UPDATES & ANALYSIS

Lawsuit from fatal balcony fall goes back to Polk County court

by Rox Laird | June 27, 2016

When does Grandfather have the final say? Well, it depends on the facts.

That was the conclusion of the Iowa Supreme Court in an appeal arising from a wrongful death lawsuit in Polk County.

Shannon Potts was drinking with friends in a Des Moines apartment building when she fell to her death from a second-floor balcony in 2011. Her parents sued, and a Polk County jury awarded a $1.75 million judgment, reduced to $1,137,500 as the jury held Potts to be partially at fault.

The central issue on appeal was whether the railing met the city’s building code, which at the time of Potts’ death required a railing 42 inches high. The railing was only 32 inches high, but it was in compliance with the code when the building was built in 1968, before the city raised the minimum railing height.

That would have been legal under the building code’s “grandfather” provision, which applies code changes only to structures built or substantially altered after a code revision. In which case, the landlord would be absolved of liability.

Des Moines building inspectors, however, took the position that the new height standard nonetheless applied because the landlord had modified the railing by installing a plastic guardrail with zip-ties, giving a false sense of security.

The Supreme Court, in a unanimous decision written by Justice Thomas Waterman, stopped short of ruling on whether the railing was, in fact, covered by the grandfather clause. The Court sent the case back to Polk County District Court for a new trial to resolve that question.

The Court did, however, make a substantive clarification in a precedent regarding the reach of local regulations in such negligence cases. The court over-ruled its 1994 decision that said per se negligence –negligence that is established by law, not by a jury – applied only in cases involving a statewide statute or rule rather than one enacted by local authorities.

In holding that “the breach of a specific safety-related requirement in a municipal ordinance with the force of law may constitute negligence per se,” the court appeared to be clarifying longstanding precedent rather than shifting course. Still, that part of Friday’s Winger ruling will no doubt be of interest both to local regulatory authorities and potential targets of negligence suits.