From: House of Imports v. Wright, COA, NPO, 2/4/2011
To establish an actionable negligence claim, a plaintiff must establish the existence of a duty, breach of that duty, causation, and damages. Helton v. Montgomery, 595 S.W.2d 257 (Ky. 1980).2 A legal duty may be found in the common law, in a statute, or in an ordinance. Lewis v. B & R Corp., 56 S.W.3d 432 (Ky. App. 2001). A negligence claim premised upon a statute or ordinance is referred to as a “negligence per se claim.” Id. In a negligence per se claim, a “statutory standard of care [or duty] is substituted for the common law standard.” Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky. App. 2001). And, the applicability of a statutory standard of care or duty squarely presents a question of law for the court. If the trial court determines a duty contained in a statute, regulation, or ordinance is pertinent, the court must then instruct the jury upon such statutory duty. However, a statutory duty is not evidence, and facts revolving around violations of a statutory duty may not be introduced into evidence absent a
2 There is no dispute in this case that Wright was a business invitee on the business premises of House of Imports, Inc., d/b/a In Style, for which a duty of care was owed to Wright. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003).
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concomitant jury instruction setting forth such statutory duty. The case of O’Connor & Raque Co. v. Bill, 474 S.W.2d 344 (Ky. 1971), aptly sets forth the law on this issue.
In O’Connor, appellee sustained a fall while shopping at appellant’s business establishment. Id. During trial, an expert witness testified that the entrance to appellant’s business was unsafe and violated the building code. Id. A disagreement between the parties ensued as to which version (1950 or 1959) of the building code was applicable. Id. The Supreme Court noted that “the trial court did not resolve the question [of which code was applicable], nor were any of the code requirements recited in the [jury] instructions included within the . . . company’s duties.” Id. at 346. The Court held that the trial court erred by allowing introduction of evidence concerning violations of the building code without a concomitant jury instruction informing the jury of appellant’s duty under the applicable code provisions. The Court explained its holding:
[T]hat after the authenticity and applicability of an ordinance have been established it is within the discretion of the trial court to determine whether it shall be read to the jury. Generally speaking, however, it seems to us that an ordinance or regulation creating rights and duties is no different from a statute and should be treated in the same way. For example, statutes regulating traffic on the highways are not read to the jury in accident cases. To the extent that they are applicable their substance is incorporated in the instructions covering the law of the case. So it should have been here. The building code or codes from which portions were read to the jury either did or did not place certain duties on the defendant company which were applicable at the time of the accident. If they did impose such duties, they either
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called for a directed verdict against the company on the issue of its negligence (as requested by Bill) or they should have been submitted to the jury under an appropriate instruction on proximate cause. If they did not impose such duties, or if as a matter of law the company's failure to comply was not a proximate causal factor in the accident, then they were not relevant to the case and should not have been brought to the jury's attention at all. As it is, the jury received the information and was left to decide for itself what, if any, was its relevance and legal effect.
O’Connor, 474 S.W.2d at 346.
