IN THE COURT OF APPEALS OF IOWA

No. 14-0199

Filed May 20, 2015

KATHRYN WINGER and 

TIMOTHY POTTS,

Plaintiffs-Appellants/Cross-Appellees,

vs.

CM HOLDINGS, L.L.C.,

Defendant-Appellee/Cross-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Richard G. Blane II, 

Judge.

The plaintiffs appeal from the district court’s grant of a new trial in this 

negligence action. The defendant cross-appeals from the court’s denial of its 

motion for directed verdict. AFFIRMED ON BOTH APPEALS.

Robert G. Rehkemper and Cory F. Gourley of Gourley, Rehkemper, & 

Lindholm, P.L.C., West Des Moines, for appellants.

Brenda K. Wallrichs of Lederer Weston Craig PLC, Cedar Rapids, and 

Michael Carmoney and Jack W. Leverenz of Carmoney Law Firm, Des Moines, 

for appellee.

Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2

DANILSON, C.J.

This appeal and cross-appeal involve the tragic death of the plaintiffs’ 

twenty-one-year-old daughter after a fall from a balcony. The jury was instructed 

as a matter of law that the defendant was negligent for failing to have balcony 

guardrails at least forty-two inches in height. The jury awarded damages to the 

plaintiffs, and subsequently, the district court granted a new trial concluding it had 

erroneously instructed the jury. In dispute is whether a violation of Des Moines 

Municipal Housing Code, Neighborhood Inspection Rental Code section 60-127, 

which requires guardrails “not less than 42 inches in height,” is negligence 

per se. We conclude the answer is “no,” but may be evidence of negligence. 

Accordingly, we agree with the district court’s grant of a new trial. We also reject 

the defendant’s contention it was entitled to a directed verdict and affirm the trial 

court’s grant of a new trial.

I. Background Facts and Proceedings. 

The plaintiffs, Kathryn Winger and Timothy Potts, are the parents of 

Shannon Potts, who on July 23, 2011, at the age of twenty-one, fell off a balcony 

of the Grand Stratford Apartments in Des Moines, Iowa, owned by the defendant, 

CM Holdings, L.L.C. Shannon died from injuries suffered in the fall. The railing 

on the balcony from which Shannon fell was thirty-two inches in height. The 

plaintiffs sued CM Holdings for loss of consortium, claiming it was negligent in a 

number of respects, including failing to comply with the guardrail height 

requirements of the housing code, allowing a dangerous condition to exist on its 

premises, and failing to maintain the property in a safe condition. 
3

Prior to trial, CM Holdings filed a summary judgment motion, asserting it 

had received an extension of time from the Des Moines Housing Appeals Board

to bring the guardrails into compliance and thus was legally excused from any 

negligence associated with having only thirty-two-inch guardrails. The plaintiffs 

filed a motion for partial summary judgment, asking the trial court to determine 

CM Holdings was negligent per se in failing to bring the balcony railings into 

compliance with the housing code. CM Holdings resisted, asserting the plaintiffs’

motion was untimely and that violation of a municipal housing code was not a 

basis for negligence per se. Following a hearing, the trial court denied the 

plaintiffs’ summary judgment motion as untimely. It also denied CM Holding’s 

summary judgment motion, ruling the housing board’s extension of time to bring 

the guardrails into compliance did not constitute a waiver to comply with the 

housing code, and thus was not a legal excuse.

A jury trial was held beginning on November 4, 2013. On November 6, 

CM Holdings submitted proposed jury instructions concerning housing code 

provisions.

1 At the close of the evidence, CM Holdings moved for a directed 

verdict on two grounds: first, that the guardrails were “grandfathered” into the 

housing code existing at the time the apartment complex was built and, therefore, 

CM Holdings was not negligent for having thirty-two-inch guardrails; and second, 

that if the guardrails were not code compliant, CM Holdings’ violation of the 

 

1 Specifically, one instruction referred to section 60-5 (“Any structure that was in 

compliance on the day previous to the adoption of this code will be allowed to remain.”), 

stating that “if you find [the section] applied” to the building at issue, “you must find that 

defendant was not in violation of the Des Moines Housing Code Section 60-127, and 

was not negligent as alleged.” Another proposed instruction provided that if the jury 

found CM Holdings had a valid of extension of time from the housing board, “you must 

find that defendant was not negligent.”
4

housing code was legally excused. For their part, the plaintiffs moved for a 

directed verdict on the issue of liability, asserting CM Holdings was negligent per 

se for failing to have forty-two-inch guardrails. On November 8, 2013, the trial 

court issued a written “Ruling on Legal Issue of Violation of Municipal Housing 

Code,” concluding:

The Court also finds that since the Defendant did not file an appeal 

with the [housing appeals board] HAB, the Notice of Inspection 

finding that the lattice did create a change that required the 

guardrail to [be] updated to be in compliance with the new code 

height of 42 inches[] cannot now be collaterally attacked by the 

Defendant in this lawsuit. As noted above, Defendant never 

followed the appeal process, never filed an appeal from the city’s

determination, and never challenged that it was obligated to install 

42 inch guardrails on the balconies.

Finally, since Iowa Code § 562A.15(1)(a) [(2011)] requires 

an owner to “comply with the requirements of applicable building 

and housing codes materially affecting health and safety,” and the 

evidence establishes the railing requirement was a matter of safety, 

such violation constitutes negligence per se. See Wiersgalla v.

Garrett, 486 N.W.2d 290, 292-93 (Iowa 1992).

Thereafter, the jury was instructed,

2

in part:

Instruction No. 15

You are instructed that the Court has determined as a matter 

of law that pursuant to the Des Moines Municipal Housing Code the 

Defendant was required before July 23, 2011, to install guardrails 

that were at least 42 inches in height on the balcony of Apartment 

No. 9 at 531 - 35th Street Des Moines, Iowa.

Defendant’s violation of law is negligence as to Instruction 

No. 16.

Instruction No. 16

The Plaintiffs claim that the Defendant was at fault. Fault 

was explained to you in Instruction No. 10. The Court has 

determined as a matter of law the Defendant was negligent in 

Instruction No. 15 and at fault.

 

2 After the trial court’s November 8 ruling of negligence per se, CM Holdings did not 

request its proposed instructions (noted in footnote 1) be given, though it did object to 

the ruling and ask that the court reconsider. 
5

In order to recover against the Defendant, the Plaintiffs must 

prove propositions 1 and 2.

1. The Defendant’s fault was a cause of Decedent’s death 

and damage to the Plaintiffs.

2. The amount of damages.

If the Plaintiffs have failed to prove either numbered 

proposition 1 or 2, they are not entitled to recover damages. If the 

Plaintiffs have proved numbered propositions 1 and 2, you will 

consider the defense of comparative fault as explained in 

Instruction No. 17.

The jury returned special interrogatories finding CM Holdings sixty-five percent at 

fault and Shannon Potts thirty-five percent at fault and finding each of the 

plaintiffs had each sustained $875,000 in damages. 

CM Holdings filed a motion for new trial, or in the alternative a remittitur, 

asserting the court’s finding of negligence per se was erroneous and the 

damages awarded were excessive. It also filed a motion notwithstanding the 

verdict (JNOV) on the same grounds as its motion for directed verdict. The court 

denied the defendant’s JNOV motion and granted a new trial, concluding it had 

improperly taken the issue of CM Holding’s negligence from the jury. The 

plaintiffs appeal, and the defendant cross-appeals.

II. Scope and Standards of Review.

The scope of our review of a district court’s ruling on a motion for new trial 

depends on the grounds raised in the motion. Clinton Physical Therapy Servs.,

P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). If a 

motion for new trial is based on a discretionary ground, we review the ruling for 

abuse of discretion. Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 480 

(Iowa 2004). If the ruling granting a new trial was prompted by a motion on a 
6

legal question, our review is for errors of law. Iowa R. Civ. P. 1.1004(8); Olson v.

Sumpter, 728 N.W.2d 844, 848 (Iowa 2007).

On cross-appeal, CM Holdings argues the district court committed legal 

error in not granting its motion for JNOV. 

Our standard of review on motions JNOV was recently summarized by our 

supreme court:

We review a district court’s ruling denying a motion for 

judgment notwithstanding the verdict for correction of errors at law. 

Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 

(Iowa 2010). On review, we “determine whether sufficient evidence 

existed to justify submitting the case to the jury at the conclusion of 

the trial.” Lee v. State, 815 N.W.2d 731, 736 (Iowa 2012). To 

justify submitting the case to the jury, substantial evidence must 

support each element of the plaintiff's claim. Van Sickle Constr. 

Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 

(Iowa 2010). “Evidence is substantial when reasonable minds 

would accept the evidence as adequate to reach the same 

findings.” Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 790 

(Iowa 2009). We view “the evidence in the light most favorable to 

the nonmoving party.” Id.

Garr v. City of Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014).

III. Discussion.

A. Appeal—Plaintiffs’ challenge to the grant of a new trial. Winger and 

Potts maintain the “only time the trial court was wrong was when it thought it was 

wrong but was actually right.” They contend a violation of a municipal ordinance 

is negligence per se; the violation of the housing code was also a violation of 

Iowa Code section 562A.15 (2011), which is also negligence per se; and the 
7

statutory provision violated3is sufficiently specific so that a violation of it 

constituted negligence per se. 

Iowa has long recognized the principle of negligence per se. See Kisling 

v. Thierman, 243 N.W. 552, 554 (Iowa 1932). The principle exists because we 

recognize some behavior involves an unreasonable danger to others. See 

Rinkleff v. Knox, 375 N.W.2d 262, 265 (Iowa 1985) (“[T]he real basis of 

negligence in the primary sense is not carelessness but behavior which should 

be recognized as involving an unreasonable danger to others.”). In Jorgensen v. 

Horton, 206 N.W.2d 100, 102 (Iowa 1973), the court observed, “We have 

heretofore limited the doctrine of negligence per se to violations of statute or 

ordinance which establish the standard of care required under the 

circumstances.” Most recently, our supreme court has opined: 

[R]ules of conduct that establish absolute standards of care, the 

violation of which is negligence per se, must be ordained by a state 

legislative body or an administrative agency regulating on a 

statewide basis under authority of the legislature. That is the 

position espoused in Restatement (Second) of Torts § 286 (1965) 

and followed by this court in Jorgensen, 206 N.W.2d at 102. 

Griglione v. Martin, 525 N.W.2d 810, 812 (Iowa 1994) (emphasis added). The 

plaintiffs argue the emphasized statement in Griglione—that a standard must be 

statewide to constitute negligence per se—is dicta and in conflict with prior 

cases, as well as the Restatement (Second) and (Third) of Torts, and it should 

not have been relied upon by the trial court to grant a new trial.4 However, “[w]e 

 

3 The plaintiffs cite section 562A.15(1)(a)(1), which provides: “The landlord shall . . . 

[c]omply with the requirements of applicable building and housing codes materially 

affecting health and safety.”

4 We note that one authority reports, “Most states apply negligence per se to the 

violation of city ordinances. . . . But a few states regard violation of a city ordinance as 
8

are not at liberty to overturn Iowa Supreme Court precedent.” State v. Hastings, 

466 N.W.2d 697, 700 (Iowa Ct. App. 1990); see State v. Miller, N.W.2d 841

N.W.2d 583, 584 n.1 (Iowa 2014); State Eichler, 83 N.W.2d 576, 578 (Iowa 1957)

(“If our previous holdings are to be overruled, we should ordinarily prefer to do it 

ourselves.”).5

In any event, the parties’ very arguments demonstrate the housing code’s 

guardrail height requirement is not an ordinance the violation of which would 

constitute negligence per se because the required height is not a standard that is 

to be followed “unwaveringly in all instances.” See Griglione, 525 N.W.2d at 812

(“[O]ur prior cases direct that, in order for the violation of rules of conduct to 

constitute negligence per se, those rules must establish specific standards that 

are to be followed unwaveringly in all instances.” (citing Jorgensen v. Horton, 206 

N.W.2d 100, 102 (Iowa 1973), and Restatement (Second) of Torts § 285 cmt. b 

(1965)).

Here, we may have a specific standard for balcony railings in the city of 

Des Moines but there is no statewide standard. As Iowa Code section 

562A.15(1)(a)(1) implies, each city can impose its own building and housing 

code. Further, it is difficult to say it is to be followed unwaveringly in all 

instances. The plaintiffs rely upon the guardrail height restriction contained in the 

 

only evidence of negligence. E.g., Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994).” 

Restatement (Third) Torts: Physical & Emotional Harm § 14, Reporter’s Note cmt. a 

(Westlaw database updated March 2015); see also Barbara Kritchevsky, Tort Law is 

State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se 

Litigation, 60 Am. Univ. L. Rev. 71 (Oct. 2010) (noting the Griglione case requires a state 

legislative body to create state law for negligence-per-se purposes).

5 While the parties argue over whether a city ordinance can ever be considered a 

standard that the violation thereof constitutes negligence per se, that is not the issue we 

are to decide.
9

housing code in 2011. CM Holdings argues a different, lower guardrail height 

was set forth in an earlier municipal code. The city inspector testified the building 

at issue complied with the city code in effect at the time it was built in 1968. He 

also acknowledged owners of existing property are not required to bring their 

building “up to code” every time the municipal code is changed and buildings are 

“routinely grandfathered in.”6 

The requisite specific, unwavering standards have been found in OSHA 

requirements. See Koll v. Manatt’s Transp. Co., 253 N.W.2d 265, 270 (Iowa 

1977); but see Wiersgalla v. Garrett, 486 N.W.2d 290, 292-93 (Iowa 1992)

(acknowledging that Koll had held that “violation by an employer of an OSHA or 

IOSHA standard is neligence per se as to [the employer’s] employee,” 253 

N.W.2d at 270, but concluding the trial court had erred in instructing the jury that 

a violation of an OSHA standard by a co-worker constituted negligence per se).

In Montgomery v. Engle, 179 N.W.2d 478, 483-84 (Iowa 1970),7however, 

our supreme court held that a violation of a Sioux City municipal housing code 

requiring handrails at “every exit from every dwelling” was not negligence per se, 

but was evidence of negligence.8 We conclude the same is true of the guardrail 

 

6 However, the evidence provided that CM Holdings had received four separate notices 

that the balcony railings were in violation of the Des Moines Housing Code.

7 We acknowledge the Montgomery case was decided before the passage and 

implementation of the Iowa Code chapter 562A, the Uniform Residential Landlord and 

Tenant Law. Thus, the Montgomery case would not be a precedential deterrent if the 

supreme court chose to rely upon Iowa Code section 562A.15(1)(a)(1), and of course,

our supreme court could choose to join the majority recognizing negligence per se for 

ordinance violations. Nonetheless, we feel bound to the principles espoused in 

Griglione. 

8

In Struve v. Payvandi, 740 N.W.2d 436, 442-43 (Iowa Ct. App. 2007), this court 

addressed the question of whether the trial court erred in refusing to submit the plaintiff’s 

negligence-per-se theory to the jury. There, the plaintiff suffered brain damage as a 

result of carbon monoxide poisoning. See Struve, 740 N.W.2d at 438. The plaintiff sued 
10

ordinance here. We agree with the trial court that it was error to apply 

negligence per se here, and affirm the grant of a new trial. 

B. Cross-Appeal—CM Holdings’s challenge to denial of JNOV. On crossappeal, CM Holdings argues the district court erred in denying it judgment 

notwithstanding the verdict because (1) the thirty-two inch guardrails were code 

compliant because they were “grandfathered in” and (2) if the guardrails were not 

code compliant, CM Holdings’ violation of the housing code was legally excused. 

“The legal excuse doctrine allows a person to avoid the consequences of a 

particular act or type of conduct by showing justification for acts that otherwise 

would be considered negligent.” Rowling v. Sims, 732 N.W.2d 882, 885 (Iowa 

2007). We have already determined that a violation of the guardrail ordinance 

does not establish conclusive proof of negligence, i.e., negligence per se. We 

believe the corollary is also true—that compliance with an ordinance that may or 

may not be grandfathered does not constitute conclusive proof of 

reasonableness. There is also a dispute regarding if the railings were 

grandfathered in and whether they had lost that status due to some modification 

of the railings by the attachment of plastic latticework by plastic zip ties. Finally, 

 

her landlord, asserting theories of common law negligence, negligence per se under 

Iowa Code section 562A.15(1)(d) (2005), and a violation of the implied warranty of 

habitability. Id. The trial court concluded section 562A.15(1)(d) was a general standard 

and did not give the jury enough information to determine whether the defendant was 

negligent per se. Id. Following an unfavorable verdict, the plaintiff appealed. We 

determined the plaintiff was entitled to a new trial because the trial court had not 

instructed the jury on her theory of liability under the implied warranty of habitability. Id.

at 442. But we found no error in the trial court’s rejection of negligence per se. See id.

at 443 (noting section 562A.15(1)(d) does not define what constitutes a good and safe 

working condition in a furnace, nor does it define adequate maintenance for a furnace 

but “merely indicates that the landlord shall maintain heating appliances in a safe and 

working order”). In a footnote, this court noted the landlord had complied with a Cedar 

Rapids municipal code requirement that furnaces were to be inspected every seven 

years. 
11

CM Holdings contends if they were in violation of the housing code, they were 

legally excused because of the extension afforded them by the city to rectify the 

problem, but it would seem CM Holdings could have withheld renting the units or 

locked access to the balconies until the work was completed. Yet, because we 

are remanding for a new trial, we leave these issues to the district court to rule on 

in the first instance. 

AFFIRMED ON BOTH APPEALS.

Vaitheswaran, J., concurs specially; Doyle, J., dissents.
12

VAITHESWARAN, J. (concurring specially)

I specially concur. I agree CM Holdings’s violation of the Des Moines 

housing code’s balcony-guardrail height requirement was evidence of negligence 

rather than negligence per se, but I write separately because I reach the 

conclusion for somewhat different reasons than the district court or majority.

First, I am not convinced this court’s opinion in Struve v. Payvandi, 740 

N.W.2d 436 (Iowa Ct. App. 2007), is controlling, as CM Holdings argues. In 

Struve, a tenant sued a landlord for a furnace malfunction, alleging “theories of 

common law negligence, negligence per se under Iowa Code section 

562A.15(1)(d) (2005)[9], and a violation of the implied warranty of habitability.” 

Struve, 740 N.W.2d at 438. Struve argued “the trial court erred when it refused 

to submit her negligence per se theory to the jury.” Id. at 442. This court 

acknowledged a statutory violation could constitute negligence per se, but stated 

“the statute must have enough specificity to establish a standard of conduct.” Id.

at 442-43. We said section 562A.15(1)(d) lacked the requisite specificity. It 

simply required the landlord to “[m]aintain” heating appliances “in good and safe 

working order” without defining “what constitutes a good and safe working 

condition in a furnace” or define “adequate maintenance for a furnace.” Id. at 

443. Because the statute was devoid of “a specific standard of conduct from 

which a fact finder could find a violation,” we concluded “the trial court did not err 

when it refused to submit Struve’s negligence-per-se theory to the jury.” Id. We 

had no reason to decide whether Iowa Code section 562A.15(1)(a)10 was 

 

9 This provision is now numbered Iowa Code section 562A.15(1)(a)(4) (2015).

10 This provision is now numbered Iowa Code section 562A.15(1)(a)(1) (2015).
13

sufficiently specific to establish a standard of conduct and whether breach of the 

standard constituted negligence per se. Accordingly, I believe Struve is 

inapposite.

Second, I believe Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994), 

permits a conclusion that a violation of a municipal housing code is negligence 

per se. In Griglione, the court first said, “[I]n order for the violation of rules of 

conduct to constitute negligence per se, those rules must establish specific 

standards that are to be followed unwaveringly in all instances. Whether this is 

the case is to be determined in light of the purpose of the particular rule.” 

Griglione, 525 N.W.2d at 812 (citations omitted). The court concluded certain 

written police procedures cited by the plaintiff failed to delineate the “type of 

precise standard required to invoke the negligence per se doctrine.” Id. Second, 

the court stated, 

[R]ules of conduct that establish absolute standards of care, the 

violation of which is negligence per se, must be ordained by a state

legislative body or an administrative agency regulating on a 

statewide basis under authority of the legislature. That is the 

position espoused in Restatement (Second) of Torts § 286 (1965) 

and followed by this court in Jorgensen, 206 N.W.2d at 102. 

Id. 

I agree Griglione mandates a statewide standard before violation of the 

standard will be deemed negligence per se. I disagree such a standard is absent 

here. 

Winger and Potts rely on more than the Des Moines housing code. They 

cite Iowa Code section 562A.15(1)(a) (2011) of the Iowa Uniform Residential 

Landlord and Tenant Act, which requires landlords to comply with applicable 
14

housing codes materially affecting health and safety. This is a statewide 

standard incorporating by reference municipal housing codes. The housing code 

provision—as prescribed by Griglione—is absolute and specific: balcony 

guardrails are to be no less than forty-two inches high. Cf. Struve, 740 N.W.2d at 

442 n.3 (noting Cedar Rapids municipal code contained general requirement to 

maintain heating equipment “in good and safe working condition”). 

I recognize the forty-two inch height requirement is not itself a legislative 

enactment of statewide application. This fact, CM argues, should preclude 

section 562A.15(1)(a) from being “construed as a basis for imposing negligence 

per se” because, then, section 562A.15(1)(a) “would serve as the basis for 

hundreds of different standards of care for landlords across the state.” The 

argument finds some support in Griglione, where the court stated, “There should 

not be differing standards of care based on the varying policies of the particular 

municipal corporation.” Griglione, 525 N.W.2d at 812. But this language is easily 

distinguished because Griglione dealt with written “procedures” rather than an 

ordinance. See also Jorgensen v. Horton, 206 N.W.2d 100, 103 (Iowa 1973) 

(declining to find breach of private safety code to be negligence per se because 

the code did not have “the force of law”). Unlike those procedures, ordinances 

have the force and effect of law. See Hedges v. Conder, 166 N.W.2d 844, 851 

(Iowa 1969) (“The prevailing view is that an ordinance of the character referred to 

here is not to be distinguished from a statute.”); Boardman v. Davis, 3 N.W.2d 

608, 611 (Iowa 1942) (“It is uniformly held that ordinances have the same force 

and effect within the corporate limits as do laws passed by the legislature.”). 
15

Accordingly, I believe the quoted language of Griglione is not an impediment to a 

negligence per se conclusion.11 

While, in my view, Griglione allows for a conclusion that a violation of a

specific standard in a municipal housing code amounts to negligence per se, I 

believe Montgomery v. Engel, 179 N.W.2d 478 (Iowa 1970), dictates a contrary 

result. There, a tenant fell on the apartment stairs. He sued the landlord for 

injuries, alleging in part that the landlord “failed to equip said stairway with at 

least one handrail in violation of” the Sioux City “minimum housing code.” Engel, 

179 N.W.2d at 481. The court squarely addressed the question “whether the 

alleged ordinance violation constitutes negligence per se or merely prima facie 

evidence of negligence.” Id. at 483. Acknowledging “prior cases have not been 

consistent in answering this question,” the court said the inconsistencies could be 

explained by the court’s focus on “the purpose and intent of the statute or 

ordinance involved.” The court endorsed “the wisdom of this approach.” Id. at 

483-84. Having found the ordinance evinced an intent to cover this type of 

situation, the court summarily held “evidence of violation of the ordinance here 

involved is prima facie evidence of negligence.” Id. at 484. 

As the majority points out, Engel was decided before the enactment of the 

Iowa Uniform Residential Landlord and Tenant Act. But it addresses the precise 

 

11 In my view, the larger hurdle faced by Winger and Potts in arguing that a breach of the 

Des Moines housing code was a breach of Iowa Code section 562A.15(1)(a) and 

amounted to negligence per se is the fact their daughter was a guest of a tenant rather 

than a tenant herself. The Iowa Supreme Court has declined to answer the question 

whether the Iowa Uniform Residential Landlord and Tenant Act imposes statutory duties 

on landlords for the benefit of visitors. See Crawford v. Yotty, 828 N.W.2d 295, 304 

(Iowa 2013) (“[W]e need not decide whether section 562A.15(1)(a)–(d) of the IURLTA 

imposes statutory duties that are applicable to visitors of tenants.”). We also do not 

need to consider the question because it was neither raised nor addressed in the district 

court. 
16

issue we face—whether a landlord’s violation of a specific municipal housing 

code requirement should constitute negligence per se or evidence of negligence. 

In my view, the court’s holding that the violation is simply evidence of negligence 

rather than negligence per se is controlling. Accordingly, I concur in the majority 

opinion affirming the grant of a new trial.
17

DOYLE, J. (dissenting) 

I respectfully dissent. I believe the violation of the Des Moines Municipal 

Housing Code’s balcony-guardrail minimum-height requirement was negligence 

per se, not merely evidence of negligence. For the reasons stated in the special 

concurrence, I too am not convinced that Struve v. Payvandi, 740 N.W.2d 436 

(Iowa Ct. App. 2007), is controlling. Although I also agree with the special 

concurrence that Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994), does not 

foreclose the possibility of a conclusion that a violation of a municipal housing 

code is negligence per se, I do not agree that Griglione mandates a statewide

standard before violation of the standard can be deemed negligence per se. 

Additionally, I part ways with the majority and special concurrence in that I do not 

believe Montgomery v. Engle, 179 N.W.2d 478 (Iowa 1970), is controlling in this 

case.

The Griglione court stated:

[R]ules of conduct that establish absolute standards of care, the 

violation of which is negligence per se, must be ordained by a state

legislative body or an administrative agency regulating on a 

statewide basis under authority of the legislature. That is the 

position espoused in Restatement (Second) of Torts § 286 (1965) 

and followed by this court in [Jorgensen v. Horton, 206 N.W.2d 100, 

102 (Iowa 1973)].

525 N.W.2d at 812. That is a misstatement and is not the position espoused by 

that Restatement or Jorgensen. See Jorgensen, 206 N.W.2d at 102;

Restatement (Second) of Torts § 286.

The Restatement defines “legislative enactment” as including “both 

statues and ordinances.” Restatement (Second) of Torts § 286 cmt. a (1965) 

(emphasis added). Furthermore,
18

Whether the legislative body of a municipality or other subdivision 

of a state has power to define a standard of conduct obligatory 

between citizens as to tort liability, is a question of public law . . . . 

In so far as there is such power, a municipal ordinance has the 

same force and effect as a statute enacted by the legislature of a 

State, or by the Congress.

Id. at § 285 cmt. b. Despite what Griglione says, the Restatement does not 

require that rules establishing absolute standards of care “be ordained by a state 

legislative body or an administrative agency regulating on a statewide basis 

under authority of the legislature” before a violation of the rule can be found to be 

negligence per se. See id.

Nor does Jorgensen stand for such a proposition. See Jorgensen, 206 

N.W.2d at 102. Jorgensen cites Restatement of Torts (Second) section 288B(1) 

(1965) as a “succinct statement of the rule” that the “unexcused violation of a 

legislative enactment or an administrative regulation which is adopted by the 

court as defining the standard of conduct of a reasonable man, is negligence in 

itself.” Id. Again, “legislative enactment” includes ordinances. See Restatement 

(Second) of Torts § 286 cmt. a (1965). Like the Restatement, Jorgensen does 

not require an ordinance to have statewide effect before a violation of it can be 

found to be negligence per se. See Jorgensen, 206 N.W.2d at 102. I can only 

conclude the “statewide standard” language of Griglione is unsupported dicta and 

is therefore not controlling upon us.

The higher hurdle plaintiffs face is the Montgomery case. 179 N.W.2d at 

478-84. In resolving the question of whether an ordinance violation constitutes 

negligence per se or just evidence of negligence, the Montgomery court 

acknowledged “our prior cases have not been consistent in answering this 
19

question. Each case has been decided in light of the purpose and intent of the 

statute or ordinance involved.” Id. at 483. In applying “the wisdom of this 

approach,” and with no analysis and discussion as to the purpose and intent of 

the ordinance in question, the court held that violation of a city housing code 

requiring handrails in stairways was prima facie evidence of negligence, not 

negligence per se. See id. at 483-84. The case at hand is distinguishable from 

Montgomery.

Here the ordinance has enough specificity to establish a standard of 

conduct. See Griglione, 525 N.W.2d at 812. In fact, it is very precise—a 

guardrail must be not less than [forty-two inches]” in height. The purpose and 

intent of the ordinance is crystal clear. Its purpose is to protect persons from 

falling from heights. Its intent is to prevent injury and death. Dr. Hinrich, the 

plaintiffs’ expert, testified the forty-two-inch requirement in the Des Moines 

housing code “originated from the International Building Code, the standard that 

has been adopted by most municipalities in the United States.” He further 

testified:

The International Building Code is based on—that they 

arrived at the [forty-two]-inch minimum height based on where the 

average person’s center of gravity falls when standing. And I’m 

sure that there was originally research done in order to arrive at 

that height of [forty-two] inches.

But essentially if you have a [forty-two]-inch high guardrail, 

for the vast majority of people, except for the tallest individuals, that 

[forty-two] inches will be above the height, the standing height, of 

one’s center of gravity.

And if you have something that’s above the center of gravity, 

you’re less likely to fall over it than if something is below the center 

of gravity. There’s something very important about that point that 

we call the center of gravity and how high it is relative to the top of 

the guard rail.
20

Dr. Hinrich opined that a forty-two-inch high guardrail would have saved Shannon 

from falling and that she would be alive today but for the fact the rail was thirtytwo inches instead of forty-two inches. This was precisely the kind of tragic 

incident the ordinance was designed to prevent. Viewed in light of the purpose 

and intent of the ordinance, I would conclude violation of the ordinance 

constitutes negligence per se. Accordingly, I would reverse the district court’s 

grant of a new trial, and I would reinstate the jury’s verdict.

As long as I have the podium, I address a frequently noted appellate 

practice issue. I observe that witnesses’ names were not placed at the top of 

each page where transcript testimony appears in the parties’ appendix. See

Iowa R. App. P. 6.905(7)(c) (“The name of each witness whose testimony is 

included in the appendix shall be inserted on the top of each appendix page 

where the witness’s testimony appears.” (emphasis added)). By this note, I do 

not single out these parties or their attorneys, for I have made similar 

observations in countless appeals. My comment is directed to the appellate bar. 

While the noted infraction may seem trivial, the violated rule is not just some 

rigmarole designed to create more work for the appellate lawyer. Having the 

name at the top of each page makes it much easier for the court to navigate an 

appendix. Compliance with the rule saves precious time, reduces frustration, 

and assists this court in meeting its mandate to achieve maximum productivity in 

deciding a high volume of cases. See Iowa Ct. R. 21.11.