Chapter 17 - § 17.8 • NEGLIGENCE PER SE

• Jurisdiction: Colorado

§ 17.8 • NEGLIGENCE PER SE

A 2002 Colorado Court of Appeals case, Smit v. Anderson,⁶⁴ explains how violation of a building code operates in the context of a claim for negligence per se.⁶⁵

In Smit, a homeowner asked a friend to pull permits and name himself as the contractor so that the homeowner could secure financing to build a house. The friend did so, but expressed to the homeowner that he was too busy to do any work on the house. The friend's involvement with the construction ended after obtaining the permit. During construction, a person was injured in an accident that occurred while he and other inexperienced people attempted to raise a 20-foot wall. The injured person sued the contractor, alleging negligence per se because the contractor failed to conform to the local building code.

The court of appeals held that a negligence per se claim requires that:

1) The victim be a member of the class the statute or ordinance was enacted to protect;
2) The injuries suffered must be of the kind the statute or ordinance was enacted to prevent; and
3) The defendant must have violated the statute or ordinance.

Here, the contractor had violated the building code provision that penalized the contractor when it "ob-tain[s] permits required under this Code for work that will not be performed by or supervised by the contractor." However, according to the court of appeals, the code was designed to ensure safe buildings, not safety during construction. Smit was not a member of the class the code was...