specially concurring.
I agree that today’s case is distinguishable from Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984), and that negligence per se is not excused by mere ignorance of the law. I write separately to emphasize that negligence per se is not a doctrine of absolute liability. It differs from common law negligence only insofar as it replaces a general duty of reasonable care with a more specific duty of obedience to a legislative command.
As noted in the lead opinion, negligence per se is subject to exceptions where performance is impossible or nonperformance is otherwise justified. Thus, an exception might exist where a defendant has no actual or imputed knowledge of the facts invoking application of a legislative standard. In this case, however, the Thompsons had actual or imputed knowledge of the variations in stair width and the lack of a stair handrail in their home. These facts were discernible, and they invoked application of the Uniform Building Code, as adopted by the municipal ordinance.
The Thompsons may have thought the stairs would not pose an undue risk to anyone. Such an evaluation of the risk might be relevant to an issue of reasonable care, but it would not be relevant to the duty imposed by the doctrine of negligence per se. The duty was legislatively prescribed. A new trial is required to determine what liability, if any, flows from a breach of that duty.