Knutson v. Barbour

NO. 93-262

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

DARLENE KNUTSON and RON KNUTSON,

Plaintiffs/Respondents & Cross-Appellants,

-v-

TIMOTHY C. BARBOUR, JAMES E. NELSON, ALJGlG 19%
and T.J.'S POOL AND GAME ROOM, INC,
d/b/a T.J.'S LOUNGE, (Q >;.,3&2.
CLERK OF ~"P,iE!*~E COlIR'F
STATE op rtiSiU’iANA
Defendants/Appellants & Cross-Respondents.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert J. Emmons and Joseph M. Sullivan,
Emmons & Sullivan, Great Falls, Montana
For Respondent:

Howard F. Strause, Attorney at Law,
Great Falls, Montana

Amicus Attorneys:

Gerald J. Neely, Billings, Montana (Montana Medical
Association); Debra D. Parker, Murphy, Robinson,
Heckathorn & Phillips, Kalispell Montana (Montana
Defense Trial Lawyers); Patricia Cotter, Great
Falls, Montana (Montana Trial Lawyers Association)

Submitted: March 29, 1994

Decided: August 16, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal by the defendants and a cross-appeal by the
plaintiffs from a jury verdict in favor of the plaintiff, Darlene
Knutson in a "slip and fall" case. The jury attributed negligenca
to the defendants Timothy C. Barbour, James E. Nelson, d/b/a T.J.'s
Lounge (80%) and found Darlene Knutson comparatively negligent
(20%). Both parties appeal certain issues. We reverse and remand.
ISSUES
Although numerous issues were appealed and cross-appealed, we
dispose of this case upon the following two issues:
I. Did the District Court err in concluding that the
Uniform Building Code (UBC) applied in this case as a matter of
law?
II. IS the $50,000 distinction in § 27-l-308, MCA,
unconstitutional in that it violates the equal protection and due
process clauses of the Montana Constitution?
FACTUAL BACKGROUND
On Wednesday, April 4, 1990, Darlene Knutson made plans
with her friend, Shelly Hagen, to socialize at Joe's Place, a
tavern in Great Falls. Darlene drove to the Holiday Village Mali
to retrieve Shelly at 5:30 p.m. and then drove to Joe's Place.
Darlene testified that she had two drinks during the time spent at
Joe's Place, and Shelly's testimony supports that statement.
At approximately 8:30 p.m., Shelly and Darlene left Joe's
Place and went to T.J.'s Lounge, another tavern, to meet Shelly's

2
friend. At the time they left Joe's Place, the weather was turning
to sleet.
Darlene drove her car to T.J.' s and parked south of the alley
in the Evergreen Mall parking lot. T.J.'s customers commonly park
across the alley in the mall parking lot and use the "back door.11
The area is paved and slopes from the alley toward the rear door of
T.J.'s and customers entering the lounge must walk through this
sloped, paved area.
Darlene and Shelly were walking toward T.J.'s when Darlene
remembered she left a special T.J.'s "discount drink" mug in her
vehicle. She returned to the car, retrieved her mug, and walked
toward T.J.'s again. On her way to T.J.'s, she slipped and fell.
Her friend, Shelly and an unidentified man carried her into T.J.'s
lounge. Darlene's husband, Ron Knutson, was called and was
informed of the incident. He arrived at T.J.' s with the couple's
son and drove Darlene to Columbus Hospital.
Dr. Powers, an orthopedic surgeon, attended Darlene. His
examination revealed that she had "an oblique fracture of the
supercondylar area of the femur." Eventually, Darlene required
four operations to facilitate the healing process in her leg.
PROCEDURAL BACKGROUND
The plaintiffs/respondents Darlene and Ron Knutson, filed
their complaint and demand for jury trial on January 8, 1991. The
defendants/appellants Timothy C. Barbour and James E. Nelson, d/b/a
T.J.'s Lounge, filed a motion to dismiss, or in the alternative,

3
motion for a more definite statement, on February 11, 1991.
Subsequently, the defendants filed an answer on March 8, 1991.
A jury trial commenced on October 26, 1992. On November 2,
1992, the jury returned a verdict for Darlene Knutson in the amount
of $325,000.00. However, the jury determined that the percentage
of Darlene's comparative negligence was twenty percent. Ron
Knutson was not awarded damages for his loss of consortium claim.
The defendants appealed on February 26, 1993, from the final
judgment dated January 6, 1993, from an order of January 4, 1993,
denying defendants' post trial motions and from an order of
February 1, 1993, denying the defendants' motion for a new trial.
The plaintiffs brought a cross-appeal on March 1, 1993, from the
final judgment on January 6, 1993, from an order dated January 4,
1993, wherein the District Court reduced the jury verdict by
$62,285.89 and failed to grant Ron Knutson's motion for a new trial
on the issue of damages.
DISCUSSION
I. THE APPLICATION OF THE UNIFORM BUILDING CODE (UBC)
Did the District Court err in concluding that the Uniform
Building Code (UBC) applied in this case as a matter of law?
The trial court judge in the present case issued an order on
October 14, 1992, granting the plaintiffs' motion to apply the
requirements of the UBC to the area where Knutson fell and
sustained her injury. The trial court ruled that the *rrampl* upon
which Knutson fell was subject to the requirements of the 1979
Uniform Building Code which had been previously adopted by

4
ordinance by the City of Great Falls. As a result, at trial the
court instructed the jury on negligence per se.
The District Court's order is particularly troubling because
of the fact that there was no evidence upon which to base a ruling
that a) the area in question was a lVrampll within the meaning of the
UBC; and b) the UBC applied to the area in question. To the
contrary, however, there was testimony that the area in question
was not a *lramp" within the meaning of the UBC. The appellants
provided expert testimony from a former Great Falls City Engineer
stating that:
[T]he Uniform Building Code requirements regarding
ramps...do not apply to the area where Plaintiff
describes she had fallen. Further, the City of Great
Falls would not and did not apply this standard to an
area of the type behind T.J.'s Lounge. Finally,
application of the Uniform Building Code in the manner
described in Plaintiff's Complaint requiring hand rails
in an area which is also used for parking is neither
practical nor feasible because more problems would be
created than solved.
Moreover, at a later date, the appellants filed another affidavit
from a professional member of the International Conference of
Building Officials, the body which publishes the UBC, stating that
the area in question was "not a ramp as described by Plaintiffs.
Both by definition and by general limits of the Uniform Building
Code, the Uniform Building Code has no application to the area in
question."
The Knutsons offered DQ expert testimony or opinion affidavits
regarding the applicability of the UBC to the area in question in
their brief in support of their motion to have the trial court
determine the applicability of the UBC. Their proof simply assumed
5
the applicability of the UBC and went solely to the angle of slope
of the area in question. Furthermore, they did not offer expert
testimony, affidavits or evidence at any later point to support

their conclusion that the area in question was a "ramp" as
envisioned by the UBC. The Knutsons, and then the District Court,
assumed that the area in question was a ramp and did not discuss,

for all practical purposes, the UBC definitions for Vamp,8V or any
evidence of any substance to support their conclusion in that

regard.

The UBC does not define the term '@ramp" anywhere in the Code.

The Code specifically provides that where terms are not defined,
Webster's Third New International Dictionary of the English
Language, Unabridged, copyright 1961, will provide the ordinary

accepted meaning for that term. The aforementioned dictionary

defines "ramp" as "a sloping way: as a: a sloping floor or walk

leading from one level to another....*' The area in which Knutson

fell is neither a floor nor a walk. This definition contemp1ate.i

a structure which is built to lead from one area to another.

Timothy Barbour stated in an affidavit that the area in question

was asphalted at the time the building was originally constructed

in 1965 and has remained unchanged with the exception of the area

where Godfather's Pizza now stands. The area serves as the parking

lot for the Godfather's Pizza delivery vehicles and must be

traversed to enter the back door of T.J.'s Lounge.
The trial court, however, without any analysis or reasons

stated, simply concluded that the area in question was a ramp, and

6
assumed the applicability of the UBC. Given our reading of the UBC
and applicable case law, within this jurisdiction and without, the
area in question is more akin to a driveway, or a sloped parking

area, than the type of ramp envisioned by the UBC. The cases from
outside this jurisdiction generally have applied the UBC to

concrete sidewalks and walkways constructed specifically to
facilitate egress or ingress to a building. & Mortimer v. Martin
(Ca. 1957), 308 P.2d 840: Sorensen v. Western Hotels, Inc. (Wa.

1960), 349 P.2d 232; Miller v. Broadmoor Village, Inc. (La. 1975),

321 So.2d 925; Grand Union Co. v. Rocker (Fl. 1984), 454 So.2d 14;

Foster v. Kwik Chek Super Markets, Inc. (Ala. 1969), 224 So.2d 895.

The area in question here serves primarily as a parking lot for
pizza delivery vehicles. We have found no authorities which have

applied the USC ramp requirements to an area similar to where
Knutson fell, and, as pointed out above, the expert opinion

evidence presented to the District Court on the applicability issue

was that the area was not a ramp nor was the area covered by the

UBC.

Davis v. Church of Jesus Christ of LDS (1990), 244 Mont. 61,
796 P.2d 181, and Herb& v. Miller (1992), 252 Mont. 503, 830 P.2d

1268, the two Montana cases which address the UBC, both applied the

UBC to the areas at issue in their respective cases, without any

analysis of the UBC's applicability and without that issue being

raised. Davis involved the plaintiff's fall on a sidewalk outside

a Latter Day Saints' church as she was leaving the building and

walking toward her automobile. The sloping cement walkway was

7
specifically built by the Church to facilitate ingress to and
egress from the church building.
A key issue in Davis was the slope of the portion of the
sidewalk which led to the front doors of the church because under
the UBC, handrails must be provided on any slope greater than ten
percent and there were no handrails provided for this area of the
sidewalk. Both si-des presented conflicting testimony about the
slope of the sidewalk, from less than ten to twenty-five percent
and this Court found that there was substantial evidence to support
the jury's conclusion that the Church was seventy-six percent
responsible for .the injury sustained by Davis. There is no
analysis of the applicability of the UBC in Davis with liability
being premised upon a landowner's duty to use ordinary care in
maintaining his premises in a reasonably safe condition.
Herb& involved Herbst's fall down the cement stairwell on the
outside of a building owned by defendant Miller. Herbst was using
the stairs to enter an apartment in the building. The stairwell
had been specifically built to facilitate ingress and egress to the
apartment. There was no handrail along the stairwell, and as
Herbst was descending the stairs, she slipped and fell. This Court
concluded that Miller was in violation of the State Building Code
at the time of the construction of the building and was in
violation of the town's building code at the time of the accident.
Although Herbst was concerned with the UBC, there was no analysis
about whether the UBC applied to the area in question; there was
simply a blanket assumption that the UBC did apply.

8
 We suspect that a similar assumption guided the trial court in
the present case since no reasons are given for the court's
conclusion that the area in question was a 'lramp*' in its order

granting plaintiffs' motion that the area where Knutson fell was
subject to the requirements of the UBC. In reviewing a trial
court's conclusions of law, this Court must determine whether the

tribunal correctly applied the law. Steer Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. Our
review convinces us that the trial court incorrectly applied the
UBC to the instant case. All the evidence before the court was to

the effect that the area in question was not a llrarnp@l within the

meaning of the UBC and that the UBC did not apply in the instant
case.

The appellants argued that the District Court erred in not

applying landowner liability law in this case, including the

principles of notice and knowledge of a dangerous condition. The
respondents emphatically denied that landowner liability law

applied to the instant case. We agree with the appellants that

this case is purely and simply a landowner liability case. Even

Davis, is similar to the present case in many respects and also

involved issues of landowner liability, stating that "[a] landowner
has a duty to use ordinary care in maintaining his premises in a

reasonably safe condition or to warn those legally on the land of

any hidden or lurking dangers." Davis
-I 796 P.2d at 184. This is

the issue in the present case - whether T.J.'s Lounge exercised

9
ordinary care in maintaining its premises in a reasonably safe
condition.
We hold that the District Court erred in concluding that the

UBC applied as a matter of law to the area where Knutson fell and
by instructing the jury that the violation of the UBC constituted

negligence per se. Accordingly, we reverse and ,remand for new

trial.

II. THE CONSTITUTIONALITY OF SECTION 27-l-308, MCA.
IS the $50,000 distinction in § 27-l-308, MCA,

unconstitutional in that it violates the equal protection and due

process clauses of United States and the Montana Constitutions?

The respondents challenge the validity of a clause in 5 27-1-

308(1), MCA, under the United States and Montana Constitutions.

They assert that the clause in the statute violates due process and

equal protection rights under both constitutions.
Section 27-1-308(l), MCA, provides:

27-l-308. Collateral source reductions in actions arising
from bodily injury or death - subrogation rights. (1) In
an action arising from bodily injury or death when the
total award against all defendants is in excess of
$50,000 and the plaintiff will be fully compensated for
his damages, exclusive of court costs and attorney fees,
a plaintiff's recovery must be reduced by any amount paid
or payable from a collateral source that does not have a
subrogation right.

At the outset, we note that Knutsons do not challenge the

constitutionality of the modification of the collateral source rule

as codified by 5 27-l-308, MCA, as a whole. Rather, the Knutsons

challenge on constitutional grounds only the clause in subsection

(1) of the statute which states that "when the total award . . . is

10
in excess of $50,000 and the plaintiff will be fully compensated
for his damages, exclusive of court costs and attorney fees, a
plaintiff's recovery must be reduced by any amount paid or payable
from a collateral source...." Section 27-l-308, MCA.
Inasmuch as we have not previously had the opportunity to pass
upon the constitutionality of the modifications to the collateral
source rule, we are not convinced that it is appropriate that we
undertake that analysis on the limited issue framed by the parties
-- i.e. whether the distinction between those persons whose awards
total $50,000 and those whose awards exceed $50,000 is
unconstitutional because it does not treat similarly situated
individuals in the same manner by the government. Butte Community
Union v. Lewis (X986), 219 Mont. 426, 430, 712 P.2d 1309, 1311.
More importantly, in view of our determination to remand this
case for new trial, it is arguable that, at this juncture, Knutsons
are without standing to challenge the constitutionality of the
statute.
Accordingly, we decline to address the constitutionality of
the modifications to the collateral source rule at this time.

REVERSED AND REMANDED FOR NEW TRIAL

Chief Justice

11
12
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's conclusion that the Uniform
Building Code did not apply to the location where plaintiff Darlene
Knutson was injured and that defendants were not negligent as a
matter of law, based on the undisputed facts in this case.
The issue before the District Court was really a simple matter
of statutory construction and application, and not nearly as
complicated as suggested by the majority opinion.
Defendants purchased the building where their business was
operated in 1977, and in 1981 applied for a building permit
authorizing construction of an addition to the building. Prior to
that construction, there were entrances on the northwest and
southwest corner of the building, both of which were accessible
from the parking lot located on the property. Neither entrance
required use of the ramp on which Knutson was injured. However,
due to the 1981 addition, the entrance on the southwest corner was
closed, and in order to meet building code requirements, a new
entrance was constructed at the southeast corner at the rear of the
building. This entrance was not accessible from the parking lot
and could only be reached by the ramp Knutson was descending at the
time of her injury.
The evidence was that because parking was inadequate on
defendants' premises, and because there was additional parking
available across the alley behind defendants' premises,
approximately 40 percent of their customers entered their business
through the rear entryway at the southeast corner of the building.

13
contrary to suggestions in the majority opinion, this was not

primarily a parking area. In fact, public parking on the ramp was

specifically prohibited.
When the southeast entrance was constructed, the Uniform

Building Code provided that a ramp providing egress from a building
could not exceed a slope of 12.5 percent, and required that any

ramp with a slope steeper than 6.67 percent have a handrail. The

defendants' own expert concluded that the slope on this ramp was
13.62 percent and no handrail was provided.

In Herbst v. Miller (1992), 252 Mont. 503, 507, 830 P.2d 1268,

1271, we held that where the relevant provision of the Uniform

Building Code has been adopted by a municipality, a violation of

that provision is negligence per se. In this case, documentation

provided to the District Court prior to the issuance of its order

established that: the Uniform Building Code was adopted as an

ordinance by the City of Great Falls on April 19, 1965; that

ordinance was in effect when defendants constructed the new rear

entrance to their building in 1981 or 1982; and that the ordinance

was in effect on the date of Knutson's injury.

Section 3301(c) of the Uniform Building Code, 1979 edition,

provides that an "exit" from a building is "a continuous and

unobstructed means of egress to a public way and shall include

intervening . . . ramps . . . exit passageways, exit courts and

yards." Although ramps are not defined in the Code itself, 5 401

provides that "[w]here terms are not defined, they shall have their

ordinary accepted meanings within the context with which they are

14
used. Webster es Third New International Dictionary of the English Language, Unabridged,

copyright 1961, shall be considered as providing ordinary accepted

meanings." As conceded in the majority opinion, a ramp is defined

in Webster's Third New International Dictionary of the English

Language (3d ed. l961) as '*a sloping way: as a: a sloping floor or

walk leading from one level to another . . . .'I

The area where Knutson was injured was clearly a sloping way

or walk leading from the level of defendants' rear entry to the

level of the alleyway. The majority's conclusion (without any
authority) that it is not a walkway ignores the undisputed fact

that 40 percent of defendants' customers entered the business

premises by traversing this sloping route and that there was no

other access to the rear entrance.

It is equally clear that the sloped walkway leading from the

back door of defendants' premises to the alley behind the building

provided egress to a public way. Section 3301(c) of the UBC

defines "public way" as "any street, alley or similar parcel of

land . . . dedicated or otherwise permanently appropriated to the

public for public use and having a clear width of not less than

10 feet."

Having established, based on the plain language of the UBC,

that Knutson was injured while traversing a ramp which provided

egress from defendants' premises, the only remaining question was

whether defendants complied with the UBC's requirements for ramps.

Section 3306 of the UBC provides that:

(a) General. Ramps used as exits shall conform to
the provisions of this section.

15
 icj 'siope. Ramps required by Table No. 33-A shall
not exceed a slope of one vertical to 12 horizontal. The
slope of other ramps shall not exceed one vertical to
8 horizontal.

iei 'Bandrails. Ramps having slopes exceeding
one vertical to 15 horizontal shall have handrails as
required for stairways, except that intermediate
handrails shall not be required.
The fact that the ramp leading from the alley behind defendants'

premises to the rear doorway did not meet the requirements set

forth in 5 3306 is undisputed. Therefore, there were no factual
issues for the District Court to submit to the jury. The District
Court was correct when it concluded as a matter of law that the UBC

was applicable to the area where Knutson was .injured, and that
based upon the undisputed facts, defendants violated the terms of

that Code. This fact situation is only made complicated by the

rationale employed by the majority to arrive at its conclusion.

For example, in spite of the plain language of the UBC, as set
forth above, and the undisputed facts, as previously discussed, the

majority concludes that the District Court's order is particularly

troubling because of the fact that there was no evidence upon which

to base its ruling. The majority then goes on to discuss opinions

by the Great Falls City Engineer and a consultant retained by

defendants to the effect that the UBC was not applicable to the

location in question. However, whether or 'not the UBC was

applicable was a yuestion of law to be determined by the District

Court based upon its interpretation of the Code. As we have

repeatedly held, opinion evidence is not relevant to establish a

violation of law. In Heltborg v. Modem Machinery (1990) , 244 Mont. 24,

16
795 P.2d 954, we adopted the Fifth Circuit's reasoning from its
opinion in lJnitedStatesv.Lueben (5th Cir. 1987), 812 F.2d 179, affldon

rehig (1987), 816 F.2d 1032, when it stated that:

The two questions quoted above illustrate the major
surviving exception to the rule that expert opinions on
an ultimate issue are admissible: an exvert mav not
exnress an opinion on a conclusion of law.

Heltborg, 795 P.2d at 957 (emphasis added).

We held in Heltborg that:

Clearly an expert may testify to an ultimate issue
of fact and we have previously so held. See, e.g., Scojield v.
EstateofWood (1984), 211 Mont. 59, 683 P.2d 1300 (court
properly allowed highway patrolman to testify as to cause
of accident): Wollaston v. Burlington Northern, Inc. ( 198 0) , 188
Mont. 192, 612 P.2d 1277 (court properly allowed highway
patrolman to testify as to cause of accident); Statev.Petko
(1978), 177 Mont. 229, 581 P.2d 425 (court properly
allowed expert to testify that substance was marijuana
even though this was an ultimate factual issue). we
emphasize, however, that there is a distinction between
testimonv on the ultimate factual issue, and testimonv on
the ultimate lesal issue.
Heltborg, 795 P.2d at 958 (emphasis added).

For that reason, we held in Heltborg, 795 P.2d at 958-59, that

the plaintiff's expert in a wrongful discharge claim could not
testify to his legal conclusion that the employer had violated the

covenant of good faith and fair dealing. Likewise, in Hart-Anderson

v.Hauck (1988), 230 Mont. 63, 748 P.2d 937, we held that it was

erroneous for a witness to state his opinion regarding the law of
the forum. In Smithv.Rorvik (1988), 231 Mont. 85, 751 P.2d 1053, we

held that a highway patrolman's opinion regarding whether traffic
laws had been violated was irrelevant and inadmissible.

17
 Clearly, the determination of whether laws are applicable and

have been violated is the exclusive responsibility of the District
Court and is not, according to our previous case law, the proper

subject of expert testimony. The District Judge in this case
should be complimented for following our prior decisions, not

criticized as he has been for ignoring irrelevant "expert"

opinions. Neither should plaintiffs be criticized, as they are by

the majority, for failing to offer the kind of evidence the same

majority has previously ruled inadmissible.

The majority accuses plaintiffs and the District Court of
simply assuming the applicability of the UBC and limiting its proof

to the angle of slope on the ramp in question. However, that is

not correct. The District Court's conclusion that the UBC was

applicable was based upon extensive deposition testimony and

affidavits and lengthy briefing from both parties. Plaintiffs'

proof upon which the District Court's order was based included the

following: a description and photographs of the ramp and its

relationship to defendants' building and the public way behind

defendants' building; testimony regarding the pedestrian purpose

for which the ramp was primarily used; the fact that parking by

patrons was specifically prohibited in that area; and testimony

that access to the rear door of defendants' premises was impossible

other than by traversing the ramp in question. No other evidence

was necessary. Because of the undisputed evidence, the issue

before the District Court was purely a legal issue, and not a very

complicated one at that.

18
 The majority opinion alleges that the arguments made by
plaintiffs did not discuss the definition of **rampl' or provide any
other basis for supporting the District Court's conclusion.
However, neither is that correct. The briefing provided by
plaintiffs to the District Court prior to its order dated October
14, 1992, fully discussed the definitions set forth in the UBC, as
well as the definition incorporated by reference from Webster's
Third New International Dictionary of the English Language. No
further definitions were relevant nor necessary.
The majority opinion criticizes the District Court's lack of
analysis, but then concludes, without any basis or analysis, that
the sloped walkway providing the only access to the rear door of
defendants' building was not a "sloping way" or a "walk leading
from one level to another." Apparently, the majority is not
willing to assume the same analytical requirements that it would
impose on the District Court.
The majority opinion concludes that based .on its reading of
the applicable case law both in and out of Montana, the area on
which Knutson was injured is "more akin to a driveway, or a sloped
parking area, than the type of ramp envisioned by the UBC."
However, no Montana cases are cited for that principle, nor are
there any which could be cited. The majority does cite several
cases from other jurisdictions. However, none of them are in any
way relevant to the proposition for which they are cited. None of
them even involve the issue with which this case is concerned.

19
 Specifically, Mortimer v. Martin (Cal. Ct. App. 1957), 308 P.2d

840, was not concerned with an exterior ramp. The plaintiff in

that case was injured on an inside ramp and the court held that the

district court erred by failing to instruct the jury of the city

ordinance requirements pertaining to ramps in that locale.

In SOrenSen v. westemHote& Inc. (Wash. 1960), 349 P.2d 232, the

facts did concern an exterior ramp. However, the only issue was

whether the city's building code could be applied retroactively to
establish the defendant's negligence.

In Miller v. Broadmoor village, Inc. (Da. Ct. App. 1975), 321 so. 2d

925, the issue was whether the plaintiff was injured on an exit way
from a store, as defined in the city's building code. However, the

definition of an exit way in that city's building code was entirely

different from the definitions applicable to this building, and did

not include any discussion of ramps providing egress to a public

way.

Grand Union Company v. Rocker (Fla. Dist. Ct. App. 1984), 454

So. 2d 14, dealt only with the issue of whether a violation of the

county's building code established negligence per se, or was merely

evidence of negligence. As mentioned, this Court previously

decided that issue in Herbst.

Finally, Fosterv. KwikChekSuperMarkets,Znc. (Ala. 1969), 224 SO. 2d

895, dealt with a. sloped area connecting a horizontal sidewalk to

a parking lot. That court simply held that based on that city's

definition of an exit ramp, it did not meet the definition. Foster,

20
224 So. 2d at 896. However, the definition was entirely different
than the definition with which we are concerned in this case, and

the principle for which that case stands is in no way relevant to

our conclusion.

The majority's reliance on such irrelevant decisions simply

illustrates its inclination to make a simple issue more complex

than it should be.

The fact that the area where Knutson fell is covered by the

UBC, and the fact that that Code was violated, based on the

undisputed facts in this case, is clear from any fair and objective
reading of the plain language of the Code. Knutson's injury due to

the steepness of this entrance made dangerous by slippery

conditions is exactly what the Code was designed to prevent.

The Code applies to entryways. Entryways include any ramp

providing access from the building to the public right-of-way.

While ramp is not specifically defined in the Code, the definition

of ramp included in the Dictionary is applicable.by reference from

the Code. Ramp is defined as "a sloped way."

There is no question that under the facts in this case,

Knutson was injured on a sloped way providing egress from

defendants' building to the public right-of-way. Therefore, what

is the issue for a jury to decide? This ramp did not conform to

the UBC, and therefore, defendants were negligent per se. The only

issues to be resolved were whether that negligence was a cause of

injury to plaintiffs and the extent of plaintiffs' damages. Those

issues have already been decided.

21
 This case may have provided an interesting intellectual
exercise for the majority. However, they failed to consider that
by ignoring the UBC's plain language, they have once again reversed
a substantial verdict in favor of a seriously injured and damaged
person and have wasted the time and efforts of the trial court, the
citizen jurors who participated in this case, the witnesses who
testified, and the attorneys who labored on behalf of the parties.
This is another decision rendered in the practical vacuum of
the Supreme Court and with very undesirable consequences for nearly
everyone involved.
Once again, as it has so often in the past, the majority of
this Court has substituted its own opinion of &ha+ the law should
provide for the plain language of the law itself."~ And once aga$n,
as it has so often in the past, by imposing its values on the rest
of the State, the burden of the majority's arbitrary judgment falls
on one of those least able to bear it.
For these reasons, I dissent from the majority opinion.

A-jqJ
/ stice

Justice William E. Hunt, Sr., joins in the foregoing dissent.

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