O'Neill v. Windshire-Copeland Associates, L.P.

Present: All the Justices

KANEY F. O'NEILL

v. Record No. 031824 OPINION BY JUSTICE ELIZABETH B. LACY
April 23, 2004
WINDSHIRE-COPELAND
ASSOCIATES, L.P., ET AL.

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT

On July 30, 2003, the United States Court of Appeals for

the Fourth Circuit entered an order of certification

requesting that we exercise our certification jurisdiction,

Va. Const. art. VI, § 1, Rule 5:42, and answer the following

question:

If the defendant-owner of an apartment building
is negligent per se because the protective
railing on its apartment balcony does not
comply with the height requirements of a
municipal building code, and if that negligence
is a proximate cause of the plaintiff's fall
from the balcony and her resulting injuries, is
the plaintiff's contributory negligence
available to the defendant as a complete
defense?

Resolving the issue will determine the outcome of the

proceeding in the Court of Appeals. We accepted the certified

question by order entered October 28, 2003. For the reasons

stated below, we answer the certified question in the

affirmative.

The order of certification from the Court of Appeals sets

forth the following facts. Kaney F. O'Neill became a
quadriplegic when she fell backward over a second-story

balcony railing at an apartment complex in Newport News,

Virginia, on September 15, 1999. When the apartment was built

in 1963, the Newport News Building Code required such balcony

railings to be forty-eight (48) inches high. See Code of City

of Newport News § 10-3 (1962) (incorporating the National

Building Code); Nat'l Bldg. Code § 605.4 (1955). The balcony

railing at issue here, however, was only thirty-two (32)

inches high.1

O'Neill filed suit in the United States District Court

for the Eastern District of Virginia, asserting that the owner

of the apartment complex, Windshire-Copeland Associates, L.P.;

its general partner, Robert Copeland; and the management

company for the apartment complex, Hercules Real Estate

Services, Inc., (collectively "Windshire") were negligent

because the balcony's height did not comply with the

requirements of the Newport News Building Code at the time the

apartment complex was built and that such negligence was a

proximate cause of her injuries. At trial, testimony was

admitted showing that O'Neill was familiar with the balcony

and that she had consumed alcohol prior to the accident.

1
Virginia adopted a statewide building code in 1973 that
requires balcony railings to be at least forty-two (42) inches
high.

2
 At the close of the evidence, the trial court held

Windshire negligent per se because its balcony violated the

height requirement of the Newport News Building Code. The

trial court also held that Windshire's negligence did not bar

its defense of contributory negligence and, accordingly,

submitted that issue to the jury. The jury found O'Neill

contributorily negligent. Based on that finding, the trial

court entered judgment in favor of Windshire, and O'Neill

appealed that judgment to the United States Court of Appeals

for the Fourth Circuit.

DISCUSSION

The discussion by the Court of Appeals, in its

certification order, and the arguments the parties advanced

focused primarily on whether Virginia has adopted § 483 of the

Restatement (Second) of Torts (1965). That section provides

that, when a defendant's negligence consists of the violation

of a statute, a plaintiff's contributory negligence bars his

recovery for injuries caused by the negligence of the

defendant "unless the effect of the statute is to place the

entire responsibility for such harm as has occurred upon the

defendant." Comment (c) to § 483 explains that a statute

places the entire responsibility for harm on the defendant

"where it is enacted in order to protect a certain class of

persons against their own inability to protect themselves."

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Restatement (Second) of Torts § 483, cmt. c, at p. 539 (1965).

Comment (d) goes on to state that even though "those for whose

benefit the statute is enacted may be expected to be, and are

in fact, fully able to protect themselves," the statute may

nevertheless relieve such persons from doing so and place on

the defendant the entire responsibility for avoiding the harm.

O'Neill maintains that the concept embodied in § 483 is

one "firmly entrenched in the common law" and "embraced for

nearly a century by this Court." Applying that concept here,

O'Neill argues that the building code is one of those statutes

that places on the defendant the responsibility for injury

resulting from a violation of its provisions and, thus,

O'Neill's negligence should not defeat her recovery.

As O'Neill acknowledges, the cases upon which she

primarily relies for the proposition that Virginia has adopted

the concepts embodied in § 483 of the Restatement, Atlantic

Coast Line R. Co. v. Bell, 149 Va. 720, 141 S.E. 838 (1928),

Clinchfield Coal Corp. v. Hawkins, 130 Va. 698, 108 S.E. 704

(1921), and Carter Coal Co. v. Bates, 127 Va. 586, 105 S.E. 76

(1920), addressed whether a defendant could plead the

assumption of the risk defense when the defendant's violation

of a statutory requirement was a proximate cause of the

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plaintiff's injury.2 The theory of the defendants advanced in

those cases was that the plaintiffs had known that the

defendants had not complied with the statutory requirement

and, therefore, the plaintiffs had assumed the risk of harm

resulting from such lack of compliance.

The seminal case in this Commonwealth rejecting an

attempt by a defendant to raise the assumption of the risk

defense under these circumstances involved a coal company's

failure to provide for a "conspicuous light" on the front and

rear of coal hauling machinery as required by statute. Carter

Coal, 127 Va. at 598-99, 105 S.E. at 80. The Court’s decision

in that case was based on the principle that, if the mining-

safety legislation at issue had not abrogated this common law

defense, the "systematic violation" of the statute through the

purported risk-assumption by the plaintiff would defeat the

statute's purpose. Id. at 601-02, 105 S.E. at 81. As we

later stated in Atlantic Coastline:

2
O'Neill also relies upon Gallagher v. Stathis, 186 Va.
444, 43 S.E.2d 33 (1947), for her position that Virginia has
recognized and adopted § 483. In Gallagher, the trial court
refused a jury instruction that the plaintiffs were
contributorily negligent because they agreed to live in a
house with only one staircase in violation of the building
code. This Court affirmed the trial court's action because
there was no evidence to support the granting of an
instruction on the theory of contributory negligence, id. at
451, 44 S.E.2d at 37, and any implication to be drawn from the
citation to foreign authority on the issue of the availability

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 [I]f the employer may avail himself of the
defense that the employee agreed in advance that
the statute should be disregarded, the court
would be measuring the rights of the persons whom
the law makers intended to protect by the common
law standard of the reasonably prudent person,
and not by the definite standard set up by the
legislature. This would be practically a
judicial repeal of the act.

149 Va. at 735, 141 S.E. at 842, citing 18 R.C.L. § 169 at

680-81 (1917) (quoting D.H. Davis Coal Co. v. Polland, 62 N.E.

492, 496 (Ind. 1902)).

O'Neill argues that because assumption of the risk and

contributory negligence are "doctrinally related" and " 'often

overlap,' " the rationale precluding the defense of assumption

of the risk in these cases "applies with equal force to the

defense of contributory negligence." However, the rationale

we utilized in Bell and its predecessors for excluding

assumption of the risk cannot extend to the defense of

contributory negligence.

The difference between assumption of the risk and

contributory negligence as they relate to a defendant’s

negligence per se stemming from a statutory violation was

explained in Pocahontas Consolidated Collieries Co. v.

Johnson, 244 F. 368 (4th Cir. 1917), the case upon which

of contributory fault as a defense was therefore, at most,
dicta.

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Carter Coal relied in rejecting the defense of assumption of

the risk:

Assumption of risk and contributory negligence
stand in a different legal relation to the
violation of a . . . statute. Assumption of risk
imports no delict on the part of an employe[e]
. . . . Contributory negligence . . . is a delict
or neglect of duty by the employe[e], and hence he
cannot recover for the delict of the employer,
. . . if his own delict has contributed to his
injury as a proximate cause.

Id. at 372.

This fundamental difference between the effect of the

assumption of the risk and contributory negligence defenses

negates the proposition that our jurisprudence precluding the

use of assumption of the risk defense also precludes the use

of the contributory negligence defense that § 483 of the

Restatement (Second) of Torts provides.

Nevertheless, we recognize that there are circumstances

in which a legislative body may determine that, because of the

nature of the regulation or the class of persons the

regulation was intended to protect, the defendant should bear

the entire responsibility for harm that the failure to comply

with the regulation causes. For example, the General Assembly

has specifically made such a determination in Code § 8.01-58

by providing that contributory negligence "shall not bar a

recovery" in actions brought by employees against a common

carrier where death resulted from the common carrier's

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violation of "any statute enacted for the safety of

employees." See also Code §§ 46.2-932.1, -934, 56-416, and

former Code § 56-417.3

We need not decide here whether application of that

principle can be implied in statutes that do not specifically

state that the defense is not available. In this case,

nothing in the Newport News Building Code indicates that the

purpose of the code was to place the entire responsibility for

injuries stemming from a code violation on the defendant

building owner. Unlike Code § 8.01-58, nothing in the Newport

News Building Code allows recovery regardless of a plaintiff’s

negligence. The code protects no specific class; it is the

public in general that benefits from its provisions. Indeed,

a person who never entered a building but only stood outside

could be injured as a result of a building code violation.

Nor would allowing the defense of contributory negligence in

this case defeat the building code's purpose of height

requirements and "'work a judicial repeal of the Act'" as

3
Violations of the child labor laws are also not subject
to the defense of contributory negligence because children
under the age of 14 are presumed incapable of contributory
negligence, Virginia Electric and Power Co. v. Dungee, 258 Va.
235, 246-47, 520 S.E.2d 164, 171 (1999), and, regardless of
any violation of such laws, child employees are subject to the
Workers' Compensation Act, Code § 65.2-100, et seq., which
does not allow the defenses of assumption of the risk or
contributory negligence. Roller v. Basic Constr. Co., 238 Va.

8
O'Neill asserts. Only if a combination of a defendant's code

violation and a plaintiff's independent negligence caused the

plaintiff's injury would the plaintiff be unable to recover.

Under these circumstances, allowing a contributory negligence

defense neither compromises nor subverts the policy advancing

compliance with the building code.

For these reasons, we conclude that § 483 of the

Restatement (Second) has not been adopted in this state and

hold that the defense of contributory negligence is available

when the defendant's violation of a municipal building code is

negligence per se and a proximate cause of the plaintiff's

injuries.

Certified question answered in the affirmative.

321, 327, 384 S.E.2d 323, 325 (1989); Rasnick v. The Pittston
Co., 237 Va. 658, 660, 379 S.E.2d 353, 354 (1989).

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