South-Western Legal Studies in Business

Landlord Not Negligent for Allowing Guardrails to Comply with Old Code Standards

New Mexico appeals court held that a landlord was not liable for allowing the space between guardrails to not be in compliance with building code standards set after the building was constructed. The guardrails would appear safe to an ordinary person even if not in compliance with modern building codes.

Topic Real and Personal Property
Key Words

Premises Liability; Building Code; Negligence Per Se; Personal Injury

C A S E   S U M M A R Y

Heath was with her three-year-old son on the balcony in front of her second-story apartment when the phone rang and she went in to answer it. The boy fell through an eight and three-quarter inch space between a wooden support column and the first vertical post of the balcony guardrail. He suffered injuries. His mother sued the apartment owners, claiming negligence per se for failure to comply with the Uniform Building Code (UBC). At the time the apartments were built, the UBC called for such spaces to be no more than nine inches, but that was reduced to four inches in later revisions of the UBC. The district court directed a verdict for the defendant. Heath appealed.


Affirmed. For there to be negligence per se, 1) there must be a statute which prescribes certain actions or defines a standard of conduct, 2) the defendant must violate the statute, 3) the plaintiff must be in the class of persons sought to be protected by the statute, and 4) the harm or injury to the plaintiff must generally be of the type the legislature, through the statute, sought to prevent. New Mexico follows the UBC, but the landlord did not have a duty to reconstruct the guardrails on the balcony after the UBC was amended with respect to spaces between vertical posts. The building was in compliance with the UBC at the time it was built. Hence, there could not be negligence per se. The issue then becomes was the landlord negligent? A landlord has a duty to maintain the common areas of his property in a reasonably safe condition, but is not obligated to provide a tenant with a premises completely free of defects. The standard is one of ordinary care. That standard was met, so there was no negligence.


Heath v. La Mariana Apartments, ---P.3d--- (2006 WL 3913325, Ct. App., N.M., 2006)

Back to Real and Personal Property Listings

©1997-2007  SW Legal Studies in Business. All Rights Reserved.