We know that legislative enactments may sometimes be used to define a specific standard of conduct (i.e., duty of care) in a negligence case, depending upon the specific type of statute involved, as well as the circumstances of the individual negligence case. Where a statute is adopted as the standard of care in a negligence action, the only thing that remains for the jury to determine is simply whether the particular statute itself has been violated (i.e., breach of duty). If so, then the violator often is said to be "n"egligent (or contributorily "n"egligent) per se. By contrast, if a particular legislative enactment is not adopted as the standard of care in the case, the jury must evaluate the conduct of the party alleged to have been "n"egligent (or contributorily "n"egligent) according to the common law's more general standard based upon the concept of reasonable care (i.e., the R.P.P. standard). Thus, the availability of a particular statute to articulate a specific standard of care that can be applied in any given action for negligence has the added effect of reducing the overall burden of proving "n"egligence (or contributory "n"egligence) in such a case. For this reason, any statute that potentially can be used in a negligence case to reduce the overall burden of proof must be carefully examined before it should be adopted as the standard of care in the case.

Recent years have witnessed a dramatic increase in the number and variety of statutes and ordinances promulgated by various state and federal legislative bodies in response to particular fact situations or circumstances relating either directly or indirectly to various tort-specific issues, many of which have tremendous impact upon the law of negligence. In addition to these specific legislative enactments, most state jurisdictions, not to mention the federal government, continue to produce a constantly-expanding number of administrative rules and regulations pertaining to an ever-widening array of subjects, each of which potentially impact many of these same tort-specific issues. Often such regulations take the "form" of traditional statutory mandates by the legislature which can lead to confusion when a court is faced with the decision as to whether or not to adopt a statutory standard as the standard of the R.P.P. in a "civil" negligence case. Moreover, the various terminologies which surround the use of these statutes, regulations, and ordinances as standards for determining the conduct of the R.P.P. in a negligence case can lead to even further confusion. For purposes of this series of Exercises, these terms may be defined specifically as follows:

Statute. A statute is an enactment of a duly elected state or federal legislative body which declares, prohibits, or commands a particular thing.

Regulation. A regulation is a rule or standard adopted by an administrative agency or department that has been duly empowered by law to issue such regulations and which also carries with it the force of law.

Ordinance. An ordinance is an enactment of a duly elected legislative body of a municipal corporation, as distinguished from either a state or federal legislative body.

Where the legislature has actually mandated that a certain statute be utilized, the court is not otherwise free to ignore the statutory standard of care in favor of the more general R.P.P. standard of care. Only where the legislative standard is based upon a "criminal" (or penal) statute is the court allowed to exercise its discretion in deciding whether or not to utilize the statutory standard of care. The question addressed by this Exercise is whether or not a court must also adopt administrative regulations and/or ordinances, and give them the same effect as statutory law in defining the specific standard of care in a negligence case.

 

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INSTRUCTIONS: To answer the questions posed by this Exercise, it is instructive to further examine the legal distinction(s) between statutes, ordinances, and administrative rules and regulations in an effort to determine whether there is any legitimate legal (or policy) reason(s) that otherwise would justify treating administrative enactments different from statutes. Before proceeding further with this Exercise, read the opinion of the Supreme Court of Ohio in Chambers v. St. Mary's School, 82 Ohio St.3d 563, 697 N.E.2d 198 (1998).

Question No. (1). Notice the particular regulation involved in the Chambers case. Specifically, Section 805.2 of Ohio's "Basic Building Code" (reprinted in pertinent part in footnote 2 of the Chamber's opinion) mandates that:

 

"all exterior stairways be kept free of ice and snow."

Although the above-quoted language is actually taken from an administrative rule contained within the Ohio Building Code, it does appear very similar to a statute, both in its language as well as its form. For purposes of the Plaintiff's action for negligence brought against the Defendant private school, such an administrative rule directed at the removal of ice and snow from all exterior stairways certainly would seem to be reasonable. Why, then, did the Ohio Supreme Court not give this administrative rule the same legal status as a similarly-worded legislative enactment?

Question No. (2). Suppose that the Defendant in Chambers had been a residential landlord upon whom the Ohio legislature had imposed a statutory duty to provide tenants with safe housing and "to comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety" of tenants and other persons lawfully upon the leased premises. Would the holding of Chambers necessarily preclude the use of the very same Ohio administrative rule that was rejected by the Ohio Supreme Court in Chambers as a basis for imposing "n"egligence per se against the Defendant landlord in this situation?

 

Question No. (3). Would the result in Chambers have been different had this regulation actually been an ordinance enacted by the Toledo City Council?

ANSWER TO QUESTION NO. 2

 

In Sikora v. Wenzel, 1999 W.L. 335208 (Ohio Ct. App. 1999), the Ohio Court of Appeals considered this very question of whether the decision in Chambers prohibited the application of an Ohio administrative regulation as a standard of care with respect to an action based upon "n"egligence per se against a residential landlord who allegedly had violated such an administrative rule. The Ohio Court of Appeals explained that:

 

"As [one] final point, we note that in Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 697 N.E.2d 198, the Ohio Supreme Court held that "[t]he violation of an administrative rule does not constitute negligence per se." Id. at syllabus. According to the court, negligence per se is not appropriate in such situations because the administrative process does not involve the "collaborative effort of public officials" and is not accountable to the public. Id. at 568, 697 N.E.2d 198. Because of this distinction between the legislative and administrative processes, the court felt a legislative enactment could give rise to negligence per se, but an administrative regulation could not. Of particular interest is the fact that the regulations at issue in Chambers were administrative standards adopted as part of the Ohio Basic Building Code.

Chambers was not mentioned by the parties to this appeal either in their briefs or during oral argument. At first blush, Chambers might seem fatal to Sikora's position. However, in our opinion, Chambers is distinguishable and has no effect on the present case. As a preliminary point, Chambers did not involve a landlord's liability for injuries occurring on rental premises. More important, it did not involve the statutory duty given by the legislature to landlords, i.e., the duty to "[c]omply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety." As we mentioned above, R.C. 5321.04(A)(1) incorporates the requirements of these codes into the statute by reference. Thus, the specific duty of the landlord is not based on the decision of an administrative agency but is the result of a legislative determination that landlords will comply with certain codes. Because the members of the General Assembly are accountable to their constituents, and the policy determinations in R.C. 5321.04 are subject to change by citizens through the elective process, the concerns expressed in Chambers have no bearing on the case at hand." Sikora v. Wenzel, 1999 W.L. 335208, * 9 (Ohio Ct. App. 1999).