Violation of Housing Ordinance is Negligence Per Se: IA Supreme Court

Iowa case law summary by Attorney Richard Clem: Negligence Per Se.

Kathryn Winger and Timothy Potts v. CM Holdings, L.L.C.. Iowa Negligence Per Se

This was a wrongful death case arising from a fall at a Des Moines apartment building. The building had been constructed in 1968, and had 32 inch guardrails on the balcony, which conformed with code at the time. In 1979, the code was amended, but the lower existing guardrails were grandfathered.

In 2011, the new owner of the building was given a notice of numerous violations. In particular, he was cited for the guardrail, despite the grandfather provision. At some point, a plastic lattice had been added to the guardrail with zip ties. The inspector reasoned that this modification made the grandfather clause inapplicable.

Most violations were corrected, and the Housing Appeals Board even commended the owner on the progress that had been made. But as of the last hearing date, the railing had not been replaced. The landlord was fined $1090, but the fine was suspended, and the landlord was given an extension of time to replace the railing.

At the appeal hearing, one board member even commented:

Obviously, these folks are doing what they need to do to get this taken care of, but, you know, I don’t want my name associated with the kid that falls off the balcony because the railings aren’t the right height.

Three days later, 21 year old Sharnnon Potts fell over the balcony to her death. Her parents brought a wrongful death case, and the jury awarded damages of $612,500. An appeal was brought, which was ultimately heard by the Iowa Supreme Court.

The issue on appeal was whether the violation of the municipal housing ordinance constituted negligence per se. The supreme court agreed that the ordinance violation constituted negligence as a matter of law.

An earlier case had held that only violation of a statewide statute or administrative rule could constitute negligence, but the supreme court overruled this case. It noted that the purpose of the ordinance was obviously to prevent falls, and that the standard was sufficiently specific to constitute negligence per se.

The landlord next argued that the extension granted by the Housing Appeal Board excused the violation. However, the supreme court concluded that the extension of time did not excuse the violation; it merely granted an administrative delay in implementing the correction.

The court also agreed with the plaintiff that the grandfather provision did not apply. In this case, it reasoned that the additional lattice provided a false sense of security, and triggered an obligation to upgrade the railings to the new requirement. However, since a remand was necessary for other issues, the court stated that the parties were free to litigate this issue.

No. 14-0199 (Iowa June 24, 2016).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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