- Court of Appeals Discusses the Practical Effect of a Building Code Violation as Negligence Per Se.
- February 11, 2016 | Authors: David S. Coats; John T. Crook; David S. Wisz
- Law Firm: Bailey & Dixon, L.L.P. - Raleigh Office
The elements of a cause of action for negligence are duty, breach, causation, and injury. It is well-settled in North Carolina that evidence of a defendant’s violation of a safety statute constitutes negligence per se and establishes the element of breach. In the recent case of Estate of Coppick v. Hobbs Marina Properties, L.L.C., et al., 2015 N.C.App. LEXIS 278 (Apr. 7, 2015), the North Carolina Court of Appeals explored the practical application of the negligence per se doctrine in a personal injury action involving a violation of the Building Code.
In Coppick, the plaintiff’s decedent was a marina employee who was killed when large gasoline explosion occurred while he was refueling an 80-foot charter vessel. Video surveillance footage showed that Mr. Coppick inserted the gasoline line into the receptacle at the rear of the boat, and then headed to the front of the boat to perform other chores. After 6 minutes, a vapor cloud was visible on the port side of the boat in close proximity to the fueling area, and a large explosion occurred just as the video showed Mr. Coppick stepping off a ladder from the second deck onto the stern of the boat. The estate ultimately resolved its wrongful death claims against numerous other parties but proceeded to trial against Petroleum Equipment & Service, who provided the fuel dispensing system equipment to the marina. At trial, Plaintiff’s primary evidence of negligence against Petroleum was the testimony of representatives of the Office of State Fire Marshall and the Department of Labor that the gasoline nozzle supplied by Petroleum violated the North Carolina Building Code because it contained a non-pressure-activated “hold-open latch.” The jury found that Petroleum was negligent and awarded the Estate $1.5 million and Petroleum appealed, alleging that that trial court erred in its instructions to the jury on negligence and negligence per se and/or by failing to grant its motion for judgment notwithstanding the verdict.
The Court of Appeals initially noted the general rule that “violation of a public safety statute constitutes negligence per se,” and that the Building Code is such a safety statute. The Court then rejected Petroleum’s argument that it could not be held liable under a negligence per se theory absent a showing that it knew or should have known of the Code violation. The Court initially noted that there was evidence that Petroleum was a licensed general contractor, and as such was presumed to have knowledge of the Building Code. Furthermore, as the Court stated, “despite defendant’s contention that the Code does not specify who is responsible for compliance with the section that regulates nozzles and hoses at marine fueling stations, plaintiff’s evidence showed that responsibility for complying with the Code fell upon the marina and upon the person or entity who installed the nozzles.” Consequently, the Court concluded that it was Petroleum’s duty to provide the marina with Code-compliant nozzles, and thus plaintiff’s evidence was sufficient to support the trial court’s instruction on negligence per se.
The Court next rejected Petroleum’s argument that there was insufficient evidence to establish that its conduct proximately caused the explosion, which was still required even if the jury found negligence per se. According to the Court, however, expert testimony as to the cause or origin of the explosion was unnecessary. In this regard, the videotape evidence showing a vapor cloud at the time of the explosion, plus the testimony of a marine customer that he encountered a fuel spill using the “hold-open latch” a few days earlier, were sufficient circumstantial evidence for the jury to find that Petroleum’s violation of the Building Code was a proximate cause of the explosion.
Even though it is a personal injury action, the Coppick case is instructive in all cases involving allegations of defective construction. Evidence of a Building Code violation essentially guarantees that a negligence issue will be submitted to the jury, and the jury will be allowed to find causation flowing from the same (in some cases, even without expert testimony as to causation).