KATHY EAGLES,
        Plaintiff,

    vs.        Case No. 01C 558

RON TRIP,
        Defendant.

Plaintiff filed a motion for partial summary judgment on the issues of whether the City of Topeka Housing Code, specifically sections 82-159, applies to defendant's property and if it applies to defendant's property, whether a violation of the code constitutes negligence per se. Defendant has filed a response to the motion. No reply has been filed but the time for filing a reply has expired so the court deems the motion ready for ruling.

Plaintiff was a residential tenant of the defendant's when plaintiff fell and sustained injuries as she was coming down the attic stairs. Plaintiff claims that the stairs had no handrails and that the lack of handrails was the proximate cause of her injuries.

1. Defendant owns the building located at 1218 SW Taylor, Topeka, Kansas.

2. The building located at 1218 Taylor, Topeka, Kansas, hereinafter 1218 Taylor, has been converted into apartments.

3. Defendant bought 1218 Taylor in 1979. At that time it was a multi-family dwelling.

4. There never has been a handrail(s) on the flight of stairs from the second floor to the attic of 1218 Taylor.

5. At the time of the incident in question, the attic was not used as a living space.

6. With the knowledge and consent of the defendant, plaintiff used the attic as a place of storage.

7. The plaintiff alleges that she fell on the stairway from the second floor to the attic of defendant's house at 1218 Taylor.

8. 1218 Taylor was constructed in the 1930's.

9. The house at 1218 SW Taylor has been divided into an upstairs and a downstairs apartment since before defendant Ron Tripp purchased it in 1979.

10. The house, to the best of defendant's knowledge, was built in the 1930's.

11. The house at 1218 Taylor was inspected by a city code inspector in the late 1980's, in order for the house to be approved for Section 8 rental housing. The city inspector passed the whole house as meeting Topeka City Code requirements, and Mr. Tripp was allowed to offer the house for Section 8 rental housing.

12. At the time of inspection, there were no recommendations made, citations issued, or repairs required, as it relates to the attic stairway at issue.

13. The condition of the stairway to the attic has not changed since the time of the inspection in the late 1980's.

14. Mr. Tripp recalls no specific time or instance where plaintiff complained about the stairs to the attic having no handrails, or her requesting that handrails be installed.

15. The record is not clear as to what steps plaintiff was taking to avoid possible injury, at the time she fell, or that anyone witnessed her fall.

16. Plaintiff and her family are not using the attic as "living space" for plaintiff or her family.

17. No tenant has complained to the City or requested any additional inspection of the conditions at 1218 SW Taylor.

Motions for summary judgment are decided pursuant to K.S.A. 60-256, and will be granted if the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in the light most favorable to the plaintiff. Bacon v. Mercy Hospital at Fort Scott, 243 Kan. 303, 306 (1988). The moving party must prove that there is no genuine issue as to material facts. If factual issues do exist, they must be material to the case to preclude summary judgment. To oppose a motion for summary judgment, a party must come forward with something of evidentiary value to establish a material dispute of fact. Glenn v. Fleming, 247 Kan. 296, 799 P. 2d 79 (1990). A defendant is entitled to summary judgment if the defendant can establish there is an absence of evidence to support plaintiff's case. Crooks v. Greene, 12 Kan. App. 2d 62, 736 P. 2d 78 (1987).

Defendant's property was constructed in the 1930's and it was purchased by defendant in 1979. The current version of the City of Topeka Housing Code was adopted in 1995, however, the section of the code relied upon by plaintiff (ie. the handrails section) was derived from the 1981 code.

Defendant concedes that the attic staircase does not have handrails. To the best of defendant's knowledge there have never been handrails. Defendant argues that the Housing Code is not applicable to this property because statutes (or ordinances) must operate prospectively unless its language clearly indicates that the legislative body intended for it to operate retrospectively or unless the statute is merely procedural or remedial and does not prejudicially affect the substantive rights of the parties. Chiles v. State, 254 Kan. 888, 896, 869 P.2d 707 (1994), cert. denied 115 S. Ct. 149, 130 L. Ed. 2d 88.

However, in the purpose section, Sec. 82-35, the ordinance specifically provides that the legislation "shall be applicable to all dwellings now in existence or hereafter constructed." Therefore, this court finds that the Housing Code is applicable to defendant's property.

"Negligence per se" is defined in Black's Law Dictionary, Fifth Edition, 1979, as "conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, ... because it is in violation of a statute or valid municipal ordinance ..."

Pursuant to Kansas case law, the general rule regarding negligence per se is that a violation of a statute or ordinance constitutes negligence per se and liability attaches when the violation is the proximate cause of damages. [citations omitted]. Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 124, 80 P.2d 978 (1991).

However, violation of a statute or ordinance alone does not establish negligence per se. The plaintiff must establish that an individual right of action for injury arising out of the violation was intended by the legislature. Schlobohm, Id at 125.

Defendant in this case argues that the Housing Code was enacted to benefit the public at large and not a special class of individuals of which Eagles is a member. Furthermore, defendant argues that the sections of the Topeka City Code which provide for penalties or liability for code violations do not provide for an individual to bring a private cause of action for a code violation. In contrast, the Emporia City Code at issue in Schlobohm, "specifically state[d] that civil liability is not relieved by the enactment, although criminal liability can attach for violations." Schlobohm, Id at 127. In Schlobohm in order to determine whether the alleged violation constituted negligence per se, the court looked at the intent of the body which enacted the ordinance. The court held that "a statute which did not purport to establish civil liability but merely made a provision to secure the safety and welfare of the public did not establish civil liability." Schlobohm, Id at 125.

This court concurs with defendant's argument that the Topeka City Code does not purport to establish civil liability but instead its purpose is to provide for the safety and welfare of the public.

Therefore, this court denies in part plaintiff's motion for partial summary judgment and finds that violation of the Topeka Housing Code does not constitute negligence per se. However, this court does grant a portion of the partial summary judgment motion since this court did find that the Housing Code is applicable to the defendant's property. Therefore, evidence of provisions of the Housing Code would be relevant in the trial of this matter.

The above constitutes the court's findings of fact and conclusions of law regarding plaintiff's motion for partial summary judgment and no further journal entry is required.

IT IS SO ORDERED.

Dated this 28th day of January, 2002.

 
_________________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 28th day of January , 2002, to the following:

 
Richard Showalter
1122 SW 10th Street
Topeka, Kansas 66604

 
Kyle J. Mead
5851 SW 29th Street
Topeka, Kansas 66614

 
___________________
Norma J. Dunnaway
Administrative Assistant