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."
3
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.
6
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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