Case Name: Mullin v. Avalon Bay Communities, Inc.

Case No.: 1-13-CV-251665

This premises liability and personal injury action arises from an automobile-versus-pedestrian accident that occurred on October 11, 2011, at the entrance of an apartment complex owned by defendant Avalon Bay Communities, Inc. (“Avalon”) located in Sunnyvale, California. Michelle Mullin (“Plaintiff”), the pedestrian injured in the accident, filed suit against Avalon, asserting claims for negligence and negligence per se. As to the negligence per se claim, Plaintiff alleges that Avalon failed to comply with various provisions of the California Fire Code, which has been adopted by Sunnyvale, and require, among other things, the installation of fire related signs. Avalon now moves for summary adjudication of Plaintiff’s negligence per se claim.

Avalon’s request for judicial notice of the portions of the California Fire Code relied upon by Plaintiff in support of her claim for negligence per se is GRANTED. Judicial notice may be taken of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (Evd. Code, § 452, subd. (c).) The California Fire Code is part of the California Building Standards Code and is published by the California Legislature.

Avalon’s motion for summary adjudication is GRANTED. Under the doctrine of negligence per se, which is codified in Evidence Code section 669, the violation of a statute gives rise to a presumption of negligence, provided that the injury is a proximate result of the violation, the plaintiff is a member of the class of persons the statute was designed to protect, and the harm is the type that the statute was designed to prevent. (Evid. Code, § 669, subd. (a); Ramirez v. Nelson (2008) 44 Cal.4^th 908, 917-918; Stafford v. United Farm Workers (1983) 33 Cal.3d 319, 324.) The provisions of the Fire Code requiring fire lane signs and other markings relied upon by Plaintiff were adopted with the purpose of assisting emergency responders during emergency operations. (See Cal. Code Regs., tit. 24, part 9, chp. 1, § 1.1.2 [setting forth the purpose and scope of the Fire Code].)  In other words, the statutes were not designed to prevent the type of injury that occurred in this case (a pedestrian struck by a non-emergency responder) and Plaintiff is not a member of the class of persons the statute was designed to protect. These findings are dispositive of Plaintiff’s claim for negligence per se. (See e.g., Morris v. Horton (1994) 22 Cal.App.4^th 968, [Sixth District affirming ruling of trial court that plaintiffs could not proceed on a theory of negligence per se because their injury (costs of repairing an defectively constructed staircase) was not the type of injury that the Building Code was designed to prevent].)

Plaintiff’s arguments in opposition to the motion are unavailing. First, Plaintiff argues that, because negligence per se is an evidentiary presumption (and not a separate cause of action) it cannot be disposed of through summary adjudication. Second, Plaintiff argues that the question of whether the elements of negligence per se have been met is for the jury to decide. Both of these arguments fail. As to the first argument, Plaintiff pled negligence per se as a separate cause of action. More importantly, Code of Civil Procedure section 437c, subdivision (f)(1) authorizes motions for summary adjudication as to issues of duty, and negligence per se clearly relates to an issue of duty. As to the second argument, the courts have repeatedly made clear that the last two factors required to establish negligence per se are questions of law that are appropriately decided by the court. (See e.g., Ramirez, supra, 44 Cal.4^th at p. 918.)