OPINION AND ORDER
This matter is before the Court on Plaintiffs Motion for Judgment as a Matter of Law and Motion to Dismiss Affirmative Defenses. The Court ruled upon these issues in the course of trial and this Opinion and Order further explain the rationale for its rulings.
This case arises out of personal injuries the Plaintiff sustained when she fell from a second story balcony at the Autumn Apartments complex (“the Apartment”) in Newport News, Virginia on September 15, 1999. As a result of the fall, Plaintiff is a quadriplegic. Plaintiff alleges that the guard rail on the second floor balcony was defective in that it was too low to protect against falls, and that the rail failed to meet applicable building safety codes.
*509 I. Procedural Background
On November 7, 2001, the Plaintiff moved for Partial Summary Judgment and to Dismiss Affirmative Defenses. In this motion, the Plaintiff claims that the Defendants violated the building code and is therefore negligent per se. Accordingly, the Plaintiff argues the Defendants should be barred from using the defenses of contributory negligence and assumption of the risk. Argument on the motion was not heard before trial.
On January 29, 2002, the Plaintiff moved for Judgment as a Matter of Law and to Dismiss Affirmative Defenses. Again, the Plaintiff asserted that the Defendants were negligent per se and thus should be barred from asserting the defenses of contributory negligence and assumption of the risk. The Court deferred ruling upon Plaintiffs November 7, 2001 and January 29, 2002 motions until trial.
The Jury Trial in this matter began on January 31, 2002. At the conclusion of the evidence, the Court GRANTED in part and DENIED in part Plaintiffs Motion for Judgment as a Matter of Law. Specifically, the Court FOUND that the Defendants were negligent per se, but that such negligence did not bar the defenses of contributory negligence and assumption of the risk. The Court also DENIED the Plaintiffs Motion to Dismiss Affirmative Defenses. The Court issued special interrogatories to the jury requiring responses to these issues.
On February 7, 2002, the jury returned a verdict for the Defendants. Specifically the jury, having been instructed that the Defendants were negligent, found (1) that the Defendants’ negligence was a proximate cause of the incident and the Plaintiffs resulting damages, (2) that the Plaintiff was negligent, and (3) that the Plaintiffs negligence was a proximate cause of the incident and her resulting damages.
This order explains the Court’s ruling.
II. Negligence Per Se
The Plaintiff claims that the Defendants were negligent per se because the guard rail on the second story balcony of the Apartment violated the height requirement of the Building Code of the City of Newport News both at the time of construction and the time of Plaintiffs fall on September 15, 1999 1 .
To prove a claim of negligence
per se,
the Plaintiff must establish that the Defendants violated a statute that was enacted for public safety, that the Plaintiff belongs to the class of persons for whose benefit the statute was enacted, that the harm that occurred was of the type against which the statute was designed to protect, and that the statutory violation was a proximate cause of Plaintiffs injury.
Halterman v. Radisson Hotel Corp.,
The Virginia Supreme Court has stated that “the violation of the Building Code, like any statute enacted to protect health, safety, and welfare, is negligence per se.”
MacCoy v. Colony House Builders, Inc.,
The Defendants dispute that the handrail was too low and violated the applicable building code. In support of this assertion, the Defendants note that the Apartment was inspected approximately six months before the Plaintiffs fall by the Department of Codes Compliance for the City of Newport News and that the Department inspector found no violations for the height of the handrails.
However, the actions or inactions of a building inspector should not determine whether the Building Code has been violated. The failure of an inspector to find a violation, whether by mistake, oversight, or lack of resources, should not be used as proof that such a violation did not exist. For example, in
MacCoy,
Accordingly, the Court FINDS that the Defendants were negligent per se in violating the applicable building code for the Apartment by failing to maintain the guardrails on the second story balcony of the Apartment at the required height.
III. Contributory Negligence and Assumption of the Risk
The Plaintiff contends that since the Defendants are negligent per se for violating the applicable building code, neither contributory negligence nor assumption of the risk are available defenses.
While no recent Virginia Supreme Court case is directly on point, the Plaintiff cites cases from other jurisdictions asserting this is a “nearly universal rule.” In
Martin v. George Hyman Construction Company,
“The nearly universal rule is that neither contributory negligence nor assumption of risk bars recovery for breach of a duty imposed by statute, ordinance or regulation if the purpose of the statute, ordinance, or regulation would be defeated by application of either defense. See Restatement (Second) or Torts Secs. 483, 496F (1965); W. Prosser, Law or Torts 425-26, 453-54 (4th Ed.1971) ... Therefore, where the judicially-developed defense of contributory negligence and assumption of risk conflict with the purposes of the statutes *511 and regulations, such defenses should not bar recovery.” Id. at 68-69.
The Court continued, “Statutes and regulations should not be overborne by the common law ... Deference to the statutes and regulations is inherent in the separation of the branches of our government.” Id. at 69. Further, “a statutory or regulatory scheme may envision that certain classes of persons likely to be careless require greater protection than that which might be afforded at common law.” Id.
The Plaintiff cites a number of cases from other jurisdictions that support this theory.
See e.g. Weston v. Washington Metropolitan Area Transit,
The Plaintiff claims that the building code requirement that guard rails be a certain height is designed to protect people from their own inadvertence or negligence. Therefore, the Plaintiff argues that failure to bar the defenses of contributory negligence and assumption of the risk would defeat the purpose of the statute.
As there is no Virginia Supreme Court case directly dealing with this issue, the Court must forecast how the Virginia Supreme Court would rule in this case.
The Court believes that the issue of barring contributory negligence and assumption of risk in this instance is analogous to the application of the theory of strict liability in tort. Both result in liability regardless of the actions or fault of the injured party.
It is correct that many jurisdiction bar these defenses where the defendant has been negligent
per se
in violating a public safety statute. However, while many jurisdictions recognize the theory of strict liability in tort, Virginia has not adopted § 402A of the Restatement (Second) of Torts
2
and generally does not permit tort
*512
recovery on a strict-liability theory.
Harris v. T.I., Inc.,
Additionally, Virginia does not follow the doctrine of comparative negligence in tort law.
Nehi Bottling Co., Inc. v. Lambert,
The Court’s research uncovered only one Virginia case addressing an issue similar to the one at hand. In
Petruska v. Cutech, Inc.,
The Court FORECASTS that the Virginia Supreme Court would not bar the defenses of contributory negligence and assumption of the risk because the Defendant was negligent per se in violating the applicable building codes.
Accordingly, the Court GRANTS the Plaintiffs Motion for Judgment as a Matter of Law insofar as she requests that the Court find the Defendants negligent per se. The Court DENIES the Plaintiffs Motion for Judgment as a Matter of Law in requesting that the Court bar the defenses of contributory negligence and assumption of the risk. The Court DENIES the Plaintiffs Motion to Dismiss Affirmative Defenses. 4
The Clerk is REQUESTED to send a copy of this order to all counsel of record.
It is so ORDERED.
Notes
. At the time of the fall, the guardrail measured thirty two (32) inches from the balcony deck. At the time of the Apartment’s construction in 1963, the City of Newport News required balconies to be forty eight (48) inches. At the time of the fall, the State of Virginia Code, which applied to the City, required balconies to be forty two (42) inches.
. Section 402A of the Restatement (Second) of Torts, states:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
*512 (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
. The court invited the parties to submit additional authorities on this point. However, it appears that there were no further written opinions issued in this case.
. The issue of contributory negligence was submitted to the jury, however, the issue of assumption of the risk was not.