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  • City ordinance requiring hazardous buildings to have seismic retrofitting by a certain date did not insulate owners of an unreinforced building from negligence in failing to retrofit the building.

    Myrick v. Mastagni (2010) 185Cal.App.4th1082,111Cal.Rptr.3d165
    Case Digest Presented by Steven R. Cuneo, Jr., Esq. at the 17th Annual GGLTS Review Preview Seminar (2011)

    Key Points:
    1) Property Owners must use ordinary care in management of their property to prevent injury to others.
    2) Compliance with a statute, ordinance or regulation ordinarily defines a minimum standard of care.
    3) Accordingly, statutory compliance is not generally a defense to tort liability.

    In 1993, the Paso Robles City Council passed an ordinance requiring owners of specified buildings to retrofit those buildings within 15 years. In 1998, the City Council amended the ordinance and extended the deadline for compliance to 2018. On the morning of December 22, 2003, the San Simeon earthquake struck. Two women who worked in a retail store located in a 111-year old brick building in downtown Paso Robles fled into the street when the shaking started. Unfortunately, a portion of the building collapsed into the street in which they fled, crushing them. Surviving family members of the two women sued the building’s owners for negligence in failing to perform seismic retrofitting of the building. A jury found the owners negligent and awarded substantial damages. The jury also found that the owners were members of a joint venture in the ownership and maintenance of the building, making the defendant’s jointly and severally liable for the judgment award. AFFIRMED. On appeal, the building owners argued that the trial court erred in refusing to find that as a matter of law they had no duty to retrofit until 2018, the deadline established by the amended ordinance. The Court held that, in general, statutory compliance is a weak defense to a tort liability. This is because a statute, ordinance, or regulation ordinarily defines a minimum standard of conduct which does not preclude a finding that a reasonable person would have taken additional precautions under the circumstances. Defendants further argued that in passing an ordinance with a 2018 compliance date, the City Council ordinance inherently reflects a balance of safety, community interests and costs. The Court was unconvinced. While the city likely did take into consideration the interests of building owners, the overriding concern was that of public safety and reducing the risk of death or serious injury from seismically unfit buildings. To hold, as a matter of law, that a building owner has no duty until after the compliance date of the ordinance would frustrate the very policy that the ordinance was designed to promote. The Defendant’s also argued that the trial court erred in making the defendants jointly and severally liable for the non-economic damages. They argued that under Civil Code section 1431.2, the liability of each defendant for non-economic damages “shall be several only and shall not be joint.” However, the Court found that because the defendants were all parties to a joint venture, section 1431.2 did not apply.

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