Defendant liable for PlaintiffÁs injuries, and awarded damages. The Appellate Division modified the judgment and directed a new trial on the issue of damages, barring Plaintiff's agreement to reduced damages. The Plaintiff agreed to a reduction. The Appellate Division affirmed the remainder of the trial court's judgment.

Defendants appealed the finding of negligence per se, contending that § 27-531(a)(8)(d) of the Administrative Code is a municipal ordinance, thus violations of the section constitute only evidence of negligence. The Court of Appeals agreed, reversed the Appellate Division's verdict, and ordered a new trial.

The Court of Appeals first analyzed the legislative history of the Administrative Code and § 27-531(a)(8)(d). The New York City Council first enacted Section 27-531(a)(8)(d) in 1968. However, the 1980Ás brought recodification to the Administrative Code, including the protective guardrail provision.

State statutes and municipal ordinances establish negligence differently. Violation of a state statute that imposes a specific duty constitutes negligence per se, while violation of a similar municipal ordinance constitutes only evidence of negligence. The legislature included a provision in the recodified Code stating that the recodification was not to be equated with the enactment of a statute. Therefore, city ordinances incorporated into the Administrative Code are still treated as ordinances. To treat them otherwise, the Court contended, would lead to fragmentation and uncertainty in the application of New York State common law.

Plaintiff cited a line of Court of Appeals cases that held sections of the Administrative Code that impose a specific duty have the "force of statute." Therefore, Plaintiff argued, violations of § 27-531(a)(8)(d) are negligence per se. But the designation "force of statute" only means an ordinance is the controlling authority "'within its sphere of operation,'" and has no bearing on the ordinance's tort consequences. Thus, the trial court erred in finding Defendants' violations of § 27-531(a)(8)(d) constituted negligence per se.


Prepared by the liibulletin-ny Editorial Board.