Present: All the Justices 

KANEY F. O'NEILL 

v. Record No. 031824 OPINION BY JUSTICE ELIZABETH B. LACY 

 April 23, 2004 

WINDSHIRE-COPELAND 

ASSOCIATES, L.P., ET AL. 

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT 

 On July 30, 2003, the United States Court of Appeals for 

the Fourth Circuit entered an order of certification 

requesting that we exercise our certification jurisdiction, 

Va. Const. art. VI, § 1, Rule 5:42, and answer the following 

question: 

If the defendant-owner of an apartment building 

is negligent per se because the protective 

railing on its apartment balcony does not 

comply with the height requirements of a 

municipal building code, and if that negligence 

is a proximate cause of the plaintiff's fall 

from the balcony and her resulting injuries, is 

the plaintiff's contributory negligence 

available to the defendant as a complete 

defense? 

Resolving the issue will determine the outcome of the 

proceeding in the Court of Appeals. We accepted the certified 

question by order entered October 28, 2003. For the reasons 

stated below, we answer the certified question in the 

affirmative. 

 The order of certification from the Court of Appeals sets 

forth the following facts. Kaney F. O'Neill became a 
quadriplegic when she fell backward over a second-story 

balcony railing at an apartment complex in Newport News, 

Virginia, on September 15, 1999. When the apartment was built 

in 1963, the Newport News Building Code required such balcony 

railings to be forty-eight (48) inches high. See Code of City 

of Newport News § 10-3 (1962) (incorporating the National 

Building Code); Nat'l Bldg. Code § 605.4 (1955). The balcony 

railing at issue here, however, was only thirty-two (32) 

inches high.1

O'Neill filed suit in the United States District Court 

for the Eastern District of Virginia, asserting that the owner 

of the apartment complex, Windshire-Copeland Associates, L.P.; 

its general partner, Robert Copeland; and the management 

company for the apartment complex, Hercules Real Estate 

Services, Inc., (collectively "Windshire") were negligent 

because the balcony's height did not comply with the 

requirements of the Newport News Building Code at the time the 

apartment complex was built and that such negligence was a 

proximate cause of her injuries. At trial, testimony was 

admitted showing that O'Neill was familiar with the balcony 

and that she had consumed alcohol prior to the accident. 

 1

 Virginia adopted a statewide building code in 1973 that 

requires balcony railings to be at least forty-two (42) inches 

high. 

2
At the close of the evidence, the trial court held

Windshire negligent per se because its balcony violated the 

height requirement of the Newport News Building Code. The 

trial court also held that Windshire's negligence did not bar 

its defense of contributory negligence and, accordingly, 

submitted that issue to the jury. The jury found O'Neill 

contributorily negligent. Based on that finding, the trial 

court entered judgment in favor of Windshire, and O'Neill 

appealed that judgment to the United States Court of Appeals 

for the Fourth Circuit.

DISCUSSION 

The discussion by the Court of Appeals, in its 

certification order, and the arguments the parties advanced 

focused primarily on whether Virginia has adopted § 483 of the 

Restatement (Second) of Torts (1965). That section provides 

that, when a defendant's negligence consists of the violation 

of a statute, a plaintiff's contributory negligence bars his 

recovery for injuries caused by the negligence of the

defendant "unless the effect of the statute is to place the 

entire responsibility for such harm as has occurred upon the 

defendant." Comment (c) to § 483 explains that a statute 

places the entire responsibility for harm on the defendant 

"where it is enacted in order to protect a certain class of 

persons against their own inability to protect themselves." 

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Restatement (Second) of Torts § 483, cmt. c, at p. 539 (1965). 

Comment (d) goes on to state that even though "those for whose 

benefit the statute is enacted may be expected to be, and are 

in fact, fully able to protect themselves," the statute may 

nevertheless relieve such persons from doing so and place on 

the defendant the entire responsibility for avoiding the harm. 

O'Neill maintains that the concept embodied in § 483 is 

one "firmly entrenched in the common law" and "embraced for 

nearly a century by this Court." Applying that concept here, 

O'Neill argues that the building code is one of those statutes 

that places on the defendant the responsibility for injury 

resulting from a violation of its provisions and, thus, 

O'Neill's negligence should not defeat her recovery. 

As O'Neill acknowledges, the cases upon which she 

primarily relies for the proposition that Virginia has adopted 

the concepts embodied in § 483 of the Restatement, Atlantic 

Coast Line R. Co. v. Bell, 149 Va. 720, 141 S.E. 838 (1928), 

Clinchfield Coal Corp. v. Hawkins, 130 Va. 698, 108 S.E. 704 

(1921), and Carter Coal Co. v. Bates, 127 Va. 586, 105 S.E. 76 

(1920), addressed whether a defendant could plead the 

assumption of the risk defense when the defendant's violation 

of a statutory requirement was a proximate cause of the 

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plaintiff's injury.2

 The theory of the defendants advanced in 

those cases was that the plaintiffs had known that the 

defendants had not complied with the statutory requirement 

and, therefore, the plaintiffs had assumed the risk of harm 

resulting from such lack of compliance.

The seminal case in this Commonwealth rejecting an 

attempt by a defendant to raise the assumption of the risk 

defense under these circumstances involved a coal company's 

failure to provide for a "conspicuous light" on the front and 

rear of coal hauling machinery as required by statute. Carter 

Coal, 127 Va. at 598-99, 105 S.E. at 80. The Court’s decision 

in that case was based on the principle that, if the miningsafety legislation at issue had not abrogated this common law 

defense, the "systematic violation" of the statute through the 

purported risk-assumption by the plaintiff would defeat the 

statute's purpose. Id. at 601-02, 105 S.E. at 81. As we 

later stated in Atlantic Coastline:

 2

 O'Neill also relies upon Gallagher v. Stathis, 186 Va. 

444, 43 S.E.2d 33 (1947), for her position that Virginia has 

recognized and adopted § 483. In Gallagher, the trial court 

refused a jury instruction that the plaintiffs were 

contributorily negligent because they agreed to live in a 

house with only one staircase in violation of the building 

code. This Court affirmed the trial court's action because 

there was no evidence to support the granting of an 

instruction on the theory of contributory negligence, id. at 

451, 44 S.E.2d at 37, and any implication to be drawn from the 

citation to foreign authority on the issue of the availability 

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[I]f the employer may avail himself of the 

defense that the employee agreed in advance that 

the statute should be disregarded, the court 

would be measuring the rights of the persons whom 

the law makers intended to protect by the common 

law standard of the reasonably prudent person, 

and not by the definite standard set up by the 

legislature. This would be practically a 

judicial repeal of the act. 

149 Va. at 735, 141 S.E. at 842, citing 18 R.C.L. § 169 at 

680-81 (1917) (quoting D.H. Davis Coal Co. v. Polland, 62 N.E. 

492, 496 (Ind. 1902)). 

O'Neill argues that because assumption of the risk and 

contributory negligence are "doctrinally related" and " 'often 

overlap,' " the rationale precluding the defense of assumption 

of the risk in these cases "applies with equal force to the 

defense of contributory negligence." However, the rationale 

we utilized in Bell and its predecessors for excluding 

assumption of the risk cannot extend to the defense of 

contributory negligence. 

The difference between assumption of the risk and 

contributory negligence as they relate to a defendant’s 

negligence per se stemming from a statutory violation was 

explained in Pocahontas Consolidated Collieries Co. v. 

Johnson, 244 F. 368 (4th Cir. 1917), the case upon which 

 

of contributory fault as a defense was therefore, at most, 

dicta.

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Carter Coal relied in rejecting the defense of assumption of 

the risk: 

Assumption of risk and contributory negligence 

stand in a different legal relation to the 

violation of a . . . statute. Assumption of risk 

imports no delict on the part of an employe[e] 

. . . . Contributory negligence . . . is a delict 

or neglect of duty by the employe[e], and hence he 

cannot recover for the delict of the employer, 

. . . if his own delict has contributed to his 

injury as a proximate cause. 

Id. at 372. 

This fundamental difference between the effect of the 

assumption of the risk and contributory negligence defenses 

negates the proposition that our jurisprudence precluding the 

use of assumption of the risk defense also precludes the use 

of the contributory negligence defense that § 483 of the 

Restatement (Second) of Torts provides. 

Nevertheless, we recognize that there are circumstances 

in which a legislative body may determine that, because of the 

nature of the regulation or the class of persons the 

regulation was intended to protect, the defendant should bear 

the entire responsibility for harm that the failure to comply 

with the regulation causes. For example, the General Assembly 

has specifically made such a determination in Code § 8.01-58 

by providing that contributory negligence "shall not bar a 

recovery" in actions brought by employees against a common 

carrier where death resulted from the common carrier's 

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violation of "any statute enacted for the safety of 

employees." See also Code §§ 46.2-932.1, -934, 56-416, and 

former Code § 56-417.3

We need not decide here whether application of that 

principle can be implied in statutes that do not specifically 

state that the defense is not available. In this case, 

nothing in the Newport News Building Code indicates that the 

purpose of the code was to place the entire responsibility for 

injuries stemming from a code violation on the defendant 

building owner. Unlike Code § 8.01-58, nothing in the Newport 

News Building Code allows recovery regardless of a plaintiff’s 

negligence. The code protects no specific class; it is the 

public in general that benefits from its provisions. Indeed, 

a person who never entered a building but only stood outside 

could be injured as a result of a building code violation. 

Nor would allowing the defense of contributory negligence in 

this case defeat the building code's purpose of height 

requirements and "'work a judicial repeal of the Act'" as 

 3

 Violations of the child labor laws are also not subject 

to the defense of contributory negligence because children 

under the age of 14 are presumed incapable of contributory 

negligence, Virginia Electric and Power Co. v. Dungee, 258 Va. 

235, 246-47, 520 S.E.2d 164, 171 (1999), and, regardless of 

any violation of such laws, child employees are subject to the 

Workers' Compensation Act, Code § 65.2-100, et seq., which 

does not allow the defenses of assumption of the risk or 

contributory negligence. Roller v. Basic Constr. Co., 238 Va. 

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O'Neill asserts. Only if a combination of a defendant's code 

violation and a plaintiff's independent negligence caused the 

plaintiff's injury would the plaintiff be unable to recover. 

Under these circumstances, allowing a contributory negligence 

defense neither compromises nor subverts the policy advancing 

compliance with the building code. 

For these reasons, we conclude that § 483 of the 

Restatement (Second) has not been adopted in this state and 

hold that the defense of contributory negligence is available 

when the defendant's violation of a municipal building code is 

negligence per se and a proximate cause of the plaintiff's 

injuries. 

Certified question answered in the affirmative.

 

321, 327, 384 S.E.2d 323, 325 (1989); Rasnick v. The Pittston 

Co., 237 Va. 658, 660, 379 S.E.2d 353, 354 (1989). 

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