concurring. I write to concur because I believe the majority has given an unduly restrictive construction to Ark. Code Ann. § ll-2-117(b) (Repl. 1996). Section 11-2-117(b) reads:
Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall construct, repair, and maintain it so as to render it safe.
Id. (emphasis added). In my judgment, this provision establishes a statutory duty on the part of the Stewards, who own a building used as a workplace, to turn the premises over to PSI in a safe condition. This duty attaches even though the owners are landlords because of the clear reference in the statute to “owner.” Here, the issue of premises safety was submitted to the jury, and the jury found for the Stewards. For that reason, I concur in the result.
The Supreme Court of West Virginia was faced with a similar issue in Pack v. Van Meter, 354 S.E.2d 581 (W.Va. 1986). In that case, Ms. Pack, who was employed by a dress shop that leased space in a building owned by the Van Meters, was injured when she fell down a set of stairs that did not have a handrail, which violated § 21-3-6 of the West Virginia Code. That code provision mandated proper and substantial handrails in all mercantile establishments. Because the statute was silent on whether this duty was owed by the Van Meters, the Supreme Court looked to its safe-workplace statute for guidance:
W.Va.Code, 21-3-1, is the introductory section in the part of our Code relating mainly to the safety and welfare of employees in the workplace and contains this provision with regard to the owner of certain premises: “Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe.” (Emphasis added). This language clearly imposes a duty on both the employer and the owner of a place of employment, place of public assembly, or a public building to maintain such places in a reasonably safe condition.
Id. at 585.
The West Virginia Supreme Court noted that finding a duty on the part of the Van Meters was necessary; otherwise, the “every owner” language of the safe-workplace statute would be rendered meaningless. Id. at 586.
The Pack case is instructive because of the factual similarities to the present case, and also because both the Arkansas and West Virginia legislatures took action in 1937 to include the “every owner” language in their respective safe-workplace statutes. While I agree that statutes in derogation of the common law must be strictly construed, it is settled law that the intent of the General Assembly must be garnered from the plain meaning of the language used. Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995); Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576. (1995); Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Worthen Nat’l Bank v. McCuen, 317 Ark. 195, 876 S.W.2d 567 (1994). Because it is undisputed that the Stewards were landlords and owners of the building leased by PSI, and because they had an opportunity to cure the structural defect prior to surrendering the property, a duty attached under the plain meaning of § 11-2-117(b).
The question then is whether the trial court was within its discretion in awarding McDonald a new trial on the ground that the jury’s finding that the Stewards did not violate their statutory duty was clearly contrary to the preponderance of the evidence. See Ark. R. Civ. P. 59(a)(6); Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996).
In this case, although the stairs did not comply with Rules 21 and 24 of the Arkansas Department of Labor Basic Safety Manual due to the absence of handrails, these violations are only evidence of negligence and not negligence per se, see Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), reh’g denied, 279 Ark. 401-A, 653 S.W.2d 128 (1983). In contrast, it was plain and obvious to PSI that the stairs had no handrail when PSI assumed control of the premises, and there was no request by PSI for the Stewards to provide a handrail for the benefit of PSI’s employees. The jury could have determined that both PSI and the Stewards believed the stairs to be in a safe condition.
I conclude that while a duty exists on the part of the Stewards to turn the premises over to PSI in a safe condition, the question of whether the premises were safe was decided in favor of the Stewards, and the verdict was not clearly contrary to the preponderance of the evidence. Accordingly, I would affirm the jury’s decision.