Many of our clients’ businesses are regulated by various statutes, codes and ordinances, and we are frequently called upon to provide a defense against claims that certain business activities violated or otherwise failed to meet a particular regulation. In the case of a private person making such claims, it is usually phrased as a form of negligence—either personal injury or property damage—so the private party can be compensated in some way. Take, for example, Florida’s Elevator Safety Act (Chapter 399, Florida Statutes), which has a multitude of statutory sections that regulate different aspects of ownership and use of elevators, escalators and other moving conveyances. Private parties often use sections of this Chapter to allege our clients’ activities violated a governing statute and, to use their logic, argue that our client was therefore ‘negligent’ and should have to pay the private party accordingly. This same logic is commonly used in claims of construction defects (Chapter 553, Florida Statutes, et seq.) where a claimant will sue a variety of actors alleging general “building code violations” and seek unspecified damages as a result. But the logic is mostly flawed—usually beginning with a misinterpretation of the cited statute and ending with a misunderstanding of whether or how a violation is compensable—which is where our expertise is most valuable and most often employed.
Typical Statutory Misinterpretations Require An Early Attack
Time and again our Firm has determined those claiming our clients violated a statute or code are wrong either in their interpretation of the regulation itself, how the regulation should be enforced, or—in a case where violations did in fact occur—what a violation translates to in terms of consequence for our client. Rooting out the flawed reasoning early in the case, something our Firm is known for, is essential to stopping the advancement of code violation claims that have no merit and will never have merit, and therefore no reason to be litigated.
A good example of statutory mis-interpretation our Firm sees are claims or allegations that Florida Statute 399.02(5)(b) (designating responsibility for the safe operation of the conveyance) govern the conduct of entities other than the owner or possessor of the property in which the conveyance is located. The pleadings allege this Section applies to companies contracted to perform periodic maintenance on the conveyance, sometimes making these allegations in a stand-alone count called “Violation of Section 399.02(5)(b)” or something similar. Yet, by its express words (and determined through several appellate opinions) Section 399.02(5)(b) does not govern the conduct of maintenance providers, at all. The Section is limited to property owners or those who lease the property if the terms of the lease so provide. Notwithstanding, we routinely see pleadings with the same misinterpretation of the Statute and so we are put to work having to educate our opposing counsel who have by that point demonstrated they lack a true understanding of their claims or how to interpret the Statute. The Weinstein Trial Firm has successfully obtained numerous voluntary dismissals, involuntary dismissals and summary judgments on this threshold question of statutory applicability—involving §399.02(5)(b) and many other statutes—more times than we can count.
This is just one of an endless list of examples of statute or code misinterpretation that sets the table for litigation over the meaning of seemingly plain-worded statutes and codes. And because that list is endless, the focus of this discussion is more on the consequences of a legitimate violation of a statute or code—assuming the statute or code applies to the client and the conduct at issue—in the context of a claim of negligence and how that might play out in a trial.
So You Violated A Building Code, Now What?
There are two primary ways in which evidence of code violations can be used at a trial, and both involve jury instructions. Jury instructions are, for all intents, the “law” read to the jury and upon which the jury is asked to decide the case. Assuming there is some proof at trial of a code violation which usually comes from testimony of a qualified expert in the field, the plaintiff may be entitled to a jury instruction that the violation is “evidence of negligence” or alternatively a jury instruction that the violation is negligence “per se.” There is a big difference between the two, and having legal counsel that can make that distinction can be extremely important when it comes to a jury verdict itself.
In Florida, violations of building codes can constitute evidence of negligence, but not necessarily negligence per se. In fact, most building code violations are not considered negligence per se and it may be grounds for an appeal if a judge instructed a jury otherwise. The Florida Supreme Court has established that violations of statutes fall into three categories: (1) strict liability statutes designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se; (2) statutes establishing a duty to take precautions to protect a particular class of persons from a particular injury or type of injury, also constituting negligence per se; and (3) any other kind of statute, constituting mere prima facie evidence of negligence. A typical building code violation that does not involve safety would almost always fall into the final category: “evidence of negligence.”
Evidence Of Negligence Is Merely That, Evidence.
A jury instruction that a violation of a building code “is evidence of negligence” does not mean the violator was negligent. In other words, the violation a building code by itself does not mean the violator was negligent or that a jury must or even should find the violator was negligent. That a violation of a building code is evidence of negligence is just that—evidence—and like any evidence, it can be accepted or rejected by the jury. In fact, the jury is instructed they may reject any evidence in the case in deciding whether someone was negligent, whether it is documentary evidence, testimonial evidence or evidence that the defendant violated a building code.
Notwithstanding the relative insignificance of a jury instruction that a building code violation is (simply) evidence of negligence, plaintiff’s lawyers frequently misunderstand this concept and either (a) ask for an incorrect jury instruction that states a violation of a building code is negligence per se, (b) incorrectly ask the court to determine the defendant was negligent as a matter of law, or (c) intentionally or unintentionally mislead a jury by claiming the violation of a building code means the defendant was negligent. Lawyers at The Weinstein Trial Firm have seen these scenarios play out many times and know exactly how to fend off these misconceptions the moment they surface—before they incurably prejudice the proceedings—ensuring the playing field is kept even for our clients.
You Can Be Negligent Per Se And Still Avoid Liability
In contrast to a more generalized violation of building codes, a violation of a safety-related building code can be considered negligence “per se.” Negligence per se means the violator was negligent as a matter of law. However, it does not mean there is an actionable or compensable claim of negligence against the violator. A plaintiff would still have to prove proximate cause and damages—that the violation of the statute was the proximate cause of some harm to the plaintiff, and the value of the harm itself. A plaintiff cannot use an immaterial violation of a safety-related building code, or a material violation of a safety-related building code generally, or a material violation of a safety-related building code that applies to the general public and not for the protection of a particular class of persons, as all of its proof of negligence where the violation itself was not the proximate cause of the harm alleged in the case. Here too there are many nuances of the law which must be known, spotted, and objected to in order to prevent potentially devastating impacts on a defendant, such as (1) plaintiffs’ lawyers securing summary judgments and directed verdicts they are not entitled to, (2) plaintiff’s lawyers being afforded lower standards of proof than they otherwise would be required to show at trial, or (3) judges allowing the plaintiffs lawyers to tell a jury they have nothing to decide because the defendant is negligent “as a matter of law.” The Weinstein Trial Firm has stopped many plaintiffs’ lawyers from wrongly taking advantage of negligence per se instructions, again forcing our opponents to prove every element they are required to prove and meet their traditional burden of proof on their entire claim in order to establish any liability arising from a code violation.
Code Violations Do Not Always Mean Liability
Violations of statutes, codes and ordinances are common claims in today’s pleadings but they are defensible in many ways. Hiring lawyers with substantial experience—the kind we have at the Weinstein Trial Firm—can literally be the difference in how, and even whether, claims of code violations proceed in a case. At our Firm, we take measured steps from the pleadings stage through to jury instructions that minimize the advancement, risk or impact of code violation claims on our clients.
If you are facing code violation claims of any kind, let the Weinstein Trial Firm put our experience to work for you.
