with whom Young and Agosti, JJ., agree, dissenting:
I would affirm the district court’s decision in this instance. In 1969 we decided Price v. Sinnott.1 The appellant in Price argued that an administrative rule promulgated by the Nevada Liquefied Petroleum Gas Board, which had been violated by the respondent, should serve as a basis for the appellant’s theory of negligence per se. Holding that the administrative rule in that case did not rise to the level of a state statute, this court held that evidence of the rule’s violation could be considered by a jury as evidence of negligence, but not considered as negligence per se.2
More recently, we decided Ashwood v. Clark County ,3 in which we noted in the margin:
[Tjhere is some question as to whether the Clark County Building Code is an appropriate basis for application of the negligence per se doctrine. In Price v. Sinnott, we held that “proof of a deviation from an administrative regulation is only evidence of negligence; not negligence per se.” . . . We reasoned that, “[tjhis point of view best serves all interests since it accords appropriate dignity to administrative rules and concomitantly affords some leeway for those instances where the rule in issue may be arbitrary and its violation not necessarily unreasonable.”
Although the Clark County Building Code is promulgated as a legislative ordinance, it appears, at least arguably, administrative in nature. Nevertheless, because this issue was neither raised before the district court, nor briefed on appeal, and because resolution of this issue would not affect the outcome of this case, we decline to consider this issue at the present time.4
Although we declined to decide the issue, we likened the build*443ing code at issue in Ashwood to the administrative regulation discussed in Price.
While other courts that have addressed this issue have ruled that violation of a validly adopted provision of the UBC would constitute negligence per se,5 such a rule is not uniform. Citing the Restatement (Second) of Torts § 286 (1965), the Wyoming Supreme Court ruled in Pullman v. Outzen6 that not all ordinances may properly serve as a basis for negligence per se.7 Therefore, the Wyoming Supreme Court held that the violation of the UBC should only be utilized by the jury as evidence of the defendant’s negligence.8 Prosser and Keeton note that many courts that have applied a per se rule with regard to violations of statutory enactments have taken a less stringent view with regard to violations of local building codes or administrative regulations.9
I believe the better view is that which permits the jury to hear evidence of a building code violation when considering the issue of negligence, but that a building code violation should not be considered negligence per se since building code provisions are not uniformly applied. This is underscored by the fact that many building code provisions are often waived or made subject to variances by the local governments.
I certainly agree that persons claiming damages in a premises liability matter must be able to litigate the question of whether the defendant has violated a building code provision and whether the violation was the proximate cause of the plaintiffs damages. An instruction that such a violation is evidence of negligence sufficiently facilitates the ability to press these issues. The inherent ability of local governments to waive enforcement or formally 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.
85 Nev. 600, 460 P.2d 837 (1969).
Id. at 605, 460 P.2d at 840.
113 Nev. 80, 930 P.2d 740 (1997).
Id. at 87 n.3, 930 P.2d at 744 n.3 (citation omitted) (quoting Price, 85 Nev. at 605, 460 P.2d at 840).
See Cable v. Shefchik, 985 P.2d 474 (Alaska 1999); Huang v. Garner, 203 Cal. Rptr. 800 (Ct. App. 1984), disapproved on other grounds, Aas v. Superior Court, 12 P.3d 1125 (Cal. 2000); Nettleton v. Thompson, 787 P.2d 294 (Idaho Ct. App. 1990); Bills v. Willow Run 1 Apartments, 547 N.W.2d 693 (Minn. 1996); Herbst v. Miller, 830 P.2d 1268 (Mont. 1992); Eduardo v. Clatsop Cmty. Res. Dev. Corp., 4 P.3d 83 (Or. Ct. App. 2000).
924 P.2d 416 (Wyo. 1996).
Id. at 417.
Id. at 418.
Keeton et al., Prosser and Keeton on the Law of Torts § 36 (5th ed. 1984).