No. 91-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1932 

SHIRLEY A. HERBST, 

Plaintiff and Appellant, 

-vsBESSIE MILLER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Peter M. Kirwan, Kirwan & Barrett, Bozeman, Montana. 

For Respondent: 

Gene I. Brown, Landoe, Brown, Planalp & BraaRsma, 

Bozeman, Montana. 

Submitted on briefs: November 8, 1991 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from the District Court of the Eighteenth 

Judicial District, Gallatin County. The plaintiff, Shirley Herbst, 

initiated a negligence action after sustaining injuries from a fall 

down the stairway of a building owned by the defendant, Bessie 

Miller. A jury found for defendant and judgment was entered. We 

reverse and remand. 

The sole issue for review is whether the District Court erred 

in refusing to instruct the jury that Bessie Miller was 'negligent 

per se' for allegedly violating building and maintenance 

requirements mandated by the Town of Belgrade. 

Bessie Miller (Miller) owns a building in Belgrade that 

includes a single rental apartment in the basement. The remainder 

of the building is occupied by a business owned and operated by 

Miller. The foundation, including the basement apartment, was 

built and the building moved onto the foundation in late 1977 or 

early 1978. The only access to the basement apartment is a 

concrete stairwell on the outside of the building. There was no 

handrail along the stairway prior to the plaintiff's accident. 

Shirley Herbst (Herbst) was visiting the tenant in the 

basement apartment in December, 1988, when she slipped, fell down 

the stairs and was injured. Herbst initiated this action, alleging 

Miller was negligent on several grounds. A jury trial was held. 

Among Herbst's allegations, she maintained that the absence of a 

handrail was in violation of the building and maintenance ordinance 

of the Town of Belgrade, was 'negligence per se', and that the jury 

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should be so instructed. Herbst's proposed instruction provided: 

If you find that the Defendant violated any of the 

following provisions of the State Building Code, then the 

Defendant is negligent. You should then determine whether 

that negligence was a cause of the Plaintiff's injury. 

The court declined to instruct the jury that breach of the building 

code is negligence as a matter of law because the court was 

concerned it would, in essence, be directing the verdict by 

diverting the jury from addressing the issue of causation. Any 

breach of the building code was determined by the court to be 

evidence of negligence and no more. The jury found no negligence 

by special verdict, and judgment was entered in favor of Miller. 

Herbst appeals. 

It is undisputed at the time of the accident there was no 

handrail along the basement stairway. Miller argues that the 

applicable building code did not require there to be a handrail 

when Herbst fell down the stairs. Resolution of this controversy 

requires our determination of the applicable building code. 

Prior to the 1977/1978 construction of the basement apartment, 

the Department of Commerce, pursuant to 3 50-60-203, MCA, adopted 

the Uniform Building Code (UBC), which, when adopted, constituted 

the State Building Code. Section 50-60-205, MCA, as amended 

effective April 4, 1977, provided: 

If a municipality or county does not adopt a building 

code as provided in 50-60-301, the state building code 

applies within the municipal or county jurisdictional 

area and the state will enforce the code in these areas. 

At the time the basement apartment was constructed, the Town of 

Belgrade had not adopted a building code, and the State Building 

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Code applied. Chapter 33, 53305 (j), of the 1976 edition of the 

UBC, as adopted by the State, requires that stairways have 

handrails. The basement apartment as constructed was in violation 

of the then applicable building code because no handrail was 

installed. 

Section 50-60-301, MCA, provides that 

The local legislative body of a municipality or county 

may adopt a building code by ordinance to apply to the 

municipal or county jurisdictional area. 

On January 8, 1979, the Town of Belgrade pursuant to 5 50-60-301, 

MCA, adopted by reference the 1976 edition of the UBC. 

In 1981, the State Legislature amended 5 50-60-102, MCA, 

modifying the State's application of the UBC. Section 50-60-102, 

MCA, as amended in part provides: 

(1) The state building codes do not apply to: (a) 

residential buildings containing less than five dwelling 

units. . . . 

Miller argues that the Belgrade ordinance adopting the UBC and 

requiring handrails cannot be retroactively applied to her 1977 

construction of the basement apartment. Furthermore, Miller argues 

that the accident occurred after the 1981 amendment and buildings 

such as Miller's are no longer required by the State to have 

handrails because it is a residential building with a single 

dwelling unit. Herbst, Miller contends, must show that the code 

was not only in effect at the time of construction, but also that 

it remained in effect at the time of the accident. 

As previously stated, Miller was in violation of the 

applicable code (the State Code) at the time of construction. 

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Furthermore, the State's application of the UBC, in regards to 

residential dwellings like Miller's, was modified by the 1981 

amendment to 5 50-60-301, MCA. In 1988, the State Building Code 

provisions regarding the installation of handrails were not 

applicable to Miller's building. However, we must take into 

account that municipalities have been authorized to regulate by 

their own building codes. 

Here, the Town of Belgrade did adopt their own code, the UBC. 

However, Belgrade has not modified the application of the UBC as 

did the State. The Town of Belgrade continues to apply the UBC to 

single unit buildings such as Miller's. The 1988 edition of the 

UBC, Chapter 33, (now) §3306 (j) , continues to require handrails on 

stairways such as the one leading to Miller's basement apartment. 

Miller's building was required to have handrails installed at the 

time of construction (via the State Code) and continues to be 

required to have handrails (via the Town of Belgrade's ordinance 

adopting the UBC). Miller violated both the building code in 

effect at construction and the building code in effect at the time 

of Herbst's accident. 

The remaining question is whether Miller's violation of the 

building code is negligence per se or whether the District Court 

correctly characterized the violation as evidence of negligence. 

We have held that violation of an administrative rule adopted under 

5 50-60-203, MCA, as in the instant case, is not negligence per se 

but instead is evidence of negligence. Cash v. Otis Elevator 

Company (1984), 210 Mont. 319, 684 P.2d 1041. In Otis, we 

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recognized that § 50-60-203, MCA, mandates the Department of 

Commerce to adopt rules but that the legislature did not act 

further to incorporate by reference the rules adopted by the 

agency. In contrast, we held that violation of a national standard 

adopted by specific statutory reference is negligence as a matter 

of law. Martel v. Montana Power Company (1988), 231 Mont. 96, 752 

P.2d 140. In the instant case, the legislature has not adopted the 

UBC by reference. Therefore, violation of the State Building Code 

is violation of an administrative rule and is only evidence of 

negligence and not negligence per se. 

However, we have determined that the applicable building code 

at the time of the accident was the UBC as adopted by the Town of 

Belgrade. The Town of Belgrade adopted a resolution whereby the 

UBC is incorporated by reference. The ordinance adopted by the 

Town of Belgrade unambiguously states that it is unlawful to 'I. . 

. use, occupy or maintain any building or structure in the Town 

limits, or its jurisdiction . . . contrary to or in violation of 

any of the provisions of this Code." In Martel, we determined that 

standards implemented for public safety are not only applicable for 

initial design and construction but can also include elements of 

maintenance. Martel, at 103. 

We conclude, the ordinance, by its wording, adopted by the 

Town of Belgrade applies to the maintenance of all buildings in the 

Town of Belgrade's jurisdiction. Miller's failure to install a 

handrail leading to the basement apartment is a failure to maintain 

her building in adherence with the ordinance and is therefore a 

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violation of the ordinance. It is long settled that violation of 

a city ordinance constitutes negligence per se. Marsh v. Ayers 

(1927), 80 Mont. 401, 260 P. 702. 

The District Court erred by not instructing the jury that 

violation of the Town of Belgrade’s municipal building code was 

negligence per se. Herbst is entitled to such an instruction and 

therefore the District Court is reversed and this case is remanded 

for further proceedings consistent with this opinion. 

We Concur: -7 

Chief Justice 

LUrSt’ices Wt’ices 

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