Negligence Per Se Requires Specificity

The point of the discovery process is to gather the information needed for trial.  But civil trials are approaching unicorn status for most practice areas, so many lawyers simply do not have the opportunity to develop the perspective that trial work then brings to the discovery process.  That may have been a factor in one recent case.

Michel v. Laskowski appears to have been a wrongful death case where the plaintiff died in an apartment fire.[1]  The district court refused to give a negligence per se jury instruction.  Plaintiff appealed, arguing “witness testimony sufficiently established Laskowski’s violation of a Las Vegas building code for the district court to accept the instruction.”

The reason the district court refused to give the instruction was that Plaintiff

never produced evidence of, or even so much as identified, a particular building code that Laskowski may have violated. One of appellants’ witnesses, a general contractor, testified that smoke detectors like those on Laskowski’s property “would never pass the inspection,” but never identified or even alluded to any particular code that Laskowski may have violated. Another of appellants’ witnesses, a former Las Vegas “code enforcement officer,” testified that he explained to Laskowski’s husband in 2003 that the property needed more smoke detectors, but never referred or even alluded to any particular code that Laskowski may have violated, whether in 2003 or at the time of the fire.

The result was that Plaintiff “failed to produce the foundational evidence for their negligence per se claim—namely the very existence of a particular building code provision that Laskowski allegedly violated, and that was intended to protect a class of persons that included the decedent….”  So the evidence required for a negligence per se instruction was not present and the district court was affirmed.

[1] No. 74244, 2019 Nev. App. Unpub. LEXIS 534, 2019 WL 2293427 (Ct. App. May 28, 2019).