# Negligence, City Code Weighed in Balcony Fall



## mark handler (Jun 4, 2015)

Negligence, City Code Weighed in Balcony Fall

By LACEY LOUWAGIE

http://www.courthousenews.com/2015/05/21/negligence-city-code-weighed-in-balcony-fall.htm

DES MOINES, IA - An Iowa Court of Appeals panel on Wednesday affirmed a lower court's decision to grant a new trial in a case involving a woman's fall from an apartment balcony, even though the three judges reviewing the case did not see eye to eye.

     The underlying suit involves a negligence claim against CM Holdings, the owner of the Grand Stratford Apartments in the Des Moines area, where 21-year-old Shannon Potts died after falling from a second-story balcony.

     Potts' parents claim CM Holdings was at fault because the balcony railing was only 32 inches high, a full 10 inches shorter than city code requires.

     At issue in the appeal was a jury instruction in the 2013 trial, which established the apartment owner's noncompliance with city code as negligence per se and tasked the jury with determining whether such negligence was the direct cause of Potts' death.

     The jury found the apartment owners 65 percent at fault and awarded Potts' parents $1.75 million in damages.

     CM Holdings asked for a new trial, arguing that the court incorrectly ruled that the failure to address the railing height constituted negligence per se, especially since the city had given CM Holdings an extension to bring the balcony rail up to code.

     The district court granted the request, agreeing that the jury instruction had "improperly taken the issue of CM Holding's negligence from the jury."

     In his majority opinion, Chief Judge David Danilson explained that Iowa has long held a statute of negligence per se because it "recognizes some behavior involves an unreasonable danger to others."

     But Danilson clarified that the apartment's out-of-code balcony railing may not qualify as negligence per se because "there is no statewide standard" governing railing height.

     "Each city can impose its own building and housing code," Danilson wrote. "The plaintiffs rely upon the guardrail height restriction contained in the housing code in 2011. CM Holdings argues a different, lower guardrail height was set forth in an earlier municipal code.

     "The city inspector testified the building at issue complied with the city code in effect at the time it was built in 1968. He also acknowledged owners of existing property are not required to bring their building 'up to code' every time the municipal code is changed and buildings are 'routinely grandfathered in.'"

     Judge Richard Doyle disagreed, holding that the violation rose to the level of negligence per se.

     "The ordinance has enough specificity to establish a standard of conduct," he wrote in his four-page dissent. "The purpose and intent of the ordinance is crystal clear. Its purpose is to protect persons from falling from heights. Its intent is to prevent injury and death."

     Doyle cited expert testimony that Potts would not have fallen if the guard rail was the standard 42 inches. This is the height required by the International Building Code, which most U.S. cities have adopted.

     "This was precisely the kind of tragic incident the ordinance was designed to prevent," Doyle wrote. "Viewed in light of the purpose and intent of the ordinance, I would conclude violation of the ordinance constitutes negligence per se. Accordingly, I would reverse the district court's grant of a new trial, and I would reinstate the jury's verdict."

     Meanwhile, Danilson cautioned that the new trial did not automatically excuse the apartment owners from being held liable for negligence per se.

     "We have already determined that a violation of the guardrail ordinance does not establish conclusive proof of negligence, i.e., negligence per se," he wrote. "We believe the corollary is also true-that compliance with an ordinance that may or may not be grandfathered does not constitute conclusive proof of reasonableness."

     The third member of the panel, Judge Anuradha Vaitheswaran, wrote a five-page special concurrence outlining her reasons for agreeing with the majority opinion.

     Robert Rehkemper, attorney for plaintiffs at Gourley, Rehkemper & Lindholm, plans to petition Iowa's Supreme Court for further review.

     "We think that the Court of Appeals really did a good job highlighting the conflict in Iowa law right now as it stands," he told Courthouse News. "The three very smart judges on the panel all had different opinions on how the law should be applied. So I think we have a good shot at a Supreme Court review."

     Attorneys for CM Holdings did not respond to a request for comment.


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