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Torts—Negligence Per Se Must be Based Upon Specific Legal Requirement Not General Standard of Care

Posted by Ted A. Schmidt | Aug 03, 2020 | 0 Comments

Torts—Negligence Per Se Must be Based Upon Specific Legal Requirement Not General Standard of Care

Ibarra v. Gastelum, No. 1 CA-CV 19-0597 (App. Div. I, July 23, 2020) (J. Thumma) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV19-0597%20-%20Ibarra.pdf

VIOLATION OF LANDLORD/TENANT STATUTE REQUIRING LANDLORD KEEP APARTMENT “FIT AND HABITABLE” IS NOT NEGLIGENCE PER SE/LANDLORD TENANT ACT MAKES NO REFERENCE TO PERSONAL INJURY ACTIONS, DOES NOT CREATE A SPECIFIC LEGAL REQUIREMENT ONLY A GENERAL STANDARD OF CARE

Plaintiff injured his toe on a crack in the floor of his apartment and sued the landlord for personal injury. There was a question of fact as to whether the landlord had notice of the crack. The trial court denied plaintiff's request for a negligence per se instruction based on an alleged violation of the Landlord/Tenant Act, A.R.S. sec. 33-1324 (A)(2) which requires a landlord keep “premises in a fit and habitable condition.” The jury was instructed on premises liability law and negligence only. The jury found for the defendant and plaintiff appealed. The Arizona Court of Appeals affirmed.

The court of appeals found it noteworthy that the Landlord/Tenant Act makes no reference to personal injury law and does not specifically create a cause of action for personal injury should the act be violated.  Further, the requirement that a landlord keep premises “fit and habitable” is at best a general standard of care and lacks the necessary specificity required for application of the doctrine of negligence per se. For negligence per se to apply the statute must “express rules of conduct in specific and concrete terms as opposed to general and abstract principles.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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